Pyrrhic Victory at the 5th Circuit

Squeaking in under the soft July 20, 2016 deadline imposed by the Supreme Court, the 5th Circuit ruled en banc that the Texas photo I.D. law has a racially discriminatory effect. Not surprisingly, the conservative appeals court nevertheless takes a lot of wind out of the plaintiff’s sails, by finding that the evidence used by the district court to find discriminatory intent was “infirm,” and by refusing to strike down the law. Rick Hasen has more on the opinion. The text of the decision (which comes in at a punishing 203 pages) is here:

I confess that I expected worse, but not by much. By keeping the law in place and remanding to the trial court to craft some sort of remedial fix, the appeals court preserves a truly terrible law. But more importantly, the appeals court decision pours cold water on efforts to bring Texas into “opt-in” preclearance to remedy a violation of Section 2 of the Voting Rights Act.

Fifth Circuit Orders En Banc Review of Texas Voter ID Suit

Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.

(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).

As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.


President Obama Encourages Innovation In Civic Technological Engagement

On Friday, President Obama gave a wide-ranging 45-minute keynote address (video) at South by Southwest Interactive here in Austin.

Among other things, he encouraged the audience to solve existing social inequities through the application of modern technological innovations.

Of particular interest to voters in Texas, the President responded to questions from Texas Tribune Editor-in-Chief and CEO Evan Smith about

(1) electronic voter registration;

(2) the class and racial divides that cut off from the Internet a disproportionate percentage of racial minorities and people living in poverty; and

(3) low voter turnout in Texas. Related to turnout, the President dryly pointed out that the elected officials of the great State of Texas are not interested in encouraging voting. In Texas, he noted, we bear at least some of the responsibility for our poorly responsive state government.

To the extent that the President offered any prescriptions for the future,  he said that we need the tech community to cooperate with government-funded expansion of high-speed Internet access to underserved areas.

He also mentioned the new federal agency (launched 2015) the United States Digital Service, ConnectED (for K–12 public education), and public-private technological collaboration in general.

Full video here:

Soft On Crime: The Governor’s Indictment Thrown Out

The blaring above-the-fold headline in many Texas papers today (February 25, 2016) describes how the Texas Court of Criminal Appeals determined that former Governor Rick Perry committed no crime when he used his government position to coerce local law enforcement into shutting down hundreds of pending criminal investigations into official misconduct.

His defense team did a masterful job of convincing the public generally that he was being prosecuted for having exercised his constitutional authority to veto line-item budget appropriations, when in fact the criminal charges against him had absolutely nothing to do with the actual act of vetoing a legislative appropriation.

I’ve written about this before. The crime wasn’t the veto. The crime was the coercive threat. It is a crime to abuse public authority, using threats to suborn criminal investigations and thereby attempt to induce a public official to act against their own and the public’s best interests.

Here’s some relevant coverage:

More significant than the outcome is the decision by the Court of Criminal Appeals (influenced by amicus briefing on First Amendment free-speech issues provided by Eugene Volokh and others) that the coercion statute (Texas Penal Code Section 36.03) itself is overbroad as written, and therefore unconstitutional. Here’s a copy of the Texas Court of Criminal Appeals decision in .pdf format: Ex Parte Perry, No. PD-1067-15, Texas Crim. App. (February 24, 2016).

It is a tricky, difficult thing to successfully draft a criminal statute that addresses communication. If someone foments armed revolution, are they committing a crime, or are they just behaving like an average Twitter account holder?

If someone passes a note to a bank teller that reads, “This is a hold-up,” is that someone robbing the bank, or are they just complaining about how long they’ve been waiting in line? Sure, that someone’s wearing a ski mask, but it’s cold outside. And they’re carrying a gun, but maybe that’s just to celebrate their Second Amendment open-carry rights.

I believe the coercion statute was constitutional — it  had a chilling effect only on public expression to the extent that it criminalized credible abuses of office. The statute didn’t prohibit a public official from expressing an opinion, making a case, or shouting from the rooftops. It prohibited a public official possessing the actual capacity to abuse office from holding the public hostage with the threat to exercise that capacity.


Some Unsolicited Advice For the Clinton Campaign

I’m not a political operative. I’m just not. I’m not some K Street whiz with my finger on the pulse of America. I know a lot about the fussy internal machinery of elections, and the nasty realpolitik of voter intimidation, injunctions, election contests, and so on.

But I’m not a marketing guy.

However, just as one does not need to be a cobbler to know what an uncomfortable shoe feels like, one does not need to be a political marketing genius to know when a fundraising email campaign is DOING IT WRONG.

So, for months now, I’ve been on Hillary Clinton’s fundraising email list. Interestingly, I’m not on Bernie Sanders’s list. My being on one candidate’s list or another is in my view pretty much an accident of fate — at present, I don’t have any money to give anybody, and I’m not wildly enthusiastic about any specific candidate.

I certainly haven’t endorsed anybody. I’m a Eugene Debs man, myself, but he isn’t running this year. I would note in passing that the statement made by Mr. Debs upon being sentenced for sedition (for supporting unions, fair wages, good working conditions—e.g., simple human decency) is one that should be endorsed by any thinking person, and that I would be more inclined to support any current candidate who echoed its sentiment. He said,

Your honor, years ago I recognized my kinship with all living beings, and I made up my mind that I was not one bit better than the meanest on earth. I said then, and I say now, that while there is a lower class, I am in it, and while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.

But, be that as it may. Hillary Clinton is running for her party’s nomination, and her campaign office is sending me what seems to be around 30 emails a day asking for money. Here’s one I got today from “Robby Mook” (actually the real name of a real, and probably very nice and very competent, person) her campaign manager:

More of Bernie Sanders’ supporters have stepped up to donate to his campaign than ours have.

I know that. You probably know that. And holy cow does Bernie Sanders’ campaign know that.

And here’s another one by Huma Abedin, the vice chairwoman of Hillary for America:

Last night, Bernie Sanders said this to the Washington Post: “What this campaign is about, and I’m seeing it every day, is an excitement and energy that does not exist and will not exist in the Clinton campaign.”

I am so tired of Hillary’s team being dismissed and written off like this. On the road with Hillary every day, I see countless women, men, girls, and boys of all colors and creeds who are inspired by Hillary, and excited to make her vision a reality.

Well, I’m just a simple big-city lawyer, but I can tell you that these are great fundraising appeals.

For the Sanders campaign.

Email after email, going on and on about how Bernie is raising more money; Bernie has more energy; Bernie is ahead in the polls; Bernie is kicking ass. Bernie, Bernie. BERNIE!

Gosh, Robby and Huma, why would I give any money to your candidate? This Sanders fellow sounds like a real barn-burner. Apparently he’s quite the savvy fundraiser and campaigner. He hasn’t asked me for a penny, and seems to be doing quite well nonetheless. Meanwhile, your candidate keeps jamming up my inbox with wheedling, self-pitying emails about how desperately behind she is in the Iowa caucus, and what a terrible tragedy it would be for America if Bernie got the party nomination instead of her.

There is an additional narrative in the emails, but it isn’t being pushed very hard. The narrative is suggestive that (1) if we don’t nominate a woman to run for President, then (2) the vast unwashed horde won’t be motivated to vote for some grandpa-socialist in November 2016, and (3) in 2017, President Trump will declare “Year Zero,” round us all up, and send us off to the re-education camps.

I’ll buy part of that narrative. As a progressive rational human being, I totally agree that “President Trump” would bring about the end of Western civilization. Actually, I’d say that if any of the GOP candidates for 2016 that have thus far poured out from the clown-car of our collective nightmares were to win the presidency, it’d be the end of Western civilization.

But none of Hillary Clinton’s fundraising emails have managed to tout why she’s fundamentally a better candidate than Bernie Sanders, or (beyond her desire not to lose) why I should pony up some money for her. (I will say that the overall Clinton fundraising does show a bit of K Street razzle-dazzle by asking for only one dollar and no more than that amount—capping the request at a single dollar is an inspired PR move that helps defuse the argument that Clinton is the “big money” chosen one.)

A fundraising email should not provide free publicity for one’s opponent by touting how badly one is faring against said opponent. A fundraising email should express how confidently one is striding forward to win the New Hampshire primary and Iowa caucus, as stepping stones to the inevitable nomination for party candidate, and fated, fêted, victory in November.

One should perhaps instead say,

“We are going to make history. Would you like to join us?”

Is There An Election This Year?

Ha ha.

I’ve been pretty quiet, and I realized that I should at the very least remind people that the deadline to register to vote in the upcoming March 1, 2016, primary elections is Monday (February 1, 2016). So register. You’ll have to drop off an actual application, and make sure that it gets postmarked by Monday. (Of course, in benighted Texas, we can’t simply register to vote online, but that’s properly a subject for another post).

There’s a lot to write about. In particular, I note this interesting January 11, 2016, decision from the El Paso Court of Appeals regarding residence and eligibility requirements for county commissioners. (In Re Perez, 08-15-00381-CV, Tex. App – El Paso January 11, 2016) (text provided by Texas Lawyer, at:

Vincent Perez is the current incumbent and candidate for reelection as Commissioner for Precinct 3 in El Paso County – he argued that his opponent in the March 1, 2016, Democratic Party primary election, Antonio Quintanilla, was ineligible to run for that office, on the grounds that Mr. Quintanilla had not been a registered voter within Precinct 3 for the requisite six months prior to the filing deadline to run in the primary.

Until September 1, 2015, candidates for public office were not generally required to be registered voters; there were a few rare exceptions that applied to specific offices, but the default was only a requirement that a candidate reside in the territory in which he or she was running for office. A bill passed in the most recent legislative session (H.B. 484) changed the status quo significantly, and required that candidates for local, district, or state office must now be eligible to vote in the jurisdiction from which they are elected. (See Section 141.001(a)(6), Texas Election Code).

Of course, the candidates for the various special law districts scattered throughout the state are exempt from this requirement, as those individuals are generally not required to register to vote within the boundaries of their districts (many of those said special taxing entities are created specifically without any inhabitants, and therefore would not possess registered voters upon creation anyway). See Section 141.001(d), above.

Alas, for Mr. Quintanilla, the change in state law was fatal to his application for a place on the primary ballot.

Did it make any sense for the legislature to add the requirement to be a registered voter as a requisite for public office-holding? Eh. Not really.

I don’t dispute the symbolic importance of civic engagement represented by being a registered voter, and for years I had told candidates (who inquired) that not being registered to vote in a particular district or territory was a potential public relations problem.

The reason why I think the new law is a little stupid is that the lead times for candidate applications are stretched ludicrously far in advance of the election date. As of March 1, 2016, Mr. Quintanilla will be eligible to cast an angry vote against Mr. Perez. That’s because Mr. Quintanilla’s registration as a voter in Commissioner’s Precinct 3 was effective as of mid-January of this year; he submitted his application for registration at about the same time that he filed to run in the primary. But his application to run in the primary had to be filed two months before the election, and his registration had to be effective as of the deadline to file as a candidate. Since registrations are by law effective 30 days after the date submitted, that meant that Mr. Quintanilla would have had to register to vote in Precinct 3 by no later than mid-November, slightly more than one month after the new law went into effect.

In other words, our lawmakers (and, let’s just be charitable to the bill’s drafter and assume that the bill was drafted in simple ignorance of the long lead-time for filing deadlines) passed a bill that now obligates candidates to register to vote in a specific territory three months prior to running for office in that territory. That makes no sense.

Although (candidates, take note): the new law has set up an excellent new “gotcha” mechanism for kicking one’s opponents off of the ballot.

Redistricting and Evenwel v. Abbott – A Survey of the Scholarly Coverage

As we anticipate the Supreme Court’s ruling in Evenwel v. Abbott, here’s a rundown of recent academic scholarship regarding “one person – one vote.” Some of this is from Rick Hasen’s summary of hot draft law review articles on the Social Science Research Network, and some is just from simple searching.

Rick Pildes, Symposium: Misguided hysteria over Evenwel v. Abbott, SCOTUSblog (Jul. 30, 2015, 12:01 AM),

Rick Hasen, Symposium: Ideology, partisanship, and the new “one person, one vote” case, SCOTUSblog (Jul. 31, 2015, 12:01 AM),

Fishkin, Joseph, “Be Careful What You Wish For in Evenwel, Justice Kennedy” Texas Law, December 10, 2015;

Berry, Thomas, The New Federal Analogy: Evenwel v. Abbott and the History of Congressional Apportionment (December 9, 2015). NYU Journal of Law & Liberty, Forthcoming. Available at SSRN:

Klarner, Carl Eoin, Assessing the Potential Impact of Evenwel v. Abbott (December 6, 2015). Available at SSRN:

Parsons, Gary Michael, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional (December 1, 2015). Available at SSRN:

Muller, Derek T., Perpetuating ‘One Person, One Vote’ Errors (December 1, 2015). Harvard Journal of Law and Public Policy, Forthcoming; Pepperdine University Legal Studies Research Paper 2015/16. Available at SSRN:

Tokaji, Daniel P., Realizing the Right to Vote: The Story of Thornburg v. Gingles (November 30, 2015). Election Law Stories, Foundation Press, 2016 Forthcoming; Ohio State Public Law Working Paper No. 322. Available at SSRN:

Edelman, Paul H., Evenwel, Voting Power and Dual Districting (November 13, 2015). Journal of Legal Studies, Vol. 44, 2016; Vanderbilt Law and Economics Research Paper No. 15-16; Vanderbilt Public Law Research Paper No. 15-19. Available at SSRN: or

Hasen, Richard L., Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn but with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN:

Foley, Edward B., Voters as Fiduciaries (June 30, 2015). Ohio State Public Law Working Paper No. 296. Available at SSRN: or


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