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Our Eternally Incomprehensible Election Code

For Friday, this from the “plus ça change,plus c’est la même chose” department:

RESOLVED: That the Texas Election Code is poorly drafted and unreadable. And it always has been, and for all I know, it always will be a terrible mess.

In 1949, the Texas Legislature passed a law creating a commission to substantially rewrite the state election laws. There were a number of reasons to create such a commission, but one of the dominant reasons was that no one of reasonable intelligence could make sense of the contradictions and ambiguities present in the law (See the text of the session law here, courtesy of the Texas Legislative Reference Library).

From the work of this committee came the 1951 Election Code, the first major revision of state election laws since 1925.

But candidates and officeholders complained that they still couldn’t make heads or tails of basic questions, such as when to hold special elections to fill vacancies, what “residence” was, how the political parties were supposed to administer primary elections, and so on.

So in 1961, a joint interim committee was created to do a careful and scholarly review and correct the “many conflicts, ambiguities and inadequacies” of the Election Code (from page ix of the committee report, reprinting the committee charge). A lot of fixes were proposed – 266 pages worth of fixes, in fact. But the Texas Election Code still frustrated with its frequent incomprehensibility, which at least had the effect of creating bipartisan demands for improvement.

And yet …, political parties, county officials, and voters were still frustrated. So for much of 1966, an interim committee created by the 1965 Legislature worked to resolve the conflicts, ambiguities, and inadequacies that still remained in the State’s election laws. (per the committee charge, reprinted on pages 279-280 of the massive 1966 report).

Throughout the 1960s and 1970s, the Legislature struggled to improve primary financing (an effort that arguably failed, given that the State still uses an ad hoc reimbursement system to substitute for the former unconstitutional financing through candidate fees), and elections administration (recommendations for electronic voting, unitary primaries, non-partisan county and state elections offices, and “no-excuse” early voting were made starting in the mid-1960s, but still haven’t been wholly implemented). Improvement was being made incrementally from session to session through piecemeal legislation, but one can hear the frustration in the preface to Chapter 1 of the  (323 page long) 1975 interim committee report:

[T]he present election code is so poorly arranged and written in such technical language that its use and understanding by the general public is greatly restricted.

….

The most important requirement of any set of laws, in addition to basic fairness and equity, is that they be clear, concise and accurate statements of the legal guidelines for conduct and behavior.

This requirement, in our opinion, is especially important when dealing with the most basic laws we have — those governing the right to vote and the public’s ability to express its will through the electoral process.

Unfortunately, today, it is impossible to say that either the provisions of the Texas Constitution governing the right of suffrage or those of the Texas Election Code, itself, meet the test.

In fact, our examination of those documents shows that they are, in many ways, perfect examples of the opposite of those goals as they are littered throughout with provisions which have been long invalidated; are arranged so poorly that it is often almost impossible to locate the provisions on any subject; and are written in such highly technical language that only a select few with special skills can understand the regulations they establish.

This situation is, in our opinion, one that can no longer be tolerated and one that we believe the next Legislature must move to correct.

Report of the Committee on Elections, Texas House of Representatives, 64th Legislature, November 12, 1976, at pages 2, 3 (11th and 12th pages of the scanned .pdf copy).

So it only took another ten years for the Legislature to recodify the Election Code and take out some of the more obvious invalidated material. But even with the 1985 recodification (which was admittedly a major editorial improvement on the 1951 Election Code, which was itself a cautious restating of the 1925 law) there was still a tendency to subdivide common topics among multiple sections, tuck mysterious exceptions and qualifications in dark corners, and generally obfuscate beyond even what the expediencies of partisan political dealing would seem to require. And that’s the recodification that we’re left with today. If the past is any indication, we should get another thorough rewrite sometime around the year 2145.

In every era, the people who actually have to read the Election Code for their day-to-day jobs (voter registrars, election administrators, elected officials) have complained that they can’t understand its provisions, and can’t make heads or tails of how it’s organized. And the bad drafting compels the Secretary of State (a partisan appointee) to engage in quasi-judicial interpretation and quasi-legislative revision just to keep the trains running on time.

Isn’t it time for Texas to step boldly into 1976?

 

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