Over the last decade or so, Texas has encouraged or required political entities to conduct their elections jointly. In part, this is done to enhance turnout (with the theory being that if voters can enjoy the convenience of “one-stop-shopping,” there will be better participation in local elections). There are some other reasons why cities, school districts, and other political subdivisions might want to pool their resources in order to conduct elections. First of all, in this era of electronic voting systems, elections are substantially more expensive (because of maintenance agreements and ballot programming costs). Second, election administration is time-consuming and labor intensive (clerks are needed for weeks of work, and administrative offices have to maintain statutorily required minimum daily hours in order to answer voter questions).
So Chapter 271 of the Texas Election Code authorizes political subdivisions to execute joint election agreements. These are specialized interlocal governmental contracts to share costs, workers, and administration of elections that affect a common pool of voters.
In a complimentary fashion, provisions in Chapter 32 of the Election Code allow counties to sell election services to local entities that happen to have territory within those counties.
Joint elections are, in general, a practical solution to correct the State’s hopelessly localized methods of governing – regional and interlocal agreements resolve the fundamental inequities caused by the general tendency in Texas law to push all costs and labor of government to the local level.
Unfortunately, some local entities take advantage of the ad hoc nature of joint election agreements and election services contracts to justify shirking government responsibility to the voters.
Case in point – I recently got an email from a voter in Bartlett, Texas. Bartlett is one of those towns where the politics has gotten personal and nasty, and there was a hard-fought city council election there on May 10th of this year. As it turns out, the City of Bartlett contracted with Williamson County, and offloaded all the nagging details of running an election to the county elections administrator. For cost-saving reasons, the county designated a few spots across the county where voters could go vote early, and set up some temporary polling places at various rural locations, allowing a day here and there to vote in various school district and town elections across the county.
So for this year, as it was for (according to the Bartlett City Secretary) the previous three years, there weren’t actually any early voting locations inside the City of Bartlett. That’s despite the fact that state law mandates that cities must conduct a minimum of two 12-hour days of early voting during the roughly six day period of early voting that takes place before each May election.
This is another example of the unintended loss caused by the end of preclearance under Section 5 of the Voting Rights Act – in a previous era, a sudden loss of polling locations would raise eyebrows among Federal analysts, and would prompt a delay in Department of Justice approval of a local election. Now, that mechanism is gone, and the incumbents on the City of Bartlett city council can (arguably) reduce turnout in an election to ensure their continued stay in office.
But cities (and school districts) aren’t free to use joint early voting agreements to evade the responsibility to provide (1) the required number of hours of early voting, or (2) fail to provide early voting locations that adequately serve the voters of each political subdivision.
In other words – they’re doing it wrong.
Here’s the relevant text from Section 271.006 of the Texas Election Code (Chapter 271 covers joint election agreements generally):
Sec. 271.006. EARLY VOTING. (a) The governing bodies of the political subdivisions participating in a joint election shall decide whether to conduct their early voting jointly. The governing bodies that decide to conduct joint early voting shall appoint one of their early voting clerks as the early voting clerk for the joint early voting.
(b) The joint early voting shall be conducted at the early voting polling place or places at which and during the hours, including any extended or weekend hours, that the early voting clerk regularly conducts early voting for the clerk’s political subdivision.
Notice that language from subsection (b) of the statute. The joint early voting has to be conducted at the “place or places at which and during the hours, including any extended or weekend hours, … for the clerk’s political subdivision.”
I suppose the city’s response would be, “Well, yes, but we chose to use county early voting locations, and since the county elections administrator is our joint early voting clerk, the law says that our early voting locations don’t have to be within city limits.”
That is only okay if the joint early voting meets all of the minimum legal requirements imposed on the city by Section 85.005 of the Election Code. That means 2 12-hour days of early voting, a minimum of 8 hours each of the other weekdays, and maintenance of a main early voting location at the office of the city secretary. Joint elections are not an excuse to shirk these legal minimums.
Here’s what it says in the Secretary of State’s Election Calendar for the May 10, 2014 election (This entry is from April 28, and relates to the start of early voting):
Joint elections: If conducting early voting by personal appearance jointly, we recommend a unified schedule covering all requirements; i.e., no entity’s requirements should be neglected or subtracted as a result of a joint agreement.
Note for Cities: Cities must choose two weekdays for the main early voting polling location to be open for 12 hours during the regular early voting period. The city council must choose the two weekdays. (Sec. 85.005(d)).
So, to be blunt, the City of Bartlett is using its election contract with Williamson County the wrong way, and has been doing so for at least three years. I strongly suspect that if you talk to the attorneys at the Elections Division of the Texas Secretary of State’s office, they will agree that a joint election agreement is not an excuse to fail to provide the minimum required early voting within Bartlett.