Indignities and Tyrannies in Local Elections

I am informed that the city secretary for the City of Bartlett in Williamson County has asserted once again for the fourth year running that there is “no state law” requiring the city to conduct early voting within its city limits during the entirety of the early voting period for the May election, and that despite the fact that in-person early voting is to be conducted from April 27, 2015 through May 5, 2015, there will only be one day of early voting within the City of Bartlett city limits; namely on Saturday, May 2nd. This is both annoying and wrong, and a disservice to the voters of that city, but it may also be a shortcut chosen by other political entities as well, given that various other entities inside Williamson County also have weirdly truncated and limited early voting.

Last year, in response to complaints about the lack of early voting, the Temple Daily Telegraph ran a story asserting the city’s position that an election services contract with Williamson County justified the lack of early voting locations. The story is behind a paywall, but there’s not much point in reading it, given that the city’s premise is wrong and is flatly contradicted by state law, as I’ve explained before.

The May elections are coming up, and the voters in thousands of cities, school districts, and a myriad of other special and general law districts will be going to the polls – as ever, the Texas Secretary of State has a handy (if somewhat daunting) calendar describing the procedural deadlines and events before and after the May election date.

I want to be clear that it is emphatically not okay for a city, a school district, or any other entity to fail to offer early voting at its main place of business for each day of the early voting period – Section 85.002 of the Texas Election Code is unambiguously clear on this point. To recap – if your city is having an election, then there has to be a main early voting polling place inside your city limits, and it has to be open at least during regular business hours every weekday of the early voting period. There’s no intervening or superseding statute that “forgives” or “excuses” not providing this minimal level of in-person early voting.

As frustrating as it is to see that a number of political subdivisions have failed to provide the requisite number of hours of early voting within their jurisdictional boundaries (and therefore have indicated that they will be breaking state law), I am mindful of the reasons why even the best-intentioned public employees might be inclined to take this admittedly illegal shortcut.

In a great number of political jurisdictions, the job of conducting the local election falls to whichever public employee was slowest to say “not it.”

The truth is that running a local election is a tedious and largely thankless task that has gotten more complicated and harder over the last decade and a half, given that (1) ballots must be prepared and mailed out to military and overseas voters not later than 45 days before the election; (2) accessible voting systems must be available at all early voting and Election Day polling places, and therefore must be leased, programmed with ballots, tested, and correctly installed; (3) intergovernmental joint election agreements and election services contracts must be negotiated at least three months or more before Election Day; (4) election expenses have to be budgeted and accounted for in local government budgets almost a full year prior to being incurred; (5) legal notices must be posted, election workers must be hired, polling places must be found, candidate applications must be reviewed, public records must be archived, public meetings must be conducted, voter registration lists must be ordered, posters printed, supplies gathered, training sessions scheduled …, and on, and on, in an unending, more-or-less year-long cycle of bureaucratic management before and after each election.

And so … mistakes happen. Steps are skipped. Inconvenient obligations are forgotten or passed over. As the infrastructure of democratic participation is expensive and tedious to maintain, and as the actual labor is sometimes delegated to those who are least trained, or least inclined, or least equipped to preserve the niceties of procedural regularity, compliance with the law becomes a luxury not afforded to every voter.

The pressures associated with conducting an election may explain why entities like the City of Bartlett break the law. But an explanation is not an excuse. Political subdivisions throughout the state must adhere to the voting schedule imposed by the state legislature, whether it is tedious to do so or not.

Charles Kuffner Analyzes Abbott’s Appeal Among Latino Voters

After the November 2014 election, some fairly iffy exit-polling suggested that Abbott had swayed around 44% of the Latino vote statewide. That percentage seemed high, and so Charles Kuffner took the effort to actually look at the numbers.

The results? You should see for yourself. Briefly, (1) yes, Abbott did better with Latinos in 2014 than Perry had in 2010, presumably because people didn’t know who he was; (2) no, he did not poll 44% of the Latino vote; (3) Latino support for Republican candidates varies across the state; and (4) if Democrats hope to do well, they must improve voter registration and turnout among voting-age Latinos.

Mr. Kuffner has other interesting thoughts on racial demographics and the 2014 election, as well. Check it out.

Reading the tea leaves – what do recent U.S. Supreme Court decisions bode for Texas elections?

Within the past week, the U.S. Supreme Court refused to grant certiori to hear an appeal of a decision upholding Wisconsin’s appalling voter i.d. law, (Frank v. Walker) and just remanded two Alabama redistricting cases (Alabama Black Legislative Caucus et al.  v. Alabama et al., linked with Alabama Democratic Conference et al., v. Alabama et al.) back to the lower courts on a 5-4 decision holding that the state legislature could not justify “packing” African-American voters into fewer districts on the basis that it was compelled to do so in order to comply with Section 5 of the Voting Rights Act.

Superficially, this seemed to be a bit of give-and-take when it came to voting rights, although the cases weren’t directly comparable on the facts or issues.

So, what do these decisions mean for (1) the Texas voter i.d. case (Veasey et al. v. Perry et al.), or (2) the Texas redistricting case (Perez et al. v. Texas)?

Answer: Not much either way. The Texas Legislature (bless its aggregated shriveled dignity) overreached far more aggressively on both voter i.d. laws and on redistricting than did any of the other states (with the possible exception of South Carolina, which seems to be giving us a run for the money on efforts to cement the title of “most regressed” when it comes to voting rights).

As a consequence, the Texas lawsuits present voting rights advocates with an interesting set of tactical choices. On the one hand, the State has been such a bad actor that it is absolutely imperative that its voter i.d. and 2013 redistricting be struck down in the Supreme Court as unconstitutional, and that its future actions be subjected to “opt-in” preclearance under Section 3 of the Voting Rights Act.

On the other hand, because Texas pushed the envelope on bad legislative acts, the State provided some cover for other states involved in similar lawsuits. It’s sometimes handy to be able to point to another entity and say, “Well, at least our state government didn’t try something on the order of what Texas did!”

In the case of the Wisconsin litigation, the plaintiffs lacked sufficient evidence of malicious racial intent to invoke key provisions of the Voting Rights Act. In the case of the Alabama litigation, the plaintiffs prevailed only in knocking back a couple of fairly tenuous legal arguments justifying racial gerrymandering.

In the Texas litigation, the stakes are much higher, and the evidence for racial animus is much stronger. As for me, I just hope that the Supreme Court fixes the Texas mistakes. As much as I might hope that Justice Roberts would have a change of heart regarding the importance of the Voting Rights Act for the country as a whole, I really just want some acknowledgment that there are fact patterns so egregious that they can embarrass even a few hard-core states-rightists.

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Floyd Abrams Is Feeling A Little Defensive About “Citizens United”

I haven’t generally talked about campaign finance reform, or about one of the U.S. Supreme Court’s more disastrous policy missteps in that area (namely, Citizens United v. Federal Elections Commission, the 2010 decision that famously ruled that corporations should be freed from federal statutory limitations on their contributions to political campaigns and opinion advocacy).

Thanks in large part to that decision, our political campaigns are now awash with vast sums of corporate money, untraceable dark money contributions, and churning rivers of purchased influence and graft.

The whole topic of campaign finance is depressingly familiar and trite, and outside my comfort zone, because it is a field of political engagement that isn’t amenable to legislative or judicial correction – it is, instead, the tinder of class conflict and armed revolution. And I find revolutions depressing because they are inefficient and cause tremendous collateral damage.

Nevertheless, I was professionally curious about what Floyd Abrams had to say about the free speech clause of the First Amendment and the role he played in getting the Supreme Court to strike down restrictions on corporate political contributions. After all, Mr. Abrams is widely regarded as the most prominent and successful First Amendment litigator practicing in the United States; his absolutist views regarding the sanctity of free speech are unquestioned, and he spoke at Temple University on March 16th, 2015 about what he saw as the greatest threats to free speech rights today. His full lecture is transcribed at concurringopinions.com, and can be viewed here.

Some critics have suggested that Mr. Abrams’ has a rather single-track mind when it comes to questions of free speech, and alas (at least based on these remarks), I have to agree. Mr. Abrams feels the greatest threat to free speech is that people sometimes refuse to allow other people to say awful things. In particular, he seems concerned that campus organizations and individuals often withdraw invitations from racists and lunatics who want to use educational forums to draw an audience.

In decrying this general human preference not to be bombarded with the rantings of crazy people, he cleverly forgets to mention that the free speech clause of the First Amendment doesn’t say, “Nobody shall take any action restraining the free expression of ideas.” It says that Congress shall make no law abridging the freedom of speech.

You and I are still free to abridge the hell out of other people’s speech; we are certainly not obligated as private individuals to entertain the ravings of horrible people, and we can restrict communications to our hearts content. Heck, I do it every day by consciously avoiding Reddit forums!

It’s unfortunate that Mr. Abrams leads off his remarks with such silliness as being mad that horrible people like Ann Coulter sometimes get themselves booted off university campuses, because it trashes his credibility when he talks about other more pressing and complicated aspects of free speech law.

His argument with respect to “Citizens United” is to baldly declare that there’s nothing weird about the idea of giving civil rights to corporations, and that non-individual legal persons have had free speech rights recognized by the Supreme Court since forever – he then cites examples of businesses or institutions that at one time or another have been subject to what he views as restraints on expression, using the examples of (1) a bookstore being subpoenaed for Monica Lewinsky’s customer purchase history; (2) a museum being threatened with censorship by the former mayor of New York because of controversial art being displayed; (3) a movie being threatened with censorship because of sexual content; and (4) a tobacco company facing cruel demands to put dismaying images on its cigarette packs.

Wow. Um. I guess if you try hard enough, you can say that anything is a limitation on free speech. I hope that Mr. Abrams understands on at least some level that privacy cases, cases involving separation of powers and executive authority, and product safety regulations AREN’T ABOUT FREE SPEECH. I suppose that if the police pull me over for running a red light, they are infringing on my demonstrative expression of my disagreement with traffic regulations.

Citizens United is a bad decision for a lot of reasons. But one of the most glaring errors in the decision is the frankly bizarre assertion that because corporations are legal individuals, they are therefore … people … and that as a consequence they are entitled to free speech rights.

Um. No. Corporations are franchises of the sovereign. They exist only at the pleasure of the sovereign, and only to the limit of the sovereign’s license granted to them. As franchises, they are permitted to sue and be sued, to own property, and to possess legal rights identical to or analogous to the rights granted to natural persons. But they are not people, and it is within the sovereign’s right to dissolve their franchise. The Coca Cola Corporation is permitted to operate as a corporation not because it has rights, but because it has privileges granted by the state in which it is incorporated (probably Delaware, but I’m too lazy to look it up.) If Coca Cola Corporation fails to pay its franchise fees, or fails to maintain a structure of corporate governance, it will cease to exist, and will no longer be permitted to do business as a corporation.

Any privilege that the Coca Cola Corporation enjoys as a participant in the political process is subject to revocation at any time, at the pleasure of that which governs.

Aaagh. Sometimes I wonder how stupid ideas like “corporations are people” get started. And if I do get a ticket for running a red light, I do not want Floyd Abrams representing me – I’m afraid he’ll just make a mess of the thing.

Post-Election Report Indicates Systemic Election Issues

After the November 2014 general election, Battleground Texas used the data from its Election Day voter hotline to summarize and describe the problems that voters faced in the election. That public report is available as a .pdf file through Battleground Texas. You can read the report here.

Among other things, the report finds that (1) the statewide voter registration list is riddled with errors (and the fact that the statewide database went down on Election Day was frustrating), (2) compared to the experience in other states, provisional ballots in Texas are used disproportionately in response to registration problems, (3) The Texas Department of Public Safety has a deserved reputation for particularly poor handling of “motor voter” registrations, a responsibility of the state agency that administers drivers’ license issuance and renewal as mandated by the National Voter Registration Act, and (4) voting systems in Texas are showing their age – equipment is breaking down, touchscreens are getting misaligned, and the availability of back-up machines is declining.

Another significant problem lay in the organization and staffing of polling places – as with almost every election, there were a number of precincts across the state that just couldn’t seem to get their act together. Polls opened late, failed to manage lines of voters properly, enforced nonexistent proof of identity requirements, failed to accommodate voters who needed accessible voting due to limitations on movement or other disabilities, didn’t bother to provide sufficient ballots, turned voters away, or otherwise disenfranchised eligible voters. Poor treatment of voters tended to disproportionately affect minority voters and voters with limitations on movement.

Materiality in the eyes of the beholder, and voting rights

One could imagine an officeholder responding to the report with an air of jaded acceptance. “Of course we infuriate voters, leave people angry and frustrated, and sour the voting experience. But our poor management of elections didn’t have a material effect on the outcome of the election.”

With respect to specific races, such a statement might not be true – targeted mistreatment or neglect of voting rights might well have tipped election results; the potential that such miscarriages of suffrage might be prosecuted in civil court is relatively slight, and given that voters traditionally and consistently have been ruled to lack standing to file election contests (because unlike candidates, voters are deemed to lack a justiciable property right in the assignment of public offices), the burden and expense of arguing that an election came out “wrong” falls on the candidates’ shoulders.

But even when an election turns out “right” (i.e., after discounting all other factors, including discouraged voters, voters who were pressured or coerced, voters who were disenfranchised, etc., the number of “clean” votes in favor of the winner were sufficient to overcome the number of “clean” votes in favor of the loser), one can still trespass on the rights of individual voters.

And so in one sense, focusing on the “materiality” and “proportionality” of the harm done by disenfranchising voters is looking at the problem of badly-run elections through the wrong end of the telescope. The act of voting (independent of the choices made by the voter on the ballot) is the voter’s formal participation in government. A voter who isn’t able to vote has therefore not formally given his or her consent to the acts of that government, and lives in a state of subjugation to totalitarian whims.

For that reason, prosecution of violations of voters’ civil rights, as well as prosecution of election-related crimes is not based on whether the election came out “right” or “wrong,” but on the experience of the individual victims. It is no defense for the entity or person responsible for a voter’s bad experience to argue that the voter’s vote “wouldn’t have changed the outcome.”

Back Again After A Long Hiatus

It’s a good time to be writing about Texas Elections, given that the 50th anniversary of the March from Selma to Montgomery was just two days ago, and given that we are still struggling to counter the corrosive effects of endemic institutional racism even now. There’s also quite a bit of action vis-a-vis public law generally in Texas, what with the Legislature’s latest experiments.

In the midst of all this election-related news, my wife had surgery recently. Everything went great, and we’re all doing fine, but the medical prelude and aftermath were distracting, to say the least, and now I feel like the kid who comes back to school after a long break and hopes that he can still remember the combination for his locker.

Also in the midst of all this, I finished a novel for middle-grade readers called “Sky Pirates of the Aetherosphere.” What does it have to do with Texas elections? Absolutely nothing whatsoever. As in, it is about as far removed from the law and elections as it can possibly get.

If the novel is in any way tied to my work as an attorney, it grows out of the rich loam of my extended hiatus from government employment. So thanks for that, State of Texas!

Very briefly, here’s a recap and highlights of some of the things I’ll be looking at this week:

I. Selma and the the future of voting rights

Everybody and their cousin have provided transcripts and links of varying quality to one of President Obama’s best speeches, namely the remarks he delivered on the 50th anniversary of the march from Selma to Montgomery. His speech was reprinted in full in a number of newspapers, including the Washington Post, the Wall Street Journal, and the New York Times, but what the heck, I’ll provide the link as well. It deserves as wide an audience as possible, and if you haven’t read it elsewhere, go check out the official transcript.

2. Calls for Electronic Voter Registration

Each time a legislator calls for Texas election law to enter the 21st Century, I admire the ambition, given that nobody’s managed to drag it into the 20th Century yet. But who knows? Hope springs eternal, etc. Anyway, there are a number of proposals for encouraging voter registration, including provisions for online registration. This seems like a no-brainer, which means we’ll probably get to see it happen sometime in the mid-2100s.

3. Election administrators exit Stage Left

Major elections impose a certain amount of wear and tear on election administrators, but 2014 seems (at least anecdotally) to have been worse than usual for causing turnover among county election officials.

4. Fixing the Texas Election Code

It’s my pet peeve – what can I say? The Texas Election Code isn’t just evil, it’s badly written. I mean, evil … well, that’s a policy choice – if you want your politics evil, you’ve come to the right state. But badly written? That’s just embarrassing.

I look forward to working through this daunting backlog of election-law-related stuff. One nice thing about writing on election issues is that there’s always something going on.

Happy New Year!

Now that I’m belatedly putting away the eggnog and packing up the ornaments, let’s see what’s shaking in Texas elections.

1. Punishment and Retribution, or the Relationships of Election Administrators and County Commissioners

Having talked to Dan Teed many times over the years, I know that he is a cautious and fastidious elections administrator; he was the elections administrator for Harrison County for a time, and then moved on to work in the challenging position of elections administrator for Waller County. His successor in Harrison County (Becky Dotson) was new to the job, and didn’t last – Harrison County was the last county to report vote totals following the November 2014 election, and had been subject to state criticism for its tardy distribution of a dozen military ballots; these problems led to Ms. Dotson being fired about a month after the election.

Her story is sad, complicated, messy, and an all-too-common one. Her downfall was depressingly predictable, and was grounded in the complexity of the job she was asked to do, her lack of experience, and the apparent lack of automation available to her. Ultimately, she was bested by the legal obligation to mail ballots out to military and oversees voters no later than 45 days before the election.

For several decades now, the Texas Election Code has authorized the creation of a salaried county position of “elections administrator.” Chapter 31, Subchapter B, Texas Election Code (Sections 31.031 et seq.). (Those who are curious about all of the ins and outs of county election administration should also look at Subchapters C, D, E, and F of Chapter 31, all of Chapter 32, and, well, to be honest, pretty much everything else in the Texas Election Code and Title 1, Part 4, Chapter 81 of the Texas Administrative Code).

The law solves a number of problems caused by the more traditional use of county clerks (who are elected in partisan contests) as the chief elections officers responsible for conducting county elections.

What the legislation attempts to achieve is insulation of the county elections officer from partisan pressure. This is done in part through an elaborate structure of divided supervisory responsibility for the hiring and termination of election officers – the elections administrator is hired by a county elections commission composed of the county clerk, county tax assessor, county judge, and the chairs of the county Republican and Democratic parties.

Meanwhile, the funding and staffing of the office is resolved by the debate and actions of the county commissioners.

To survive and continue to hold a county job, a county elections administrator must placate (1) the county judge, who presides over both the county commissioners and the county elections commission, (2) at least a majority of the county commissioners, and (3) at least one other member of the county elections commission. If this goal isn’t met, the administrator may either be dismissed by the county elections commission, or (more creatively) the commissioners’ court may either strip the office of funding, or abolish the position altogether.

In contrast, a county clerk only needs to win a primary and general election every four years.

In the end, it’s disingenuous to treat any election workers as if they are somehow magically immune to intense political pressure or partisanship. It would be more accurate to say that county election administrators face a different and potentially more complicated set of political pressures than the political pressures faced by elected county officials.

Looking beyond the specifics of Ms. Dotson’s termination, one is naturally inclined to ask whether the sins of embattled or terminated county election administrators (a group that includes Susan Wilson and Robert Mendoza for Ector County, fired several years ago, Rick Barron (Williamson County), who was under considerable pressure from Republican county commissioners, or Glenda Denton of Rockwall County) were by any stretch more damning than the glaring problems of election management in places like Harris County, where Stan Stanart won reelection for a new four-year term that began on January 1. I would argue that Mr. Stanart enjoys far greater administrative leeway than do his election administrator counterparts.

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