The Odessa-American reported on July 14th that Ector County Judge Susan Redford is leaving office in mid-October to take a position with the Texas Association of Counties. In the course of reporting this, the paper noted that the judge didn’t want to refer to this as a resignation and couldn’t “do so formally because of how the law is written.” BZZZT. Wrong!
Once again, a misleadingly worded statute has left someone confused. In this case, the culprit is Section 201.023 of the Texas Election Code, which says that a vacancy occurs immediately when a governing body accepts an officer’s resignation, even if the resignation itself is for a future date. The Ector County commissioners were afraid that if their county judge tendered a prospective resignation, the county would be instantly without a judge, and Judge Redford would instantly be without a paycheck.
That’s not how it works, and that’s not the correct reading of the statute. If Judge Redford had resigned with an effective date of October 15th, say, the acceptance of the resignation would only be treated as a vacancy on July 14th (or whenever it might have been accepted) FOR THE PURPOSE OF FIGURING OUT WHEN TO SCHEDULE AN ELECTION, not for the purpose of actually leaving the position vacant.
This is a common error, and it’s unfortunate that in this case, the misunderstanding actually affected how a county judge worded her notice to her county commissioners’ court.
Section 201.021 of the Texas Election Code notes that the subsequent statutes relating to vacancies and vacancy-filling are just meant to provide a certain arbitrary date “for this title (i.e., for Title 12 of the Texas Election Code, relating to elections to fill vacancies)” to fix when a vacancy in office has occurred for the sole purpose of identifying filing deadlines and other ministerial administrative tasks.
So, no. County Judge Susan Redford would not have lost her elective office if she had tendered a resignation effective for mid-October. She would not have lost her job until such time as she actually left office.
If she had tendered a written resignation, the county commissioners could have asked, “Okay, given that county offices are filled by election only in November of even-numbered years, when can we appoint someone to temporarily fill the position of County Judge?”
That question isn’t answered by the Election Code – it’s answered by the common-law determination of actual physical vacancy from office. In other words, the commissioners would not have been authorized to act to fill the vacancy until mid-October.
And how exactly would they fill the vacancy? That question isn’t answered by the Election Code either. It’s answered by Section 87.041 of the Texas Local Government Code. If there’s a vacancy in the position of county judge, the remaining commissioners may appoint someone to serve until the next general election. The person they appoint will serve from mid-October of 2015 (or whenever) until the canvass of the November 2016 election, more than a year-and-half from now.
I have a lot to write about, but first, I wanted to acknowledge the just-passed two-year anniversary of the Texas Election Law Blog.
Two Years Ago
On July 2, 2013, just days after the Supreme Court issued its decision in Shelby County, Alabama v. Holder, I was fired from my job as a staff attorney at the Elections Division of the Texas Secretary of State’s office. My employer’s stated reason for firing me was that I had made intemperate remarks about what I can now call a particularly egregious miscarriage of a special district election in Montgomery County, Texas.
That election is now back in the news, after the 14th Court of Appeals remanded the first criminal case for a new trial.
I started this blog the day after I was fired, because
- My job — to provide unbiased explanation and advice about administering fair and legal elections in the state of Texas — still needs to be done, in part because
- In my professional opinion, the Elections Division at the Texas Secretary of State is now falling down at its mission — not because of the hard-working staff, but because of changes under the previous governor.
Unpacking the details of my termination raises all sorts of questions, not just about my professional qualifications and my flaws or merits individually as an attorney specializing in election-related matters, but also about the role of the Texas Secretary of State as chief elections official for the State of Texas, the complex interactions of money, self-interest, and law in elections administration, the slow diminishment of a once-effective advisory agency over the course of former Governor Perry’s tenure as chief executive officer of the State, and the larger battles over the soul of American democracy that are being fought state-by-state across the United States.
At least initially, I saw this blog as a platform for providing hard-working citizens (including election administrators) with some very modest enhancements to the dissemination of election law information relevant to Texans. Although I’m not a information architect or user experience expert, I was frustrated for years that the Elections Division’s website, while good in many respects, had such a peculiarly structured design. Election law opinions were missing; forms were not not where you’d expect to find them, and so on.
Just putting all the forms in one list was a comparatively easy fix (though I’ve been remiss in keeping it updated; that’s one of my tasks looking forward), and at some level I hoped that my own modest and amateurish improvements would shame top agency decisionmakers into paying attention to the agency’s role as an advisor to local, county, and state officials in elections administration.
What’s Changed for Me
I had been scrupulously nonpartisan while employed at the Secretary of State’s office — party affiliations and policy preferences were outside the ambit of my purview. (I wouldn’t even let my wife put political signs in our yard or bumperstickers on our car.)
I was, and remain, sympathetic to the day-to-day management concerns faced by county clerks and tax assessors who likely would not see eye-to-eye with me on many political questions at a personal level.
While at the Elections Division, and now, party planks and philosophical disagreements never angered me. I’m slow to anger. What did get to me was willful maladministration at the county level. (Here my editor has redacted a few specific examples, noting this blog is not the venue for what is now — since years have passed — lukewarm political chatter.) All that said, however, with almost no exceptions, I liked everyone I talked to — even the people I was annoyed with.
I mean everyone … even the possibly disturbed caller who floridly cursed me as “a maggot on Satan’s cracked hoof.”
All the callers I talked with, day in and day out, are gloriously, endlessly varied human beings, with rich contradictions and complicated feelings, and they were — and are — all trying to various degrees and with varying levels of success to conform their actions to some great social ideal as articulated in our state and federal election laws.
What got to me near the end of my tenure in the Elections Division was the Supreme Court’s decision to dismantle the regulatory framework of the Civil Rights era.
Moving Democracy Backward
Picture I.D. laws, restrictions on volunteer deputy registrars, and racially discriminatory redistricting, as well as Wild West campaign finance laws, stupid residency definitions, fear-driven race baiting, the disruption of polling places, candidate intimidation, and other acts of dirty political pool are all of a package with a more general philosophy adopted by members of the extreme Right — that political coups are preferable to elections, because the “wrong side” sometimes wins elections.
This political strategy is toxic to democracy and to our nation’s founding values. At what point will the extreme Right conclude that overt coups are preferable to elections (or subtle coups), because the “wrong side” sometimes wins elections?
As the mechanisms for free and fair elections are rendered less effective, the resentments of those shut out will grow. As our legislatures and leaders short-sightedly vandalize the instruments of suffrage, they turn the clock back to a time when our cities burned. Our cities are burning again, and will burn again and again until (some) policymakers learn that short-term political victory through anti-democratic means is self-defeating and costly.
A Way Forward
More to come. And your ideas welcome. This is important, folks!
The NY Times Magazine ran a well-written essay by Elizabeth Bazelon about how and when judges change their minds – with prominent mention given of Judge Richard Posner’s public mea culpa regarding his previous approval of a voter I.D. law. The essay isn’t primarily concerned with election law, but with the broader question of how and when judges have intellectual “cover” to change their opinions about something.
On June 8, Rick Hasen posted a column on Slate in which he argued that Hillary Clinton’s spotlight on GOP efforts to restrict voting rights was detrimental to the larger goal of actual voting rights reform. Not surprisingly, this column drew an immediate and angry response from many commenters who took issue with Professor Hasen’s concern that a Presidential campaign is too vitriolic to encourage actual bipartisan improvements in voting rights.
In making his argument, Professor Hasen acknowledged that (1) Secretary Clinton’s criticism of GOP-led changes in voting laws are factually correct; and (2) that Secretary Clinton’s proposed reforms (universal Federal voting registration, online registration, etc) are sound and rational. In other words, Professor Hasen generally agrees with Secretary Clinton that state legislatures dominated by the GOP have eroded voting rights since 2011 (with such measures as restrictive picture I.D. requirements, limitations on registration, reductions in early voting, etc.), and that for the health of our nation’s democracy, these restrictions must be overturned.
It isn’t the message that Professor Hasen finds objectionable, but the forum in which that message is being aired – a Presidential campaign. In his view, “voting rights” as a Democratic Party candidate’s campaign talking point puts Republicans on the defensive. As the GOP circles the wagons, the intensity of the rhetoric diminishes the likelihood that a Republican lawmaker can save face while working to overturn disastrous laws like those enacted in Texas and North Carolina.
As a counter-example of bipartisan cooperation on improving the voting experience, Professor Hasen points to the overwhelming success of the Presidential Commission on Election Administration (PCEA), which substantially advanced the cause of online voter registration, improved voter convenience for early and absentee voting, and so on. The implication is that partisan rhetoric dampens enthusiasm for actual voting rights reforms. Why rock the boat? Why make enemies when the goal should be to improve access to the polls? Professor Hasen also argues that even a successful Presidential campaign is a poor mechanism for policy change, because the Executive Branch has very little in the way of effective tools for implementing changes in state election procedures.
Does Hillary Clinton’s campaign rhetoric really paint bipartisan cooperation on voting rights into a corner? I’m not so sure. Her harshest criticisms are aimed at two of her competitors (Rick Perry and Scott Walker) for their past actions; these potential GOP nominees couldn’t participate meaningfully in bipartisan improvements in voting rights even if they wanted to, and attacks against them for their hostility towards minority voters don’t particularly imperil any actual reform, and simply strengthen the polarizing stance of the two dominant parties. (the unofficial slogan of the GOP is “Protecting You From Undesirables.” The unofficial slogan of the Democratic Party is “Protecting You From People Who Think You are Undesirable.”)
Here’s the fatal flaw in Professor Hasen’s argument: he simultaneously discounts the political value of campaign rhetoric while paradoxically worrying about the political effect of campaign rhetoric.
Hillary Clinton’s campaign rhetoric regarding voting rights is either effective to influence government policy regarding voting rights reform (positively or negatively) or it is not. Statements by candidates for President regarding voting rights reform cannot simultaneously be regarded as both meaningless (due to the limited leverage allegedly afforded to federal executive control over state voting rights) and negatively powerful and promoting of intransigence among Republicans with respect to actual reform. The only acts that promote intransigence with respect to voting rights reform are those acts that actually have some chance of succeeding in making changes to voting rights.
Therefore, the only course available to Secretary Clinton is to continue treating voting rights reform as a campaign plank, because (1) either the usefulness and forcefulness of that plank comes from the credible threat that the campaign position will lead to an improvement in voting rights, or (2) the usefulness and forcefulness of that plank encourages clear “brand differentiation” among the candidates without endangering any potential for actual reform.
In the most recent issue of The Nation, Ari Berman posits that political fundraising in the weaponized post-Citizen’s United, post McCutcheon era has had the effect of making wealth and the pursuit of wealthy donors a more critical limitation on candidate choices, and suggests that super PAC dominance of the primary elections may violate Section 2 of the Voting Rights Act.
Check out his article, “How the Money Primary Is Undermining Voting Rights.”