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.
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.
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?
- Get the ballots printed and reviewed as early as possible.
- Make it a fixed and automatic routine to require outside review and analysis of the election’s administrative burdens by experienced election law experts.
- Confirm jurisdictional boundaries early, and specify exactly which jurisdictional territories can and can’t vote on each ballot issue.
- 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.
- Remember that an election services contract with another entity is not a mechanism for abdicating responsibility for the local conduct of an election.
- 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.
- 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.
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.
Lighting A Fire Under the Redistricting Panel – Plaintiffs Seek Injunctive Relief From San Antonio Federal Court
As Rick Hasen has reported, yesterday the plaintiffs in the 2011 redistricting lawsuit asked the three-judge panel for the Western District of Texas, San Antonio Division to enjoin the State of Texas from using the patently illegal district boundary lines that were used in the 2014 election.
Evidence-wise, the plaintiffs have a slam-dunk on this one – the State has lost at every turn with respect to the question as to whether the 2011 redistricting violated Section 2 of the Voting Rights Act; and there isn’t any serious disagreement on the facts – the State enacted a redistricting plan that was motivated by racial animus in order to limit the voting rights of racial minority groups.
For some reason that has never been explicitly articulated, the court appears to be paralyzed and unable to move on this issue. Possibly the members of the redistricting panel fear that any dramatic change in boundary lines will draw a disastrous results-oriented Supreme Court rebuke that might leave the plaintiffs in an even-worse position. but that doesn’t really justify the timidity with which the court has approached this matter. Whatever the motivation, the risk is now quite high that just as with the Texas elections in 2012 and 2014, the 2016 primaries and general election might be conducted using bad maps.
As I said before in reference to the November 2014 elections, the use of maps that have been explicitly found to violate Section 2 of the Voting Rights Act is not in keeping with judicial economy. That is true in part because bad maps are an early Christmas present to any losing candidate in any election in any of the affected urban areas in the State (particularly around the major population centers).
Heads up, election litigators – if your candidate has strong support among minority voters in 2016, but loses on these maps, you have been handed a ready-made, pre-briefed reason to contest the outcome of that unsuccessful election. And every contested election has at least one losing candidate, so somebody’s going to get creative if the court doesn’t get its act together.
‘Tis the beginning of October of an odd-numbered year, and as is traditional for this time of year, the Texas electorate is being asked to approve various schemes and notions that will be etched in the bloated, badly-written edifice that we call our state constitution.
As I note below, I have serious concerns about one of the pieces of enabling legislation that was passed in conjunction with Proposition One. Section 8 of S.B. 1 appears to violate the criminal law prohibition against bribery. The potential for abuse is serious, and I am frankly surprised that the provision survived the process of legal analysis prior to passage.
Setting that issue aside, let’s see what the Texas Legislature have cooked up for us this time. (For our raw material, I will draw from that excellent resource, the House Research Organization, which at least historically has tended to post more candid descriptions of proposed constitutional amendments than some other state government agencies. For the HRO’s summary of the November 2015 amendments, see: http://www.hro.house.state.tx.us/pdf/focus/amend84.pdf ). For the text of the actual resolutions, see the Texas Legislature Online (at http://www.capitol.state.tx.us/).
We’ve got seven propositions on the ballot this time, and with some exceptions the broad theme is the same as its been for many years – namely, reducing property tax revenue for school districts, some special-interest driven amendments, and fixing local problems with statewide constitutional language.
“So, Joe,” you say, “I’m a busy person on the go. Without a lot of legalistic mumbo-jumbo, can you just give me an objective and totally unbiased review of the seven proposed amendments to the Texas Constitution?”
To which I say, “Why, sure. Here’s a handy chart explaining each proposition:”
- Prop. 1 – Throttles back property tax revenue for school districts by adding another $10,000 to the homestead exemption.
- Prop. 2 – Exempts a handful of surviving spouses of disabled vets from homestead taxes
- Prop. 3 – Releases statewide elected officials from their historical requirement to reside in Austin, despite the fact that their jobs happen to be located in the capitol.
- Prop. 4 – Would authorize professional sports team charitable foundations to conduct charitable raffles.
- Prop. 5 – Would adjust the population cap that prohibits all but the tiniest of counties from using county road crews to build and maintain private roads, so as to ensure that slightly-less tiny counties will be able to use county road crews to build and maintain private roads.
- Prop. 6 – Would specify that Texans have a fundamental constitutional right to hunt, kill and harvest wildlife and fish, including by “traditional means.” Doesn’t define “traditional means,” but presumably that includes hitting things with rocks.
- Prop. 7 – Would redirect roughly 10% or more of the state’s annual tax revenue exclusively to transportation projects.
So that’s seven propositions.
But now I hear you ask, “Well, can you tell me just a little bit more about these propositions in detail?”
PROPOSITION 1 – SJR 1
This proposition sets out to accomplish a number of tweaks in order to improve the ad valorem tax exemptions for homesteads, while offering the promise of a legislative adjustment in tax revenue redistribution in order to spread the pain around among school districts. More specifically, the resolution proposes that:
- The current exempt part of a homestead property’s value described in Article 8, Section 1-b(c) of the Texas Constitution will be increased. Meaning the school property property taxes will go down. When calculating the property tax bill for school district taxes, the part of the property value that isn’t taxable would be increased from $15,000 to $25,000, meaning that the first $25,000 of a homestead’s value would be off the table when calculating the school tax bill for that homestead property.
- To sweeten existing and future exemptions offered to the elderly and the disabled, those homeowners would also have a proportionate amount of their homestead valuations taken off the table prior to applying additional tax breaks. (Another way to put this is that people who enjoy additional exemptions by virtue of their special exemption status will also be treated as if their homesteads were valued at $25,000 less than actual value, so as to further enhance their current and future special-case exemptions, such as tax freezes, abatements, refunds, etc).
- Local governments (specifically school districts, cities, and counties) would be prohibited from repealing any existing tax reductions;
- After January 1, 2016, state or local real estate transfer taxes would be illegal. Taxes could still be collected on mineral production or business activity (i.e., sales tax) and on title insurance. So as real estate appraisals increase, and as current owners cash out and reap the benefits of appreciations in the market value of real estate, the proceeds of such sales would be off limits for taxation, and both the state and local governments would be screwed out of capturing any of the market appreciation realized at the time of sale.
- The amendment applies retroactively to the 2015 tax year. Local appraisers must prepare their tax bills for 2015 on the assumption that this amendment will pass. If the amendment doesn’t pass, then the burden is on the local appraisers to make up any lost revenue by sending out new tax bills.
- The accompanying enabling legislation (S.B. 1) provides a mechanism whereby school districts would be entitled to some relief by applying for funds from the Foundation School Fund in order to make up lost maintenance and operations tax revenue, and to help service existing eligible debt (i.e., non-capital improvement debt or the sinking fund), but not to cover construction bonds or any new costs based on changes in enrollment, etc.
INDUCEMENTS IN THE FORM OF FINANCIAL INCENTIVES OFFERED TO VOTERS TO FAVOR PASSAGE OF SJR 1 – A SERIOUS LAPSE IN LEGISLATIVE DRAFTING OVERSIGHT
Senate Bill 1 is a particularly nasty piece of work, from a school district’s perspective, because it requires school districts to send out tax bills that serve as advertising to push voters to approve SJR 1. In effect, school districts have to put a note in the 2015 tax bill saying, “Dear voter. The Texas Legislature has cut your tax bill by this much: LOADS OF CASH (Calculated based on an exemption of $25,000 as opposed to your piddly little current exemption of $10,000). But we mustache-twirling villains at the school district will make you pay THIS ENORMOUS TAX WHICH IS TOTALLY UNFAIR if the law doesn’t change. To avoid paying more, make sure that everybody you know votes in favor of SJR 1 at the November 3, 2015 election. Thanks!
I’m exaggerating, but not by much. Here’s the actual text in what Section 8 of S.B. 1 adds to Section 31.01(d-2) of the Texas Tax Code:
- The tax bill or the separate statement must indicate that the bill is a provisional tax bill and include a statement in substantially the following form:
“If the amount of the exemption from ad valorem taxation by a school district of a residence homestead had not been increased by the Texas Legislature, your tax bill would have been $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill).
Because of action by the Texas Legislature increasing the amount of the residence homestead exemption, your tax bill has been lowered by $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000), resulting in a lower tax bill of $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill), contingent on the approval by the voters at an election to be held November 3, 2015, of a constitutional amendment authorizing the residence homestead exemption increase.
If the constitutional amendment is not approved by the voters at the election, a supplemental school district tax bill in the amount of $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000) will be mailed to you.“
Section 8, S.B. 1, 84th Texas Legislature, Regular Session (May 25, 2015); (implementing SJR 1) (textual emphasis added).
So … why is this a problem?
Take a look at Section 36.02(a) of the Texas Penal Code:
A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter
“Oh,” but you say, “I thought there was an exception to the bribery statute in circumstances where the offer of a benefit is made by a government institution in the form of an official governmental act.”
No. You’re thinking of an exception to prosecution found under Section 36.03(c) of the Penal Code – that exception applies to the separate offense of “coercion” as applied to a public servant or voter. I’ll pass for now on the question whether this exception would even apply to bar prosecution of the author of S.B. 1 for “coercion,” because the potential that S.B. 1 constitutes bribery is a far more serious legal matter.
There is an exception to prosecution in the bribery statute that allows for campaign contributions, but again, that narrowly-drawn exception would not apply in this circumstance.
There’s a reason why you don’t see legislation like this – normally, concerns about targeting taxpayers with financial incentives to favor the passage of a constitutional amendment would be flagged by the Texas Legislative Council. That may well have happened in this case, but the bill shouldn’t even have been drafted like this, much less passed. To quote the character of “Senator Gil John Biggs” (as played by John Goodman) from the opening scene of the first episode of Amazon’s “Alpha House,” “Well, that’s just piss-poor staff work.”
School district attorneys should seriously consider consulting with their local prosecutors regarding the legal implementation of S.B. 1.
There’s more to the proposition, but basically the Legislative Budget Board review tells you everything you need to know about this proposed change – it guts public education funding by another $1.2 billion per legislative biennium, and further limits the options available to local governments to find alternatives to lost revenue.
PROPOSITION 2 – HJR 75
Back in 2009, voters approved a constitutional amendment that gave totally disabled vets a 100% exemption from property taxes. Then in 2011, voters approved an amendment extending that exemption to the surviving spouses of dead totally disabled vets. But whoops! The law didn’t retroactively grant the exemption to the 3,800 or so surviving spouses of dead disabled homeowners who had died before January 1, 2010. So as a corrective, this proposition would eliminate property taxes for those individuals who happened to have been married to all those totally disabled vets that made the mistake of dying before January 1, 2010.
Some political entities might see a hit to revenue, and so Section 25 of H.B. 7 provides that local governments that lose at least two percent of their expected property tax revenue as a consequence of this proposition (i.e., because for whatever reason a bunch of the 3,800 affected spouses of dead totally disabled veterans happen to live within their tax authority) can get relief from the Comptroller in the form of a payment equal to one percent of expected property tax revenue. In other words, the State will reimburse local governments to the tune of no more than 50 cents on the dollar of lost revenue in compensation for those local governments having lots of qualifying surviving spouses.
It’s not a big deal in the grand scheme of things – the number of affected people make this more like a private economic relief bill. But everybody loves vets, right? Except for the homeless ones that ask for spare change – nobody likes those guys.
PROPOSITION 3 – SJR 52
For 140 years, the Texas Constitution has provided that elected state officials (i.e., the Governor, the Lieutenant Governor, etc.) have to personally reside within Austin Texas. The problem is that none of the current elected leadership in the State actually wants to live in Austin – the city is expensive, and is just not the place to see and be seen if you want to get ahead in conservative bastions like Midland-Odessa or Beaumont. So what’s a state official to do?
Most elected officials simply ignore the requirement to “officially reside” in Austin, given that residence is pretty much a ridiculously amorphous legal status. But for those officials who simply can’t stomach the idea that anyone might think they actually willingly reside in Austin, there’s this proposition.
PROPOSITION 4 – HJR 73
Professional sports teams often have charitable functions – for instance, teams might occasionally hand T-shirts out at the local school, or host a sports camp. Given that professional sports teams are for-profit business ventures, this kind of charity never seemed particularly burdensome, nor worthy of much comment or concern.
But people realized that if the Dallas Cowboys Foundation or the San Antonio Spurs Foundation could hold a raffle, they could make a mint.
There was just one problem – state gambling laws restricting the conduct of charitable raffles don’t really have a loophole wide enough for a professional sports team to stride through (oh, excuse me, “a professional sports team foundation.“) Hence there was impetus for this amendment.
If professional sports foundations are allowed to conduct charitable raffles, they’ll be permitted to sell tickets for drawings for prizes. As with other charities, they’ll have to offer prizes worth at least 50 percent of the cash taken in with the raffle sales. In calculating this amount, the sports foundations can set aside up to ten percent of the raffle income to defray the administrative expenses associated with conducting the raffle.
So, the Cowboys, the Spurs, the Rangers, or the Texans could sell, say, $10 million in raffle tickets, bank $1 million to cover the expense of running the raffle, hand out half of the remaining $9 million in raffle income in prizes ($4.5 million in prizes) and then use the remaining $4.5 million to … you know … theoretically make the world a better place. T-shirts for everybody!
PROPOSITION 5 – SJR 17
Once upon a time, governments weren’t supposed to build private roads. It was considered unseemly and an affront to private industry for local governments to gift individuals and businesses with labor and equipment nominally dedicated to the construction, preservation, and maintenance of public roads.
But then in 1980, the voters were convinced to add a provision to the Texas Constitution granting around two-dozen tiny counties (defined as having 5,000 people or less) the right to redirect their resources towards the construction of private infrastructure. The thinking went something like this, “It’s wrong in the abstract for government resources to be used to benefit specific private commercial interests. But frankly, nobody cares who paves the driveways and parking lots in the dinkiest little counties.”
Over the years, some of the dinky counties have declined in population, but a few have grown. Not because anybody wants to live in those counties, but because rural places are great settings for privately managed prisons, whose restive, captive prisoner populations are included in the county census data. So today, 21 counties in Texas that used to have 5,000 or fewer residents now have 7,500 or fewer residents.
Who, pray tell, is going to pave those parking lots in the not-sufficiently-dinky counties that have more than 5,000 people in them?
This amendment would preserve the legal right of those marginally less dinky counties to continue to spread asphalt and fix potholes on privately-owned roads.
The amendment is an administrative adjustment to Article III, Section 52f of the Texas Constitution. If Proposition 5 passes, I’m guessing that sometime around the distant year 2051, voters will have to approve yet another amendment to up the population ceiling for this exception from 7,500 residents to 10,000 residents. And so on, through future generations ad infinitum.
PROPOSITION 6 – SJR 22
Oh, for heaven’s sake. This amendment ensures, enshrines, frames, and underlines the historical right of all red-blooded Texans everywhere to hunt, kill, maim, slaughter, round up, shoot, snare, poison, blow up, stab, bite, scratch, and strangle any creature of the land, sea, or air, in the exercise of dominion over all things that taste like chicken and that aren’t wearing reflective clothing. Subject to … you know … regulations.
Strangely, the companion proposition affirming our right to pee in the bushes did not get out of committee.
PROPOSITION 7 – SJR 5
Traffic in Texas is bad, and only likely to get worse as we descend into a post-apocalyptic Mad Max: Fury Road-style environment resulting from drought, extreme weather events, and a collapse of social order. And if we are going to slide into barbarism typified by reliance on roving gangs of spear-throwing bikers, tumor-ridden Warboys, and the occasional war-rig caravan run to the bullet farms and the guzzle-lene refineries, we’re going to need good roads.
And that’s where Proposition 7 comes in. First, for a period between 2018 and 2032, the amendment would “skim” up to $2.5 billion in state sales tax revenue off of all revenue in excess of $28 billion per fiscal year, and lock that money away to be used solely for highway development. Second, for a period between 2020 and 2029, the amendment would skim 35 percent of all motor vehicle sales, use, and rental tax in excess of $5 billion and similarly restrict that money to highway development.
There would be some built in safety valves allowing the Legislature to enact statutes to adjust the specific highway fund dedications down by one-half in specific fiscal years, on a two-thirds vote. The constitutional dedication of funds could be extended by majority vote for additional 10-year increments.
Here’s the thing – when a sovereign entity declares that it will only use a pile of money for one purpose, that money is suddenly unavailable for all other purposes, some of which might turn into emergencies.
To its credit, the Legislature learned that the phrase “toll road” is dirty, and that it would not be a good idea to dedicate state funds to building toll roads. But why specify that a certain pile of money can only be used to build roads? I sure hope you never need that money to, you know, build hospitals. Or schools. Or high-speed inter-urban commuter rail. Or provide health insurance for retired state employees. Or adequately fund your public pensions. Or whatever.
Assuming low voter turnout and almost zero visibility, all of these amendments probably will pass. Our schools will get a little poorer; our state revenue will be a little more strained; and the Dallas Cowboys Foundation will be able to have a raffle.