Home » 2014 » January

Monthly Archives: January 2014

Herding Cats – GOP Adopts Changes to Speed Up Presidential Nomination Process

Over the years, state political parties have competed to see which state can have the earliest presidential nomination caucuses and conventions, hoping that by offering early contests, they can attract media attention and money from presidential hopefuls. The consequence of the jockeying has been that the presidential primaries and caucuses have come earlier and earlier over time.

Texas is part of a pack of “Super Tuesday” states that conduct their primaries on the first Tuesday in March, but considerable legislative effort had been devoted to moving the presidential primaries to February or January. But as reported recently in the New York Times, the national GOP party leadership has put the kibosh on such leapfrogging.

Frankly, efforts to enhance the power of any particular state party to influence the presidential nominations are almost always self-defeating, so it’s a pleasure to see a national party enforcing some order over the state nominating process. The party’s modest reforms are cautious, so as not to antagonize the New Hampshire and Iowa Republicans who treat their early caucuses as sacred, but at least go some way toward ending the unseemly scramble to nominate a candidate as early as possible.

The other part of the reform is setting an earlier date for the national convention, moving the convention to late June or early July instead of early September. In Texas, at least, this should solve a logistical problem – until recently, state law set a deadline for certification of the candidates (for ballot production purposes) that fell prior to the dates of the national conventions – now it looks like that won’t be a problem.


Pennsylvania Court Strikes Down Photo I.D. Requirements for Voting

As a possible precursor to additional legal fights over picture I.D. requirements for voting, a Pennsylvania state court has struck down that state’s photo I.D. requirements for voting. Central to the court’s decision was the factual finding that the so-called “free” I.D. available to the indigent had limited distribution.

Comparing the Texas and Pennsylvania laws, Texas is particularly vulnerable to this sort of factual determination. The extreme low number of free voter I.D.s issued by the Texas Department of Public Safety for the off-year November 2013 statewide constitutional amendment election highlights the weakness of the state’s position on this topic – given that a large number of voters lack sufficient i.d. (per the evidence in the statewide voter registration database of so-called “first-time I.D. voters”), a much larger number of voters should be requesting and receiving those I.D.s.

Some Presumptions That Should Be Written Into Any Model Election Law

Much election law interpretation is grounded in unreality. For instance, lawmakers, voters, and election workers commonly behave and react from the foundational premise that aggregated printed or electronic data are presumptively free of error. So, for example, lawmakers will specify that the statewide voter registration database should be compared to the Social Security Administration’s “death index” in order to identify voters who are possibly deceased. Or, proceeding from a similar institutional faith in data, a poll worker may presume that a voter who is listed as having already voted in the election is ineligible, even to the point of treating that voter’s option to vote provisionally in order to clear up the mistake as a kind of morally suspect technical evasion.

This is all notwithstanding our intellectual awareness of the gross errors that riddle large collections of data. Every item of data in a large electronic database was typed into that database by a fallible human being, often as one step in a long chain of transactions that magnify errors. If one compares the statewide voter registration list to the death index, and if one takes the product of that tragicomic Kafkaesque collision of typos, misprints, electronic hiccups, syntax errors, missing fields, and general noise as being somehow “accurate,” then one lacks a common-sense understanding of information theory.

The legal presumption in circumstances where data is being compared, and where discrepancies are weighed, should be this: Presume in favor of the accuracy of the original source. Unless rebutted, the statements of the person that supplied the data that was ultimately aggregated into some sort of database should carry more weight than the database itself.


Happy New Year From Texas Election Law Blog

Here are a few short notes regarding what’s going on in Texas Election Law right now:

The Austin-American Statesman reported a few days ago that at a meeting of the Texas Election Administrators Association, the state director of elections promised legislative or administrative fixes to the requirement to include former voter names on the voter registration certificates. The announcement is a welcome one, and is a hopeful sign of a common-sense fix to a confusing and weirdly communicated change in the way that voter registration certificates were prepared. On a related note (also from a recent Statesman article), problems with voter I.D. have motivated the Travis County voter registrar to mail warnings to 37,000 voters who may not have sufficient I.D. to vote under the current laws.

As I mentioned previously, I was asked to testify in a recent criminal case involving illegal voting. The defendant was found guilty (and judging by a comment left by someone identified as “Juror2013,” the defendant wisely chose to have a different finder of fact impose the sentence). I will do a longer post with my impressions of the case, but the executive summary is this: my testimony was no help to the defendant or anybody else, criminal law is a fascinating demimonde that I thankfully don’t practice in, and there is little room in a criminal trial for moral idealism or philosophical debate.

As always, the Texas Redistricting Blog has excellent updates on the status of the voter I.D. lawsuits here.
The state’s briefing seems pretty weak, stretching to argue that the Texas photo I.D. laws aren’t as “mean” or punitive as the ones enacted in other states. Um. Yeah. Is that really the hill that the state’s attorneys are willing to die on?