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: http://www.texaslawyer.com/home/id=1202747328543/In-re-Perez-081500381CV-TexApp-Dist8-01112016?mcode=1202615269686&curindex=1&slreturn=20160030135229).

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), http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott

Rick Hasen, Symposium: Ideology, partisanship, and the new “one person, one vote” case, SCOTUSblog (Jul. 31, 2015, 12:01 AM), http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case

Fishkin, Joseph, “Be Careful What You Wish For in Evenwel, Justice Kennedy” Texas Law, December 10, 2015; https://law.utexas.edu/news/2015/12/10/be-careful-what-you-wish-for-in-evenwel-justice-kennedy

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: http://ssrn.com/abstract=2701538

Klarner, Carl Eoin, Assessing the Potential Impact of Evenwel v. Abbott (December 6, 2015). Available at SSRN: http://ssrn.com/abstract=2699850

Parsons, Gary Michael, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional (December 1, 2015). Available at SSRN: http://ssrn.com/abstract=2698183

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: http://ssrn.com/abstract=2697719

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: http://ssrn.com/abstract=2697007

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: http://ssrn.com/abstract=2631666 or http://dx.doi.org/10.2139/ssrn.2631666

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: http://ssrn.com/abstract=2639902

Foley, Edward B., Voters as Fiduciaries (June 30, 2015). Ohio State Public Law Working Paper No. 296. Available at SSRN: http://ssrn.com/abstract=2612001 or http://dx.doi.org/10.2139/ssrn.2612001

Redistricting Panel Shoots Down Plaintiffs’ Request For Injunctive Relief

This isn’t breaking news — the redistricting panel’s order came out November 6, and the Texas Tribune and various editorialists have already weighed in on the implications. (See also this coverage from Texas Lawyer).

In particular, Jody Seaborn’s editorial in the Austin-American Statesman expresses everything I feel about the decision, only better. Jody also points out how the delays in the 2012 primary schedule ultimately produced Ted Cruz’s primary runoff victory over the more moderate David Dewhurst. (Disclosure: Jody and I are old friends.)

The federal judicial redistricting panel charged with reviewing the State’s 2011 redistricting plan (yes, that’s not a typo. 2011), has responded somewhat petulantly regarding an effort by a subgroup of the plaintiffs in the Perez v. Perry redistricting litigation who joined together in a motion to enjoin the State from using gerrymandered district boundary lines for the 2016 U.S. House of Representatives elections.

For a good overview and analysis of the origin, development and philosophy of this gerrymandering (cleverly described as a “Perrymander” by various wags), see this excellent article by Rosemarie Unite, The Perrymander, Polarization, and Peyote v. Section 2 of the Voting Rights Act, 46 Loy. L.A. L. Rev. 1075 (2013) (pdf). Also available in on the web at http://digitalcommons.lmu.edu/llr/vol46/iss3/7).

The subgroup of the plaintiffs that petitioned—including the League of United Latin American Citizens (LULAC ), the NAACP, the City of Austin, Travis County, Eddie Rodriguez Jr., Shannon Perez, the Quesada plaintiffs, et al., but excluding the Latino Redistricting Task Force, the United States Department of Justice, and the various congressional officeholder plaintiffs—had hoped to light a fire under the panel by asking for an injunction against the use of the redistricting plan that had been used in the November 2014 election (presumably hoping that the panel would either completely redraw the district maps, or at the very least prohibit the use of the bad maps).

Instead, the redistricting panel announced that the bad maps would most assuredly be used for the 2016 elections, stating that new maps at this late date would be unduly disruptive and confusing to voters and office seekers.

So sorry, petitioners.

See this statement from page five of the redistricting panel’s denial of a request for injunctive relief:

The Court has been working diligently and has made substantial progress toward resolution of the claims on the 2011 plans; however, it has not yet reached a final decision. Trial on the merits of the claims against the 2013 plans has not been scheduled, and legal challenges to the 2013 plans will not be resolved before the 2016 election cycle.

This unanimous denial could have been subtitled, “Redistricting Panels Have Feelings Too, You Know.”

The panel explicitly countered criticism that the judges have been dragging their feet on a resolution.

One can’t help but feel that there’s a little bit of passive-aggressive retribution in the decision. As in, “Oh! You think we haven’t been working fast enough to resolve your redistricting problems? Well how about this? How about we just declare that we won’t bother fixing any of this until the 2018 elections? Yeah! That’ll teach you to pressure us about coming up with some sort of consensus regarding your maps.”

This denial is frustrating on many levels. The State of Texas made no real effort to argue that its 2011 and 2013 maps weren’t discriminatory toward minority voters.The State’s argument, grounded and based solidly on a line of U.S. Supreme Court cases relating to so-called “partisan gerrymandering,” beginning with Davis v. Bandamer, 478 U.S. 109 (1986), Vieth v. Jubelirer, 541 U.S. 267 (2004), and League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) is, more or less, we don’t discriminate against Hispanics and African Americans because of race, but because we,  the line-drawing Republican Party majority, want to crush the Democratic Party, and therefore any seemingly discriminatory line-drawing was not intentional.

You can see this argument reflected throughout the State’s proposed finding of fact and conclusions of law, as well as the State’s pre- and post-trial briefs. For example, on page 56 of the State’s proposed findings of fact and conclusions of law, finding of fact number 518 states that the chairman of the Texas House Redistricting Committee felt he could not pass a redistricting plan unless he guaranteed that three of the four new U.S. House of Representatives seats for Texas would go to Republicans. Later, on pages 100-101 of the same proposed finding of fact and conclusions of law (starting around proposed conclusion 45) the State argues for findings of fact that the Texas redistricting plan was motivated by political, rather than racial, discrimination, and was therefore not part of an invidious intentionally racially discriminatory scheme.

And the redistricting panel (which for those of you who are new to the story, consists of the three-judge panel convened in May of 2011 out of the membership of the San Antonio division of the Federal District Court for the Western District of Texas, as explained in this handy blog post from the wonderful (and greatly missed) Texas Redistricting and Election Law blog) has made as explicit as it possibly can that the most glaring of demographic problems with the State’s Congressional and State legislative district maps are not going to be fixed in time for the 2016 elections. That fact leaves just two federal election cycles (2018 and 2020) before the next redistricting maps get drawn.

Particularly for Hispanic voters in Texas, 2011–2021 is shaping up to be the lost decade for both U.S. House of Representatives representation, as well as for representation in the Texas Legislature, notwithstanding the fact that the population gains experienced by the State were overwhelmingly the result of increases in the population of protected classes of linguistic and racial minorities.

The City of Martindale Just Can’t Catch A Break

As a follow-up to my previous post about problems with the May 2015 election in the City of Martindale, I wanted to pass along this follow-up story from the Austin-American Statesman.

It turns out that due to a clerical error, ballots were double-counted in the November 2015 do-over election that the city had conducted, and now a recount is scheduled for today (Thursday, November 12).

Again, the culprit seems to be inexperience; the city hasn’t conducted a contested election for public office in years, and people are still figuring out how to run the equipment. My suspicion is that election workers got confused and ran an electronic tally of the Election Day results at the voting location without realizing that this tally would be automatically added to the tally at the central counting station run by the county election administrator, and then transported the voting equipment to the county facility where the tally was run again.

Another possibility is that the election workers jumped the gun by counting the early votes, commingled the early votes with the Election Day votes, and then counted the whole mass of votes together again.

It’s not the end of the world – as errors go, it’s small potatoes compared to the screw-up that prompted the need to re-do the May 2015 election; the recount (assuming that the early voting and Election Day ballots can still be properly sequestered) should resolve the whole problem in a matter of less than half-an-hour. But it’s expensive and annoying to require the losing candidate to demand a recount, it potentially delays the proper transition to whomever actually won the election, and it further contributes to an erosion in the public trust.

Do Over: Election Woes in the City of Martindale

In the shadow of our statewide election, the City of Martindale (a town of about 1,200 people in Caldwell County, not far from San Marcos) is having a November 3, 2015, mayoral election.

This election is taking place because of a disastrously error-filled May 9, 2015, mayoral election that had to be contested by the losing mayoral candidate. The Election Academy at the University of Minnesota shares the story, quoting extensively from an Austin-American Statesman story about the city’s election problems.

Briefly, Martindale’s election had the following problems:

  • Owing to a misunderstanding about how ballots and voting work when uncontested races are on the ballot, none of the uncontested candidates for city council got any votes.
  • The voter registration list combined all the city voters with the non-eligible county voters in the city’s extraterritorial jurisdiction, allowing non-city voters to vote in the contested mayoral election.

As unfortunate as these errors were (and as expensive as the correction proved to be, requiring that a losing candidate had to file a formal election challenge in state district court in order for a new election to be ordered), the lion’s share of the blame for the bad May 9, 2015, city election must be placed on our pitiful Texas Election Code, reflecting systemic flaws resulting from a combination of legislative initiatives to make local elections cheaper and less frequent, and from a lack of state and federal oversight of elections administration in general.

As is so often the case, the problem lies not with individuals, but with poorly engineered systems.

  • CERTIFICATION OF UNOPPOSED CANDIDATES, AND WHY STATUTES THAT CANCEL ELECTIONS ARE A VERY BAD IDEA

In 1995, the Texas Legislature amended the Texas Election Code to provide that as long as there weren’t any contested races, a political subdivision could go ahead and cancel an election. Thus was sounded the death knell of the tradition of open write-in candidacy—a political subdivision couldn’t very well treat its races as uncontested if open write-in votes could be counted for any eligible candidate, and therefore entities would have to enforce candidate registration requirements in order to benefit from the cost savings that could be realized by canceling elections.

When the bill passed and was being submitted to the U.S. Department of Justice for preclearance review under the Voting Rights Act, staff at the Texas Secretary of State’s office noted in passing that one of the negative consequences of the law could be a loss of local institutional familiarity with the conduct of elections. In towns, school districts, and other political entities, the capacity to cancel sleepy unexciting elections meant that years or decades might pass in which said local entity wouldn’t conduct an election of any sort. Institutional experience and memory would fade, procedures would lie fallow, and the capacity for mistakes would expand.

So when (after decades of canceled elections) the City of Martindale found itself with two actual candidates sparring over the position of mayor, nobody knew that the other candidates (for uncontested city council seats) were supposed to be put on the ballot in such a way so that voters could actually vote for them.

Enthusiasm for the undemocratic cancellation of elections is such that now the Texas Election Code also provides a convoluted procedure whereby unopposed candidates for state or county office can be listed on the ballot as elected by fiat. Not surprisingly, this procedure (which doesn’t apply to local races) gets all bolloxed and confused with local election procedures, and leads to mistakes like a city listing its uncontested candidates for city council without also providing any mechanism for recording votes for those candidates.

In point of fact, allowing for the cancellation of elections is contrary to … oh … I don’t know … a tiny little thing like the whole weight of the entirety of English and American law, not to mention the history of Democracy. In other words, everything found in subchapters C and D of Chapter 2 of the Texas Election Code is a giant snarl of terrible ideas that should never have seen the light of day. The notion of “cost saving” is inimical to and incompatible with the necessary expense of maintaining the infrastructure of democracy. And yes, that truth means that small political subdivisions should be expected to conduct elections at fixed regular intervals even when nobody wants to run for office.

By allowing political subdivisions to cancel elections for the last two decades, we have incentivized discouraging people from running for office. (Admittedly, this incentive is counterbalanced to some extent by criminalizing the act of coercion against candidacy, but we’ve lost the ancient tradition of open write-in candidacy, which is dead and buried in Texas.)

  • MISTAKES WITH VOTER REGISTRATION LISTS, AND WHY BOUNDARY LINES MATTER

To save money, the City of Martindale conducted its May 2015 mayoral election jointly with a Hays County–area school district, and both the city election and the school district election were administered by the Hays County elections administrator. But the City of Martindale is located in Caldwell County, meaning that the Hays County elections administrator had to cross a county line, setting up and deploying Hays County–owned voting equipment and workers in Caldwell County–sited polling locations, and using a hodgepodge of Hays County jurisdictional voting lists (for some of the school district voters) mixed in with Caldwell County jurisdictional voting lists (for the City of Martindale election, which included a ballot referendum for the approval of an extraterritorial-jurisdictional Martindale Development District that non-Martindale residents of the city’s extraterritorial jurisdiction were eligible to vote on).

I’m sorry. That’s …  just wrong.

Who can blame the Hays County elections administrator for failing to distinguish the voting eligibility of two distinct groups of voters, defined by geographic boundaries the management of which are entirely outside the scope of the Hays County voter registrar’s office?

Not for nothing, but the November 3, 2015, do-over election will be conducted by the Caldwell County elections office.

This particular recipe for disaster should be laid squarely at the feet of our state election laws. In particular, the confusion over voting eligibility was exacerbated by a ugly, punitive anti-school-district law passed in 2006 (Section 11.0581 of the Texas Education Code) that specified that school districts were obligated to conduct their officer elections jointly with the general elections of a municipality.

On the face of it, that doesn’t seem like such a bad law, until you realize that school districts don’t actually have territorial boundaries wholly encompassed by, and coterminous with, city boundaries. The real purpose of the law was to strip school district local governance away and place control of school district elections with geographically separated city government elections.

So the San Marcos Consolidated Independent School District (SMCISD) had no say about whether their trustee election would be paired with the City of Martindale mayoral election—the school district was required by law to conduct its single-member district trustee election jointly with a city election.

In May 2015, the available city election on which the school district trustee election could piggyback was the general and special municipal election for the City of Martindale (which shares overlapping territory with the Single Member District 2 trustee position for SMCISD). And while some of SMCISD is located in Caldwell County, the bulk of the school district is in Hays County, leading the school district to naturally rely on the Hays County Elections office to take on the administrative burden of conducting “the election.”

And by “the election,” I mean in fact two elections—the school district trustee election for single-member District 2 of the SMCISD and the City of Martindale election for mayor.

But really, by “two elections,” I mean three distinct elections in three different territorial regions: 

(1) the SMCISD school district trustee election,

(2) the general election for officers for the City of Martindale, and

(3) the referendum election in the City of Martindale ETJ (extraterritorial jurisdiction) to approve the creation of the Martindale Development District.

Is it any wonder that voters got the wrong ballots, with some Martindale ETJ voters voting in the City of Martindale mayoral election? The whole election was like the set-up for a bad sit-com joke about an administrative disaster resulting from impossible-to-follow instructions.

Now, Dimsdale, the conduct of this election is the very essence of simplicity. Why, even a toddler could do it.

When a voter comes into the polling place, simply consult this badly printed and faded mimeographed list, and then compare the voter’s residence address with this smudged and slightly wrinkled map of the boundary lines of the city, the county, the school district single-member districts, and the city extraterritorial jurisdiction. Oh, except that you’ll need to consult a separate map for the ETJ, but only for that portion of the ETJ that overlaps with the District. Not the whole district, but just District 2 of the District, except in the portion that isn’t being affected by the vote to approve the District (and by that District, I mean the Development District, not District 2 of the District. Or the District). Now, just cross-reference the block range and street name with this slightly out-of-date block list, and you’ll note the lowercase abbreviation codes for each of the jurisdictions, assuming that the person is within Hays County. But, if the voter has a Caldwell County address, you’ll need to consult this incompatible list that uses a completely different abbreviation code. Now, whatever you do, don’t fail to not provide Version B of the ballot (containing the SMCISD trustee election) to someone ineligible to vote in the city election, unless it is clear that you should be providing Version C of the ballot (when the city voter also happens to live inside the boundaries of SMCISD single-member district 2) except when you need to provide Version A, but only to those who live in Hays County. And obviously, apply those requirements to Versions B2, C2 and A2 in like measure for voters in Caldwell County. So, good luck, and remember, there’s no reason to not not call the voter registrar for Caldwell County, unless it’s for a voter in Hays County, and … oh dear, I seem to have spilled grape jelly on the map, which was printed using a shade of purple ink disturbingly similar in shade to the color of the spilled jelly. But no matter—I’m sure that despite this being the first election that you’ve ever volunteered for that you’ll have no difficulty whatsoever managing the long line of angry voters who are already gathering outside the locked doors of this tiny, un-air-conditioned polling site with inadequate parking and intermittent power outages. Oh, and voting booth number two has always been a bit wonky. Just give it a good shake from time to time, but be careful not to knock the battery pack loose.

Good luck, Dimsdale, I have every confidence in you.

  • OKAY, I KID, BUT THIS KIND OF DISASTER IS BOTH PREDICTABLE AND PREVENTABLE

The City of Martindale doesn’t have a lot of money—it’s a modest town with a small tax base, and no appreciable industry. And yet, thanks to the need to re-do the election, the city must shell out thousands of dollars in precious city revenue in order to conduct a do-over election, all because of the “cost-savings” gained from being able to cancel elections in preceding years. The news coverage is embarrassing, and according to the Statesman story, has exacerbated the ill-will between the former mayor of Martindale and the person who won the May 2015 mayoral election.

But this was just one of those one-in-a-million flukes, right? I mean, these kinds of disasters don’t happen that often, right?

Sadly, no. This may have been the City of Martindale’s first brush with the awful and costly election contest process, but the same factors that led to this disaster repeat over and over again across the State of Texas with depressing regularity.

So, what should a city secretary do to ensure that this sort of thing doesn’t happen in future elections?

  1. Get the ballots printed and reviewed as early as possible.
  2. Make it a fixed and automatic routine to require outside review and analysis of the election’s administrative burdens by experienced election law experts.
  3. Confirm jurisdictional boundaries early, and specify exactly which jurisdictional territories can and can’t vote on each ballot issue.
  4. Assign final responsibility for each local election specifically to one person per jurisdiction, rather than relying on an extraterritorial “joint” early voting clerk or county voter registrar forced to act outside the scope of his or her job description.
  5. Remember that an election services contract with another entity is not a mechanism for abdicating responsibility for the local conduct of an election.
  6. Even when state law permits you to cancel an election, follow the formal procedural steps for ordering the election, defining the contractual responsibilities associated with that election, and documenting the cancellation or declaration of unopposed candidacy.
  7. Maintain a detailed permanent election register for all elections, whether cancelled or not.

Yes, it’s embarrassing, what happened in the City of Martindale. But don’t blame the city secretary. It wasn’t her fault that state law created a perfect storm of administrative confusion. An early call to the Elections Division (say, sometime in March of 2015) would (optimistically) have saved the city from this disaster, but in a larger sense the city’s woes are just a demonstration of how we need to reform state law regarding election cancellations.

A Question About Homeless Voting

Today I got a call from a Houston-area radio journalist asking questions about how Texas makes it harder for homeless people to vote. On the one hand, the timing of the question was a little late (what with the registration deadline already having passed for the statewide and local November 3, 2015 elections here in Texas). On the other hand, the question was timely, given that a five-month lead-in to the early February deadline to register to vote for the March 2016 primary elections probably gives homeless voters the time they need to organize their identification paperwork and fight their legal and bureaucratic battles so that they’ll be able to cast a ballot next year.

If ever there was a class of voters that was easy to disenfranchise, it would have to be the homeless – even before we had voter I.D. laws, only an estimated 10% of the eligible voting-age homeless population participated in elections. (This statistic is widely cited, and consistent with statements made by Neil Donovan, the executive director of the National Coalition for the Homeless. See, e.g., http://www.pbs.org/newshour/rundown/forgotten-voters-dc-volunteers-work-to-register-the-homeless/.)

Why are the turnout numbers so small for the homeless? Let me turn that question around. Why wouldn’t we expect the number of homeless people successfully engaging in the political process to be a tiny minority of the homeless population? After all, our government has raised enormous barriers to discourage homeless participation in politics, with ballot limitation policies that often appear to be motivated more by petty cruelty or simple mean-spiritedness than by any legitimate administrative concerns; is it any wonder that homeless have gotten the message that they are not wanted at the polls?

That’s not to say that there aren’t organizations making an effort to counter this powerfully negative message of exclusion –  there are regional groups like Homeless Not Powerless (which was active in early 2014 and centered around urban centers in Alabama and North Carolina), as well as national groups like the aforementioned National Coalition for the Homeless (who produced a .pdf brochure in 2012 urging the homeless to register to vote and go to the polls).

I would hope that homeless advocates would similarly work to encourage voting by the homeless in 2016, but nobody doubts that the Texas photo i.d. law makes that a lot harder.

DOESN’T EVERYBODY HAVE A DRIVER’S LICENSE ALREADY?

Uh … no. Could anybody still say this sort of thing with a straight face? Well, yes – at last weekend’s Texas Tribune Festival here in Austin, State Representative Jason Villalba (R) (Dallas) said that a photo I.D. requirement was “no big,” because everybody already has a license to do things like rent cars and book airline tickets.

Ah, the power of anecdotal experience. Ah, the failure of imagination. Since a Texas lawmaker has a driver’s license, everybody must have one. You know, except for the 600,000 eligible already-registered voters who lack such a thing.

Seriously, does Representative Villalba think that the whole development of evidence and discovery phase of a contested civil rights trial just takes place in an ’80s movie montage? Has it somehow escaped the understanding of our state lawmakers that when lawyers clash in a courtroom setting, spending huge sums of money on depositions, expert witnesses, and intensive documentary analysis and research, that the resulting mountains of evidence are somehow just … irrelevant to their own fantasies about how the other half lives? It isn’t some made-up statistic – the Texas Secretary of State’s own records confirm that around 600,000 registered voters lack sufficient i.d. to vote. A much larger number of non-registered voting-age citizens also lack the documentation required to cast a ballot.

OKAY, SO NOT EVERYONE HAS A DRIVER’S LICENSE. BUT … I MEAN, COULDN’T THEY ALL GET DRIVERS’ LICENSES?

With unlimited resources, time and money, problems like a lack of supporting documentation magically vanish for eligible voting-age Texans. Except … people don’t have unlimited resources, time and money. That’s sort-of the problem, isn’t it?

To be fair, the State of Texas makes it possible for people without drivers’ licenses to get specialized picture I.D.s to be used for the narrow purpose of voting. And these I.D.s are at least legally issued free of charge to anyone who can cough up sufficient documentary proof of their identity – such as a birth certificate or a passport.

Here’s the kicker (as I have mentioned before, more than once) – not everyone has a birth certificate or a passport. And getting a birth certificate or a passport isn’t a cost-free transaction.

A little digging uncovered some private charitable groups that help homeless people get I.D. forms, and subsidize the cost of those forms – there’s a coalition of Presbyterian churches in downtown Houston (Main Street Ministries) that offers a homeless I.D. workshop on Tuesdays and Thursdays from 9:00 to 11:30 a.m., excluding holidays. But … that service is limited in scope, and is only available to homeless people who have a valid referral letter from an approved referring agency.

To be fair, I’ll grant you that “some limited charitable resources for getting a picture I.D.” isn’t the same thing as “no resources for getting a picture I.D.” It would be inaccurate to say that there are no avenues by which an impoverished homeless person could get the materials necessary to register to vote and cast a ballot.

But some things are just inherently harder to do when you don’t have a fixed residence address. For instance, there’s the problem of providing a residence for purposes of identifying a voting precinct.

Here in Austin, a homeless person could successfully complete a voter registration application by filling out the form and listing a physical geographic location (“under the overpass at IH35 and 12th Street”) as the residence. For a mailing address (in order to get the voter registration certificate), a person could then list “General Delivery” along with the zip code for the main post office.

Problem solved, right? Except … a person must provide two forms of i.d. and a valid residence address in order to receive mail from the General Delivery window at a regional mail distribution center, per the USPS Domestic Mail Manual. Except … there’s an exception to this requirement in the discretion of the local postmaster if a transient person is “known to the postmaster” and sufficiently well-identified.

Subjective, mushy, exceptions to general rules create certain fairness problems. A nice local postmaster might go to great lengths to assist homeless mail clients with securing no-cost P.O. boxes and long-term General Delivery accounts. Or not – when Seattle homeless sued the Postal Service in the late 1990s for failing to provide mail delivery, they were more-or-less poured out of court with an appellate decision that upheld the Postal Service’s broad discretion to chose how much or how little it needed to do to in terms of providing mail services to the homeless.

So, yay to you, homeless person, if you happen to live in an area where you can get mail delivery. But if you live somewhere where you can’t get mail delivery (say, if transportation issues and a lack of i.d. make it impossible for you to sign up for General Delivery), the Postal Service isn’t obligated as a matter of law to help you out.

Homeless people get to experience annoying Catch-22s involving ignorant voter registrars who insist on the primacy of a street address, wherein the homeless person submits a voter registration application, but has the application rejected because it doesn’t list a place that the voter registrar believes is a “real residence.”

WELL, OKAY. MAYBE HOMELESS PEOPLE HAVE TO WORK A LITTLE HARDER TO REGISTER TO VOTE. BUT VOTING IS IMPORTANT – IF THEY REALLY WANT TO VOTE, TRANSIENTS SHOULD BE WILLING TO PUT UP WITH A LITTLE PAIN AND FRUSTRATION

Um … okay. This is the sort of absentminded cruelty that leads to civil rights violations, because it belies a popular and common attitude – that the homeless are morally inferior and undeserving of any particular care or consideration when it comes to voting.

If that’s how one feels, why not apply that philosophy to other groups as well. Why do we coddle people who are disabled on Election Day? Why have we had a law on the books for the last 110 years allowing people in the extremis of terrible illness the right to vote from their sick beds on Election Day? And why do we coddle people who have just had a death in the family and been called away by the need to bury a loved one?

For that matter, why bother accommodating the absentee voting of people who are actually under fire in a foreign war zone? Shouldn’t we expect soldiers to just tough it out? I mean, if voting is so important and all, why should we make it easier for anyone to vote? Why not just have the entire electorate crawl through broken glass to get to the polling place? I mean, if democracy is so precious and all, shouldn’t we all be willing to suffer indignities, costs, and hardships that are thrown up as roadblocks to our vote?

Well, no. obviously. First of all, most of us aren’t heartless psychopaths who take pleasure from the pain of other human beings. And secondly, most of us understand how the whole “fairness” thing works, because we occasionally benefit from the kindness of others, and can empathize with people who find themselves in need of kindness.

I mean, it would be one thing if we all faced exactly the same burdens on our ability to cast a ballot – then one could at least argue that the pain and cost of voting was distributed evenly among all voters. But that isn’t the case – some people have a significantly harder time casting a ballot than others. And to the extent that some people face greater hurdles to participation means that those people are disproportionately less likely to be able to participate as voters in an election.

We would only exclude those people from participation (and preserve the exclusionary barriers limiting participation in the organs of self-government) if we really didn’t want those people to participate. And that way lies the path to insurrection, rebellion, and death.

The homeless are entitled to participate in elections with the same ease and transparency of process as any of the rest of us, whether we are renters, homeowners, fabulously wealthy, desperately poor, or living under a bridge. And until the homeless are able to participate in elections with the same ease and lack of constant scrutiny and suspicion. we cannot say that we are free citizens of a democracy.

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