As reported in a recent Ken Herman Austin American-Statesman column, Senator Don Huffines of Dallas has filed S.B. 703 in order to eliminate the use of non-permanent early voting locations; while Representative Valoree Swanson of Spring has filed H.B. 1773, which imposes a big limitation on tax and bond elections by imposing a floor requirement that in order to pass, tax rate increases and voter-approved bonds would have to be voted on by a minimum of 25% of the total number of registered voters in a jurisdiction.

Legislative efforts to limit the amount of early voting and to limit approval of bond elections are consistent with planks 59, 76, and 178 of the current Texas Republican Party platform. As I mentioned in my previous post about two other election bills, we can see the genesis of these election-related bills expressed in various election reform policy statements made by the Texas Republican Party. So in one sense (i.e., as legislative codifications of Republican Party policy statements) S.B. 703 and H.B. 1773 are neither remarkable nor particularly surprising.

The League of Women Voters of Texas and the Texas Association of School Boards oppose  S.B. 703 due to that bill’s limitation on early voting polling places, 

I. S.B. 703 BARS THE USE OF TEMPORARY STRUCTURES FOR BRANCH EARLY VOTING IN ALL ELECTIONS, AND INVALIDATES THE RESULTS OF ANY REVENUE-RELATED ELECTION THAT IS CONDUCTED USING TEMPORARY STRUCTURES FOR EARLY VOTING

In Ken Herman’s story, Senator Huffines describes the goal of S.B. 703 in the following terms:

“What we’re trying to solve is manipulation of the result of an election by moving the polling location to benefit one side or the other.”

He’s particularly suspicious about school district bond elections. He claims school officials, seeking approval for bonds for a new football stadium, have put mobile early voting places at the old stadium on Friday nights, eager to connect with fans who’d like a new stadium.

“When you move the mobile polling booth to the football stadium on Friday nights, that does seem to have an impact on the election results,” Huffines said, offering no examples but adding: “There’s no question they do it.”

Interestingly, (and as a clarification of S.B. 703’s effect as drafted), the bill globally affects the ability of election administrators to use temporary structures to accommodate early voting in all elections—federal, state, local, elections for officers, party primaries, etc.

First, S.B. 703 proposes new language in Section 85.062(b) of the Texas Election Code. As the law currently reads, mobile structures may be used as polling places in political party primaries and in the general elections for district, county, state and federal offices. Basically, in those elections that tend to have higher turnout, county election officials may make use of moveable structures in order to handle the press of voters — this is particularly useful for assisting voters in rural areas that lack suitable permanent structures for early voting.

By specifically prohibiting the use of mobile structures (think trailers or portable buildings) as early voting locations for all elections, the bill substantially limits early voter access to polls in areas that lack available permanent buildings for the November general elections for county, district, state and federal offices, and for early voting in primary elections (which are already more difficult to schedule, owing to the fact that each party conducts a separate election in each county, making it harder to find buildings to accommodate these elections).

Second, by repealing Section 85.062(e) of the Texas Election Code, the bill removes the regulatory framework for the use of mobile structures for temporary early voting polling places in all primary elections as well as all general and special elections conducted by county officials.

And yes, with respect to the author’s stated intent of focusing the effect of the bill on local government tax rate and bond elections, the bill does also specify (in text to be codified as Section 85.062(h) of the Election Code) that if any revenue election requiring voter approval is conducted with the use of mobile structures, the election result is automatically invalidated.

More specifically, the bill states that in such a circumstance, “the election for approval of the proposition is invalid.”

The bill is written so broadly that this invalidation would also apply to any statewide revenue proposition election, such as (for example) a state constitutional amendment election relating to taxes or bonds.

This is an astonishingly odd bill, whose possibly unintended global effects may have arisen out of a misunderstanding about the distinction between two related but different things, namely (1) where early voting happens, and (2) what kind of building the early voting happens in.

In any election, there is such a thing as additional branch early voting locations. Sometimes for practical reasons (lack of suitable buildings, natural disasters, rural setting, etc.), these additional branch early voting locations are placed in temporary or moveable structures.

Here’s the problem — where early voting takes place (say, on the corner of 5th and Main Street) isn’t the same thing as what kind of building the voting takes place inside (a tent, a construction trailer, a brick and mortar county courthouse, etc.).

One might arguably hold the philosophical view that people shouldn’t be allowed to vote early at, say, the corner of 5th and Main (although one is hard-pressed to offer a reason in the abstract as to why early voting locations are bad things). One might arguably assert that people shouldn’t be allowed to vote in temporary structures.

But these two objections are about different things.

Under current law, early voting locations aren’t less legal simply because they happen to be in a temporary building; those buildings do have to meet some basic common-sense standards of durability and accessibility, of course, just so rain and wind won’t accidentally make a mess out of the election equipment. But apparently in his eagerness to regulate what he may perceive as the creation of too many branch early voting locations, the author of S.B. 703 has decided to attack the problem by getting rid of the use of temporary buildings for early voting in primaries and general elections.

Because S.B. 703 prohibits the use of temporary or mobile structures as polling locations in all elections, the bill is likely to gore many oxen, including the interests of state and federal candidates in both primary and general elections for public office who want to get votes where their constituents live, particularly in conservative rural Texas.

Not to mention the fact that the bill expressly invalidates the results of revenue elections up to and including statewide bond elections that happen to be conducted with early voting in mobile structures. That statewide effect on matters of state revenue control might cause the ears of bond attorneys to prick up, at the very least.

One could fairly wonder whether S.B. 703 is constitutional by any stretch of the imagination, and whether the bill (by limiting the siting of early voting locations to permanent structures) violates state and federal laws regarding making polling places accessible for voters with disabilities, for example.

But my more immediate critique of the bill is that it’s incoherent. Even people who think we have way too much early voting don’t care whether or not we use trailers. And sometimes temporary buildings are just the best or only options available to county elections offices who are trying to set up branch early voting in areas without suitable permanent structures.

At least as of today, I’ve only seen the one newspaper story about S.B. 703, and maybe it’s because we’re still early in the session. But I hope that this deeply flawed bill gets more than merely passing scrutiny, given the effect that the bill would have on election administrators statewide.

Okay, now on to the second bill mentioned in Ken Herman’s story.

II. H.B. 1773 SUBVERTS ELECTION EXPECTATIONS AND OUTCOMES BY MAKING WINNERS INTO LOSERS

H.B. 1773H.B. 1773 tracks Plank 178 of the Texas Republican Party Platform pretty closely — the idea behind this bill is that elections for voter-approval of tax rates and tax-revenue supported bonds would only pass if at least 25% of the registered voters in the election territory actually participate in the tax or bond election. (The platform only requires 20% participation of the registered voters in the affected territory, so the proposed bill is more strict than the platform plank.)

In other words, if the bill were to pass, it would create a situation in which, if no one is particularly opposed to a tax rate increase, and turnout is small (as it tends to be in local elections), the bond or tax rate increase would be deemed to have failed even when a majority of the votes favor that increase, unless at least 25% of the registered voters actually voted.

A “minimum turnout” requirement that invalidates the results of certain tax and bond elections is in direct conflict with numerous sections of state law that describe how bond and tax election results are tabulated and canvassed. Hundreds of statutes authorize various bond and tax revenue elections, and often with traditional legal formulaic language, referring to “a majority of the voters voting …” or words to that effect.

So H.B. 1773 adds Section 2.101 to the Election Code, attempting to specify that for any local tax or revenue election, 25% of the total number of registered voters in the election have to vote in the election in order for the outcome to be valid. But the Election Code isn’t the authorizing statute that gives the local entities power to conduct these elections.

The authority to conduct the various tax, bond, and other revenue elections is scattered throughout Texas law, from the Agriculture Code all the way to the Water Code. I’m not going to exhaustively run down every statute that is placed in direct conflict with H.B. 1773 right here, because there are just too many, but here is just one example:

Section 504.251 of the Local Government Code. This statute authorizes a municipality to conduct an election to approve a sales and use tax in support of a so-called “Type A” municipal corporation for the purpose of economic development projects.

Already I can feel your eyes glazing over as I describe what this statute does. Briefly, it authorizes an election to increase a tax for the purposes of supporting local economic improvement. And the election passes if (in the words of the statute, a “majority of the voters of the municipality voting at the election” approve the rate increase.  See that? “A majority of the voters … voting.” If only three voters show up out of thousands, and two of the voters vote in favor of the tax, it passes per this statute.

What the author of H.B. 1773 has set up is an irreconcilable conflict with tax and bond election authorizations in the Education Code, the Finance Code, the Government Code, the Local Government Code, and on and on. Hundreds of laws, all of which read more or less the same as Section 504.251 of the Local Government Code, and all of which specify that tax and bond measures pass on a simple majority vote.

H.B. 1773, from the perspective of a government finance expert, is an invitation to almost instant and pervasive lawsuits, given that the statute can’t be reconciled with the vast body of state statutory law relating to tax and bond elections.

For this legislative session, Representative Mike Lang has filed two bills to further a couple longstanding goals that have been planks in the Texas Republican Party’s party platform; namely (1) enforcing voter registration by party (see party plank 66), and (2) drastically cutting down on the frequency with which elections take place (party plank 76).

I. CLOSING THE DOOR ON OPEN PRIMARIES – VOTER REGISTRATION BY PARTY

H.B. 1072 — Sometimes, voters who philosophically identify with one party or the other will “cross over” to vote for spoiler candidates who happen to be running for nomination in the other party’s primary election. To combat this, Representative Lang has authored legislation to enforce closed primaries by requiring voters to register by party

Voter registration by party is a common feature of registration in a number of states that have so-called “closed” primary elections, such as New Mexico, New York, and Oregon. (In this context, a primary election is “closed” if the election is administered in such a way as to exclude participation by voters who are not registered as members of the same party).

Current state law already specifies that by voting in a party primary, a person affiliates with that party for a full calendar year, and is prohibited from voting for or signing a nominating petition for any candidate not affiliated with that party.

But under current Texas law, registered voters are not compelled to self-identify as being members of one party or another, and functionally are unaffiliated with any party unless and until they decide to vote in one or another party primary election. Additionally, under current law, Texas voters aren’t permanently assigned to be members of one party or another.

H.B. 1072 proposes a change in the existing law by outlining a procedure for permanent voter registration by party affiliation in Texas.

Currently, a voter’s party affiliation (or lack of same) in Texas is determined by the individual voter’s choice in affirming support for a particular party’s slate of candidates, either because the voter has chosen to vote in that party’s primary (for political parties that conduct primary elections), has subscribed to an oath of affiliation to participate in the party convention, has signed a candidate’s nominating petition (for political parties that nominate their candidates by means of a convention process), or has signed an independent candidate’s petition for placement on the ballot (for those candidates who do not seek party affiliation at all).

So to recap, under current Texas law, our primaries are “closed” in the sense that as voters we aren’t allowed to vote in more than one party’s primary in any particular calendar year, but are “open” in the sense that we can choose which party primary we want to vote in, as long as we don’t also try to vote in the other party’s primary. We are required to affiliate with a party for one full calendar year when we support any of that party’s candidates for nomination in the general election.

H.B. 1072 would require registered voters to assert party affiliation when registering to vote; that affiliation would renew and “follow” the voter indefinitely.

H.B. 1072 would also make closed party registration a requirement for candidates running in a particular party’s primary. In other words, in order to run as, say … a Republican Party candidate for county commissioner, one would be required to have previously identified as a Republican Party member when registering to vote.

Representative Lang’s bill is likely to alarm voters who recognize that for local races, one party’s primary is often the de facto general election.

In brief, if this bill passes, the proposed law is likely to leave Republican voters in solidly Democratic urban areas like Dallas, Houston, San Antonio, or Austin unhappy with their lack of primary ballot choices for local offices. At the same time, Democrats in solidly Republican rural areas, or in contemplation of statewide primaries, will similarly be frustrated with a lack of meaningful choice in their nominating elections.

Representative Lang’s other bookend election bill is designed to cut down on the number of elections that we participate in each year.

II. FEWER ELECTIONS

H.B. 1271 – A reduction in the number and frequency of local elections is (as noted above) a key legislative goal of the Republican Party.

Prior to 2005 (and the enactment that year of H.B. 57, which eliminated the winter and summer election dates, and severely curtailed the capacity of local governments to order special elections for non-uniform election dates), elections in Texas were traditionally conducted on one of four days in a year. Winter elections took place in January (later moved to February), Spring elections happened in April (later moved to May), Summer elections were held in July (later moved to August), and Fall elections were held in November.

Winter elections tended (for reasons relating to fiscal budget cycles) to be bond elections for cities and school districts. Spring elections were officer elections for local governments. Summer elections were used for run-offs, local incorporations, and some small government officer elections. And the November elections were (as they are now) the “big show” – federal and state officer elections in even-numbered years, and state constitutional amendment elections in odd-numbered years.

In a bold stroke as part of an omnibus school finance bill enacted in the third called special legislative session in 2006, local elections in odd-numbered years were largely eliminated with a change in the Texas Education Code regarding school district board election schedules.

Subsequent legislative efforts have been focused on “cleaning up” all those nooks and crannies of state law that still permit some flexibility on election scheduling, in order to further limit the number of elections taking place in any particular year.

H.B. 1271 would get rid of all elections in odd-numbered years, and all May elections.

The bill would limit all elections (including bond elections, water district elections, local government elections of all forms, etc.), by requiring that these elections either take place on the same day as the political primaries or the statewide officer elections (i.e., the first Tuesday of March or the first Tuesday after the first Monday in November of even-numbered years).

The bill shuts down local tax-rate and bond control by limiting the number of funding elections, and limits the rate of turnover in local governments in order to preserve existing incumbencies.

But here’s the thing – while local governments do “save” money by having fewer elections, we the voters lose out.

I put the word “save” in scare quotes for a reason – the administrative expense of conducting democracy isn’t offset by what economists would refer to as the “negative externalities” resulting from a lack of civic engagement and the lost opportunities for voter participation in the decisions made by local government.

Hey, we could save even more money by not having any elections, right? In fact, that savings has been implemented by allowing for the cancellation of local elections when races are uncontested.

How far do you as voters want to push this cost savings argument? Because really, the infrastructure of democracy, and of government itself, costs money. Why even bother with elections at all?

For another take on the damage caused by the “cost saving” argument in favor of disenfranchisement of voters, see this online essay by Hal Berghel, a professor of computer science at the University of Nevada, Las Vegas. Why am I citing a computer science prof? Because he makes an interesting argument that I have not seen elsewhere: “This postmodern Jim Crowism is all about challenging voter access, 21st-century style, but with a new twist.”