The NY Times Magazine ran a well-written essay by Elizabeth Bazelon about how and when judges change their minds – with prominent mention given of Judge Richard Posner’s public mea culpa regarding his previous approval of a voter I.D. law. The essay isn’t primarily concerned with election law, but with the broader question of how and when judges have intellectual “cover” to change their opinions about something.
On June 8, Rick Hasen posted a column on Slate in which he argued that Hillary Clinton’s spotlight on GOP efforts to restrict voting rights was detrimental to the larger goal of actual voting rights reform. Not surprisingly, this column drew an immediate and angry response from many commenters who took issue with Professor Hasen’s concern that a Presidential campaign is too vitriolic to encourage actual bipartisan improvements in voting rights.
In making his argument, Professor Hasen acknowledged that (1) Secretary Clinton’s criticism of GOP-led changes in voting laws are factually correct; and (2) that Secretary Clinton’s proposed reforms (universal Federal voting registration, online registration, etc) are sound and rational. In other words, Professor Hasen generally agrees with Secretary Clinton that state legislatures dominated by the GOP have eroded voting rights since 2011 (with such measures as restrictive picture I.D. requirements, limitations on registration, reductions in early voting, etc.), and that for the health of our nation’s democracy, these restrictions must be overturned.
It isn’t the message that Professor Hasen finds objectionable, but the forum in which that message is being aired – a Presidential campaign. In his view, “voting rights” as a Democratic Party candidate’s campaign talking point puts Republicans on the defensive. As the GOP circles the wagons, the intensity of the rhetoric diminishes the likelihood that a Republican lawmaker can save face while working to overturn disastrous laws like those enacted in Texas and North Carolina.
As a counter-example of bipartisan cooperation on improving the voting experience, Professor Hasen points to the overwhelming success of the Presidential Commission on Election Administration (PCEA), which substantially advanced the cause of online voter registration, improved voter convenience for early and absentee voting, and so on. The implication is that partisan rhetoric dampens enthusiasm for actual voting rights reforms. Why rock the boat? Why make enemies when the goal should be to improve access to the polls? Professor Hasen also argues that even a successful Presidential campaign is a poor mechanism for policy change, because the Executive Branch has very little in the way of effective tools for implementing changes in state election procedures.
Does Hillary Clinton’s campaign rhetoric really paint bipartisan cooperation on voting rights into a corner? I’m not so sure. Her harshest criticisms are aimed at two of her competitors (Rick Perry and Scott Walker) for their past actions; these potential GOP nominees couldn’t participate meaningfully in bipartisan improvements in voting rights even if they wanted to, and attacks against them for their hostility towards minority voters don’t particularly imperil any actual reform, and simply strengthen the polarizing stance of the two dominant parties. (the unofficial slogan of the GOP is “Protecting You From Undesirables.” The unofficial slogan of the Democratic Party is “Protecting You From People Who Think You are Undesirable.”)
Here’s the fatal flaw in Professor Hasen’s argument: he simultaneously discounts the political value of campaign rhetoric while paradoxically worrying about the political effect of campaign rhetoric.
Hillary Clinton’s campaign rhetoric regarding voting rights is either effective to influence government policy regarding voting rights reform (positively or negatively) or it is not. Statements by candidates for President regarding voting rights reform cannot simultaneously be regarded as both meaningless (due to the limited leverage allegedly afforded to federal executive control over state voting rights) and negatively powerful and promoting of intransigence among Republicans with respect to actual reform. The only acts that promote intransigence with respect to voting rights reform are those acts that actually have some chance of succeeding in making changes to voting rights.
Therefore, the only course available to Secretary Clinton is to continue treating voting rights reform as a campaign plank, because (1) either the usefulness and forcefulness of that plank comes from the credible threat that the campaign position will lead to an improvement in voting rights, or (2) the usefulness and forcefulness of that plank encourages clear “brand differentiation” among the candidates without endangering any potential for actual reform.
In the most recent issue of The Nation, Ari Berman posits that political fundraising in the weaponized post-Citizen’s United, post McCutcheon era has had the effect of making wealth and the pursuit of wealthy donors a more critical limitation on candidate choices, and suggests that super PAC dominance of the primary elections may violate Section 2 of the Voting Rights Act.
Check out his article, “How the Money Primary Is Undermining Voting Rights.”
As I was cleaning dog poop out of our recycling bin today, it reminded me that it is high time to review the election-related accomplishments of the Texas Legislature this session. In 2014 the voters decided to experiment by electing a singularly undistinguished cadre of politicians with zero legislative experience. Let’s see how they did.
84th Texas Legislature – Tale of the Tape
Bills Waiting For the Governor’s Pen
- S.B. 1072 gives a political party the capacity to remove a precinct or county chair who has failed to perform the duties of office. This one is waiting for the Governor’s signature. It’s always been a bone of contention for the state parties that they have no access to any sort of government-enforced mechanism to remove the more useless or troublesome members of their little private clubs. This law will give the parties a chance to cite state law while policing up the conduct of their primaries.
- As of right now, I’m only aware of one bill other than S.B. 1072 affecting election matters has passed both the House and Senate – that’s S.B. 1703, a clean-up bill that gamely attempts to fix all the screwed-up deadlines enumerated in the Election Code that were thrown out of whack by previous fiddling, mostly by extending lots of statutory deadlines by roughly another week. To give election workers more time to mail out military ballots, deadlines for candidate applications have generally been pushed back another week, some tweaking has been done to specify the distinction between “national” and “state” holidays, and holidays and weekends now toll the deadlines for the Early Voting Ballot Board (meaning that election workers no longer have to meet on the weekend in order to satisfy the deadline requirements for resolving provisional ballots).
In other words, it’s a housekeeping bill.
These are a mixed bag of clean-up bills, wonky election nuts-and-bolts bills, and the occasional bills that are just plain nuts. I’ll rank them roughly in order of evilness and likelihood of passage. Please note that the informal bill titles provided are my own, and are not the titles provided by the bill authors or the Texas Legislative Council.
1. Evil Bills That Have Committee Action Scheduled
- H.B. 1096 (i.e., the Defense of Democracy from Icky Homeless and Disabled People Bill) is an eminently unreasonable bill (and therefore has a public hearing scheduled in Senate State Affairs on May 18th) that further beats up voters by forcing them to prove that their residence address is documented on their drivers’ license, when challenged by other voters. This is the sort of anti-voting rights bill that certain … unsavory … elements of the Legislature seem to love. It exempts the voters that the Right approves of and doesn’t want to lump in with the unsavory transients (i.e., military voters, judges, and law enforcement), but otherwise requires people to really, really super prove that they really, really, live somewhere. This is the sort of thing that would never have passed muster back when we had an enforceable preclearance requirement under the Voting Rights Act.
- S.B. 1115 (the Further Pandering To Military Voters Empowerment Act) would establish a pilot program to transmit and receive electronic ballots from military voters. This one is waiting for a floor vote in the House.
2. Probably-not Evil Bills That Are On the Way to Enrollment, Possibly
- S.B. 1448 (the We Can’t Get Our Act Together To Do A Primary Bill) would authorize a state party to contract with county officials to conduct a party primary in those circumstances where the party can’t be arsed to organize itself sufficiently to conduct its own nominating election. This bill looks to sail through on the House Local and Consent calendar.
- S.B. 1779 specifies that the order of candidate names on an expedited run-off ballot will be the same as the order of names on the expedited special election. Dumb, but there you have it – this one is on the House Local and Consent calendar.
- S.B. 383 would give biggish counties a few more days to process their early votes that were cast by mail, in an effort to get all that business out of the way prior to Election Day and hopefully speed up the tabulation process. This one is on the House Local and Consent calendar.
- H.B. 2027 (the Anti-Rolling Polling Place Bill) would require the use of county polling locations for local May elections. This bill is favored by the county election administrators, and opposed by the cities and school districts.The intended practice that the bill would limit is the targeted use of neighborhood early voting locations intended to capture voters that favor a position sought by local government officials. For instance, if a school district has a big bond package to pass, there’s an incentive to schedule voting to take place from 6-8 p.m. at the football stadium on the night of the big high school football game. And so on. Voter cherry-picking happens, and is not well-appreciated by those who see the practice as a dirty trick. However, the opponents of the bill note that taking away the choice of polling places can have equally disastrous effects on turnout, given that the county may not even maintain a precinct polling location within reasonable driving distance of the local government entity. Having lost so much autonomy already, what little choice is left to local voters might be taken away by a bill that favors “uniformity” over convenience. This bill has already been through the Senate Committee and is waiting to go on the calendar for a floor vote.
- H.B. 2050 requires that county voter registrars report to the Secretary of State whether voters voted during early voting, by mail, or in person on election day. This kind of data is theoretically available, or should be, is hotly desired by candidates and campaign consultants, and is currently ineptly or incompletely reported by election officials. This is already on the Local and Consent calendar in the Senate.
- S.B. 142 would allow a county to use the volunteer deputy registrar guide on the Secretary of State’s website to satisfy the “training” requirement that was imposed on volunteer deputy registrars in 2011. Those in favor of less onerous training burdens like this bill (e.g., Bruce Elfant, MALDEF, and the League of Women Voters). This one’s on the Local and Consent Calendar for the House.
- S.B. 795 requires the Secretary of State to coordinate cross-checking voter registrations with the registrations in other states, subject to the National Voter Registration Act, to make sure that people aren’t simultaneously registering to vote in multiple states. Such cross-checking is perfectly reasonable, and happens in an ad-hoc and unsystematic way already. This is out of the House Elections Committee and ready for a floor vote.
- S.B. 733 would prohibit municipal utility districts from moving their election dates. A few MUDs have arguably tried to play a little fast-and-loose with their election schedules in order to artificially extend their tenure in office. S.B. 733 is now the subject of a joint conference committee to hammer out differences between the House and Senate versions of the bill.
- H.B. 2366 would clarify that the early voting clerk is supposed to deliver a list of people who voted early to the Election Day precinct judge not later than the day before Election Day. This bill has already been heard, and is waiting to be calendared.
3. Bills that Are Probably Dead
- H.B. 2644 would expand an existing notice requirement following county redistricting – all counties, regardless of population, would have to notify county party chairs of changes in county election precinct boundary lines following redistricting. (Currently, the party chairs only get formal notice when in counties with populations of a million or more). This bill has been referred to Senate State Affairs.
- H.B. 675 (The OMG Scary Technology Is Out of Control Bill) tries gamely to deal with the vagaries and desires of smart phone owners. On the one hand, we don’t want people taking pictures of stuff inside a polling place – they could be identifying ballot choices, getting a leg up on secret information about voting trends, etc. On the other hand, who doesn’t love their smart phones – what if you’re a voter who has just typed all your tentative choices into your online notes, but now you’re in the booth and you can’t remember who it was you wanted to vote for. And that mean election judge is threatening to destroy you for slipping your phone out of your pocket while voting. Ack! What to do? This bill specifies that you can still use your phone as long as you just use it for your own benefit in the voting booth, but not to spy on other voters. This is another “pending” bill in Senate State Affairs.
- H.B. 621 is an odd duck of a bill. It provides more specific grounds for getting rid of volunteer deputy registrars – allowing election administrators to “fire” volunteers who destroy or misdirect voter registration applications. The odd thing about the bill is the assortment of strange bedfellows that it has made; the bill is opposed by both the Texas Democratic Party and the Republican County Chairman’s Association, as well as the Harris County Republican Party Ballot Security Committee and Bruce Elfant (the aggressively progressive Travis County Tax Assessor-Collector). The bill is supported by the Bexar County Elections Administrator, the Texas Association of Election Administrators, and the notorious True the Vote organization.
I suspect that the bill’s support comes from groups expressing a largely apolitical administrative desire on the part of election administrators to have more say in who gets to act as a volunteer deputy registrar, plus the rabidly anti-voter registration True the Vote bunch. The bill’s opposition probably reflects the fears on the part of partisans that any further throttling of volunteer deputy registrars will leave the candidates without any effective means of getting out the vote – using volunteer deputy registrars as punching bags may satisfy some short-term desire for political payback, but the long-term effects are bad for candidates on both sides of the aisle. H.B. 621 is now pending in Senate State Affairs.
- H.B. 258 is an eminently reasonable (and therefore likely doomed) bill that requires a county voter registrar to explain why a person’s voter registration application was rejected – the bill has been sent to Senate State Affairs where it is expected to get a chilly reception, given that it’s much easier to reject voter registration applications when you don’t have to give the voter specific reasons why their application was insufficient. Support for this bill has shaken out along partisan lines, with the Democrats being for, and the Harris County Republicans being against.
- H.B. 2354 continues the ongoing saga of where to put the May election, a problem that has existed ever since the election calendar got screwed up when the Legislature moved the primaries to March. Currently the May elections take place the day before Mothers’ Day, which everybody hates. Unfortunately, everyone hates every other possible date available for the May election. Too late in May and it interferes with high school graduation. Too early, and it bumps up against the post-election management of the primaries in even-numbered years.
The May election date has bounced back and forth. It’s been on the third Saturday, the first Saturday, the second Saturday, the first Saturday, and the second Saturday. This bill would push it back to the first Saturday in May again.
My recommendation, as always, would be to move the primaries to June, and put the May election back in the month of April where God intended it to be in the first place. The Senate State Affairs Committee will hear testimony on this bill on May 18th.
- H.B. 3122 is intended to provide some mechanism for correcting the knee-jerk rejection of ballots by the early voting ballot board, by allowing the election administrator to seek a court injunction to overturn the ballot rejection. This one has gone to the Senate State Affairs Committee to die a quiet death.
- H.B. 2986 is a short bill intended to clarify that when a governing body canvasses an election, the information is supposed to be recorded in the minutes of the canvassing authority. Not a change in the law, but a reaction to the frustratingly mistake-riddled tendency by local governments not to maintain an actual election register as the law has always required. This one has been referred to Senate State Affairs.
- S.B. 1984 (the Crimethink Bill) contains the astonishingly stupid idea that the Attorney General should be the one who canvasses the gubernatorial and Lieutenant governor elections, and not the Legislature. Why should an elected executive officer canvass the elections of the other top two statewide elected officers? Um. Reasons. Because otherwise, old, grubby lame-duck legislators will get their dirty little mitts all over the canvassing. This bill is dependent on the voters approving a constitutional amendment to
upend the whole structure of state government. Or something.
- H.B. 3056 [CORRECTION – thanks to Sondra Haltom] would allow late-arriving ballot APPLICATIONS to be effective in subsequent run-off elections. Pending in Senate State Affairs.
- H.B. 1927 would permit one application for a ballot by mail to operate as a request for ballots for more than one election. This is schedules for a public hearing at Senate State Affairs on May 18th.
- S.B. 1034 is very similar to H.B. 1927, and would allow an application for a ballot by mail to be operational for multiple elections. Pending in the House Elections Committee.
- H.B. 1308 would permit a person to return a marked ballot by mail in person, rather than by mailing it. Um. Okay. Why exactly did you vote by mail? Anyway, this one is pending in Senate State Affairs.
- H.B. 2778 would allow the transmission of emailed ballot materials to military voters for local (non-federal) elections, in the same manner as provided for in federal elections. This will be discussed at Senate State Affairs on May 18th.
4. Bills that are Boring or Stupid
- H.B. 3902 authorizes the distribution of explanatory material to primary voters who don’t know what a party convention is, presumably to head off the problems caused by thousands of voters jamming up the party nominating process because they don’t know what they’re doing. This one is in Senate State Affairs.
- S.B. 1073 (the Why Can’t I Google Every Candidate? Bill) requires that all candidates, as a condition of applying for a place on the ballot, must provide their email, mailing address, and website for their campaign. This one was referred to House Elections.
- S.B. 19 (the No Druggies Running for Office Bill) is even more stupid, requiring that all candidates must submit to public drug testing as a condition of running for office. Okay. Not surprisingly, this bill died an ignominious death in committee.
- H.B. 484 adds a requirement that candidates must also be registered voters in order to run for office, except when the State or Federal Constitution specify the particular requirements for the office. Again, huh – this is another example of a solution in search of a problem. Plus, it’s probably an unconstitutional restraint on candidacy. Be that as it may, Senate State Affairs considered this at the May 14th public hearing.
- H.B. 1026 specifies that a tabulation supervisor must also be a registered voter in the county conducting the election. [Correction – the purpose of this bill is to expand the available pool of tabulation clerks, and is viewed by the county election officials as a clean-up bill].
- H.B. 2900 fixes a reference to the Election Assistance Commission. This one is on the Senate intent calendar.
- H.B. 3880 (The We’re Sick of Judicial Petition Signature Requirements Bill) would repeal the requirement that appellate judges collect signature petitions on top of the other requirements to run for office. This one hasn’t been assigned to a committee yet.
- H.B. 1532 would require quarterly finance reports from special-purpose political action committees. Okay. Scheduled for a public hearing on May 19th in Senate Business and Commerce.
- S.B. 1437 would authorize the filing of electronic finance reports. Scheduled for public hearing on May 21 in the House General Investigating and Ethics Committee.
- H.B. 1114 would require special PACs favoring or opposing school bonds to file ethics reports. Looks like the school voucher crazies may have killed this one.
Of course, the decision by the Legislature to punish gay people has upended the schedule for the end of the session, because the members of the moderate rump have all vowed to gum up the works and slow approval of around 200 bills. Most of the pending election bills aren’t particularly critical, and at least a few would benefit from dying (drug testing for candidates, disenfranchising people without drivers’ licenses). [Update – of course, as you know, the Democrats successfully ran the clock on the monumentally stupid “We Hate Gay People” bill, leading everyone to breath a sigh of relief].
But … what about all the good that could have been done this session? What about the broad bipartisan support for electronic online voter registration, an administrative godsend that would have saved the State money, gotten more people registered to vote, sped up and modernized election administration, and ushered Texas into the 20th Century? (Or at the very least, gotten us into the latter half of the 19th Century).
Alas, what I heard was that “broad bipartisan support” for online voter registration should have been read as “broad bipartisan support from people whose opinions don’t matter, but opposed by the tiny but powerful cadre of arch-conservatives who dread the idea of more people registering to vote.” Surprisingly, the Elections Division at the Secretary of State is rumored to have lobbied against online voter registration, which presages a disturbing partisanship in what should be a non-partisan office.