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Revisiting Sub Rosa Election Laws: Example Two – Address Confidentiality Voting in Texas

What should a state agency do to limit the damage of poor legislative drafting? Is it overreaching for an agency to “fix” bad law with administrative rules, or is the potential for social harm simply the burden we must bear to preserve a separation of executive and legislative powers? Or does equity sometimes justify a blurring of legislative and executive roles, even to the point of making the law and its implementation completely irreconcilable?

These questions come up in the following context. Under state law, voter registration information is public. That public information includes voter residence addresses. Victims of domestic violence have a limited ability to shield their residence address from public disclosure, but that limited confidentiality doesn’t extend to the public records generated when an election occurs.

Over the years, a number of states have experimented with various mechanisms intended to protect victims of domestic violence from further harm, with mixed results. Unfortunately, the traditional institutions of justice and criminal punishment are impotent to stop patterns of domestic abuse, as we have seen again and again. See, e.g., the sad tale of Dorothy Giunta-Cotter, as related in a recent issue of the New Yorker. Rachel Louise Snyder, Annals of Prevention, “A Raised Hand,” The New Yorker, July 22, 2013, p. 34

Briefly summarizing the archived New Yorker article, a Massachusetts-based expert on domestic violence named Kelly Dunne was inspired by a particularly awful (and obviously preventable) domestic violence tragedy to do a comprehensive statistical study of domestic murder, seeking both to (1) identify the observable, predictable behavioral patterns that led to murder, and (2) engineer effective legal responses to those high-risk cases of domestic violence that would otherwise likely end in murder. In the short term, more aggressive and longer-term preventative incarceration of abusers cuts down on the death rate.

Ms. Dunne’s findings and recommendations have stirred some controversy, in part because those recommendations might shift limited resources away from notoriously underfunded family shelters, and in part because the most important recommendation (imposing long pre-trial protective incarcerations) is deeply contrary to our traditional presumption of innocence and the rights associated with due process in criminal cases. There are shades of totalitarian horror in the decidedly Philip K. Dickian idea that a series of statistical models could send people to prison without trial, and before those people were even aware of their own criminal tendencies.

Whether the more traditional approach to domestic violence is broken or not, it can be very crudely characterized as the “run and hide” approach. In the “run and hide” model, an abuser oversteps by engaging in obvious or public violence that results in visible injury, compelling a social response in which the victim is more-or-less compelled to give up the comforts and protections of home in order to escape to a shelter. The abuser posts bail and a trial date is set, a protective order is entered, and eventually the abuser is sentenced to a probation that involves some domestic violence counseling. Notice that the victim is the accommodating party in the “run and hide” model, one of the most damning elements of that approach, and one reason why that approach works so poorly.

Address confidentiality programs (pioneered in the Pacific Northwest and California) grew out of the “run and hide” model, and are designed to allow high-risk victims to stay better hidden from their potential killers. The programs allow a select class of domestic violence victims to “erase” their residence addresses from various public records to a greater or lesser degree, so that their killers will hopefully have a harder time finding them.

Advocacy groups fought for over a decade to get the Texas Legislature to enact some sort of address confidentiality program, and finally succeeded in 2007. The program allows victims of domestic violence to use the Office of the Attorney General as a mail-forwarding service, so as to limit public availability of the victims’ residence addresses.

Relatively few people participate in the address confidentiality program, in part because the program has so many unattractive features. The program is only available to people who are willing to disappear and have no ongoing contact with their abusers, register through a domestic violence shelter or counseling service, foreswear ever again getting anything other than first-class domestic mail (the A.G. throws all the other forwarded mail away, for space-saving reasons), and so on. The victim gets some limited accommodation of day-to-day life by being allowed to get a drivers license and voter registration, nominally without revealing a residence address.

In other states, the participants in the address confidentiality program can register to vote and cast ballots without having to confirm a specific residence address – they don’t have to void the security provided by not having an official residence address on public records. Unfortunately, the Address Confidentiality Program enacted in Texas was not seamlessly integrated into state election law. This may have happened partly because the Texas Election Code is itself so badly organized that a few things were bound to go missing.

Sections 4 through 9 of the 2007 law provide that participants in an address confidentiality program must register to vote in person using their state-supplied forwarding address, and that those voters will be included on the official lists of registered voters, but listed with their generic addresses instead of their actual residence addresses. Those voters will then vote by mail, receiving their ballots through the generic mailing address.

Except …

the state law neglected to alter the requirement that applicants for ballots by mail must provide their residence address – so that the voter registrar can figure out which ballot those voters are supposed to get.

Our physical residence is more-or-less indivisible from our right to vote. Our applications for ballots by mail, our signature rosters, our affidavits and provisional ballot envelopes and requests and statements and every piece of paper we generate or mark on when we vote is available for public inspection. Every single voter is asked, “Do you still reside at … [your residence address]?” when voting. Any supposed protections earned by not having one’s address on the voter registration list melt away when one must reveal that address in a dozen other formats in order to actually vote. Add to that the purely practical issue that because the A.G. is slow to process re-delivered mail, if the participants in the program actually did attempt to vote by mail, they wouldn’t actually get their ballots in time to mail them back before the election closed.

Advocacy groups came to the Elections Division at the Texas Secretary of State to express their concerns about the law as written, and asked that the Secretary of State exercise the authority granted by S.B. 74 to adopt administrative rules that would “fix” the glaring gaps in security for voter-participants in the Address Confidentiality Program. And this is what we came up with.

Notice the gap between the law and the rule. Under the rule, participants in the Address Confidentiality Program aren’t allowed to register to vote in the usual way. Instead, they must go through an in-person voting process wherein they orally identify which voting precinct they live in, and then vote as if they were voting by mail. Their ballots are mixed in with other ballots cast by mail, and their status as Address Confidentiality Program participants is clouded, so that their votes won’t stand out.

So if one merely read the law, one would assume that participants in the Address Confidentiality Program register to vote and then simply vote by mail. The actual process is almost completely different, to the point that if anyone challenged our rules-based implementation in court, the rule would likely be thrown out as exceeding the statutory scope of our rulemaking authority.

I generally disapprove of election laws that create disparate classes of voters who experience the election through different levels of bureaucratic procedure. But I drafted Rule 81.38 as I did so as to afford victims of domestic violence at least a little real security in voting.

Revisiting Sub Rosa Election Laws – Example One: Voting Age

Earlier I had written in a very general sense about the “secret” Texas Election Code; or more to the point, I had highlighted the importance of not taking Texas election statutes at face value without knowing how the law is interpreted by those who administer it. And I had said that I would provide some examples. Well, here’s the first belated example.

When is a person old enough to vote?

At first glance, this seems like an easy question to answer. A person has to be 18 in order to vote, per Section 11.002 of the Texas Election Code.

But when is a person 18? Common sense would suggest that one turns 18 on the anniversary of one’s birth. What with the cake and the candles and the presents, that date seems pretty unassailable as being the important date.

And yet …, owing to a peculiarity of the common law, one generally achieves the age of majority on the day before one’s birthday; and it was this common-law calculation of the age of majority that was made explicit in the Election Code for many years. Section 1.016 of the Election Code (and don’t bother looking for it – it’s been repealed) stated that one “turned” a certain age on the day before the anniversary of one’s birth. In other words, a person could vote when the person was 17 years and 364 days old.

This doctrine (often referred to as the “coming of age rule” and originating, as far as anyone can tell, in a 1677 inheritance case in the Court of Common Pleas (Nichols v. Ramsel, 86 Eng. Rep. 1072 (C.P. 1677)) is an object of scorn and frustration among legal scholars (see, e.g., this entertaining and thorough discussion of the doctrine in a recent Maryland case).

The common-law rule may be stupid; many people are of the opinion that it is stupid. Nevertheless, it is presumptively how age is calculated in Texas law, except in those circumstances where the Legislature has acted to set it aside. (As for example when the Penal Code explicitly defines a person attaining a particular age on the anniversary of the person’s birth, per Section 1.06).

So … all of this would naturally leave one with the impression that in Texas, a person whose 18th birthday falls the day after an election could still legally vote.

True, Section 1.016 was repealed, which might be seen as a legislative repudiation of the “coming of age rule.” But it takes more than a repeal of a statute to clear away a common law presumption.

Nevertheless, a person whose eighteenth birthday falls on the day after the election cannot vote. Why? There’s no legal citation to give in support. The reason is entirely bound up in a software design … feature.

When the State of Texas contracted to create an authoritative electronic statewide voter registration database, various computer programmers were engaged to build the logic for the database. Unfortunately, computer programmers do not have an innate awareness of or appreciation for the poetic fever dream that is the common law. Therefore, when the database was created, voters’ ages were calculated by using their dates of birth.

So poor database design has the effect of disenfranchising roughly one 365th of the 18 year-olds in the State of Texas. And you wouldn’t know it just by reading the Election Code.