A Quixotic Take on the Redistricting Lawsuit

In Wednesday’s Austin American-Statesman (July 23, 2014),  Shane R. Saum offered his prescription for fixing what ails Texas partisan politics. Analogizing the redistricting process to a flat tire, he recommended that we scrap “winner-take-all” elections altogether, and instead adopt some system of proportionate voting.  (Saum, Shane, “Texas Redistricting Case Should Be About Failed Voting System,” Austin American-Statesman, p. A11 (July 23, 2014)).

Mr. Saum’s reasoning proceeded as follows – partisan gerrymandering is used to preserve the political advantage enjoyed by a ruling political clique. But if Texas had something more like a parliament, with legislative seats doled out in proportion to the votes received by various candidates, then voting turnout would go up, minority political representation would be assured, the party in charge would be forced to treat with a balancing and vigorous coalition of the Distinguished Opposition, and we would never need to worry about a lack of parity in voting strength when comparing voters across the state.

This is certainly an imaginative approach toward the issue of unequal representation and gerrymandering. It’s also a really weird way to sell the argument against winner-take-all, two-party systems, and most of the architecture of local, state, and federal representative government in the United States.

At the risk of seeming mean, I have to say that Mr. Saum’s well-intentioned suggestion is singularly naive, myopic, impractical, in direct conflict with our state constitution and the U.S. Constitution, and fundamentally at odds with political reality. Finally, and most sadly, proportionate representation is worse than no solution to violations of the Voting Rights Act. Proportionate representation is irrelevant to the problem of racial discrimination in the context of voting and elections.

Notice I didn’t say that proportionate representation is a bad thing in the abstract – as with so much in government, it’s neither good nor bad, just different. Governments that are organized to provide proportionate representation are perfectly workable, and we have examples of such governments from all over the world, usually in the context of national legislative assemblies like the Japanese Diet, the Israeli Knesset, the Parlamento Italiano, and so on. Various political parties run a slate of candidates, and then get to seat their candidates based on some formula that reflects the relative success of those parties in an election.

So one can certainly imagine an alternate universe version of Texas in which the state would be governed by a regional Chamber of Deputies whose membership would reflect various mainstream and fringe political ideologies, in varying proportion to their popularity. And one can also imagine a United States with a national parliament, maybe with a couple hundred members representing a dozen or more factions and parties, all jockeying intensely for numerical presence in a coalition government. And all this multiparty activity and coalition-building might very well suffer from as much or more racial discrimination as we see in our own world.

Two-party politics, winner-take-all, and partisan gerrymandering do not cause racial discrimination, and while these elements of the electoral process reflect racial discrimination, these elements are not symptomatic of racial discrimination.

The use of proportionate voting systems may aid in the elimination of two-party politics, first-past-the-post elections and single-member districts, but it will not eliminate racial discrimination. Racial discrimination is symptomatic of cultural tensions that will be expressed by and through one-party,  two-party, any-party, no-party and multi-party politics, as evidenced by the ongoing present race-based exclusion of candidates and suppression of voters in not just partisan elections, but also in purely non-partisan local races, single-party nominating elections, party caucuses and conventions, and even in measure elections that answer pure policy issues, in which there are no candidates at all.

 

 

Cameras In the Polling Place – What a Terrible Idea

Per Rick Hasen’s election law blog,  I see that those endlessly inventive folks in Wisconsin are contemplating allowing cameras into polling places in order to, you know, check up on what the voters are doing.

The policy reasons for excluding cameras, tape recorders, and other recording devices from the sacrosanct confines of the polls are many and obvious. For one thing, it’s certainly creepy and intimidating to allow someone to watch a voter as they vote – whatever happened to ballot secrecy? If voters are watched, it makes it easier for bad guys to threaten voters. To be fair, the policy analysts who were asked to draft the proposed law have pointed out that they think admission of cameras to the polls is not a good thing. But this is Wisconsin we’re talking about – the Republican majority under Governor Walker has already displayed a propensity for embracing bad ideas when it comes to voting restrictions.

There’s been no corresponding push to let cameras into Texas polling places, for which I’m grateful. And Texas law currently imposes strict prohibitions against such intrusions into the peace and quiet of the polling place. Tex. Elec. Code Section 61.014.

So, What in the Texas Election Code Needs Fixing Most?

More than once, I’ve daydreamed about a better Texas Election Code. But it’s a fair question to ask me what part of the law I’d fix first. What aspect of the law most needs correcting?

Luckily, that question can be answered quickly and easily just by getting rid of the elements of the Election Code (in Section 63.0101, and the related sections). that have gotten the State of Texas in so much hot water – namely, the picture I.D. requirements for voter identification that were added in 2011. So that’s at the top of the list of things to fix.

But what else needs getting fixed?

The second thing on the list would be getting rid of the pointless restrictions on deputy voter registrars. Tex Elec. Code Section 13.031(e), and related sections including Section 13.047. The notion that volunteer deputy voter registrars are somehow suspiciously bad people is silly and paranoid – as I and others have repeatedly pointed out, scheming criminal masterminds usually try to hide their crimes, not openly advertise their wrongdoing in the public record.

Some parts of the Texas Election Code just stand out as products of ill-will and general nastiness. Other parts are just as much in need of reform, but are not as obvious.

One of the most glaring flaws in the Election Code, and one that has lingered for decades, is the crazy, backwards way that the political primaries are conducted and funded. Tex. Elec. Code Chapter 173. That sordid statutory stain stretches back to the bad old days of the “Whites Only” primaries and the quaintly restrictive notion that the parties could limit candidate access by forcing the candidates to pay all the expenses associated with conducting nominating elections. When Federal courts struck down Texas candidate fees as unconstitutional, the state reacted by curling up in the fetal position, cobbling together a wheezing, falling-apart mechanism of taxpayer reimbursement for primary expenses that is … um … unique (“unique” being a polite euphemism for “bizarre” and “frustratingly unwieldy.”)

So that’s my starting place for a better Election Code – begin by rolling back Chapters 13 and 63 to what they looked like before the Legislature decided to hate the voters, and then follow up with reforms to the funding of primary elections.

 

Residence and Domicile Redux

Charles Kuffner has done a couple of nice articles about a now-completed lawsuit involving Houston Community College trustee Dave Wilson. (see http://offthekuff.com/wp/?p=61703, and see http://offthekuff.com/wp/?p=61692). Mr. Wilson was sued by the community college, which alleged that Mr. Wilson wasn’t a resident of the community college district, and therefore was not eligible to continue as a trustee. The jury disagreed, and so (unless an appeal is forthcoming) Dave Wilson has been conclusively determined to be a resident of the Houston Community College District.

Evidently Mr. Wilson is something of a locally notorious political gadfly in Houston, and has gotten a reputation for claiming residence wherever he needed to in order to run for various public offices. People were suspicious that he didn’t really, really, cross-your-heart-really live inside a warehouse while at the same time claiming a homestead tax exemption for another property where his wife resided.

But, to his credit, Mr. Wilson treated the warehouse like home and had his blood pressure medication mailed to that address, among  other things.

The saga of gaming residence for the sake of running for office – what a tangle of legal precedent it provides. Mr. Kuffner has used the occasion of the Wilson lawsuit to suggest some sort of legal reform to our statutory definition of residence, mindful of the weeds and quicksand. Mr. Kuffner’s suggestion is to treat an out-of-territory homestead exemption as a bar to holding office within a territory (assuming the jurisdiction in question has a residence requirement for holding office).

I. IS DOMICILE THAT IMPORTANT?

I guess another way to ask the question is to ask why a person’s domicile is important to office holding, voting, paying taxes, or what-have-you. The short answer is that domicile isn’t important, except when we want it to be important.

Historically, domicile hasn’t been that important as a criteria for being in power, but has been more important as a criteria for being subject to power. To oversimplify – the sovereign governs a territory by means of might, or divine right, or whatever, regardless of the sovereign’s domicile. Meanwhile, the peons, peasants, or rabble have to live where they’re told to live, and abide by the rule of whoever is in charge of the territory that they are compelled to call home.

Obviously, nobody challenged Genghis Khan on residency grounds – his qualifications for office were amply represented by the piles of skulls he tended to leave lying about. But even in modern postindustrial democratic territories, domicile is often not a primary determiner of one’s qualification to office.

In Great Britain, one may stand for parliamentary election by completing  nominating forms and submitting a fee of £500 to an election official – the relevant application form is available here (at http://www.electoralcommission.org.uk/__data/assets/electoral_commission_pdf_file/0009/83169/UKPGE-Nomination-Forms-Final.pdf) in case you’d like to give it a whirl.

Now, it’s not as though just anybody can run for office in Great Britain. Members of the House of Commons are subject to a number of qualifications, and do have to abide by laws that more-or-less modernize the candidate application and campaign fundraising process.

But candidates for parliament don’t have to live in the districts that they represent. They do appoint agents who are constituents of the district, and if elected, they have certain minimum obligations to their constituency in terms of accessibility and office hours. But the members of the national legislative body do not have to live anywhere in particular, and in fact, they may reside outside of the country altogether, as long as they are still subjects of the British Crown. For details, see the Representation of the People Act 1983, as amended (available at http://www.legislation.gov.uk/ukpga/1983/2). Residency is important, but only for determining the qualifications of the electors – not the candidates.

In the U.S., the drafters of the Constitution were slightly more inclined to require a geographic association for officeholders, but they tended not to extend any sort of domiciliary test to candidates. Members of Congress must be residents of the state from which they are elected, but do not have to be residents of any particular part of the state, and do not have to meet any sort of minimum durational residency test prior to taking office. Article I, Sections 2 and 3, U.S. Constitution. (available from many online sources, including: http://www.law.cornell.edu/constitution/articlei).

I bring all this up as a reminder that there’s no inherent necessity to link residence with office. If we do make a requirement that someone has to consider a district their “home” in order to represent that district, such a policy choice is just that – a choice. Supporters of such requirements would likely argue that members of … say for example … the Houston Community College District Board of Trustees … should be residents of the community college district so that they will be personally invested in the problems and conditions of the district, forced by geographic proximity to share the experience of living in the Houston Community College District. We certainly don’t want those outsiders and strangers who live across the street from the Community College District to come in and impose their seditious ideologies and strange ways, do we?

II. RESIDENCE REQUIREMENTS MIGHT BE A LITTLE ARBITRARY, BUT SO WHAT? GIVEN THAT SUCH REQUIREMENTS DO EXIST FOR MOST LOCAL ELECTIVE OFFICES, HOW DO WE DEFINE THOSE REQUIREMENTS FAIRLY?

Well, what is “fair?” I mean, any definition of domicile will involve some subjective standard for determining the sincerity of a person’s … hearth-cleaving. (Hearth-cleaving is my made-up term for domiciliary intent; it means, “emotional and physical ties to the one place in all the world that is home.”)

Legislatures, disgruntled losing candidates, judges, juries, voters, and angry political rivals have searched high and low for some universally applicable sure-fire objective test or standard for hearth-cleaving that would guarantee the exclusion of the carpetbagging outsider from office. But for every bright line test, there will come some sympathetic officeholder whose exclusion is unfair. Because there is really just one test underlying all these tests of domicile and residence. Is the candidate or officeholder one of us, or is the candidate or officeholder not one of us?

III. SO, TO SUM UP, RESIDENCE REQUIREMENTS ARE ARBITRARY, SUBJECTIVE, AND A SOURCE OF ENDLESS FACTUAL DISPUTE, AND THEY ALWAYS WILL BE, AND THAT’S JUST INHERENT IN THE IDEA OF HOME, COMMUNITY, AND BELONGING OR NOT BELONGING TO A PLACE?

Yup.

 

 

Six Politiqueras Arrested In Cameron County for Vote Fraud

This story out the valley (see http://www.kveo.com/news/six-cameron-county-individuals-arrested-voter-fraud-charges) has gotten some legs, in part because the arrests indicate that the net is widening following the conviction of Yolanda Solis for illegal voting in the 2012 Democratic Party primary election in Cameron County. For a somewhat more salacious report that identifies the factions involved, see: http://rrunrrun.blogspot.com/2014/07/hernandez-vote-harvester-t-chavez.html?showComment=1405543781968. I tend to agree with the blog author and blog comments that we’re likely to see more indictments come out of this.

While the arrests and indictments are interesting, I note that the alleged crimes are not particularly sophisticated. One reason why illegal voting does not happen in general is because the act of illegal voting leaves a broad and easily traced paper trail. Because, you know, in order for a criminal mastermind to actually illegally vote, he or she has to fill out paperwork.

Imagine how much easier it would be to prosecute bank robbery if every bank robber had to fill out a deposit slip with their name and contact information.

 

What Would a Crowdsourced Election Code Look Like?

A few jurisdictions around the world have begun tentatively experimenting with the use of a public participatory system to draft legislation; in the United States, the State of California has taken the lead with the nation’s first legislative drafting tool explicitly designed for mass participatory input.

Setting aside my own ego (I don’t want an election code drafted by everybody. I want an election code drafted by people who agree with me), I’m curious. What do you think a crowdsourced election code would look like?

I’ve been working off and on drafting my own “dream” version of an ideal election code that I will post excerpts from as I make progress.

Michael Li Cuts Through the Complexities of Perez v. Perry

Michael Li was the creator of the now-dormant go-to blog for Texas redistricting information (http://txredistricting.org/), but has moved on to bigger things at the Brennan Center for Justice at NYU School of Law. Now that the nation’s eyes turn once again towards Texas and our state’s sometimes appalling politics, Mr. Li has penned this excellent summary of the suit, at: http://www.brennancenter.org/blog/texas-redistricting-battle-begins.

And this is the sort of lawsuit that very much benefits from expert analysis, because Perez v. Perry has outlasted the miniscule attention span available in broadcast media. My favorite bit of unhelpful analysis was something I overheard on our local NPR station yesterday – a pundit suggested that no matter which way the court ruled, conservatives would count coup against the U.S. Department of Justice.

His reasoning went like this – if the judicial panel in San Antonio finds discriminatory intent behind the 2011 redistricting, that finding will prompt “bail-in” review of Texas voting procedures under Section 3(c) of the Voting Rights Act, which will then vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas. And if the judicial panel finds that the plaintiffs have not proven discriminatory intent, that will also vindicate conservative arguments that the Voting Rights Act is mean and unfair to Texas.

Ho-kay. That was 15 seconds of sound bite that (1) fluffed anti-Voting Rights Act weirdo egos; and (2) was otherwise bracingly free of any actually useful analysis. It would have been more helpful if the pundit had said, “if, and to the extent that race does get used as a proxy for political self-identification, are we as a society okay with discriminatory intent? That question is a central one to the resolution of this lawsuit.”

As things currently stand, it’s legally okay for the majority party to cement its dominance through partisan redistricting. But as a practical matter, partisan redistricting is racial redistricting. And racial redistricting as practiced by many jurisdictions is redistricting intended to neutralize minority participation in the democratic process.

For the past year or so (and really, for the past eight years (and really, really, for the past … um … many decades that I’ve been a voter (and really, really, REALLY, for at least as long as I’ve been intellectually aware of the political process))), I’ve struggled with the question, “why do we vote?” Why does anyone vote? Why don’t we all vote? What is it we achieve by voting?

I haven’t always been consistent. I’ve wavered between two poles, (one being, “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign rule. We vote in order to ratify the coercive distribution of limited resources among alternate uses.” The other pole is “to the extent we vote, or more formally, to the extent that the public franchise is extended to anyone, the act of voting is the inalienable fountainhead of sovereign choice. We vote in order to achieve the optimal distribution of limited resources among alternate uses.”)

Those two positions don’t seem very far apart, do they? But they are – they are as far apart as they can be.

I mean, ultimately those two formulations (as you parse them out) could be distinguished like this. Some people (mostly on the liberal side of the political spectrum, but not exclusively) say that to vote is to participate in community. It isn’t that the individual choices actually made by the voters are good or bad, or that voting is any more likely or less likely to get us to some sort of perfect outcome, but that whatever outcome we choose (even the stupidest, worst, most costly, or most cruel outcome) can’t be legitimized unless we’ve all gotten to voice our opinion of that outcome.

Other people (mostly on the conservative side of the political spectrum, but not exclusively) say that to vote is to participate in strategic decisionmaking. In order to get the best, least stupid, most optimal outcome, we have to endlessly tweak and fiddle with the voting process to ensure that the stupidest, worst, most inept or cruel decisionmakers don’t get to participate.

Thanks to an exchange with a smart, thoughtful political economist currently at the LBJ School of Public Affairs at U.T. Austin (this is a shout out to Eli Poupko (http://www.utexas.edu/lbj/phdstudents/eliezer-poupko), and best wishes on your pending article), I realized that I hadn’t thought critically enough about this very fundamental philosophical divide that runs like a canyon across the breadth of political discourse.

I was sort of an outlier in my thinking on this topic – I self-identify as being on the “smart,” “wise,” “correct,” liberal side of most political questions, and instinctively, I wanted to tweak the voting process to diminish the impact of “stupid,” “foolish,” “uneducated,” “cruel,” “dull-witted,” “immoral,” “fat-headed,” conservative voters.

But the source of better policy isn’t better voting. In one sense, there’s no such thing as better or worse voting, at least in regards to the ratification of democratic policy choice.

The source of better policy choice rests in creating a better electorate. And you don’t get a better electorate by exercising discriminatory choice with respect to who gets to vote. You get a better electorate by building a better society. And you build a better society through education.

As a postscript, you also don’t get a better electorate by preserving the artificial legal fiction that partisan competition justifies gerrymandering and voter discrimination, or that the Department of Justice or the Voting Rights Act is somehow unfair because it doesn’t foster discriminatory intent.

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