Some of you know why I’m no longer at the Elections Division of the Texas Secretary of State, but many of you do not. The circumstances behind my being fired are certainly of interest to me, but they are also potentially of interest to others, because they highlight a number of election law issues, and are intimately tied to the ways that we think about elections in general.

THE SHORT AND UNINTERESTING SUMMARY OF THIS STORY

The short story is that three years ago, in an unguarded moment during an hour-long phone conversation with a Texas voter, I expressed dissatisfaction with a judicial decision on the question of voter residence. My problem with the decision wasn’t the final ruling, but with the failure to “show the work.”

In retrospect, my dissatisfaction was pedantic. Whatever the failings of the trial court decision, those failings were resolved to my satisfaction by the appellate court decision, which does carefully “show the work” leading to the determination that a group of voters didn’t really reside in the place that they claimed as home (the text of the appellate decision is available online here. In particular, read the court’s analysis of the sufficiency of the evidence).

In any event, a surreptitiously taped and edited version of my three-year-old phone conversation emerged in the form of a YouTube video that was recently posted by one of the criminal defendants in a case of alleged illegal voting being prosecuted by the office of our politically ambitious state Attorney General. My then-employer saw the video, and had a viscerally powerful emotional and political reaction.

[UPDATE: Since this entry was first posted, I have been contacted by both the prosecutor and the defense attorney for one of the criminal cases that resulted from the 2010 election for officers for the Woodlands Road District No. 1.

These attorneys have been very helpful in providing additional information, and their generosity has once again powerfully reminded me of one of the central truths about litigation in general. If there is any such thing as an objective truth, it often lies between the two poles of the defendant’s position and the position of the State, and no amount of summarizing can ever possibly hope to capture the whole truth.

First, I learned the voters who were judged by the appellate court in the civil election contest to be the legitimate voters in this election really do own a house within the boundaries of the district, and if the photos of the house interior (part of the public record from the civil election contest lawsuit, and graciously provided by the prosecutor) accurately reflect the condition of that property at the time of the 2010 election, then the legitimate voters did not do something like claim residence in a vacant field or a mere pro forma simulacrum of a residence. I have amended portions of this post to clarify that point.

Second, the surreptitious recording of my phone conversation with one of the defendants, when listened to in its entirety (thanks to an unedited copy provided by the defendant and the defendant’s attorney) makes clear two things.

• My clear frustration with the trial court decision in the civil lawsuit wasn’t exaggerated by the defendant’s edit of the audio recording
• My statements and advice regarding voter residence issues were sober, measured, and careful—and based on my analysis of the statutes and the case law.

Whether or not my analysis of the civil election contest was justified, my criticism was frankly born out of frustration with what I still contend was an opaque trial court decision that doesn’t specify any findings of fact or conclusions of law, but that merely rules that the defendants weren’t residents of the district without bothering to explain why they weren’t residents of the district.

In addition, my opinion of the criminal prosecution of the alleged illegal voting has softened. What frustration I still have is  mostly reserved for my former employer, and I am still undecided about the sum total of social good or injury done by the State and the defendant.

But there is some room for reasonable people to differ on whether there is reasonable doubt that the defendants actually knowingly committed election fraud by voting in this election; the defendants certainly suggest as much. But the State can also fairly claim that independent of any possible proper or improper bias on the part of the judge or juries hearing these cases, the criminal prosecution has not been particularly political, mean-spirited, or vindictive, and that mercy and forgiveness have not been taken off the table.

Both sides could benefit from moving a little closer together — the prosecution is motivated in part by desire to discourage any future contempt acts of the voting process, and the defense is motivated in part by a similar motive, as a matter of principle.]

As I said in the previous version, the long story is much more interesting.

THE LONG VERSION OF THIS STORY

So as I promised, here’s the long version. Some residents of the Woodlands decided to protest what they saw as an essentially undemocratic election in a special law district by voting in that election. See, e.g., http://www.yourhoustonnews.com/courier/news/road-to-where/article_e57eb34b-e959-5195-b213-de1aef3cdc13.html

These voters now stand accused of having voted illegally in a territory where they are not permanently domiciled, and one of their number has already been convicted and sentenced to three years in prison. My feelings about the criminal prosecution are complex, because on the one hand I tend to agree that the accused voters appear to have intentionally suborned an election that was both crazily unfair and completely legal, but on the other hand I think the resulting criminal prosecution is a stupid, hypocritical, and vindictive waste of state and local resources

[UPDATE: On the one hand, I do believe the prosecutor is being sincere when he indicates that the State was not particularly hell-bent on incarceration, and that the jury reaction to the defendants is as much the result of the defendants’ presentation of their case  as the evidence presented. On the other hand, I still think that the special law district administration (as the most visible victim of the crime) showed a lack of political savvy in demanding a criminal investigation, given that even the most successful outcome of the criminal prosecution just draws more attention to an election that was riddled with irregularities. Other special law district administrators might feel that way as well, since a victory in this criminal prosecution could lead to legislative tinkering with various special district laws].

SPECIAL LAW DISTRICTS AND THE CONSEQUENCES OF FORGETTING HISTORY—WHY MINIMUM POPULATION DENSITY SHOULD BE A PREREQUISITE OF SELF-GOVERNMENT

The story begins in an unincorporated suburb of Houston, Texas called the Woodlands, a sprawling real estate development of gated residential neighborhoods and commercial developments. The Woodlands (and indeed much of the urban landscape of Texas) is the product of legislative action, through government entities called “special law districts.”

Special law districts are political entities that are created by special or local legislative acts, often for the purpose of authorizing public debt instruments to fund commercial real estate development (as well as for other purposes, such as the allocation of water rights, or the construction of dams). Such entities exist in many states, but they are unusually prominent and numerous in Texas because of peculiar historical limitations in state statutory law and the Texas constitution that prohibit the lending of public money for private ends. But more about that later.

Within the Woodlands, there is a political entity called the Woodlands Road Utility District Number One. No one lives in this district anymore, as its governing body carefully and deliberately disgorged every residential property within its former boundaries, deannexing aggressively until the district territory is now nothing but a tenuous lace of road surfaces and commercial properties. Some of the details and consequences are described here: http://www.texaswatchdog.org/taxonomy/term/4551

(Strictly speaking, it isn’t true that “no one” lives in the district. Although the district administrators thought that there were no residential territories within the district boundaries, the land that the road district was built on had not been completely uninhabited prior to the creation of the district. All told, around two dozen people were found living inside the district just prior to the May 2010 election.)

Anyway, this legal capacity to hold binding legal elections without actually having voters is the centerpiece of the problem caused by reliance on special law districts. The Woodlands Road Utility District Number One didn’t violate any state law restrictions by so disgorging itself of all its voters, because unlike towns and cities, special law districts don’t have to have any residents.

In the common law, traditionally a collection of people could not accrue the power of local self government until they had accumulated a particular density and population. The specific requirements varied, but for the sake of our story, the current state of Texas codified requirements for a tiny village work pretty well: a village cannot incorporate until it contains a minimum of 201 people all living within a territory of two square miles or less. See Sections 5.901 and 8.001, Texas Local Government Code.

These restrictions illustrate a fact often forgotten. People of any prior era were just as smart as we are about ordering society. Sometimes they may have been smarter, or more likely, they may have had more intense collective memories of prior mistakes in social organization. When we forget those mistakes, we forget why our ancestors regulated things in the ways that they did.

SELF-GOVERNMENT REQUIRES A CRITICAL MASS OF PEOPLE.

Without that critical mass, self-government doesn’t operate—there are too many conflicts of interest, too few people to get the jobs done, too small a pool of collective interests to inspire caution before making stupid decisions.

It takes a village to make a village.

As has probably happened again and again over the course of human history, at some point roughly a century ago, someone asked, “But what should I do if I need a ‘village’ without the people, in order to make use of governmental power for what might be called pro forma reasons? Maybe I need to formally legitimize some action or put some sort of preemptive local government structure in place in order to get around some other legal restriction, but in an area where people don’t currently live. What should I do?”

The correct answer is obvious. Until a territory can govern itself, it should be governed in absentia by the sovereign exercising current legal dominion over that territory. But the correct answer is unsatisfying, because it doesn’t address a terrible policy mistake embedded in 1876 within the foundation of the current Texas Constitution. The sovereign that should technically exercise legal dominion over uninhabited territory in Texas—that is, the county—can’t lend credit or cash to the owner of the territory, except by relying on some exception to the general state law prohibition against public loans for private ends. As with so much else in life, money is the problem.

GOVERNMENT AND SELF-INTEREST

One of the essential, and I would say self-evident, functions of government is to give people money, in addition to, or as a natural consequence of, some of government’s core functions—such as public services, common defense, and mutual assistance. Those who claim otherwise are either misinformed, obtuse, or in the throes of some irrational passion that hasn’t worked itself out yet, and are unaware or in denial of the collective greed and selfish desires that give rise to the existence of government in the first place.  We have government because we want stuff, or at least some of the comforts that come from the security of mutual government.

In fact, political science was often described by my college professors as the study of “the coercive allocation of limited resources among alternate uses,” in parallel with the professorial definition of economics as the study of “the allocation of limited resources among alternate uses.”

Unfortunately, the 1876 Texas Constitution was drafted by people who were in the throes of irrational passions, and given the incredible viscosity of the law (i.e., the law’s conservatism such that the law changes in response to social pressures as slowly as cold tar responds to sunlight), we still haven’t worked our way out of the 1876 population’s momentary loss of economic sanity and level-headedness.

In 1876, the state’s political zeitgeist was dominated by a number of intense emotions, mostly originating in the denouement of the Southern Rebellion (the only war in which the losers seem to have forgotten what the word “loser” means), and not incidentally from the economic depression that followed after the traitorous secessionists had been driven down to defeat.

First, the state’s white voters wanted a weak central government, with most of the real power being delegated to the county governments. Second (or maybe fifth, or seventeenth, but definitely in the top twenty), the voters wanted to avoid being ripped off again by con artists posing as railroad agents and promoters.

Intercontinental rail was the World Wide Web of the 19th century, and it inspired the same kind of feverish hype and criminal behavior that feed any financial bubble. “Rail” was the magic word that could unlock the most tightly guarded coin purses and city vaults, and the promise of rail access made people set aside their natural skepticism of promises seemingly too good to be true.

The rail bubble was perfect for the con artist. One merely needed to buy an expensive suit, shell out the money to an engraver to print some floridly illustrated common stock, and then head out into the depressed countryside with a promise of economic salvation via rail. Many, many Texas communities were the victims of such cons. City or county or state officials would enthusiastically hand over land, tax revenue, or hard cash to distinguished-looking gentlemen, who would make assurances that construction of the spur line was already underway, and then take their leave of the place in the dead of night.

These thefts were outrages against the guileless hopes and trust of desperate people, and the victims’ reaction to these crimes was intense and all-consuming, as expressed in Article III, Section 51 of the 1876 Constitution:

The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; provided that the provisions of this Section shall not be construed so as to prevent the grant of aid in cases of public calamity.

(see also Section 50 of the same article, wherein the Legislature is similarly prohibited from lending the state’s credit to private interests).

Well, organic law—that is, fundamental or foundational law, such as a state constitution—written in anger rarely turns out well. The rest of the Texas Constitution (and the sum of Texas legislative history) arguably consists of nothing but the numbing bureaucratic quest for exceptions, exclusions, and justifications in order to get around this article, or to get around the equally disastrous constitutional prohibitions against state deficit financing or the imposition of state income taxes, or the legal roadblocks set up against centralized government authority in general. As a result of this self-administered, self-denying, self-inconsistent, tail-eating, illogical madness, the Texas Constitution has hundreds of amendments and is one of  the longest constitutions in the United States.

One of the “fixes” to the Texas constitution lies in the authorization of special districts that do not have minimum population requirements. Interestingly, this fix was enacted a scant thirty years after the drafting of the flawed constitution (see Article III, Section 52, Texas Constitution, added in 1904).

SPECIAL LAW DISTRICTS: PUBLIC MONEY FOR PRIVATE CONCERNS

As I mentioned before, the lending of public money for private ends is one of the essential functions of government (the proof of which is left as an exercise for the reader, but may be summarized by reference to the existence of self-interest, competition, natural monopolies, oligopolies, economies of scale in public investment, and oh, I don’t know, the entire intellectual bedrock on which political economic theory is built), and so almost from the moment that the voters imposed the restrictions on the use of public debt in the 1876 state constitution (this part of the constitution being an unthinking limbic reaction by the voters to the financial crimes of the robber barons, mixed into a document that is mostly a triumphant overturning of Reconstruction and a refutation of the military defeat in the Civil War), much of the business of the state legislature has been taken up with the tedious rhetorical circumvention of this blunt constitutional prohibition against the too obvious conflation of public and private commercial business.

There are a couple ways that a legislature can get around a prohibition against the expenditure of public funds on private interests. The easiest way is to redefine particular private interests as public interests, thereby eliminating rhetorical objections to the issuance of public debt. Another way is to redefine public funds as private funds, but that involves trickier mechanisms that are outside the scope of this discussion (for examples of the latter strategy, see, e.g., the assignment of public revenue through certificates of obligation, creative toll road construction financing, etc.)

One way to redefine private interests as public interests is to get the voters within the area subject to the debt to approve issuing the debt. After all, if the voters of a territory collectively approved the issuance of debt instruments in an election (and consequently agreed as a community to repay that public debt by paying taxes), it stands to reason that those voters must have regarded the money as satisfying a public need.

But when a territory is uninhabited, how does one go about getting voters for that territory’s elections?

HOME, HEARTH, AND DOMICILE, FREELY CHOSEN AND HEARTFELT

Texas codified the traditional common-law definition of domicile as the legal definition of “residence” for the purpose of voting and running for office. Per Section 1.015 of the Election Code, residence is “one’s home and fixed place of habitation, to which one returns after any temporary absence.” It isn’t lost through physical absence; it isn’t gained through physical presence. It is dependent on locus (i.e., contact with a geographic location) and intention (i.e., hearth-cleaving, or home sense).

This definition, hammered out over hundreds of years by court after court dealing with the frictional and conflict-filled lives and interests of residents who lived all their lives in one location, is eminently practical. “Home is where the heart is,” isn’t just a poetic ornament. It is a statement of black-letter law.

So if one is in possession of a territory without voters, all one needs to do is gather together a group of people who will honestly transfer their sense of home from wherever it currently might be to the uninhabited territory, and then register to vote there. The sincerity and intensity of these voters’ home sense is between the voters and their consciences.

When they register to vote, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they arrive at the polling place, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they cast their votes, they will do so in fear of prosecution for illegal voting. With all these fearful oaths and affidavits floating around, we must legally presume that the voters’ statements and votes are valid and true.

But if one is in possession of a territory without voters—and here we are still talking in the abstract—why bother bringing in voters from outside the territory? There are no population minimums set for special law districts. Move one person into a tent in the middle of a field. Register to vote. Wait thirty days. Conduct the “election.” Count the vote. (Spoiler alert—the measure, slate, or issue on the ballot will pass with one vote for, and none against.) For most people, the reaction to such a story is incredulity.

How could a pretend-election with one voter be valid? It’s valid because it’s not a pretend-election.

Admittedly, an election in a jurisdiction with only one voter violates most of the provisions of the Texas Election Code, piling one irregularity on top of another. In an election with only one registered voter, the voter is also the election judge, the alternate election judge, and the clerk, as well as the presiding officer and the member of both the early voting ballot board and the ballot counting committee. As a consequence, the polling place is understaffed, provisional ballots are not prepared, the ballot is handled by the same person who voted the ballot, etc. But the election took place on a date certain, and during the hours that state law mandates the polls must be open. Despite all the irregularities, the election results are not void as a matter of law, but merely voidable.

Here’s a suggestion to any budding election activists who are outraged by these “pretend elections.” First, please don’t give a false residence address on your voter registration application just for the sake of proving a point. The safest course is to encourage your state lawmakers to make a simple amendment to the laws relating to special or local law districts—just specify that special districts require a minimum of 201 people in order to be created.

It isn’t unusual that disputed domicile must be resolved from time to time by a court of law, and that in so doing, a court must tackle such abstract concepts as hearth-cleaving and heart-home. But we call on courts to determine abstractions all the time, and to do more than that, to make abstractions concrete.

Courts place dollar amounts on the value of companionship, or on peace of mind. Courts assign severity to levels of criminal complicity. Courts regularly and explicitly identify the number, weight, and character of each angel dancing on the head of a pin, because we ask them to. We brook no evasion by a judge from defining these impossible-to-define quantities, from quantifying these impossible-to-quantify feelings and thoughts. We say, “You’re a judge. It’s your job.”

So how does a court decide how “real” someone’s sense of domicile is?

CIRCUMSTANCE AND SENSIBILITY: HOW IS TRUE DOMICILE DECIDED?

A court determines the mixed legal and factual question of a voter’s true permanent domicile by weighing all the evidence that may be circumstantial of the voter’s connection to a place, and the voter’s intent.

For some reason related to selective hearing, a disturbing number of voters and candidates would respond to this information by brightly chirping “so you’re saying I can vote wherever I want!” Perhaps the quality of civic education in this country is seriously lacking, as people can  hear “voter’s intent” and assume that the phrase means “voter’s self-serving statement in the teeth of all other evidence.”

That cheerful self-assured justification for misrepresenting  where one actually resides seems particularly relevant to the various criminal cases proceeding from the 2010 election in the Woodlands Road Utility District No. 1. The voters being prosecuted for illegal voting appear generally to have decided that establishing domiciliary intent in a hotel for the purpose of voting didn’t require them to actually inconvenience themselves with all the bothersome details that would at least have suggested sincerity. That is the impression given by the appellate court decision reviewing the related civil election contest (see McDuffee v. Miller).

But the defendants should probably point out that until they voted, no one in the road district’s administration much cared one way or another about the niceties of residence and voter registration. As described in McDuffee v. Miller, for the district, “residence” was just a pro forma requirement for a few known voters, who were set up on commercial properties as caretakers roughly 30 days before the election in order to conduct the election, cast the votes, and go back to their “real” houses.

[UPDATE: To be fair to the road district management, the “real” road district voters did at the time of the election have the advantage of actually owning a property that meets many of the common-sense requisites of a house—that is, a mailbox, a kitchen, and so on. As to whether this house was a home, one must accept that the prosecution and defense will not agree, and that ultimately, even if the defense is right, and the “real” voters weren’t legal residents of the district, two wrongs don’t make a right, and don’t justify anyone’s misrepresentation of residence status.]

So in one sense, the road district was merely reaping the bitter harvest of its own lax attitude towards election administration.  The district in the 2010 election, having benefited from a definition of residence that was sufficiently flexible to include voters who weren’t likely to actually regard the district as home, had to contend with voters who hadn’t been anticipated by the road district administration, but who also took advantage of the flexible legal definition of residence.

THE HUMAN COST, AND THE MORAL OF THE STORY

For the defendants who didn’t accept a plea deal, the future is dark.  One of the seven has already been sentenced to three years in prison, and there’s no particular reason for the other defendants to hope for better outcomes. I think that there is reasonable doubt, not with respect to the voters’ residence status, but with respect to their understanding of the legal significance of residence. In other words, the defendants might well argue that (1) while they didn’t really live in the district, (2) they also didn’t know that voters were required to really live in the district. In other words, they would argue that while their votes were invalid, they didn’t knowingly vote illegally.

Mr. Adrian Heath has subpoenaed me to testify in his defense, although I honestly don’t know that anything I say would be of any use to him—I might actually hurt his chances. What I would probably say is that the appellate review of the civil election contest got the facts right: neither Mr. Heath nor any of his buddies really regarded themselves as permanently residing in the road district, and so they voted under false pretenses, as allegedly did all of the other voters in the May 2010 election in the Woodlands Road District No. 1.

In my considered opinion, the moral of this long story is as follows:

1. The Texas Legislature should, at a minimum, include a boilerplate requirement as a prerequisite to the creation of special law districts that those districts must contain at least 201 inhabitants. When funding subdivision development in areas where no one lives, the Legislature should enact some other exception to the prohibition against grants of money or credit to private interests, and not continue fostering this habit of creating “in name only” political subdivisions.

2. The best way to protest what you perceive as a sham election isn’t to falsify what you report as your residence in order to vote in those elections. In this case, the protesters could simply have signed up to run for office for the road district board of supervisors (there was no residence requirement for the office-seekers in this particular road district), and then, after losing their elections to office, they could have contested the validity of the pretend election, partly on the grounds that the only people who did vote in the election didn’t live in the district. According to Mr. Heath’s defense attorney, the real estate mogul who is represented as the legitimate voter in this election claimed his office was his residence, and hung a sheet across part of his office to demarcate the boundary of his “home.” In other words, the defense implies that the “real” voters had just as weak (or just as strong) a claim to residence as the defendants.

[UPDATE: The prosecutor has provided photos that were entered into evidence in the civil election contest, showing that the house claimed as a residence by the so-described “legitimate”-residency voters does indeed have all the requisites of a place one would consider a house. The pictures, at least, suggest that this house was / is substantially more than just a sheet hung across an office partition.]

3. The people of Texas need a new, rational, modern state constitution. They almost got one in 1975, so it is doable. Any new constitution should include (a) mechanisms for deficit financing of state government, (b) a state income tax, and (c) simple mechanisms for state subsidies for economic development and water conservation. Oh, and (d) uniform statewide funding of primary and secondary education.