So, as 2014 winds down (and as the whirlwind of holiday events overtakes me), here’s a brief sampler of some of the issues likely to affect Texas election lawyers in 2015:
1. The Dropping of the Other Shoe
At some point, the U.S. Supreme Court will presumably take a look at Veasey v. Perry. I’d like to be an optimist, but the oligarchs have signaled that they are bored with even the most meritorious arguments regarding systemic racism in Texas elections. I predict that the majority will step gingerly over an angry and honest dissent, with mumbled apologies for having shut the door on the Civil Rights movement. The disaster, if it comes, will be cloaked in language absolving Texas of having introduced “unintentional” and “de minimus” racial bias into its voter I.D. laws.
2. The Windmills at Which We Will Tilt
Once again, legislative bills designed to drag Texas into the mid-20th century of election reform (including electronic registration, same-day registration, instant run-off voting, voting rights for felons, and bipartisan or non-partisan redistricting) will wend their way towards early deaths in committee.
3. Any Thoughts of Election Finance Reform, Civil Rights Protections, or Revitalization of the Voting Rights Act May Now Be Safely Dismissed
Now that the Party of No is firmly and conclusively in charge, you may be assured that any notions you might have had regarding Congressional responses to Shelby County v. Holder or Citizens United v. FEC can be dismissed out of hand, at least until the earlier of either the November 2016 elections or hell freezing over.
After the November election, a number of editorial articles came out with variations on the following theme – that the various depressing voter I.D. laws didn’t actually have much effect on elections. Because hey, the Republicans knocked the elections out of the park, right? That happened despite disproportionately good turnout among minority voters in some elections.
Such editorials are music to the ears of the extreme right (“Yeah. See, we’re not racists. If we were racists, we would have had to turn the firehoses on the swarms of minority voters that voted in the November 2014 federal elections. But we didn’t have to use firehoses or police dogs, or even fire any tear gas into the polling places. Therefore, we have conclusively demonstrated that we’re not racists. Plus, we love democracy. Democracy was very good to us.”) and to the defense attorneys representing the State of Texas in its appeal of Veasey v. Perry et al.
I mean, if an editorial by Nate Cohn in the New York Times, (that notorious hotbed of centrist legal opinions), comes out saying that voter I.D. weren’t no big deal, then the centerpiece of the plaintiffs’ evidence against the State in Veasey is undermined, and the State should walk on all charges, right?
Mr. Cohn’s argument runs like this: It must be the case that 600,000 Texas voters weren’t disenfranchised because if they had been disenfranchised, they would have been turned away from the polls. Since 600,000 people weren’t turned away from the polls, 600,000 people weren’t disenfranchised. Quod erat demonstram. Ipso facto. Res ipse loquitor. Et cetera.
And because only a fraction of all registered voters lack sufficient I.D., (say, 9 percent, or 11 percent, or something like that) it means that voter I.D. laws don’t actually change election outcomes. Right? Right? Because if the bad guy won by 20 percent, then even if all the voters without i.d. had been able to vote (and even if all of them had voted for the bad guy’s opponent), the bad guy would still have won by 11 percent, or 9 percent. Or whatever.
I’ve written about this before, but maybe if I write slower and louder, people will begin to understand.
The secret to getting people not to vote is to discourage them from attempting to vote. And because the cost of voting is so high compared to the benefit, it is very, very easy to discourage people from voting.
And when people don’t vote, they don’t make an ostentatious show of not voting. They don’t gather en masse, carrying placards and linked arm-in-arm at the polling place to not cast their ballot, in a vast silent repudiation of their civic authority. Such mass demonstrations by non-voters would be quite satisfying, if they happened, and would make for some fun political theater. But they don’t happen, because showing up at a polling place to not vote is almost as much bother as showing up at a polling place to vote.
Non-voters don’t go out of their way to proclaim their nonvoting status. They go to work or school. They run errands. They watch T.V. Some of them register to vote, but fail to register on Mr. Cohn’s radar, and so he assumes that they don’t exist. Some of them fail to register to vote, period, and so they don’t even show up in the statistics of “registered voters who lack i.d.”
The authors of the sociological studies at the heart of the plaintiffs’ case in Veasey v. Perry didn’t merely rely on the self-selecting sample of voters who actually go to vote. They called people up and asked them direct questions about their status as voters, and about their inclination to vote or not vote, based on their circumstances.
As it turns out, (as amply demonstrated by our most recent election) disenfranchisement works. It would have been embarrassing to the arch-conservative proponents and apologists for picture i.d. requirements if disenfranchisement hadn’t worked, because it’s actually kind of an administrative pain in the ass to exclude those naughty liberals from the polls, and it costs money to administer draconian voter i.d. laws. Luckily for the right, everything went swimmingly.
Let’s look at the November 2014 elections in one Texas county, and see how disenfranchisement succeeded in that county.
Harris County, Texas
Voters in Harris County had a long ballot to work on this year, in part because this very heavily populated county has an enormous county and district judiciary to handle the legal caseload generated by its roughly 4,330,000 residents. As it seems to happen every four years, the district and county courts were filled by Republican candidates, who pretty uniformly won their seats by consistent margins, just as they had even when Bill White carried Harris County in 2010.
2010 was a watershed year for the county – it was the first Federal decennial census in which Harris County had more than 4 million people. The City of Houston, meanwhile, was estimated to have just a smidge under 3 million people; there’s no doubt that Houston, like much of urban Texas, is experiencing a tremendous population boom. In fact, the county has added roughly 240,000 people or more since the 2010 Census; my guess (and the guess of the U.S. Census demographers) is that the recent population increase skews in favor of Hispanic or Latino residents.
As of the 2010 Census, slightly more than 40% of the Harris County population identified as Hispanic or Latino, while about 33% identified as non-Hispanic white, and about 18.4% identified as non-Hispanic black. As of 2013, those percentages were estimated to work out as 41% Hispanic, 19% Black, and 32% non-Hispanic white.
A lot of people under 18 live in Harris County, so let’s say that only about 72 percent of the total population are voting age. That’s about 3,117,600 voting age people in Harris County as of 2013.
So … how successful have people been at registering Harris County residents to vote? Well, out of those 3.12 million voting-age people in Harris County, only 2.06 million were registered to vote in the November 2014 election. So let’s see, um, that’s a 66% registration rate.
Hmm. Let’s see. In 2002 (a relatively slow gubernatorial election year, with anemic turnout), there were 1.9 million registered voters in Harris County.
But … Wait. What? That’s almost as many registered voters as there are now in that county.
What was the voting-age population of Harris County in 2002? Well, the estimated 2002 population in the county was 3.54 million. Of those, we’ll guess that around 71% were 18 or older (based on the 2000 census data). So that’s an estimated voting age population of 2.51 million in 2002, of whom 1.9 million were registered. That’s a 75.6% registration rate.
I’ll admit that a 75.6% voter registration rate wasn’t spectacular in 2002. But it was definitely better than a 66% registration rate in 2014. If the Harris County Voter Registrar had managed to just tread water with regard to registration between 2002 and 2014, we’d expect that there would be about 2.36 million registered voters in Harris County as of the November 2014 election.
Which works out rather nicely as a shortfall of 300,000 people in the Harris County voting-age population who should have been registered voters (based on historic trends), but who weren’t registered.
Now … from 2002 to 2014, the racial demographics in Harris County basically flipped for white and Hispanic voters. In 2002, about 42% of the voters were non-Hispanic whites, and about 32% of the voters were Hispanic.
What the Texas Republicans realized in 2011 is that they would have to find a way to discourage both voter registration and voting in Harris County, so that while the percentage of non-Hispanic registered voters would remain roughly steady (rising a very modest 8% over the course of 12 years), the percentage of Hispanic registered voters would need to go down. And it would need to go down by a big margin.
The available tools were varied, and ranged from bad-faith purges and registration challenges to outright bullying and strong-arm tactics. But none of those tools would be as effective (in terms of the percentage of potential votes suppressed) as a simple increase in the opportunity costs of voter registration and voting.
This is an area deserving of additional study, but I would hazard that by focusing solely on the suppressive effect of voter i.d. laws as applied to registered voters, studies by the Brennan Center and others have dramatically underestimated the intended and successfully achieved levels of vote suppression generally. The underestimate is the result of failing to consider the suppressive effect of harsh election laws not just on the people who are already registered to vote, but also on the people who haven’t registered yet.
If the suite of laws enacted in 2011 (not just picture i.d., but also restrictions on volunteer deputy registrars, the mealy scrutiny and comparison of error-ridden databases, etc.) managed to drop voter registration in Harris County by around 13%, and the picture i.d. requirement managed to mess up voter eligibility for around 9% to 11% of the remaining 2.06 million voters, wouldn’t it be more accurate to say that (in Harris County, at least) that voter suppression succeeded in three ways, by:
(1) trimming the rolls of around 300,000 (mostly minority, poor, or elderly people) who would otherwise have registered to vote;
(2) discouraging another 180,000 to 220,000 registered voters from bothering to vote (the latter group also being disproportionately composed of minorities and the poor), and;
(3) so debasing and screwing up the election experience for everyone else that turnout was at an all-time low (around 678,000 votes cast in the big races, or around 33% of the registered voters).
It starts to look like the Republicans were running up the score in an unseemly way. I mean, if you start with 3.12 million possible voters (more or less), disenfranchise one sixth of those voters (say, around half a million), and then demoralize two thirds of the rest so badly that they don’t bother to come out and vote, well then … voila!
You get an instant Republican grand slam. A mandate for the ages, and an endorsement by our polity of the emerging πρωκτοκρατία (proctocratia, i.e., a form of government known as a proctocracy, administered by proctocrats).
Hey! You there! Candidates in Harris County who lost!
If you lost, and you lost by a margin of around 24% of the vote or less, strongly consider filing an election contest. Remember – such an action must be initiated not later than 30 days after the canvass of your election, by filing suit in district court. Your clock is ticking. Also remember (if you’re feeling a little sheepish about filing such a lawsuit) – that the November 2014 general election was an illegal election.
As for Mr.Cohn of the New York Times, here are some general tips for successfully navigating the confusing world we live in.
Sometimes bad actions are identified by absence, rather than presence. For example, if you are in a coal mine, and most of the canaries have suddenly gone silent, that isn’t proof that the remaining canaries are happy and content. That’s evidence that something is wrong.
“Well, everyone said that when the crew hit that natural gas pocket, it created a poisonous atmosphere. But I heard that at least 32% of the canaries were still singing. Therefore, the natural gas pocket could not have had any measurable effect on the health of the canaries. Q.E.D. Res ipse loquitor. Et cetera, et cetera. Say, does anyone else feel a little light-headed?”
There are lots and lots of think pieces about the disastrous November 2014 general election, both with respect to the outcome in Texas and in the United States as a whole. When I say that the election was “disastrous,” I want my meaning to be clear – the overwhelming victories accorded to well-funded conservatives in this election cycle presage years of needless human misery and suffering, no matter what victories ordinary people may ultimately wrest from the plutocrats. Suffering is the price we pay for sliding further into the grim age of the corporate state, and recompense for that suffering (which must inevitably be paid for with blood, in French Revolutions and other terrible ways, as James Anthony Froude was wont to say), will only add to the agony.
It turns out that when money votes, one gets the kind of result that one would expect from an inanimate object with political opinions. The results tend to be inhuman and buoyed up by the sorts of self-justifications and myths that only make sense to things that don’t have central nervous systems.
With respect to second-guessing and dissing Democratic Party GOTV efforts, I think Charles Kuffner’s analysis is better and more on-the-nose than most of the other political reporters in the State. His review of turnout and comparisons with the 2010 gubernatorial election help counter the popular narrative that the 2014 disaster in Texas was solely the result of errors and missteps by Battleground Texas.
Given the collapse of Democratic Party efforts outside of Texas, involving candidates and races supported by other fundraising and campaign organizations that weren’t Battleground Texas, it’s clear that the 2014 election outcome in Texas was not an outlier, or the result of some terrible gaffe or strategic misstep peculiar to the Texas elections.
Battleground Texas demonstrated that concerted efforts did improve Democratic Party candidate outcomes (compared to 2010) in a number of conservative state legislative districts. Among other things, Wendy Davis’s numbers in Tarrant County showed her remarkable strength in a blood-red county, improving on Bill White’s 2010 turnout among Democratic Party voters (and in pouring rain, to boot).
Battleground Texas was extremely good at building a statewide volunteer network, and its volunteers and staff worked very hard to protect voting rights in general. I say this with only a slight whiff of personal bias, given that I did some volunteer work on Election Day for the Battleground Texas Voter Protection Hotline. ;^)
However, (as Mr. Kuffner notes) Battleground Texas is not exempt from criticism for some of its mistakes. In particular, county precinct chairs complained that Battleground Texas used its volunteers ineffectively in some circumstances, with poor and out-of-date precinct voter data, ineffective block-walking efforts, and non-existent or token communication with local Democratic Party officers and candidates. But these are all correctable mistakes that really reflect nothing more than the fresh-faced naivete of itinerant out-of-state campaign runners who lacked experience with regional Texas elections. And despite the mistakes, (as Mr. Kuffner’s review suggested) there are a number of Republican incumbents in the Texas Legislature who are only going to become more vulnerable.
If Battleground Texas had run a flawless campaign, would it have made any difference? The national picture suggests that a comparative analysis of the mountains of dark money pouring into campaigns would have been a far better predictor of outcomes than any other metric, and that the Republican Party candidates gave themselves the best election that money could buy.
Here are a few thoughts on the election, offered up as I process my grief.
1. Um, you do know that there are actual ballots remaining to be counted, right?
One of my frustrations with media treatment of elections is the insatiable need for everyone to know RIGHT NOW exactly what has happened. As things stand, at this very moment, the tally of the election has not been completed, and will not be completed until after the end of the “cure period” for provisional voters who voted without sufficient I.D.
But it was unseemly (to the point of malpractice) for national news outlets to pull the sheet over the Texas body politic and call the time of death WHILE VOTERS WERE STILL IN LINE. There were huge long lines in Tarrant, Dallas, Harris, Travis, and Bexar counties, and many polling places across the state were still processing voters at 8:30 p.m.
So I hear you say, “But Joe, so what? Even if you pretend that every uncounted ballot was for your slate of candidates, it won’t matter. The outcome will be what it is. Why quibble over calling the election at 7:30 p.m. versus calling the election a week from today?”
Because it’s wrong, that’s why. Because elections are complex, multivariate events, where what seem like long shots and unshakeable trends don’t necessarily conform to the selective sampling of early-received precinct totals. Because none of the provisional ballots have been counted yet – the very same provisional ballots that provided some safety net for the voters who may have needed to cure issues with their voter I.D.s, or for the voters who, but for the offer of a provisional ballot, would have been denied an opportunity to correct some misunderstanding or bureaucratic error regarding their registration status.
What all of the news media outlets were doing was insulting to the people whose ballots haven’t been counted yet, because it amounted to a hasty refutation of the very voters who are most poorly served by society in the first place.
Well viewers, with a whopping 2 out of every 100 ballots counted, we can confidently say that among the voters who matter (disproportionately white suburban voters with drivers’ licenses and quiet, uncrowded polling places), the choice is clear. And for those of you still in line (disproportionately minorities, the young and elderly, living in areas where voting equipment and personnel were rationed and throttled), give up, chumps. You could be home watching Matlock reruns and eating cold cat food out of the can.
And for those of you who voted by mail (disproportionately old or disabled), or voted provisionally (disproportionately minorities), or voted from overseas, may we say, uh, we appreciate that you wanted to get a gold sticker for your pathetic attempt to participate in the democratic process, but seriously, who ever believed that we really cared what you thought?
2. Why Concede Before the 10:00 p.m. News?
My advice to the statewide Democratic Party candidates in Texas would have been to delay the concessions until this morning at the earliest. Why on earth would anyone want to hand Greg Abbott additional TV time right in the news cycle sweet spot? It’s an act of submission that benefits no one, and that further erodes the public capacity for patience and delayed gratification.
3. I Keep Waking Up In The Wrong Universe
Seriously, it’s like a Philip K. Dick novel around here.
On Election Day, I did volunteer work on the Battleground Texas Voter Protection Hotline, and I want to thank the Director of Voter Protection for Battleground Texas for her too-kind invitation and encouraging words.
Mimi Marziani, an energetic and unflappable civil rights litigator, voting rights organizer, and unstoppable whirlwind, is still tirelessly hard at work at this moment, helping voters and fighting the fight right now, and was incredibly generous to invite me (a complete stranger!) to help voters. Welcome to Texas, Mimi!
I’d also like to thank all the attorneys and staff in the Statewide Voter Protection Hotline in Fort Worth – (I apologize for not being better with names, but you were all incredibly welcoming, wonderful, kind, hard-working, unflagging, brilliant and brave people), with a special thanks to my fellow voter protection attorney Michael Ybarra for transporting me all the way from Austin to Fort Worth and back.
All the volunteers in the field, at polling places, and at all the regional boiler rooms and the state and national boiler rooms worked fiercely and unwaveringly to defend the rights of voters to cast their ballots, and there are many, many voters across the state who owe a debt of gratitude to these volunteers. Thanks to all of you, and safe travels.
I’ll have no postmortems today, as I don’t approve of the vivisection of an election that hasn’t even been completed yet.
I’ve been quick to criticize the Austin-American Statesman for silly election stories, and so it’s only fair that I should praise them profusely for today’s top story (behind a paywall, alas) – that the Attorney General paid thousands of dollars in state money to anti-abortion activist Vincent Rue, who was a consultant for the State’s defense of its recent anti-abortion law. Veteran political reporter Chuck Lindell has managed to scoop every other state and national news outlet on this story.
In writing about the secret contract between the A.G. and Mr. Rue, Lindell notes that:
[H]iring Rue as a trial consultant backfired when U.S. District Judge Lee Yeakel overturned key parts of the state’s sweeping abortion law on Aug. 29, ruling that Rue’s involvement undermined the credibility of the state’s expert witnesses.
Yeakel also admonished Abbott’s office over its strenuous pretrial fight to withhold Rue’s email exchanges from lawyers for abortion providers, writing that he was “dismayed by the considerable efforts the state took to obscure Rue’s level of involvement with the experts.”
According to Rue’s contract, he was an independent contractor who could be paid no more than $40,000, plus expenses. Other documents show he was paid just over $42,000, but a breakdown of expenses wasn’t available.
Other contract provisions enhanced privacy:
• Rue couldn’t issue press releases or make public announcements about his work.
• The document specifies that Rue had a “confidential relationship” with Abbott’s office in connection with the court case.
• No written reports could be generated without prior approval from the office.
The decision not to release the contract to the Statesman came two weeks after state lawyers argued — unsuccessfully — that emails between Rue and the state’s expert witnesses were protected from disclosure.
Lindell, Chuck, “Greg Abbott’s office reveals contract with abortion opponent” (Austin American-Statesman, November 1, 2014) A1, at p. A7.
In part, the story is about open government records and about Abbott’s efforts to deny access to information about how taxpayer money is spent, and in part, it’s about how ideology and money intersect in the demimonde of the extreme right wing.
And of course, it’s partly a story about an election, about timing and news cycles, and about the potential effect that scandalous news has on Election Day voting (the story came out one day after early voting ended in Texas).
Abbott comes off particularly poorly in the story because of his personal supervision and control of the secret contract, and because his cloak-and-dagger tactics were ultimately disastrously damaging to both his and the State’s credibility in court.
In general, scholarly studies of scandal, corruption, and the effect of political controversy on electoral choice have focused on U.S. Congressional elections, because the number, public visibility, and geographic variety of these elections make them popular fodder for academic scrutiny.
Although the methodology and definitions of what constitutes a “scandal” vary, common themes emerge when looking at the literature on this subject.
The studies consistently find that when compared to non-scandal-ridden candidates;
(1) a candidate’s association with a scandal has a material effect on the election outcome, losing the candidate between 5% and 10% of the vote, especially if the scandal is of a nature that fails to benefit the financial interests of voters, and that
(2) when scandals break, they generally prompt an increase in advertising spending by opponents, with a consequent secondary effect on vote outcomes. Peters, J. and S. Welch, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections, (The American Political Science Review, v. 74, p. 697 (Fall 1980)); Welch, S. and J. Hibbing, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections 1982-1990, (The Journal of Politics, v. 59, p. 229 (1997); Basinger, Scott, Scandals and Congressional Elections in the Post-Watergate Era (Political Research Quarterly, June 2013, v. 66(2) p. 385) (abstract available online at http://prq.sagepub.com/content/66/2/385.full.pdf+html).
However, because this scandal broke after in-person early voting was completed, the effect is muted because roughly half of the votes in this election have already been cast. Additionally, because the story has not broken widely beyond the Statesman yet (in part because the Statesman is justifiably proud of its scoop and hasn’t shared it widely), there are as yet few ripples of public reaction to the story in the instant media Panopticon.
If I were to hazard a guess, I’d say that if the Davis campaign puts a targeted ad into wide circulation this weekend (along with widespread social media promotion, push-polls, mentions in public addresses, etc.), that it might peel away a little less than 10% of Abbott’s Election Day vote, cumulating in maybe a 5% hit to Abbott’s vote totals.
I saw on Rick Hasen’s blog that he had already posted this link to a Guardian story about Texas voters – the story is as good an illustration of the profound wrongness of Texas voter I.D. law as any I’ve seen.