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Monthly Archives: September 2013

Election Administration – Questions about Election Integrity and Voting Capacity

Here are some of the most frequent questions I’ve gotten from election workers and the general public about voter registration. By and large, these questions reflect our unspoken fears about elections, and show how often our common-sense understanding of the world diverges from the statutes that define how elections work.

QUESTIONS THAT BELIE ANXIETY ABOUT ELECTION FRAUD

QUESTION: What would happen if someone registered to vote in New Jersey, but then also registered to vote in Texas? Could they cheat and vote twice in the presidential election?

ANSWER: The states reciprocate with each other to the extent that they are able to, by forwarding notices of new registrations to the state voter registrars in the old state of residence when someone lists that state as their former state of residence on the voter registration application. Assuming that the voter has moved from Texas to New Jersey, the Texas registration would be cancelled on receipt of notice of the subsequent registration in New Jersey.

But that’s not really why people ask this question. People ask this question because pundits and policymakers encourage fretting over the relative lack of formal preemptive mechanisms that keep criminals from illegally voting. The fear-mongering is likely motivated by bad intentions on the part of these opinion-makers, but the fears encouraged by this sort of talk tend to be sincerely held, even when poorly reasoned.

A determined individual could vote in more than one jurisdiction, a fact that fills some voters with great anxiety. But a determined individual could also rob a bank, despite the disincentives to do so. There are a number of disincentives that discourage people from illegally voting (and voting more than once in an election is certainly illegal).

First, the voter in question would have to provide basic identifying information in order to register to vote in more than one state. The mere submission of an application to register to vote creates a paper trail that leads back to the voter. A person is probably less inclined to break the law when he or she has to provide a residence address and a name.

Second, as crimes go, double voting isn’t a particularly attractive criminal activity. At least with bank robbery, there’s the possibility of getting some money out of the vault. With an election, there’s the slim chance that an illegal vote will change the outcome, and the more realistic fact that this grassroots illegal vote likely won’t affect anything, and will just put the illegal voter in danger of going to prison.

QUESTION: But what if a huge number of people collectively engage in voter fraud, and they all register to vote in multiple jurisdictions? Wouldn’t that be a different story?

There are a lot of variations on this question, such as, “What will keep the wrong people from voting?” and “How do I know that my ballot will be counted?”

The question “behind the question” could really be paraphrased as, “What is it that protects the integrity of this or any election?”

The answer is, “A lot of things, including the basic predispositions of people not to break the law, the cultural reverence for the symbolism and ritual of voting, the admonishments of the various affidavits that a voter must subscribe to in order to actually cast a ballot, the formal authority of the state to punish election fraud, the capacity of parties to an election to contest the outcome and review the record, the inherent altruism of self-interest that should arise on each side of every election (i.e., smart people don’t cheat, because cheating invites retaliation in kind), the tendency of potential criminals to be rational actors, the fear of being caught, etc.”

Suppose that a criminal intended to pull off a really huge crime, but realized that there was no way to do it alone. So the criminal enlisted the help of a few hundred thousand co-conspirators, all in order to steal the British crown jewels, or the gold out of Fort Knox, or whatever. How would the criminal enforce secrecy and loyalty among all those conspirators? How would the group cover its tracks?

The same organizational problems would come up in a criminal conspiracy involving lots and lots of people registering to vote in multiple places and illegally voting, but compounded by the fact that voter registration is a public act that leaves a paper trail pointing right back at the participants. How would a criminal fare if he or she had to approach a large group of strangers and announce, “Hey, if you fill out, sign, and file these applications, in which you identify yourselves publicly to an organ of government as a resident of this jurisdiction, we can pull off a masterful criminal caper.”

The truth is, if a criminal were really intent on subverting the election (and such people do exist), he or she wouldn’t go about it by rounding up busloads of illegal voters – in the parlance of hard-boiled detective fiction, that’s a chump move, a pathetic amateurish effort. People who actually steal elections adopt methods that subvert the tabulation of votes at the source. That means stuffing ballot boxes, stealing ballots, rigging the contest. Why would a criminal mastermind go to all the trouble of accumulating an army of conspirators and then actually have them go vote, one by one? That requires as much or more effort than would have been required to get the votes honestly. Instead, why not just install the metaphoric equivalent of a false bottom on a ballot box, so that the outcome of the election is scripted?

And that brings up a good point. As a society, we sometimes err on the side of limiting fraud, and we sometimes err on the side of voter convenience. Security and convenience are not a perfect dichotomy, but they are goals that can interfere with each other.

One question that people rarely ask, but that I wish was more prominent, is this:

QUESTION: “What do our policy choices reveal about our attitudes toward the exercise of suffrage?” For instance, why don’t lawmakers insist that absentee voters must provide picture I.D., but demand proof of identity for in-person voting? Why are some voters exempted from particular requirements to vote, while others are not? (In Texas, security concerns have prompted voting procedures wherein current and former judges and their spouses don’t have to confirm their residence addresses in order to vote). To what extent are our voting laws nothing more than the visible expressions of our shared institutional and cultural neuroses?

QUESTIONS THAT BELIE ANXIETY ABOUT THE FITNESS OF VOTERS

QUESTION: I know of a number of elderly people who are getting voter registration applications, but who are in assisted-living and suffering from dementia. I think this must be some kind of scam, because obviously those people can’t vote.

ANSWER: Admittedly, elderly voters as a group are sometimes the target of hard-sell pressure tactics to support a particular candidate, and are sometimes victimized.

But this sort of question is based on a superficial understanding of legal capacity, and is consistent with what is a sometimes patronizing dismissal of the civic rights of institutionalized people. Residents in assisted-care facilities are disproportionately often denied an opportunity to vote due to a lack of transportation, a lack of assistance in getting a ballot by mail, or a reluctance to promote voter registration, regardless of their mental state.

A probate court may rule that a person is mentally incapacitated for all purposes (including voting), or may rule that a person is mentally incapacitated for some purposes (which might or might not include voting). In the absence of such a determination, one should presume that a person who is otherwise eligible to vote is entitled to exercise that civic authority.

This is regardless of one’s personal assessment of a voter’s mental capacity, because such assessments are not conclusive determinations of a person’s legal status. If a voter’s mental capacity is a concern, the probate court stands ready to issue a formal ruling that will settle the matter.

This question has a few variations that are a bit troubling (especially when asked by nursing home administrators). One is, “Isn’t it true that a person who has granted power of attorney to a relative can’t vote any longer?” (Whether or not a power of attorney is given is completely unrelated to mental capacity. Fully capable people use power of attorney forms for business and personal reasons to ensure that decisions get made).

Honestly, imposing any sort of subjective test of voters’ intellectual capacity is dangerous, given that the test-giver has the power to exercise tyranny. That’s one reason why the bar needs to be set pretty low when it comes to mental capacity to vote. A person could be incapable of recognizing faces, unaware of the passing of time, and ignorant of his or her estate, but nevertheless could subscribe to sincere (and even complex) political views.

Again, the best practice is to presume that a person is capable and eligible to vote. I react with skepticism whenever someone suggests that an individual should not be able to vote, and my unspoken reply is “Really? Prove it.”

In fact, skepticism is, in my opinion, the best natural reaction to any statement or argument that would limit voting rights for a person or group. The best election workers internalize a presumption in favor of the voter and in favor of the validity of the election itself, whatever its outcome. It’s an attitude I would like to see more from the general public as well.

As with questions born out of anxiety over the fairness of the election, questions about fitness to vote are really variations on another question “behind the question,” which is this:

“How can I be sure that the voters know what they are doing?”, or “How do I know that the voters won’t make the wrong choice?”

The answer to this is, “You can’t, and you don’t.” The voters may not know what they are doing, and they may make the wrong choice. There are some general institutional safeguards against truly disastrous popular decisions (such safeguards include a well-educated and well-informed populace, independent journalism, shared cultural norms consisting of a healthy fear of anarchy, formal procedures that limit dramatic shifts in the law, caution in the face of change, etc.), but those safeguards are only as good as we let them be. Ideally, the only people who should be allowed to vote are the people who always choose the wisest and best possible outcome. Unfortunately, we don’t know who those people are, and they might not be us.

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History and Memory: Racism in Texas

Those of us who have worked at the Elections Division of the Texas Secretary of State before and after the 2008 presidential election are bemused by national arguments regarding structural racism and voting, because hardly a week passes at that office without a direct and visceral reminder of the deeply engrained racial prejudices that mar the cultural character of Texas.

That this is so was a surprise to me, because in my naive way, I had thought that if nothing else, the Civil Rights Movement had at least had the effect of making overt racism socially unacceptable. I suppose overtly expressed personal racism does still carry some social stigma, at least for most people. But some people clearly feel that they have been given license by mainstream media demagogues to give full flower to their personal racial biases.

My impressions are anecdotal, and I am not attempting to offer a rigorously scholarly analysis of the origins or extent of Texas racism. Think of this post instead as a series of brief sketches of what I (as a naive white male) learned about Texas from my election-related job:

1. Texas is a Southern State

As a kid growing up, I was told by more than one teacher that slavery was not a vital component of the antebellum economy of Texas, and that the plantation model of agricultural development common in many of the other Southern states like Mississippi and Louisiana was not particularly prevalent here. Ranching and cattle production didn’t make use of a massive indentured labor force, and so to the extent that Texas aligned itself with the powerhouse slave states, it was because of more general cultural identifications, and a political reaction to Mexico (where slavery was at least technically illegal).

Ah, but this was not so.

Slave ownership and the use of slave labor was extensive in Texas, on a scale roughly equal to that found in Louisiana and North Carolina, based on 1860 census records provided by the University of Virginia (at http://mapserver.lib.virginia.edu/). In absolute numbers, Texas had fewer slaves in 1860 (around 180,000) than Louisiana (332,000) or North Carolina (331,000), but in proportion to the state population, the ratio of slaves to non-slaves was about the same in all three states (around 29% for Louisiana, and around 28% for Texas and North Carolina). Plantation agriculture was a significant revenue producer in Texas, and the wealthiest members of Texas society were slave-holding plantation owners. Randolph B. Campbell, “SLAVERY,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/yps01), accessed September 02, 2013. Published by the Texas State Historical Association. Moreover, slavery was rapidly expanding in Texas, and likely would have dominated the agricultural economy of North Central Texas as soon as adequate rail service had developed, but for the intervening emancipation following the Civil War. Id.

2. Racism Dies Hard in Texas

One might echo Chief Justice Roberts’ rather sophistical take on history and argue, “Well, but you’re talking about ancient history. I mean, who cares what happened 150 years ago? For that matter, who cares what happened 35-40 years ago (i.e., when Congress did extensive fact-finding in the course of renewing the protections of the Voting Rights Act)? I mean, it just isn’t cricket to penalize states for prior bad acts by forcing them to let us look over their shoulders when they fiddle about with election-related laws.”

This sort of anti-intellectual take on history is profoundly irritating, especially coming from a court whose members are presumably acculturated to the basic tenets of the common law (namely, that authority is authority, even if it was expressed a thousand years ago), but we’ll leave the field to Justice Ginsberg, who no doubt will eventually be vindicated in this stupid debate.

Taking Chief Justice Roberts’ criticism to heart, I’ll confine myself to various suffrage-related bad acts that occurred within the last 10 years in Texas. I hope that the Chief Justice’s memory can stretch back that far, because we are talking about events that occurred in the dim recesses of recorded history, if you happen to be a fruit fly.

First, this bit of antiquity from www,civilrights.org:

In 2003, Harris County election officials failed to comply with Section 203 by not providing Vietnamese ballots on its electronic voting machines. The county attempted to fix this first noncompliance problem by creating paper ballot templates in Vietnamese, but these were not made available to voters at polling sites. Thus, no bilingual assistance was made available to the Vietnamese voters in Harris County for the 2003 election.

Pressure by the Asian American Legal Center of Texas, a local community-based organization, the National Asian Pacific American Legal Consortium, and the Department of Justice resulted in an agreement whereby the County agreed to ensure compliance with Section 203 of the Voting Rights Act, including a full-time employee to coordinate the Vietnamese election program for all elections within the County; establishment of an advisory group to assist and participate in the Vietnamese language program; and requirement in most cases of a bilingual poll worker where a polling place has more than 50 Vietnamese-surnamed registered voters at the time of an election.

In the wake of these changes, the November 2004 election saw the first and only Vietnamese candidate, Hubert Vo, win a legislative seat in Harris County. (http://www.civilrights.org/voting-rights/vra/real-stories.html#harris)

On a broader scale, why not ask some elderly person about the 2003 racial gerrymandering in Texas? Emily Bazelon recalled the following:

The voters of District 23 sent a Democrat to Congress every term until the 1992 election. At that point, following the 1990 census, which gave Texas three additional seats, District 23 was redrawn to include a Republican-leaning part of San Antonio. Republican Henry Bonilla won the 1992 election. And in 2003, the district was redrawn again to keep him there, by moving 100,000 Latinos out.

Bonilla was still in office in 2006, when the Supreme Court ruled that District 23 violated the Voting Rights Act. The act bars states and cities from discriminating against minority voters with crude tools like poll taxes and literacy tests (and in our time, some voter ID requirements); it also aims to ensure that when district lines are redrawn, they can’t be gerrymandered in a way that dilutes the electoral power of minorities. District 23 was supposed to be a Hispanic opportunity district—one in which Latinos could potentially elect their preferred candidate despite the racially polarized voting patterns of Anglos in the area. From ’92 on, Latinos were voting against Bonilla in greater numbers each time, nearly ousting him in 2002. But the 2003 map, the Supreme Court said, in essence “took away the Latinos’ opportunity because Latinos were about to exercise it.”

(from Emily Bazelon’s February 11, 2013 article in Slate).

3. How Institutional Racism Happens – A Tale of Two Hurricanes

Hurricane Katrina exposed a number of uncomfortable fault lines in American culture with respect to poverty, social class, and racism. Aside from killing people and destroying politically active African-American middle-class neighborhoods in the Gentilly area of New Orleans (among others), the hurricane scattered two-thirds of the residents of New Orleans to other places, resulting in a huge demographic diaspora.

Many of those displaced New Orleans voters more-or-less permanently resettled further down the Gulf Coast, in Houston and elsewhere. There was considerable anxiety among certain groups of conservative white voters that these transplant voters (the majority of whom were black) would “steal” elections by fraudulently registering to vote in Texas.

Ultimately, the relocation of New Orleans voters didn’t significantly affect any state or local Texas elections, but even as late as the 2012 elections, anxious voters were calling our office, worried that black voters formerly from Louisiana would somehow “throw” the electoral votes for Texas to Obama. (Such an outcome would have been demographically impossible, and tended to be a concern only for unsophisticated voters with an incomplete understanding of the electoral process).

In 2008, Hurricane Ike caused widespread devastation along the Texas coast, particularly to buildings and homes in and around the island City of Galveston. Reconstruction went fairly quickly, except in one area. Due to storm damage, the city lost all 569 available units of affordable housing formerly administered by the Galveston Housing Authority.

There was strident opposition to the reconstruction of any affordable housing AT ALL within the city, essentially on the grounds that people on welfare shouldn’t live in Galveston. Notwithstanding the pressing demand for affordable housing in Galveston, or the fact that the population served by affordable housing is not a fortiori “on welfare,” as of five years after the storm, GHA has constructed and administers a total of only 52 units of Section 8-compliant affordable housing in Galveston.

A phone conversation I had with a Galveston County official made the real reason for residents’ hostility to affordable housing abundantly clear.

The official called to express skepticism and shock that displaced residents of Section 8 housing could still legally claim residence inside the City of Galveston. After all, their houses had been knocked down; so why were they still claiming that they lived in the city? I explained that regardless of the length of time they were absent from their home, their displacement by disaster didn’t make them any less “real” residents of the city, and that they could continue to vote absentee by requesting ballots by mail.

The official was not convinced, and tried to point out that these voters (who happen to be African-American) are the “wrong element.” She hastened to assure me that it wasn’t because they’re black, but because they were poor, marginal people; a source of crime, drug use, and economic decline. Surely they would be happier if they registered to vote at whatever spot they were now living.

Sad to say, at least some residents of Galveston saw the hurricane as an opportunity to do a little pruning of the voter registration list in order to remove undesirables, who only coincidentally happened to be predominantly black and poor.

I could go on. And on. Look up the travails of black college students in Waller County, and the extremes to which that county has gone to keep blacks from voting. Look up the incendiary racial politics of Pasadena, Texas, or of Baytown, or of the justly infamous Vidor. The potentially dispiriting circumstances are such that at least some of the battles that had been fought and won in 1975 must now be re-fought and re-won.