Federal Judiciary

Court Declines to Hold Texas Absentee Ballot Law Unconstitutional

By Michael Smith

Yesterday, Judge T. John Ward in Marshall declined to strike down as unconstitutional a recent Texas law which imposes restrictions on the rights of elderly and disabled voters to seek assistance in casting their ballots by restricting the number of absentee ballot applications that a person may witness. This decision may be the first in a series of cases that, relying on the recent Indiana voter ID decision of the U.S. Supreme Court, declines to set aside state laws regarding the rights of voters.  The Court, explicitly following the Supreme Court's Crawford decision, held that the "one witness" restriction in Texas did not violate the Constitution.  (Ed. note: press coverage of this decision states that Judge Ward "upheld" the statute or that "the court's decision will make voting harder for the elderly" as if the ruling is simply Judge Ward's take on what the law ought to be regarding how many absentee ballots someone should be allowed to witness.  I feel constrained to point out that all a judge can or should decide in a challenge such as this is whether the statute enacted by the Legislature is impermissibly inconsistent with the Constitution, or is required to be set aside due to some conflict with a federal statute.  It does not "uphold" the statute or decide if the statute is sound public policy, substituting its judgment for what the Legislature decided.  The flaws or merits of the statute, to the extent they exist, are the fault or the credit, depending on your perspective, of the legislators that passed it, not the reviewing court.  Pragmatically, if Texas judges spent all their time setting aside every dimwitted, backwards or just plain goofy law the Texas Legislature has ever passed, they'd never get any work done.  But that isn't their job, and I think we ought to keep that in mind.  Editorial over, and back to the ruling)
Although noting the testimony concerning the impact that § 84.004 has had, and will have, on voters and those who assist voters, Judge Ward concluded that "the record lacks concrete evidence that § 84.004 has had an appreciable impact on elderly and disabled voter participation. On this record, the court cannot conclude that § 84.004 has had a 'chilling effect' on voters or that § 84.004 has 'disenfranchised' the voting public to any appreciable extent."
Judge Ward also rejected the plaintiffs' claims that the "one witness" restriction was inconsistent with Section 208 of the Voting Rights Act, which gives the right of a voter to be assisted at any point if the voting process by a person of the voter's choice. But in holding that the one witness rule did not on its face interfere with the right to choose one's assistor, the Court noted that "[t]he State's position is that Section 208 empowers the voter to choose the person who will assist him or her, but the voter is not entitled to his or her preferred choice if that choice is reasonably restricted by the state. In the State's view, the protection afforded the voter by Section 208 is simply that the voter is not required to accept another person's choice."
There was a settlement of most of the claims in the case in late May of this year, and this holding does not affect that settlement, is my understanding.

Full post as published by Eastern District of Texas Federal Court Practice on August 08, 2008 (boomark / email).