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Monthly Archives: February 2014

The 17th Amendment … Wha?

Texas Lieutenant Governor Dewhurst is now attempting to appeal to the “Repeal the 17th Amendment” crowd; the Austin-American Statesman ran this excellent background piece explaining this peculiar Tea Party obsession with getting rid of direct elections of U.S. senators. The short answer – pesky voters keep electing Democratic Party senators.

The War Against Volunteer Deputy Voter Registrars

Battleground Texas is in the news as the latest victim of something I call the “ACORN slander,” once again being perpetrated by the right-wing hatchet man, convicted con artist, and all-around sleaze purveyor  James O’Keefe.

Extreme right-wingers disapprove of expanded voter registration efforts, and so have worked to criminalize things like the collection of contact information from new registrants. To some extent, being targeted by O’Keefe is a kind of badge of honor, demonstrating that the extreme right really are worried. Unfortunately, moral vindication is a poor salve for the victims of Mr. O’Keefe’s scams.

What If Texas Legislature Online Automatically Updated Its Statutory Material?

If you regularly go to free online resources like the excellent Texas Legislative Reference Library or the Texas Legislature Online, you know that after a legislative session, the text of the “official” statutes is very slow to change. For instance, as of today, the “Texas Constitution and Statutes” page has only been updated to be current as of the November 2011 constitutional amendment election, notwithstanding the fact that it is now 2014, and we’ve had another legislative session and constitutional amendments in 2013.

Why is TLO so slow to update? In part, it’s because West Publishing (a commercial legal publisher) publishes the official version of Texas statutes, and sells that version. West Publishing has a vested proprietary interest in preserving an embargo against more frequent online updating.

But it should at least be technically possible to use text scrapers and database automation to produce real-time updates of statutory material. The State of Texas already produces real-time updated administrative rules – in part because private publishers do not have a similar preexisting production monopoly on administrative law text.

I can’t give enough praise to the Texas Legislative Reference Library, whose current administration has done an amazing job of digitizing and preparing decades worth of previously unavailable legislative history material, including bill files and session laws produced over the last century. This material, along with the Texas Legislature Online’s excellent automated script for identifying sections of law affected by amendments, could be shaped into an extremely powerful tool, and a model for automatic state and federal legislative archiving.

Kentucky Bravely Enters the 1970s By Debating Voting Rights For Ex-Felons

While at least some jurisdictions in the world grant voting rights to the currently encarcerated, most U.S. states continue to impose some limitations on voting rights for convicted felons while those felons are serving their sentences. In Texas (as in a majority of states) ex-felons who have paid their debt to society are allowed to re-register and vote. But Kentucky has remained firmly entrenched in the older punitive model of denying all voting rights to anyone convicted of a felony.

So it’s heartening to see that the Kentucky legislature is finally moving to ease up voting restrictions for people who have completed all phases of their punishment. In a pattern that Texas experienced 40 years ago, the more conservative members of the Kentucky Legislature would like to see a post-incarceration waiting period of five years after release of all other disabilities of punishment.

On the one hand, any easing of the traditional view that felony acts “corrupt” the civic authority of individual voters is to be welcome. But I’d suggest that Kentucky save itself a little time and trouble by jumping ahead to the mid-1980s, by abandoning frankly punitive waiting periods before granting the vote.

Now, if only Virginia could get with the program.

Lies, Damned Lies, and Databases – The Fight over Discovery in the Texas Voter I.D. Lawsuit

The ongoing lawsuit over Texas picture I.D. requirements has generated a dispute between the State of Texas and the various plaintiffs over how to figure out how many people have been disenfranchised by the new voter I.D. law.

The Department of Justice envisions being able to say with some level of statistical confidence that the Texas law has caused ___________ (insert as precise a number as possible) qualified voters to be disenfranchised, and that of that number, ___________ (insert another precise number) are members of a protected class of minority voters, who otherwise would have been able to vote, but for the state’s legislative action.

This is an oversimplification, of course. With sufficiently accurate information, DOJ could do things like track precinct-by-precinct racial discrimination at the polls, identify specific households targeted for removal from the voter rolls and compare race, identify discrimination against voters with disabilities, create massive cross-referenced charts and enormous four-color maps, pie charts, bar graphs, histograms, computer animation, and so on, all with the aim of overwhelmingly and conclusively demonstrating that the Texas Legislature enacted a blatantly discriminatory law intending to and succeeding at denying the vote to people based on race, minority status, or disability.

The State of Texas, meanwhile, has briefed a number of legal defenses to the DOJ’s requests, including “legislative privilege” (for internal documents relating to the legislative policy-making process), the defense of “we don’t have that,” and the defense of “we can’t get that for you.”

As things currently stand, the judge has issued a series of discovery orders that reflect a perfect compromise, in that the orders leave all sides equally unhappy. DOJ didn’t get the trial delay (to 2015) that it needed to do sophisticated data gathering and technical analysis of the information it hopes to get, and didn’t get an order making Texas give up the data that Texas says it doesn’t have.

The defendant, on the other hand, has one day to turn over all the drivers license, concealed-carry handgun license, and personal i.d. license information to DOJ. The link to the agreement and background information is helpfully provided by the Texas Redistricting blog.

I speculate that DOJ and Texas are so far apart in their discussions of raw data in part because of differences in bureaucratic culture.

Assume for the sake of argument that members of the Texas Legislature collectively and intentionally planned to engage in the wholesale disenfranchisement of minority voters. In so doing, the lawmakers and their staff didn’t need any particular precision or careful data-based legal engineering. It was enough for them to intuit that any increase in the transaction costs associated with elections disproportionately affect the poor and minorities, as well as elderly and first-time voters. They didn’t actually need or want any data about the effect in detail, because the political purpose of the voter I.D. law isn’t to disenfranchise based on careful targeting. It’s to disenfranchise over the long haul.

It’s to put the thumb on the roulette wheel; to count cards at the blackjack table; to nudge the pinball machine without causing it to record a tilt. No subtlety or particular mathematical accuracy is needed or desirable (as any such accuracy would carry with it a discoverable paper trail, but more importantly, would actually cost money to create).

I don’t think the State of Texas is lying to hide its secret stash of high-level sociological evidence of voter disenfranchisement. It doesn’t have any secret stash of high-level sociological evidence of anything, because that would cost money.

Meanwhile, DOJ could argue to Texas with some despair, “you mean you passed a law without knowing what it would actually do?” To which the answer is “Yes. Of course. Have you actually been to our state lately?”


Woodlands RUD Criminal Lawsuits Covered In Houston Press Story

Of personal interest is this well-written and detailed article from the Houston Press about the ongoing prosecutions for illegal voting in the 2010 Woodlands Road Utility District No. 1 bond and officer election. Kudos to Steve Miller for pulling together a fairly complicated topic.

Charles Kuffner (in his excellent Off the Kuff blog) had reposted the story on Valentines Day, and surprised me by writing that he didn’t know until now that road utility districts were a thing. This statement from a politically active, deeply informed, and publicly influential Houston-area resident and journalist is troubling, given that he lives in a part of the state that has an astonishingly high density of almost invisible special law political subdivisions, and given that politics is his passion.

Mr. Kuffner’s residence places him in nine different political taxing entities, some of which he certainly knows about (Harris County, City of Houston, Houston ISD, Houston Community College District), some of which he may be unaware of (Harris County Flood Control District, Port of Houston Authority, Harris County Department of Education, Harris County Hospital District), and one that I strongly suspect he is unaware of (Greater Northside Management District). Not all of these entities have elected boards – for instance, the flood control district board is selected by the county commissioners, and the management district board is selected by the Houston city council).

But all of the districts have the authority to call and conduct elections, set tax rates and collect property taxes, and enact other policies that have a direct impact on Mr. Kuffner and his neighbors. All of the entities have websites, are subject to the Texas Public Information Act and the Texas Open Meetings Act, and conduct regular meetings that are open to the public. Admittedly, none of the districts are as peculiarly organized as the Woodlands RUD No. 1, as that is a political entity of a type more commonly encountered in the unincorporated territory of a county. But as Mr. Kuffner drives through the counties in and around the greater Houston area, he will cross the boundaries of hundreds of municipal utility districts, road districts, water control districts, emergency services districts, management districts, and other special law districts, all of which directly or indirectly affect the lives and welfare of his friends and colleagues.

The scope of his political “beat” has suddenly and perhaps unexpectedly become much broader.


New Yorker – Interactive Map of War on Voting Rights

This is courtesy of the New Yorker, and available here.

The Impending Electronic Voting System Crisis

In 2002, when the Help America Vote Act established a series of deadlines for state adoption of voting systems that could be operated by a person with sensory or motion limitations without assistance, the assumption was that (1) the Elections Advisory Commission (EAC) would be a viable federal agency for the indefinite future, and that (2) with federal funds subsidizing the initial purchase of compliant electronic voting systems, that hardware and software updates and operating expenses would be manageable.

So in 2006, jurisdictions across the United States were legally required to make accessible voting systems available in every polling place. The systems themselves had to be purchased from private vendors, because no jurisdiction had the political will to rebuff commercial interests by making the design and construction of electronic voting systems a public government function. Because where would the profit be in that?

Not unexpectedly, selling voting systems turned out not to be the great business that people thought it would be. Companies made one huge sale prior to January 2006, and then had to survive by offering maintenance and programming packages. System update certification slowed, because the EAC collapsed, doomed by partisan divisions and a hostile Congress.

Electronic voting systems don’t last forever. Their buttons stick, their batteries quit being able to hold a charge, their ABS plastic shells get cracked. They get touched by thousands and thousands of fingers, rattle on the back of county delivery trucks, sit in stuffy warehouses, and eventually quit working.

Meanwhile, there are no replacement machines in the pipeline,

Accessible voting systems should be regarded as products of a natural monopoly (like interstate highways, national defense, and health care). Given this sad state, the best course would be to nationalize the electronic voting system manufacturing industry, adopt open-source voting system software, and ditch the charmingly unworkable model of an EAC governing body that is evenly split between Republican Party and Democratic Party commissioners. While split commissions are certainly good at immediately becoming gridlocked (consider the sad state of the New York Elections Board), a better model would be that of an agency run by an appointed executive director with a long guaranteed term of office. Like the Federal Reserve.

The crisis is really already here. The solution is simple – government-built machines, owned by the taxpayers outright, and supervised by a politically independent federal election agency.

Human Decency Trumps Hardball SuperPAC Campaigning

Courtesy of Rick Hasan’s Election Law blog, this clip from Jon Stewart’s Daily Show that hilariously skewers the open sewer that is the Koch Brothers SuperPAC.

Fundraising in the Rockwall County Courthouse

The Rockwall newspaper has this story about alleged unethical fundraising in the Rockwall County Courthouse. I have no opinion one way or another regarding the facts of the dispute or its outcome, but my eye was drawn to the following statement in the newspaper story:

The Texas Election Code prohibits the making of a campaign contribution in certain public buildings like the county courthouse.

I think it’s handy to look at the statute in question (Section 253.039, Texas Election Code), because it provides context for the above statement:



(a) A person may not knowingly make or authorize a political contribution while in the Capitol or a courthouse to:

(1) a candidate or officeholder;

(2) a political committee; or

(3) a person acting on behalf of a candidate, officeholder, or political committee.

(b) A candidate, officeholder, or political committee or a person acting on behalf of a candidate, officeholder, or political committee may not knowingly accept a political contribution, and shall refuse a political contribution that is received, in the Capitol or a courthouse.

(c) This section does not prohibit contributions made in the Capitol or a courthouse through the United States postal service or a common or contract carrier.

(d) A person who violates this section commits an offense. An offense under this section is a Class A misdemeanor.

(h) In this section, “courthouse” means any building owned by the state, a county,or a municipality, or an office or part of a building leased to the state, a county,or a municipality, in which a justice or judge sits to conduct court proceedings.

The policy concern appears to be that it is particularly unseemly to hand someone a wad of money at the courthouse, but it’s okay if the contribution arrives in the mail. Upon reading the statute, you can also see how the parties in the Rockwall County dispute will spin this – the Texas Democratic Party will argue that the purchase of a ticket to attend the GOP’s “Reagan Day” constitutes a contribution to a political committee. Presumably the county clerk will argue either that she was not knowingly accepting contributions, or that the purchase of a ticket to a political party function doesn’t constitute a contribution.

Tactically speaking, the Democratic Party could have pressed the issue by authorizing the county clerk to sell tickets to a competing event (maybe something like “Iran Contra Day,” or “Reagan Cabinet Criminal Indictments Day”).


Texas Election Code prohibits the making of a campaign contribution in certain public buildings like the county courthouse. – See more at: http://www.rockwallheraldbanner.com/breakingnews/x714770426/Texas-Democrats-call-for-investigation-into-Rockwall-County-Clerks-office#sthash.8zitrjxM.dpuf
Texas Election Code prohibits the making of a campaign contribution in certain public buildings like the county courthouse. – See more at: http://www.rockwallheraldbanner.com/breakingnews/x714770426/Texas-Democrats-call-for-investigation-into-Rockwall-County-Clerks-office#sthash.8zitrjxM.dpuf
Texas Election Code prohibits the making of a campaign contribution in certain public buildings like the county courthouse. – See more at: http://www.rockwallheraldbanner.com/breakingnews/x714770426/Texas-Democrats-call-for-investigation-into-Rockwall-County-Clerks-office#sthash.8zitrjxM.dpuf