Posted May 30, 2008 by J. Gerald Hebert
Settlement Agreement Reached in Texas Voting Rights Lawsuit
Trial was scheduled to begin this week in Willie Ray v. State of Texas, but just as the trial was about to get underway a “settlement agreement” was reached. The Ray suit was a multi-claim challenge brought in 2006 to various provisions of the Texas Election Code, and the methods by which those laws were being interpreted and enforced by the Texas Secretary of State and Texas Attorney General. One of the most controversial provisions of the Code under challenge was the provision that makes it a crime to possess the mail-in ballot of another voter. A number of the plaintiffs who brought this case had been prosecuted or investigated under this provision for allegedly mailing ballots of elderly, disabled voters (as they had done for years) and allegedly failing to sign the ballot envelope (signing the envelope exempts the mailer from prosecution under this provision). The
Center serves as co-counsel for the plaintiffs in the case. This case was brought to the
Center’s attention in 2006 as a result of reports by the Lone Star Project.
In exchange for plaintiffs’ dismissal of most of their claims in the lawsuit, the Texas Attorney General and Secretary of State each agreed to undertake certain actions. First, the Defendant Attorney General and counsel for Plaintiffs crafted new language to be included in the Attorney General’s manual of investigative priorities and prosecution criteria. The new language states the Attorney General will now give “less consideration” to complaints that simply allege a person has mailed a ballot for another (without signing the ballot envelope) unless there is evidence of actual fraud. That change is important for two reasons.
First, Plaintiffs Ms. Willie Ray and her granddaughter, Jamillah Johnson, were prosecuted and pled guilty to mailing ballots for elderly disabled seniors, and not because they had engaged in any fraudulent activity. Similarly, two other plaintiffs from
Worth, Gloria Meeks and Rebecca Minneweather, were investigated by the Texas Attorney General for allegedly mailing ballots of elderly disabled voters (again with no allegations or evidence of any fraud). Plaintiffs Ray, Johnson, Meeks, and Minneweather are all African-American. Plaintiff Gloria Meeks had also been the center of some controversy in 2006 when it became public that investigators from the office of Texas Attorney General
Greg Abbott had peeped through her bathroom window as she was taking a bath and getting dressed. Under the Attorney General’s new policy, none of the actions that any of these women undertook in prior years should be subject to investigation and prosecution in the future. Both Meeks and Minneweather had been an under a cloud of investigation for the last two years, but the lawsuit produced an acknowledgement by the Attorney General this month that neither of these two women were the subject of any ongoing investigation and their cases were closed.
Second, by adopting a policy that cases of simple possession of another’s ballot would receive less consideration than in the past -- unless there was actual evidence of voter fraud, -- the Texas Attorney General also acknowledged that the indictments and guilty pleas of those who had been prosecuted for mere ballot possession did not involve voter fraud. This concession was important to Plaintiffs because the Texas Attorney General had repeatedly touted their indictments and convictions as evidence of a voter fraud “epidemic.” In making it clear that cases of mere ballot possession would be prosecuted only when there was other evidence of voter fraud, Plaintiffs felt vindicated that their actions (and convictions) had not been about voter fraud, but rather the hyper-technical violation of failing to sign the carrier envelope.
Plaintiffs had also challenged the failure of the State to publicize the challenged provisions of the Election Code, most of which were enacted in 2003. Plaintiffs also challenged these laws on the grounds that a number of the provisions were vague. In the settlement, the Texas Secretary of State agreed to include in his Fall 2008 letter to every voter requesting a mail-in ballot a notification that if someone mails their ballot for them, the mailer must sign the mail-in ballot envelope and that a failure to do so constitutes a violation of the Election Code. The Secretary of State also committed to including such notice to voters in subsequent election years. The Secretary of State’s office also agreed to post on its website a Notice that those mailing a ballot for a voter (and not related to the voter or living at the same address) must sign the carrier envelope and print their name and address on the envelope, and that a failure to do so constitutes a violation of the Election Code.
In addition, the Secretary of State acknowledged that the lawsuit “necessitated” other changes in documents that the Secretary of State produces regarding mail-in balloting. To that end, the Secretary of State made changes that to the mail-in ballot envelope, the ballot carrier envelope, and the related instructions. For example, these materials now inform persons possessing or mailing a ballot that they must sign the envelope and include their name and address, and the carrier envelope was also redesigned to provide a place for mailers to sign (which did not exist before). The Secretary of State also agreed to meet and confer in good faith with counsel for Plaintiffs about further changes to the carrier envelope and instructions to make clear the do’s and don’ts of mail-in ballot procedures as well as changes to the Secretary of State’s online voting pamphlet and other election documents about early mail-in voting. The settlement agreement also expressly provides for the Plaintiffs and Secretary of State to work together to craft new clarifying and explanatory language for each of the following provisions of the Election Code: 64.036(a)(4) (i.e., that this provision does not prohibit approaching a stranger to offer assistance in voting (as the Secretary of State’s current document suggests); 84.003(b) (i.e., that the term “otherwise assists” regarding mail-in ballot applications refers to assistance as defined in another provision of the Election Code (64.0321); and 86.006(e) (i.e., that the ban on the “collecting” and “storing” of ballots does not prohibit a person from gathering and mailing multiple ballots so long as the mailing is done promptly and all identifying information is provided).
Finally, the settlement left one of Plaintiffs’ claims pending: the challenge to Section 84.004 of the Election Code, which criminalizes the witnessing of more than one mail-in ballot application in an election. Plaintiffs contend this limitation is unconstitutional, as well as inconsistent with and in violation of Section 208 of the Voting Right Act.
Center serves as co-counsel to the plaintiffs along with the
DC law firm, Spiva & Hartnett LLP; the
Texas law firm of
Ireland, Carroll & Kelley, P.C.; and Eric Albritton of the Albritton law firm in