I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.
First, it’s a clear-eyed and thorough analysis of the present danger.
Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹
And third, it’s a prompt for me to ask all of you for your thoughts.
There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).
¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.
The State of Texas Is Legally Prohibited From Supplying Confidential Voter Information to Kris Kobach
As you may know, Kansas Secretary of State Kris Kobach has sent a letter to the state voter registrars in all 50 states, asking for a broad range of both public and private personal information about registered voters. The Brennan Center for Justice has the details here: https://www.brennancenter.org/press-release/brennan-center-states-examine-legal-obligations-providing-voters-personal-information
As the Brennan Center reports:
Kobach’s letter, reportedly sent to every Secretary of State in the country, asked for extensive details including: “the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” His letter also stated that “any documents submitted to the full Commission will also be made available to the general public.”
(For more information about President Trump’s commission on “voter fraud” see this recent Slate story by Rick Hasen).
Secretary Kobach’s request is so broad, in fact, that in his position as the Secretary of State of Kansas, he can’t respond to the portion of the request asking for voters’ social security numbers (as noted here).
Similarly, under Texas law, certain information collected from voters as part of the voter registration process is confidential and cannot be disclosed. In failing to submit an affidavit relating to the purpose of the request, and in requesting social security numbers, Secretary Kobach’s request does not comply with Texas law.
I should also note that (per both the Texas Election Code and laws relating generally to public information requests) the State of Texas imposes a prerequisite reasonable fee for producing a copy of the statewide voter registration list. If Secretary Kobach amends and conforms his request to comply with Texas law, he will also need to pay for the list.
The following statutes are relevant:
Section 13.004(c), Texas Election Code:
The following information furnished on a registration application is confidential and does not constitute public information for purposes of Chapter 552, Government Code:
(1) a social security number;
(2) a Texas driver’s license number;
(3) a number of a personal identification card issued by the Department of Public Safety;
(4) an indication that an applicant is interested in working as an election judge; or
(5) the residence address of the applicant, if the applicant is a federal judge or state judge, as defined by Section 13.0021, the spouse of a federal judge or state judge, or an individual to whom Section 552.1175, Government Code, applies and the applicant:
Section 18.066, Texas Election Code:
(a) The secretary of state shall furnish information in the statewide computerized voter registration list to any person on request not later than the 15th day after the date the request is received.
(b) Information furnished under this section may not include:
(1) a voter’s social security number; or
(2) the residence address of a voter who is a federal judge or state judge, as defined by Section 13.0021, or the spouse of a federal judge or state judge, if the voter included an affidavit with the voter’s registration application under Section 13.0021 or the applicable registrar has received an affidavit submitted under Section 15.0215.
(c) The secretary shall furnish the information in the form and order in which it is stored or if practicable in any other form or order requested.
(d) To receive information under this section, a person must submit an affidavit to the secretary stating that the person will not use the information obtained in connection with advertising or promoting commercial products or services.
(e) The secretary may prescribe a schedule of fees for furnishing information under this section. A fee may not exceed the actual expense incurred in reproducing the information requested.
(f) The secretary shall use fees collected under this section to defray expenses incurred in the furnishing of the information.
Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.
I. TL;DR Q&A
(1) Ugh! This blog post looks like it’s really long.
So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?
ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …
(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.
ANSWER: Yes. The plaintiffs won.
(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?
The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).
However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.
I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.
ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.
(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?
ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.
(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?
II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.
Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.
- Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
- The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
- Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
- On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
- Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
- The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
- In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally). Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
- The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
- The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
- Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
- Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
- Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
- My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.
III. So now what?
So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?
- Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
- As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
- Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.
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.
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.