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Monthly Archives: August 2014

Why We Should Stop Pandering To Military Voters

As the late Bill Hicks acidly said, “I support the war, but I oppose the troops.”

I feel that way sometimes when I think about the general trend over the last decade to drop traditional protections against fraud when it comes to making it easier for soldiers to vote.

Specifically, I am concerned by the level of support that is sometimes voiced for voting online, which (as Marc Ambinder of The Week has pointed out), is a terrible idea.  See: http://theweek.com/article/index/267191/why-internet-voting-is-a-very-dangerous-idea

Now, people whose job description includes “dying” in the list of “other duties as assigned” deserve a great deal of respect, and military voters experience a number of serious impediments to voting, not the least of which is that soldiers have no say in or control over where they are expected to be on any given day, and are moved all over the world without notice. Additionally, members of the armed forces are frequently sent to places where no human being could reasonably expect to successfully request or submit a ballot by mail.

How often do people on submarines get mail, and what friendly postal carriers efficiently deliver international mail in nightmarish war zones? Is it likely that military personnel working under deep cover, or behind enemy lines, will regularly be able to pop down to the chemist’s to buy some stamps? Sure, there are diplomatic pouches and State Department couriers, as well as mail delivery services that are integral to military units, but those forms of written communication are still vulnerable to relatively inexpensive heat-seeking surface-to-air missiles, overtaxed logistic resources, and limited access.

I want to be clear that I am not unsympathetic to the complaints and problems faced by people who (for the sake of membership in the military) have given up certain alienable constitutional rights and privileges in return for the sanction to wield deadly force.

But there’s that whole “willing sacrifice of certain alienable constitutional rights and privileges” that soldiers acknowledge by their oath on enlistment. Shouldn’t that legal aspect of military service somewhat diminish my feelings of civilian guilt over the fact that soldiers have a hard time casting absentee ballots?

While citizen-soldiers are still citizens in the broadest sense, their access to the rights afforded to civilians is limited by their obligation to follow orders and submit to military discipline. Soldiers do not enjoy unlimited freedom of speech, the same remedies or protections in the course of being prosecuted for crimes, or the same rights to sue for civil injuries.

Nevertheless, we allow members of the armed forces and their spouses and dependents the right to demand the electronic delivery of ballots (notwithstanding the risks of impersonation, misdelivery, or duplication of these ballots), and do not require members of the military to be registered to vote in order to receive ballots for federal elections. (The amended text of the Uniformed and Overseas Civilians Absentee Voting Act is available from a number of sources, including the Department of Justice. http://www.justice.gov/crt/about/vot/42usc/subch_ig2.php).

The very people who scream the loudest about the need for punitive voter I.D. laws remain uncharacteristically silent on the risks of fraud posed by the dramatic relaxation of security protections when it comes to military voting. Could politics be at the root of the difference?

Veasey v. Perry – Looking Back and Looking Ahead on the Voter I.D. Lawsuit

After the three-day weekend, a major lawsuit against the Texas voter I.D. law will finally be heard in court. See, e.g., this backgrounder from NPR: http://www.npr.org/blogs/itsallpolitics/2014/08/29/344276585/texas-voter-id-law-goes-to-trial?utm_source=twitter.com&utm_campaign=politics&utm_medium=social&utm_term=nprnews

It’s useful at this point to look back at some of the arguments that the parties have made, and to consider what might happen next.

1. The fight over Rule 12(b)6 dismissal of the lawsuit

On October 25, 2013, the State of Texas filed its motion to dismiss this lawsuit, arguing that the plaintiffs had failed to state a claim or adequately demonstrate their legal justification for getting the suit into Federal court. (For those of you not versed on court procedural matters, a “Rule 12(b)6” motion like this gets its name from a particular rule of federal civil procedure – the rule itself basically requires that parties who file suit must give enough detail to show why they are entitled to file a lawsuit. Preemptive fights over the adequacy of a plaintiff’s pleadings are the traditional opening salvos fired by defendants in Federal court, and there isn’t anything particularly unusual or striking about the fact that the State filed such a motion).

Although the State was unsuccessful in its attempt to get a dismissal, we’re likely to see themes from this motion to dismiss reemerge throughout the current trial and appeal.

For those of you following along, the motion is available through the Moritz College of Law document repository, and can be found here: http://moritzlaw.osu.edu/electionlaw/litigation/documents/VeaseyDfdntMot2Dismiss.pdf

The State’s position was that the plaintiffs had mischaracterized the 2011 addition of photo i.d. requirements as targeting racial and language minorities for exclusion from the voting process, when the law was racially neutral on its face (in other words, the Texas Legislature had not drafted a photo I.D. requirement that specifically applied only to members of protected minority groups), and that even if the application of the law disproportionately affected minority groups, such an effect was only incidental to the law’s design.

The State argued that Federal courts in other circuits have rejected the argument that voter registration restrictions have to be racially neutral in effect, pointing out that challenges to limitations on voting such as prohibitions against voting by convicted felons, voter registration list purges of non-voters, and other voter registration maintenance disproportionately impacts minority groups, but not illegally.

For instance, as a proportion of the whole population, minorities are overrepresented among the prison population, and as a result of their felony incarceration, this disproportionate group of minority felons are burdened with prohibitions against voting. But because the criminal laws aren’t explicitly shown to be enforced selectively against minorities, and because the disenfranchisement of felons isn’t predicated on the race of the felons, Federal courts have rejected arguments that felony disenfranchisement constitutes racial discrimination.

This argument is superficially appealing, but everyone knew that it was going to lose.

II. Why Texas lost the argument on the 12(b)6 motion, and why Texas will continue to lose throughout this trial

Although the argument in the Rule 12(b)6 motion contained a certain intuitive appeal, it was doomed to failure for one very obvious reason.

Suppose that you were a member of a state legislature, and you drafted a new proposed law regarding voting procedures. Further suppose that as you shopped your proposed law around, everyone you met told you that the sole effect your law would have would be to suppress voting by the poor and minority voters.

Suppose you asked for second and third opinions, but again kept hearing the same thing – that whatever your law was meant to accomplish, or claimed to combat, or was at least nominally supposed to resolve, it would simultaneously utterly and completely fail to achieve that stated objective, while at the same time limiting access to the polls for minority voters.

A law that punishes felony theft at least accomplishes the goal of punishing people who steal things. The people who are punished may be disproportionately likely to be members of a protected class, which could either be the result of social factors not considered in the drafting of the penal law, or the result of disproportionate poverty and incitements to crime that are not uniformly distributed throughout society. It could also be the result of intentional design in the penal law, but for the sake of argument, let’s assume that the law punishing theft wasn’t consciously written to disenfranchise minority groups.

In contrast, everyone who looked at the picture I.D. law before it was ever made into law said the same thing – the law addressed no actual need or concern on the part of the State, but solely accomplished one goal – limiting voting access by the poor (and disproportionately, by minorities, the elderly, and the young). That is not just an incidental consequence of the law, that is the law’s purpose, function and design. Additional picture I.D. requirements were added to the voting process in order to limit access to voting.

Everyone knows this. No one sincerely believes the alternative narrative that is offered (“voter I.D. protects against fraud”). No one on the defense believes that narrative, and (with the possible exception of some hypothetical population of credulous fools) no one in the general public believes it. The State’s attorneys have the unenviable task of dying on the hill of “electoral integrity” to salve the egos of Texas elected officials.

So if everyone (your friends, your enemies, your colleagues in the Legislature) told you the same thing, over and over again, and yet you persisted in promoting your draft law, ultimately getting it passed by a majority of like-minded self-interested legislators, wouldn’t any rational observer say that you had passed a law that was not merely accidentally or incidentally racist, but intentionally targeted at a group of voters you could not possibly hope to win over to your side?

This undead law should have been put in its grave three years ago.

So many lawsuits …

Rick Hasen has provided a link to the latest Law and Order-themed electionline Weekly (http://www.electionline.org/index.php/electionline-weekly), and as the editor is careful to note, the list of election-related lawsuits on the first page isn’t supposed to be inclusive or exhaustive.

Nevertheless, I feel a little bit hurt that the editors at Electionline couldn’t have included at least one Texas lawsuit. Maybe the newsletter writer was simply overwhelmed by the available choices. Remember – Veasey v. Perry opens next week in Corpus Christi, while Perez v. Perry is expected to continue with hearings this fall. And then there are all the local suits, which tend to be harder to track down.

One suit (and associated grand jury investigation) in Hidalgo County arising out of the Democratic Party primary election has finally been put to bed – an expert data security company put rumors of tampering with voting equipment to rest, and the county followed suit by shutting down the related criminal investigation. The story is here: http://www.texaslawyer.com/id=1202667669976/Election-Lawsuits-End-After-Report-Finds-No-Evidence-of-Vote-Tampering?slreturn=20140728210207.

Texas Voter I.D. Law Discriminates Against Minorities and the Poor

The Houston Press blog presents a graphics-and-map heavy post that highlights the specific geographic effects of the Texas photo I.D. requirements for voting. The story is here: http://blogs.houstonpress.com/news/2014/08/data_shows_poor_democrats_in_houston_least_likely_to_have_voter_id.php

Rick Hasen had cited this story without comment, (http://electionlawblog.org/?p=64697), and I think it’s an important one that is deserving of more attention.

My first reaction on reading the headline was to say, “Well, duh.” Of course the 2011 voter I.D. law is discriminatory – suppression of Democratic Party voting in the large urban centers of Texas was whole point of the law in the first place. Except that it is handy to be able to show someone in graphic terms exactly how the voter I.D. law applies to suppress voting.

The Houston Press story cites the “official” write up in votetexas.gov regarding the legality of the Texas law, which reads:

While pending review within the judicial system, the U.S. Supreme Court issued its opinion in Shelby County v. Holder, which effectively ended all pending litigation. As a result, voters are now required to present an approved form of photo identification in order to vote in all Texas Elections.

To say that this official statement is an outright lie is a bit harsh, but I wish the Houston Press story had pointed out that this, shall we say, inaccurate statement repeats the tissue-thin bravado of the State’s legal pleadings in the current Federal lawsuit over the 2011 voter I.D. law. It was not the case that judicial review of voter I.D. was settled in any way by Shelby County v. Holder. The Texas law was determined by the Federal District Court, District of Columbia, to have violated the Voting Rights Act, (Texas v. Holder, 888 F.Supp.2d 113 (D.D.C. 2012)) (the text of the decision is available here, at: http://www.lawyerscommittee.org/admin/site/documents/files/texas-v-holder-opinion.pdf ) and the State’s appeal of that determination to the U.S. Supreme Court was vacated by the Shelby County decision.

The question of the legality of the 2011 voter I.D. is still very much up in the air, and is the subject of a major lawsuit (Veasey et al., v. Perry et al., filed in the Southern District of Texas, Corpus Christi Division, and currently twisting its way toward trial, despite endless foot-dragging on the part of the State). For a full background on the status of this suit, see the excellent trial-court document repository at Moritz College of Law, Ohio State University: http://moritzlaw.osu.edu/electionlaw/litigation/VeaseyV.Perry.php

A more accurate official statement on votetexas.org would have been to say that the injunction against enforcement of the 2011 law was dissolved in 2013 pending a final resolution of the matter, and that the State has decided to enforce that law until ordered to do otherwise by the courts.

A Facebook Colloquy and Rejoinder on My Post About Ferguson, or Racism is Bad, Mmmkay

Those of you who read these posts through my Facebook page will have seen all of this before, and you can skip this post. I’m repeating myself here because I wanted to add this contextual material explaining some of the media reaction to the events in Ferguson, Missouri, and to highlight the uses and misuses of social science data.

First, the context. I had posted that among other things, the institutional racism in the City of Ferguson was symptomatic of a peculiar brand of Midwestern apartheid, given that the town is two-thirds black, but only has one black member of the city council. I did this in the course of pointing out the usefulness and importance of the Voting Rights Act, and to subtly and indirectly advertise my agenda.

Subtlety is overrated. I think the U.S. Department of Justice should exercise its rulemaking authority under Title VI of the Civil Rights Act to impose preemptive review of election procedural irregularities on all political jurisdictions in the United States. I’ve said it before. I’ve written the draft rules for it. I’ve petitioned the Department to conduct a review, and I’m waiting patiently for a formal response.

But that’s all by-the-by.

One of my Facebook friends, purely for the sake of fueling discussion and acting as a devil’s advocate, tried to get a rise out of me by making two thin arguments based on recent media coverage of Ferguson in the online magazine Slate and in the Washington Post, and in a story that appeared in the Pacific Standard. (The Slate article by Jordan Weissmann is here: http://www.slate.com/blogs/moneybox/2014/08/14/ferguson_missouri_government_why_is_it_so_white.html. The Washington Post stories (or more properly, the online editorials in the Washington Post’s politics blog),  are these:  http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/08/15/how-ferguson-exposes-the-racial-bias-in-local-elections/, and http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/08/15/is-ferguson-anomalous/. The article in the Pacific Standard by Seth Masket that suffers the brunt of my criticism is here: http://www.psmag.com/navigation/politics-and-law/fergusons-missouri-city-council-black-white-race-different-88564/).

One argument was that Ferguson is some sort of anomaly – that it was wrong of me to generalize from the racism in Ferguson that broader Federal enforcement of the Voting Rights Act was called for, because Ferguson is just so “out there” that it can’t be categorized – that the City of Ferguson is just a horrible outlier that in no way reflects the racial issues we hold in common. The other argument was that the election process in Ferguson wasn’t directly relevant to Ferguson’s racial tension, because the mere fact that the city council elections were off-year elections (and had low turnout) could not be the sole reason why Ferguson is such a mess.

So, with that background, here’s the edited, corrected gist of my response:


  • I agree that the Washington Post blog piece linked above (How Ferguson Exposes the Racial Bias in Local Elections)  grasps at straws a bit (if racial discrimination could be engineered solely by putting municipal elections in odd-numbered years, a lot more cities would look like Ferguson).
    But I have to agree that the City of Ferguson is neither an anomaly, nor is it (as the article in Pacific Standard suggests) an outlier, except in a very narrow sense.
    To be fair, even Seth Masket (the author of the Pacific Standard story) makes clear that while the percentage of minority representation on the Ferguson city council makes the city lie well outside a median average of the level of proportionate African-American representation on a city council, Ferguson is assuredly not an anomaly, as the city is representative of a substantial number of political entities wherein institutional racism is alive and well.

    The charts that Mr. Masket reference (one comes from a fairly old social study, and the other is updated with 2010 census data) are pretty noisy, and the data points are awfully baggy. I’d hesitate to conclude much of anything from these plots, given that the data set didn’t control for (1) single-member versus at-large city councils, (2) region, (3) population size, or (4) much of anything else, really.

    All I can safely conclude from the charts is that the data set in question suggests that there is a roughly linear correlation between the number of blacks in a city and the number of black city council members in that city. That’s … um … interesting … but more or less worthless.

    For instance, in a redistricting trial, this chart would be met with glazed eyes, because it doesn’t track chronological trends, it doesn’t identify the predisposition among voters to use race as a factor in choosing candidates, it doesn’t identify voter turnout, barriers to voter registration or participation, neighborhood and block level demographics, or any of the other bazillion facts that are used to assess racial discrimination.

    So this data set that some social scientists scraped off of the 2001 Census (and then updated with 2010 data) answered the question, “If there are blacks in a city, is there a predictable likelihood that there will be some blacks on the city council as a linear function of the proportion of blacks to other races?” And the answer was “yes” – the 2001 and 2010 Census data for cities with 10,000 people or more showed that in general cities with more black residents have more black members on the city council.

    Which, … okay. But there’s a difference between saying “it seems like cities with more blacks tend to have more blacks on their city council” and saying anything meaningful about why minorities are not generally proportionately represented on governing bodies, why minorities have a harder time getting elected (when other variables are controlled), or why certain political structures promote and entrench elected officials who are not representative of the local population.

    So when looking at a specific racist spot in the world, we have to figure out how racist it is. Sure, voting based on race is a voter’s right. But what I want to know isn’t whether it’s okay to vote based on race, but how often it actually happens in a particular jurisdiction.

    Take the example of Representative Lloyd Doggett. Over the years, the Texas Legislature has done its darndest to destroy Lloyd Doggett’s Austin power base, by taking away all of his white voters and replacing them with Hispanics.

    In changing Doggett’s district, the Republicans could take credit for creating an Hispanic minority-opportunity district that would remain Democratic (albeit with the hope by conservatives that the Congressional representative would be someone other than Doggett, and would therefore lack the serious political clout of committee memberships that come with seniority). And the Republicans could incidentally argue that Representative Doggett’s legal complaint against the redistricting was racially motivated, therefore driving a race-based wedge between two groups of Democratic Party voters.

    But … although victimized by gerrymandering in 2003, 2011, and 2013, Lloyd Doggett managed to win CD25 both in 2004 and 2012, and will likely win in 2014. He won because he campaigned like hell, and he had to campaign like hell because it was easy for conservative operatives to cynically find and run unknown DINO candidates that had Hispanic surnames in the Democratic primary, with the intention of further marginalizing Democratic Party voters in Travis County.

    So here’s the question that more than one court has wrestled with. Is Lloyd Doggett a minority-opportunity candidate? He is if a representative sample of registered voters who identify as minority voters say that all things being equal, they would vote for Lloyd Doggett in preference to a candidate who is perceived to be Latino or Hispanic. If Hispanic voters display a history of voting for someone other than Lloyd Doggett, we would likely conclude that he is not a minority-opportunity candidate.

    Are the voters racist who say, “No, I wouldn’t vote for Lloyd Doggett, because I only vote for members of my defined class.” Um. Sure. I guess I could call them racist if I wanted to be a jerk, except that I don’t actually care if the specific voters in Congressional District 25 deserve the social opprobrium of the label “racist.” Because the label itself is neither useful nor meaningful in the context of gauging levels of political discrimination based on minority status.

    The relative predisposition of CD25 minority voters to vote for minority candidates is only relevant to me to the extent that I might say either that they are, or are not, getting the candidates elected that they actually want in office. If they are getting the candidates they want, then they aren’t being discriminated against. If they aren’t getting the candidates they want, then they are being discriminated against.

    I admit that in a sophistical, lawerly sort of way, I avoided answering the real provocation that lay in the statement that racism by the voters while in the voting booth is the democratic prerogative. In response to that, I was supposed to say, “No. Racism is bad. People shouldn’t be racists.” But instead I said, “Racism is a factor.”
    My wife thought that I should look at the moral axis of the statement and make it clear that I think people shouldn’t be racists when casting their ballots (except with respect to those filthy pro-Pharaohic Upper Kingdom Narmer-lovers in nomes to the south of the Third Cataract. They use cow dung as a flavoring agent in their beer! That’s just wrong. Go domesticate hops, you Upper Kingdom bastards!)

    So sure, I’m against racism. Which is a fine sentiment, but without racism, class conflict, and all the meaningless prejudices of which we are so fond as a species, how are we expected to keep score?

    (My wife later reminded me that the scoring mechanism of American society is, and has always been money. Racism is just a game mechanic used as a die-roll modifier in the retrenchment and division phase of the game turn interphase, per page 31 of the rulebook. Cf. “The United States of America Game,” version 2.27, revised, 2014 edition, original 1791 game design by Jefferson, Adams, Hamilton, et al. Pat. Pend. all rights reserved (Hasbro)).


Phase III of Perez v. Perry – The Dispute Over Texas House District 90

It’s been an eventful week, but before I get distracted by the next news cycle, I wanted to remind you that the redistricting lawsuit currently going on in San Antonio isn’t over yet.

As often happens with redistricting lawsuits (because redistricting lawsuits tend to involve lots of plaintiffs, including voters, candidates, incumbent elected officials, etc., and lots of issues associated with specific geographic boundary definitions), the procedural details of Perez et al. v. Perry et al. are a little complicated.

Stripping out all the complex details, here’s the recap: The parties agreed for the sake of not going crazy that the issues in this lawsuit would be broken down into three categories, and that each category of issues would get a courtroom hearing.

The three big categories of issues are (1) Whether the State of Texas intentionally discriminated against minority voters in adopting a 2011 redistricting plan for the Texas House of Representatives; (2) Whether the State of Texas intentionally discriminated against minority voters in adopting a 2011 redistricting plan that apportioned new and existing U.S. House of Representatives seats; and (3) Whether the 2013 redistricting plans violate the Voting Rights Act.

The first issue (the 2011 Texas House redistricting plan) was the subject of a six-day hearing that began on July 14th of this year. The second issue (the 2011 U.S. Congressional House district reapportionment) was the subject of a week-long hearing that began on August 11th. The third issue will be considered at an as-yet unscheduled hearing, followed by a possible fourth and final hearing to resolve the State’s liability, if any is found. (I’ve posted it before, but for newcomers, I recommend Michael Li’s overview of the suit, via the Brennan Center for Justice at NYU: http://www.brennancenter.org/blog/texas-redistricting-battle-begins

One of the flashpoint issues for the third phase of the trial will be how Republicans in the Texas Legislature shut minority representatives out of the 2013 redistricting bill deliberations, especially with respect to the 2013 Texas House plan. This plan deviates from the interim plan ordered by the San Antonio federal court panel in 2012. One major deviation in boundaries affects Texas House District 90 (in Tarrant County, or more specifically, in part of the City of Fort Worth). Although nominally a minority-opportunity district for candidates favored by Latino or Hispanic voters, HD90 was allegedly “packed and cracked” in a manner similar to some of the objectionable 2011 districts. Minority voters were moved out of the district, and replaced with non-voting minorities, in order to further reduce the number of districts capable of electing minority-favored candidates.

For more detail on this specific issue, see the fourth supplemental trial brief filed by the Texas Latino Redistricting Task Force (available as a .pdf through the Moritz College of Law portal, at http://moritzlaw.osu.edu/electionlaw/litigation/documents/PerezTLRTF4thCompl.pdf

Also, for those of you who want much more detail, check out the written closing arguments from Phase II of the trial, filed by the parties on August 21, and available here: http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php (scroll down the document list until you get to the August 21st items. There are Phase II trial briefs from MALDEF, the Justice Department, the State of Texas, and several of the individual plaintiffs. If you’re pressed for time, just check out the Justice Department’s brief, and the State of Texas rebuttal arguments).



Bloody Missouri, or Why the Voting Rights Act Matters

People in Ferguson, Missouri didn’t protest  recent high-profile election-related Supreme Court decisions like McCutcheon v. Federal Elections Commission (http://www.supremecourt.gov/opinions/13pdf/12-536_e1pf.pdf); Shelby County v. Holder (http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf); or Citizen’s United v. Federal Elections Commission (http://www.supremecourt.gov/opinions/09pdf/08-205.pdf). They protested a history of institutional racism in their community, and the visible consequence of that racism in the form of a dead unarmed black teenager who had been shot six times by a white city police officer.

But arguably, part of the reason why there is a history of institutional racism in Ferguson is because notwithstanding the fact that two-thirds of the town’s inhabitants are African-American, the city government and local law enforcement are dominated by whites, and that whites preserve their power because of the way that elections are conducted in Ferguson. http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/08/15/how-ferguson-exposes-the-racial-bias-in-local-elections/

The Missouri GOP certainly understands the value of elections in preserving the Ferguson status-quo, given how angry they are that anyone would be so bold as to try to register the town’s citizens to vote. http://www.newrepublic.com/article/119141/ferguson-voter-registration-drive-infuriates-conservatives

Neither the State of Missouri nor any of the jurisdictions within that State were ever subject to the mandatory preclearance requirements imposed by Section 4 of the Voting Rights Act. It’s not as though annexations or changes in voting procedures in that community would ever have been preemptively reviewed for discriminatory effects. Nevertheless, both the City of Ferguson and the State of Missouri are (like all other jurisdictions in the U.S.) subject to civil and criminal prosecution for violations of civil rights laws generally, including the Voting Rights Act.

I think Ferguson’s special brand of Midwestern apartheid is as good an argument as any for establishing much more extensive Federal regulation of local elections, simultaneously answering those critics of the preclearance requirements of the Voting Rights Act that those requirements were selectively punitive towards Southern jurisdictions, while at the same time pushing other regional discrimination onto the Department of Justice’s radar.