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Happy Holidays – Elections Edition

So, as 2014 winds down (and as the whirlwind of holiday events overtakes me), here’s a brief sampler of some of the issues likely to affect Texas election lawyers in 2015:

1. The Dropping of the Other Shoe

At some point, the U.S. Supreme Court will presumably take a look at Veasey v. Perry. I’d like to be an optimist, but the oligarchs have signaled that they are bored with even the most meritorious arguments regarding systemic racism in Texas elections. I predict that the majority will step gingerly over an angry and honest dissent, with mumbled apologies for having shut the door on the Civil Rights movement. The disaster, if it comes, will be cloaked in language absolving Texas of having introduced “unintentional” and “de minimus” racial bias into its voter I.D. laws.

2. The Windmills at Which We Will Tilt

Once again, legislative bills designed to drag Texas into the mid-20th century of election reform (including electronic registration, same-day registration, instant run-off voting, voting rights for felons, and bipartisan or non-partisan redistricting) will wend their way towards early deaths in committee.

3. Any Thoughts of Election Finance Reform, Civil Rights Protections, or Revitalization of the Voting Rights Act May Now Be Safely Dismissed

Now that the Party of No is firmly and conclusively in charge, you may be assured that any notions you might have had regarding Congressional responses to Shelby County v. Holder or Citizens United v. FEC can be dismissed out of hand, at least until the earlier of either the November 2016 elections or hell freezing over.

The Great Chain of Being Cranky About Disenfranchisement; or The Stupids, Continued

After the November election, a number of editorial articles came out with variations on the following theme – that the various depressing voter I.D. laws didn’t actually have much effect on elections. Because hey, the Republicans knocked the elections out of the park, right? That happened despite disproportionately good turnout among minority voters in some elections.

Such editorials are music to the ears of the extreme right (“Yeah. See, we’re not racists. If we were racists, we would have had to turn the firehoses on the swarms of minority voters that voted in the November 2014 federal elections. But we didn’t have to use firehoses or police dogs, or even fire any tear gas into the polling places. Therefore, we have conclusively demonstrated that we’re not racists. Plus, we love democracy. Democracy was very good to us.”) and to the defense attorneys representing the State of Texas in its appeal of Veasey v. Perry et al.

I mean, if an editorial by Nate Cohn in the New York Times, (that notorious hotbed of centrist legal opinions), comes out saying that voter I.D. weren’t no big deal, then the centerpiece of the plaintiffs’ evidence against the State in Veasey is undermined, and the State should walk on all charges, right?

Mr. Cohn was extending a dialog he had begun with the Brennan Center on this question with an earlier and similarly dumb editorial along the same themes.

Mr. Cohn’s argument runs like this: It must be the case that 600,000 Texas voters weren’t disenfranchised because if they had been disenfranchised, they would have been turned away from the polls. Since 600,000 people weren’t turned away from the polls, 600,000 people weren’t disenfranchised. Quod erat demonstram. Ipso facto. Res ipse loquitor. Et cetera.

And because only a fraction of all registered voters lack sufficient I.D., (say, 9 percent, or 11 percent, or something like that) it means that voter I.D. laws don’t actually change election outcomes. Right? Right? Because if the bad guy won by 20 percent, then even if all the voters without i.d. had been able to vote (and even if all of them had voted for the bad guy’s opponent), the bad guy would still have won by 11 percent, or 9 percent. Or whatever.

I’ve written about this before, but maybe if I write slower and louder, people will begin to understand.

The secret to getting people not to vote is to discourage them from attempting to vote. And because the cost of voting is so high compared to the benefit, it is very, very easy to discourage people from voting.

And when people don’t vote, they don’t make an ostentatious show of not voting. They don’t gather en masse, carrying placards and linked arm-in-arm at the polling place to not cast their ballot, in a vast silent repudiation of their civic authority. Such mass demonstrations by non-voters would be quite satisfying, if they happened, and would make for some fun political theater. But they don’t happen, because showing up at a polling place to not vote is almost as much bother as showing up at a polling place to vote.

Non-voters don’t go out of their way to proclaim their nonvoting status. They go to work or school. They run errands. They watch T.V. Some of them register to vote, but fail to register on Mr. Cohn’s radar, and so he assumes that they don’t exist. Some of them fail to register to vote, period, and so they don’t even show up in the statistics of “registered voters who lack i.d.”

The authors of the sociological studies at the heart of the plaintiffs’ case in Veasey v. Perry didn’t merely rely on the self-selecting sample of voters who actually go to vote. They called people up and asked them direct questions about their status as voters, and about their inclination to vote or not vote, based on their circumstances.

As it turns out, (as amply demonstrated by our most recent election) disenfranchisement works. It would have been embarrassing to the arch-conservative proponents and apologists for picture i.d. requirements  if disenfranchisement hadn’t worked, because it’s actually kind of an administrative pain in the ass to exclude those naughty liberals from the polls, and it costs money to administer draconian voter i.d. laws. Luckily for the right, everything went swimmingly.

Let’s look at the November 2014 elections in one Texas county, and see how disenfranchisement succeeded in that county.

Harris County, Texas

Voters in Harris County had a long ballot to work on this year, in part because this very heavily populated county has an enormous county and district judiciary to handle the legal caseload generated by its roughly 4,330,000 residents. As it seems to happen every four years, the district and county courts were filled by Republican candidates, who pretty uniformly won their seats by consistent margins, just as they had even when Bill White carried Harris County in 2010.

2010 was a watershed year for the county – it was the first Federal decennial census in which Harris County had more than 4 million people. The City of Houston, meanwhile, was estimated to have just a smidge under 3 million people; there’s no doubt that Houston, like much of urban Texas, is experiencing a tremendous population boom. In fact, the county has added roughly 240,000 people or more since the 2010 Census; my guess (and the guess of the U.S. Census demographers) is that the recent population increase skews in favor of Hispanic or Latino residents.

As of the 2010 Census, slightly more than 40% of the Harris County population identified as Hispanic or Latino, while about 33% identified as non-Hispanic white, and about 18.4% identified as non-Hispanic black. As of 2013, those percentages were estimated to work out as 41% Hispanic, 19% Black, and 32% non-Hispanic white.

A lot of people under 18 live in Harris County, so let’s say that only about 72 percent of the total population are voting age. That’s about 3,117,600 voting age people in Harris County as of 2013.

So … how successful have people been at registering Harris County residents to vote? Well, out of those 3.12 million voting-age people in Harris County, only 2.06 million were registered to vote in the November 2014 election. So let’s see, um, that’s a 66% registration rate.

Hmm. Let’s see. In 2002 (a relatively slow gubernatorial election year, with anemic turnout), there were 1.9 million registered voters in Harris County.

But … Wait. What? That’s almost as many registered voters as there are now in that county.

What was the voting-age population of Harris County in 2002? Well, the estimated 2002 population in the county was 3.54 million. Of those, we’ll guess that around 71% were 18 or older (based on the 2000 census data). So that’s an estimated voting age population of 2.51 million in 2002, of whom 1.9 million were registered. That’s a 75.6% registration rate.

I’ll admit that a 75.6% voter registration rate wasn’t spectacular in 2002. But it was definitely better than a 66% registration rate in 2014. If the Harris County Voter Registrar had managed to just tread water with regard to registration between 2002 and 2014, we’d expect that there would be about 2.36 million registered voters in Harris County as of the November 2014 election.

Which works out rather nicely as a shortfall of 300,000 people in the Harris County voting-age population who should have been registered voters (based on historic trends), but who weren’t registered.

Now … from 2002 to 2014, the racial demographics in Harris County basically flipped for white and Hispanic voters. In 2002, about 42% of the voters were non-Hispanic whites, and about 32% of the voters were Hispanic.

What the Texas Republicans realized in 2011 is that they would have to find a way to discourage both voter registration and voting in Harris County, so that while the percentage of non-Hispanic registered voters would remain roughly steady (rising a very modest 8% over the course of 12 years), the percentage of Hispanic registered voters would need to go down. And it would need to go down by a big margin.

The available tools were varied, and ranged from bad-faith purges and registration challenges to outright bullying and strong-arm tactics. But none of those tools would be as effective (in terms of the percentage of potential votes suppressed) as a simple increase in the opportunity costs of voter registration and voting.

This is an area deserving of additional study, but I would hazard that by focusing solely on the suppressive effect of voter i.d. laws as applied to registered voters, studies by the Brennan Center and others have dramatically underestimated the intended and successfully achieved levels of vote suppression generally. The underestimate is the result of failing to consider the suppressive effect of harsh election laws not just on the people who are already registered to vote, but also on the people who haven’t registered yet.

If the suite of laws enacted in 2011 (not just picture i.d., but also restrictions on volunteer deputy registrars, the mealy scrutiny and comparison of error-ridden databases, etc.) managed to drop voter registration in Harris County by around 13%, and the picture i.d. requirement managed to mess up voter eligibility for around 9% to 11% of the remaining 2.06 million voters, wouldn’t it be more accurate to say that (in Harris County, at least) that voter suppression succeeded in three ways, by:

(1) trimming the rolls of around 300,000 (mostly minority, poor, or elderly people) who would otherwise have registered to vote;

(2) discouraging another 180,000 to 220,000 registered voters from bothering to vote (the latter group also being disproportionately composed of minorities and the poor), and;

(3) so debasing and screwing up the election experience for everyone else that turnout was at an all-time low (around 678,000 votes cast in the big races, or around 33% of the registered voters).

It starts to look like the Republicans were running up the score in an unseemly way. I mean, if you start with 3.12 million possible voters (more or less), disenfranchise one sixth of those voters (say, around half a million), and then demoralize two thirds of the rest so badly that they don’t bother to come out and vote, well then … voila!

You get an instant Republican grand slam. A mandate for the ages, and an endorsement by our polity of the emerging πρωκτοκρατία (proctocratia, i.e., a form of government known as a proctocracy, administered by proctocrats).

Hey! You there! Candidates in Harris County who lost!

If you lost, and you lost by a margin of around 24% of the vote or less, strongly consider filing an election contest. Remember – such an action must be initiated not later than 30 days after the canvass of your election, by filing suit in district court. Your clock is ticking. Also remember (if you’re feeling a little sheepish about filing such a lawsuit) – that the November 2014 general election was an illegal election.

As for Mr.Cohn of the New York Times, here are some general tips for successfully navigating the confusing world we live in.

Sometimes bad actions are identified by absence, rather than presence. For example, if you are in a coal mine, and most of the canaries have suddenly gone silent, that isn’t proof that the remaining canaries are happy and content. That’s evidence that something is wrong.

“Well, everyone said that when the crew hit that natural gas pocket, it created a poisonous atmosphere. But I heard that at least 32% of the canaries were still singing. Therefore, the natural gas pocket could not have had any measurable effect on the health of the canaries. Q.E.D. Res ipse loquitor. Et cetera, et cetera. Say, does anyone else feel a little light-headed?”

Gentle Criticism of the Day: Has Everybody Come Down With a Case of the Stupids?

Hmm. That may have come across as a little harsh. There are three topics in particular that seem to have distracted a number of otherwise-intelligent political correspondents. To say that they have all gotten a case of the stupids is not particularly fair, but what can I say? I’m feeling a little crabby lately.

1. The Ivory Tower Comes To Perry’s Defense! Or With Enemies Like These, Who Needs Friends?

Okay, I would have loved to be a fly on the wall as Governor Perry’s criminal defense attorneys negotiated with various parties to put together their bipartisan dream team of constitutional law scholars who jointly wrote to decry Perry’s criminal indictment for misuse of his office.

The secret ingredient for assembling this coalition was convincing a bunch of law professors that the Travis County District Attorney’s Office was indicting Perry because he had exercised his authority to veto legislation; that effort was likely aided by the flurry of national news stories all reporting that Perry was being indicted because he had vetoed a budget item.

“Mon dieu!” the professors all said, absolutely aghast that anyone would be so, … so, … barbaric as to actually criminalize a gubernatorial veto. “That’s terrible! What an abuse of the criminal process, to dare to criminalize the very instruments of government! To inform a sitting Governor that the mere act of vetoing legislation is illegal! Outrage! Despair! Ennui!”

Sigh. If these towering geniuses of constitutional law had actually bothered to do the class readings, they would have discovered that the criminal charges against Perry are not based on the fact that he vetoed state funds for the Public Integrity Unit at the Travis County District Attorney’s Office.

The criminal charges against Perry are based on the fact that Perry used threats in an effort to intimidate the Travis County D.A. and suborn a number of criminal investigations, including pending investigations of Perry’s own government. That the threats were actually followed up by a veto is more or less irrelevant to the criminal act itself. In fact, if Perry had just quietly vetoed the funding without having engaged in snaky bits of quid-pro-quo threats, no charges would have been filed.

See the difference?

It’s subtle, I know, but I’m confident that with the help of careful tutoring and some time hitting the books, even the slowest constitutional law expert can be guided to the correct answer.

But really, people. Don’t raise your hand in class if you haven’t bothered to brief the case.

2. Dark Money Isn’t That Bad, Right? Right?

Sometimes, statistical analysis can be used to justify genuinely odd theories. In particular, Alan Abramowitz, a clever, clever analyst for “Sabato’s Crystal Ball” blog at the Center for Politics website did a regression analysis of the correlation between the disparity in dark money for U.S. Senate races with the outcome of those races in support of the argument that campaign spending didn’t “buy” the election for the Republicans. Except …, the study’s author forget that when you add two apples and three oranges, the answer is not five apples.

The gist of the argument is that differential spending levels, in and of themselves, could only be seen to predict or track election outcomes with a correlation of .23 (i.e., if one were predicting outcomes solely based on campaign spending differentials, one would get the right answer only one time out of five), while incumbency of a Democratic Party candidate was an accurate predictor with a correlation of .76 (i.e., if one were predicting outcomes solely based on whether an election involved a Democratic incumbent running against a non-incumbent challenger, one would get the right answer nearly three times out of four).

Can you spot the error?

The error is one of false equivalency, and of a failure to control for hidden correlations between dark money spending and the encouragement of conservative challengers to Democratic incumbents. In other words, the clever, clever study has proceeded on the assumption that the victories against Democratic Party incumbent candidates were not in any way the result of dark money donations that roused otherwise restive conservative challengers to those Democratic Party candidates.

What was the mistake? The error lay in failing to identify a control sample wherein Democratic Party candidates lost their elections when no dark money whatsoever had influenced competition for the office. Instead, we could just as validly conclude from this superficial analysis that a tidal wave of conservative dark money swept all liberals before it.

The study ultimately only confirms a tautology, that all other things being equal, Democratic Party incumbents got absolutely shellacked in the November 2014 election. Well, duh.

The only interesting result of the study is that it suggests that conservative dark money might have been spent more efficiently than liberal dark money (i.e., that in terms of absolute spending levels, conservative candidates with smaller war chests than their liberal opponents did comparatively better than one would predict, based solely on the proportionate difference in funding between any two candidates, and that the size of the war chests wasn’t what determined victory).

What I want to know is the answer to a simpler question. In particular races, did the existence of a dark money source (of any amount) sway the outcome of the election? But that’s a harder question to answer, because the person creating such a study actually has to go out and discover not only how much money a campaign raised, but also the specific tactical uses to which that money was put.

Therefore, I don’t think my assertion that the election was bought and paid for by conservative dark money has been refuted, at least not by this study.

3. Aw, Picture I.D. Laws Ain’t That Bad, Right?

I’m a little troubled that Professor Hasen seems to have been involuntarily enlisted by the right in support of this argument. Among certain writers who are striving to appear thoughtful and even-handed about the 2014 election, there is a trend to argue that (1) restrictive new voting laws energized turnout among minorities, and that (2) ultimately, one cannot show that the historically poor turnout in the 2014 election had anything to do with voter I.D. laws, so therefore it must be the case that the new laws aren’t as bad as everyone has made them out to be.

Note that Professor Hasen wasn’t saying that voters weren’t suppressed, but merely that Wendy Weiser’s off-the-cuff remarks about the North Carolina races in 2014 didn’t offer clear evidence of voter suppression. His call for greater rigor in statistical analysis isn’t the same thing as an endorsement of the view that voter I.D. laws are hunky-dory.

Such displays of intellectual gymnastics are truly thrilling. To leap and bend and twist in such a way as to refute all meaning, and then wait for the thunderous applause of a grateful nation. “Oh thank you! We thought these new laws were not only bad, but damaging. You’ve shown us that they are merely bad, but that they haven’t caused any harm. What were we worried about?”

Sigh. Again. Sigh.

Okay, here’s some intellectual subtlety to wrap your noggin around, geniuses. A bad voter I.D. law (such as the bad voter I.D. law passed by the Texas Legislature in 2011) can simultaneously do two things in an election. It can (1) terrify politically aware and savvy minority voters and drive those voters to the polls, (2) actually function to effectively bar eligible voters from casting a valid vote, and (3) suppress turnout by discouraging voters from participating in the election.

Um. How can someone simultaneously acknowledge that turnout in the 2014 election was the lowest in any national election in living memory, while also asserting that the effects of voter suppression (including new voter I.D. laws) had no measurable effect on voter participation? C’mon, people.

I’ll grant you that the “science” of “political science” is a bit grandiose, given the inability to test certain causal hypotheses about historical events. But isn’t it just a tiny bit possible that improvements in relative minority turnout (i.e., that among a shrunken number of November 2014 voters, a relatively larger percentage of those voters were minority voters than in prior elections) could go hand in hand with successful large-scale vote suppressions that curbed turnout?

Until someone comes up with an argument based on actual scholarship, rather than just a “gut feeling” that the Brennan Center’s own studies of the suppressive effects of voting restrictions on the poor, the elderly, the young, and minority voters are somehow flawed, I’ll trust in the argument that laws designed to make it harder to vote can actually accomplish their intended goal, and make it harder to vote. I’ll further assume that because it was harder to vote in the November 2014 election, fewer people cast votes in the November 2014 election than would otherwise have done so in the absence of laws making it harder to vote.

I mean, people, please. Use your god-given brains for a second.

What It Feels Like When Money Gets To Vote

There are lots and lots of think pieces about the disastrous November 2014 general election, both with respect to the outcome in Texas and in the United States as a whole. When I say that the election was “disastrous,” I want my meaning to be clear – the overwhelming victories accorded to well-funded conservatives in this election cycle presage years of needless human misery and suffering, no matter what victories ordinary people may ultimately wrest from the plutocrats. Suffering is the price we pay for sliding further into the grim age of the corporate state, and recompense for that suffering (which must inevitably be paid for with blood, in French Revolutions and other terrible ways, as James Anthony Froude was wont to say), will only add to the agony.

It turns out that when money votes, one gets the kind of result that one would expect from an inanimate object with political opinions. The results tend to be inhuman and buoyed up by the sorts of self-justifications and myths that only make sense to things that don’t have central nervous systems.

With respect to second-guessing and dissing Democratic Party GOTV efforts, I think Charles Kuffner’s analysis is better and more on-the-nose than most of the other political reporters in the State. His review of turnout and comparisons with the 2010 gubernatorial election help counter the popular narrative that the 2014 disaster in Texas was solely the result of errors and missteps by Battleground Texas.

Given the collapse of Democratic Party efforts outside of Texas, involving candidates and races supported by other fundraising and campaign organizations that weren’t Battleground Texas, it’s clear that the 2014 election outcome in Texas was not an outlier, or the result of some terrible gaffe or strategic misstep peculiar to the Texas elections.

Battleground Texas demonstrated that concerted efforts did improve Democratic Party candidate outcomes (compared to 2010) in a number of conservative state legislative districts. Among other things, Wendy Davis’s numbers in Tarrant County showed her remarkable strength in a blood-red county, improving on Bill White’s 2010 turnout among Democratic Party voters (and in pouring rain, to boot).

Battleground Texas was extremely good at building a statewide volunteer network, and its volunteers and staff worked very hard to protect voting rights in general. I say this with only a slight whiff of personal bias, given that I did some volunteer work on Election Day for the Battleground Texas Voter Protection Hotline. ;^)

However, (as Mr. Kuffner notes) Battleground Texas is not exempt from criticism for some of its mistakes. In particular, county precinct chairs complained that Battleground Texas used its volunteers ineffectively in some circumstances, with poor and out-of-date precinct voter data, ineffective block-walking efforts, and non-existent or token communication with local Democratic Party officers and candidates. But these are all correctable mistakes that really reflect nothing more than the fresh-faced naivete of itinerant out-of-state campaign runners who lacked experience with regional Texas elections. And despite the mistakes, (as Mr. Kuffner’s review suggested) there are a number of Republican incumbents in the Texas Legislature who are only going to become more vulnerable.

If Battleground Texas had run a flawless campaign, would it have made any difference? The national picture suggests that a comparative analysis of the mountains of dark money pouring into campaigns would have been a far better predictor of outcomes than any other metric, and that the Republican Party candidates gave themselves the best election that money could buy.

Links: http://offthekuff.com/wp/?p=63720;

http://offthekuff.com/wp/?p=63746; and






For God’s Sake, Let Us Sit Upon the Ground And Tell Sad Stories of The Death of Kings

Here are a few thoughts on the election, offered up as I process my grief.

1. Um, you do know that there are actual ballots remaining to be counted, right?

One of my frustrations with media treatment of elections is the insatiable need for everyone to know RIGHT NOW exactly what has happened. As things stand, at this very moment, the tally of the election has not been completed, and will not be completed until after the end of the “cure period” for provisional voters who voted without sufficient I.D.

But it was unseemly (to the point of malpractice) for national news outlets to pull the sheet over the Texas body politic and call the time of death WHILE VOTERS WERE STILL IN LINE. There were huge long lines in Tarrant, Dallas, Harris, Travis, and Bexar counties, and many polling places across the state were still processing voters at 8:30 p.m.

So I hear you say, “But Joe, so what? Even if you pretend that every uncounted ballot was for your slate of candidates, it won’t matter. The outcome will be what it is. Why quibble over calling the election at 7:30 p.m. versus calling the election a week from today?”

Because it’s wrong, that’s why. Because elections are complex, multivariate events, where what seem like long shots and unshakeable trends don’t necessarily conform to the selective sampling of early-received precinct totals. Because none of the provisional ballots have been counted yet – the very same provisional ballots that provided some safety net for the voters who may have needed to cure issues with their voter I.D.s, or for the voters who, but for the offer of a provisional ballot, would have been denied an opportunity to correct some misunderstanding or bureaucratic error regarding their registration status.

What all of the news media outlets were doing was insulting to the people whose ballots haven’t been counted yet, because it amounted to a hasty refutation of the very voters who are most poorly served by society in the first place.

Well viewers, with a whopping 2 out of every 100 ballots counted, we can confidently say that among the voters who matter (disproportionately white suburban voters with drivers’ licenses and quiet, uncrowded polling places), the choice is clear. And for those of you still in line (disproportionately minorities, the young and elderly, living in areas where voting equipment and personnel were rationed and throttled), give up, chumps. You could be home watching Matlock reruns and eating cold cat food out of the can.

And for those of you who voted by mail (disproportionately old or disabled), or voted provisionally (disproportionately minorities), or voted from overseas, may we say, uh, we appreciate that you wanted to get a gold sticker for your pathetic attempt to participate in the democratic process, but seriously, who ever believed that we really cared what you thought?

2. Why Concede Before the 10:00 p.m. News?

My advice to the statewide Democratic Party candidates in Texas would have been to delay the concessions until this morning at the earliest. Why on earth would anyone want to hand Greg Abbott additional TV time right in the news cycle sweet spot? It’s an act of submission that benefits no one, and that further erodes the public capacity for patience and delayed gratification.

3. I Keep Waking Up In The Wrong Universe

Seriously, it’s like a Philip K. Dick novel around here.

On Election Day, I did volunteer work on the Battleground Texas Voter Protection Hotline, and I want to thank the Director of Voter Protection for Battleground Texas for her too-kind invitation and encouraging words.

Mimi Marziani, an energetic and unflappable civil rights litigator, voting rights organizer, and unstoppable whirlwind, is still tirelessly hard at work at this moment, helping voters and fighting the fight right now, and was incredibly generous to invite me (a complete stranger!) to help voters. Welcome to Texas, Mimi!

I’d also like to thank all the attorneys and staff in the Statewide Voter Protection Hotline in Fort Worth – (I apologize for not being better with names, but you were all incredibly welcoming, wonderful, kind, hard-working, unflagging, brilliant and brave people), with a special thanks to my fellow voter protection attorney Michael Ybarra for transporting me all the way from Austin to Fort Worth and back.

All the volunteers in the field, at polling places, and at all the regional boiler rooms and the state and national boiler rooms worked fiercely and unwaveringly to defend the rights of voters to cast their ballots, and there are many, many voters across the state who owe a debt of gratitude to these volunteers. Thanks to all of you, and safe travels.

I’ll have no postmortems today, as I don’t approve of the vivisection of an election that hasn’t even been completed yet.

Voter Reaction To News That Abbott Funneled $42,000 in Taxpayer Money To Anti-Abortion Activist

I’ve been quick to criticize the Austin-American Statesman for silly election stories, and so it’s only fair that I should praise them profusely for today’s top story (behind a paywall, alas) – that the Attorney General paid thousands of dollars in state money to anti-abortion activist Vincent Rue, who was a consultant for the State’s defense of its recent anti-abortion law. Veteran political reporter Chuck Lindell has managed to scoop every other state and national news outlet on this story.

In writing about the secret contract between the A.G. and Mr. Rue, Lindell notes that:

[H]iring Rue as a trial consultant backfired when U.S. District Judge Lee Yeakel overturned key parts of the state’s sweeping abortion law on Aug. 29, ruling that Rue’s involvement undermined the credibility of the state’s expert witnesses.

Yeakel also admonished Abbott’s office over its strenuous pretrial fight to withhold Rue’s email exchanges from lawyers for abortion providers, writing that he was “dismayed by the considerable efforts the state took to obscure Rue’s level of involvement with the experts.”

According to Rue’s contract, he was an independent contractor who could be paid no more than $40,000, plus expenses. Other documents show he was paid just over $42,000, but a breakdown of expenses wasn’t available.

Other contract provisions enhanced privacy:

• Rue couldn’t issue press releases or make public announcements about his work.

• The document specifies that Rue had a “confidential relationship” with Abbott’s office in connection with the court case.

• No written reports could be generated without prior approval from the office.

The decision not to release the contract to the Statesman came two weeks after state lawyers argued — unsuccessfully — that emails between Rue and the state’s expert witnesses were protected from disclosure.

 Lindell, Chuck, “Greg Abbott’s office reveals contract with abortion opponent” (Austin American-Statesman, November 1, 2014) A1, at p. A7.

In part, the story is about open government records and about Abbott’s efforts to deny access to information about how taxpayer money is spent, and in part, it’s about how ideology and money intersect in the demimonde of the extreme right wing.

And of course, it’s partly a story about an election, about timing and news cycles, and about the potential effect that scandalous news has on Election Day voting (the story came out one day after early voting ended in Texas).

Abbott comes off particularly poorly in the story because of his personal supervision and control of the secret contract, and because his cloak-and-dagger tactics were ultimately disastrously damaging to both his and the State’s credibility in court.

In general, scholarly studies of scandal, corruption, and the effect of political controversy on electoral choice have focused on U.S. Congressional elections, because the number, public visibility, and geographic variety of these elections make them popular fodder for academic scrutiny.

Although the methodology and definitions of what constitutes a “scandal” vary, common themes emerge when looking at the literature on this subject.

The studies consistently find that when compared to non-scandal-ridden candidates;

(1) a candidate’s association with a scandal has a material effect on the election outcome, losing the candidate between 5% and 10% of the vote, especially if the scandal is of a nature that fails to benefit the financial interests of voters, and that

(2) when scandals break, they generally prompt an increase in advertising spending by opponents, with a consequent secondary effect on vote outcomes. Peters, J. and S. Welch, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections, (The American Political Science Review, v. 74, p. 697 (Fall 1980)); Welch, S. and J. Hibbing, The Effects of Charges of Corruption on Voting Behavior in Congressional Elections 1982-1990, (The Journal of Politics, v. 59, p. 229 (1997); Basinger, Scott, Scandals and Congressional Elections in the Post-Watergate Era (Political Research Quarterly, June 2013, v. 66(2) p. 385) (abstract available online at http://prq.sagepub.com/content/66/2/385.full.pdf+html).

However, because this scandal broke after in-person early voting was completed, the effect is muted because roughly half of the votes in this election have already been cast. Additionally, because the story has not broken widely beyond the Statesman yet (in part because the Statesman is justifiably proud of its scoop and hasn’t shared it widely), there are as yet few ripples of public reaction to the story in the instant media Panopticon.

If I were to hazard a guess, I’d say that if the Davis campaign puts a targeted ad into wide circulation this weekend (along with widespread social media promotion, push-polls, mentions in public addresses, etc.), that it might peel away a little less than 10% of Abbott’s Election Day vote, cumulating in maybe a 5% hit to Abbott’s vote totals.




Story of A Disenfranchised Voter

I saw on Rick Hasen’s blog that he had already posted this link to a Guardian story about Texas voters – the story is as good an illustration of the profound wrongness of Texas voter I.D. law as any I’ve seen.


Taking Advantage of the Ebola Scare By Taking Advantage of the Ebola Scare

On Friday, the Austin-American Statesman ran one of those dreadful space-filling stories that the media seem drawn to like moths to a flame. Staff reporter Jonathan Tilove’s  page A1, above the fold story entitled “Why Ebola is a perfect storm for Texas Democrats,” is the print journalism equivalent of the kind of click-bait faux-think pieces that infest websites like Buzzfeed, and that are so nicely satirized by The Onion’s “Clickhole.”

The story, (mostly behind the Stateman’s paywall) is an airy editorial that carries itself aloft on the reductionist B.S. argument that the current Ebola panic is “bad for Democrats” in Texas, all because a patient happened to die of Ebola in Dallas.

This is an example of what happens when reporters who are at a loss to make stories out of the actual news decide to manufacture some news in order to fill column inches. One can easily imagine a journalist spit-balling story ideas in a bull session with a few colleagues. “Oh, if only I could figure out how to squeeze the word ‘Ebola’ into this story of the November 4, 2014 general election. Because Ebola. And Ebola.”

There may well be internal “metrics” that show newspapers with the word “Ebola” on the front page show an X% spike in same-day sales, or that news websites with the word “Ebola” see an increase in page views. Or whatever.

To summarize, Mr. Tilove’s story is built on the general observations of various experts in the until-now invisible academic field of election epidemiology. The article is based most prominently on a gross generalization of findings by John Alford of Rice University, John Hibbing and Kevin Smith of the Political Physiology Lab at the University of Nebraska at Lincoln, and Christopher Frederico at the University of Minnesota’s Center For the Study of Political Psychology.

As has been noted in other sources, people who self-identify as conservative are arguably or potentially more likely to be emotionally activated by basal endocrine responses to fear and disgust than are people who self-identify as liberal. To the extent that one can draw conclusions from statistical variations in human responses to stress, conservatives could be said to be slightly less capable of logical reasoning in the face of fear than the general population, and could arguably be appealed to more effectively by fearmongering.

But I suspect that Drs. Alford, Hibbing, Smith, Frederico, and others would be the first to caution against extrapolating from general observations about fine-grade statistical variants in intellectual capacity among voters to any sort of specific predictions about outcomes in particular elections, and for all I know, the people studying the field of political physiology might be unhappy about the way that their research is being portrayed in this news story.

Let’s accept for the sake of argument that conservatives are more prone to being “spooked,” and are, as a group, less capable of rational thought than liberals (As a liberal, nothing makes me happier than being able to cite sociological studies that show liberals really are smarter, more intellectually evolved, and more competent than conservatives, so of course, all this statistical analysis is wonderfully affirming).

Does it follow from this premise that Texas Democrats are in trouble because a West African visitor to Dallas was unlucky enough to have Ebola, and was further unlucky enough to experience the dispiriting crappy health care offered by a Texas hospital? Couldn’t the narrative just as easily been “Texas Democrats Poised to Benefit from Mismanagement of Ebola By Conservative Policymakers?”

An accumulation of unrelated circumstances and facts (even when all these circumstances occur at roughly the same time) does not mean that these circumstances and facts are causally related to each other. An irrational fear of Ebola does not translate into political support for specific Republican candidates in the 2014 election in Texas.

The only reason why Mr. Tilove’s story is a narrative about the “poor hapless Democrats,” is because Mr. Tilove decided to slant the story as a narrative about the “poor hapless Democrats.” The story wears its political assumptions and subjective bias on its sleeve. I could just as easily write a story subtitled, “Fear of spiders, gas station restrooms, and clowns among stupid voters could create backlash against Democrats within blocs of stupid voting groups, experts say.”

In fact, as a useful corrective to Mr. Tilove’s embarrassingly awful feature story, let me redraft it as follows:


“Disgusting” bathrooms in Dallas, elsewhere, could create backlash against rational voting, expert says

Filthy gas station restrooms are causing particularly dull-witted voters to side with the Republican Party, just weeks before the statewide election.

The tendency among the managers of independently-owned local gas stations to neglect routine maintenance and cleaning is helping feed doubts among particularly obtuse voters about Democratic chances.

The political problem that filthy gas station restrooms pose for Democrats in Texas, and in midterm elections nationally, could be even more fundamental. The story of experiencing a particularly rank bathroom, in which a desperate driver stops at a “mom-n-pop” convenience store, only to be repulsed by the conditions in the rattrap semi-detached shed behind the air pumps, is the quintessential issue more likely to provoke a gut reaction from conservatives than liberals, and draw them to the polls, according to Rice University political scientist John Alford, a cutting edge researcher on the physiology of ideology.

Republican Voters Swayed By Vomit, Diarrhea

“There are two things that conservatives are attuned to more and react to more — signals of threat and signals of disgust — so [filthy gas station restrooms are] a gift to the Republicans in this election that you’ve got exactly those two things dominating the national news,” Alford said. “Every time someone in the news is talking about projectile vomiting and diarrhea, I think, `The Republican vote just went up another half percent.’”

Alford’s work, published in leading peer-reviewed science journals that are totally not made up, we swear, is part of a growing body of work cutting across the fields of political science, psychology and biology linking conservatism to more of a survival instinct.

“[Restroom cleanliness is] a very well-positioned issue for the Republicans,” Howard Lavine, a University of Minnesota political scientist, said of the issue. “It activates both a threat and disgust response.”

A national study found a correlation between a state’s high level of “contamination disgust” — for example, people who were loath to drink from someone else’s soda or eat at a restaurant where the cook has a cold — and support for Republican John McCain in the 2008 presidential election, according to a 2011 article in the journal Social Psychological and Personality Science.

Social psychologist Ravi Iyer, chief data scientist for Ranker.com — a website where 18 million participants rate things and where a toilet seat was recently ranked as the fifth-dirtiest thing you encounter every day — said fear of public restrooms is most pronounced in the conservative South.

Fear and disgust

Americans generally disapprove of the way Obama has handled the public restroom cleanliness crisis so far, according to an Associated Press poll released Thursday. Republicans in Texas have seized on questions about the federal response to restroom sanitation.

For conservatives, the Obama administration’s failure to enforce more frequent restroom disinfecting is of a piece with its failures to contain the Islamic State militant group or secure the southwestern border or to defend the White House perimeter from an intruder last month who made it to the East Room before being tackled by the Secret Service.

Texas’ voter identification law, which the Obama administration is fighting in court and Abbott is defending, comes under the same rubric. For conservatives, “ballot security has the same kind of emotional appeal,” said Alford, who was chosen by Abbott to be the state’s expert witness in the state and federal redistricting case (not that he’s biased against Democrats, or anything).

Alford’s research with John Hibbing and Kevin Smith, both affiliated with the Political Physiology Lab at the University of Nebraska-Lincoln, and other collaborators, have found that conservatives tend to have a stronger startle reflex than liberals.

In an experiment they wrote about in 2008 in the journal Science, the researchers used eye movement sensors to determine that the political conservatives in their study tended to have a harder involuntary blink response to a startling noise, indicating a heightened “fear state.”

In this and another experiment, Alford and his colleagues also used sensors on the subjects’ fingers to measure changes in the skin’s conductance of electricity, a precursor to sweat, when they were confronted with a threatening image, such as a snake ready to strike, or with a disgusting image, such as maggots in an open sore.

In both cases, conservatives tended to have a stronger response to the images, suggesting that at least at some basic biological level, conservatives are just not very smart.

The stronger reaction to threat, the researchers found, is correlated with a more conservative stance on questions of national defense, border security and immigration, while the heightened sense of disgust correlates with a more conservative stance on gay marriage, abortion and other social issues.

‘Physiological perfect storm’

Both physiological responses are rooted in the survival instinct. A sudden noise might alert one to an imminent danger. “The role of disgust in the avoidance of disease, one of the primary sources of mortality over the years, makes it essential to survival,” Alford, Smith, Hibbing and three co-authors wrote in a 2011 article in PLOS One, the largest open-access science journal that I was able to find through Ask Jeeves.

“When you make people fearful about disease, they become more wary of outsiders,” said Christopher Federico, a scholar at the University of Minnesota’s Center for the Study of Political Psychology. “It is how our distant ancestors would have coped with disease back when the evolutionary process was very harsh.”

While filthy gas station restrooms might particularly rouse conservatives, Federico said it might also awaken that latent instinct across a broader swath of the electorate.

For Texas Democrats, the emergence of filthy restrooms as an issue in an already challenging year is nothing but bad news.

“It’s a kind of physiological perfect storm,” Alford said. “I can’t think of an issue that you could pick that would be worse (for Democrats) for uniting those two traits. You could be physiologically disturbed by filthy restrooms if you are a `threat conservative,’ or if you are a `disgust conservative,’ or, if you have both of those reactions.”

“If the Obama administration had acted decisively and been lucky [with respect to filthy restrooms], and basically handled this, it could have suppressed conservative reaction,” Alford said. But now, he said, “so close to the election, you get this kind of emotional reaction, there is basically no time to dampen that down by a successful policy response. It’s there, and this becomes the physiological backdrop to the decisions about turnout and vote direction and also the political discussion.”

Boo to the Statesman for running an Abbott campaign ad in the guise of a news story.

Sub-Rosa Approval of Veterans Health Cards As Voter I.D. In Texas

A reader (Frank Provasek) has provided extremely valuable and eye-opening information in his comment on my post about Veasey v. Perry and the State’s selective, politically motivated treatment of veterans’ I.D.s. Without any public announcement or acknowledgment, the Secretary of State now accepts veteran’s health I.D. cards as voter I.D.s in the polling place, encouraging further cherry-picking, ad hoc after-the-fact administrative legislating, and pandering to specific conservative voters.

Although you may have seen Mr. Provasek’s comment already, I wanted to highlight it for those of you who may not regularly check subsequent developments on my posts. I’m reproducing Mr. Provasek’s comment in full:

Texas DPS defines military ID as a primary form of ID, and defines Veterans cards not as a primary or even secondary form of ID, but merely “a supporting document” like an electric bill with your name on it. . The Veterans cards are pictured in a PDF file here http://www.sos.state.tx.us/elections/forms/id/acceptable-forms-of-ID.pdf

The VA created a NEW card called Veterans HEALTH Identification Card (VHIC) to go alongside the Veterans Identificatiion Card (VIC) The new card rolled out in Summer of 2014, so even AFTER the regular Veterans ID cards were somehow added in 2013, an additional card was added in 2014, while the Veasey v Perry lawsuit was underway.

You wouldn’t know these veterans cards are accepted by a text search on the SOS website (or any state website). They are only shown as images in powerpoint or pdf files — and do not show up in a Google search. They are not mentioned in the law, the election code, nor on the state voter portal here http://votetexas.gov/register-to-vote/need-id/ or on the posters displayed at the polling places http://votetexas.gov/wp-content/uploads/2013/09/poster-8.5×14-aw.pdf

(Emphasis added).

Ginsburg Wasn’t So Wrong About Texas and Veteran’s I.D.s

As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.

In fact, this statement was true when S.B. 14 was signed into law in 2011veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.

Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.

Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.

When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”

Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).

The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.


The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.

Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”