Texas attracted national attention for a variety of changes it made to its voting policies. The new state law banned two practices that Houston had used for the first time during the pandemic election: 24 hour voting and drive-thru voting. The new law also made it a felony for a public official to send someone a mail-in ballot application the person did not request, or to pre-fill any part of any mail-in ballot application they are sending to someone. The law also gave greater powers to poll watchers.

Though these are some of the most high-profile changes that attracted national attention, the DOJ suit recently filed does not challenge any of these provisions. Instead, DOJ’s complaint only takes aim at two provisions it believes violate federal law:

• First, Section 208 of the Voting Rights Act establishes that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” DOJ argues that the new TX law prohibits providing some forms of assistance to voters who need it that this provision of the VRA entitles those voters to have.
• More significantly, the new law shifts from using signature matching to validate absentee ballots to a system based on numerical identifiers. Voters must now include on their absentee ballot materials either a driver’s license number, election identification certificate number, personal identification certificate number, or partial social security number, unless the voter has certified that he or she has not been issued such a number. If the ballot fails to comply, it must be rejected. This shift from signature matching to numerical identifiers for absentee ballots has been made in a number of states. DOJ argues that this requirement violates provisions of the VRA that prohibit “deny[ing] the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” Put more simply, the argument is that requiring this numerical identifier on absentee ballots is not “material” in determining whether someone is qualified to vote.
• This use of the “materiality” provision in the VRA to challenge statewide policies on voter identification is an interesting legal strategy. At this stage, it is not clear whether DOJ’s theory here is that requiring any proof of identification on an absentee ballot beyond a signature would violate the VRA or that while some numerical identifier might be appropriate instead, the particular ones Texas has chosen need to be broadened to include additional forms of identification.