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?
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.
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.
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:
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.
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).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)).
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).
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.
When the national trend seems to be that of raised eyebrows and tut-tuts about Governor Perry being an accused felon, I’m as much at fault for following that trend as anyone. In rebuttal to the generally pessimistic view of the efficacy of criminal charges against Perry, Charles Kuffner, the Texas Tribune, and others have offered more nuanced and balanced coverage of this story than what is being provided by the media at large. See, e.g., http://offthekuff.com/wp/?p=62320 and http://www.texastribune.org/2014/08/19/group-behind-perry-indictment-previously-pursued-d/.
As Mr. Kuffner points out, in order to accurately report on this story, one must bear in mind that the original criminal complaint against Perry was filed before there was any veto of the funding for the Public Integrity Unit at the Travis County D.A.’s office.
I can understand why disreputable “experts” such as the editorial staff of the Wall Street Journal and Breitbart are insistent on presenting this story as one about a poor, beleaguered Texas Governor being unfairly abused just because he vetoed something. The focus of Perry’s defenders is all on the undisputed authority of the Governor to veto bills. The veto itself is irrelevant. The important thing isn’t the veto, its the brass-knuckles and arm-twisting that Governor Perry engaged in prior to the veto that is the thing to focus on.
The State isn’t complaining that it was victimized by the veto. The State argues that it was victimized by the Governor’s bloody-toothed threat against the continued maintenance of public order and the legal welfare of its citizens. That’s where the criminal outrage occurred.
Unlike the Governor’s most ardent supporters, legal experts like Professor Rick Hasen aren’t making the mistake of focusing all their attention on the veto. Instead, they (and by reflection, me) are tending to criticize the Governor’s indictment on technical grounds, arguing that notwithstanding the Governor’s obvious bullying, such bullying is not necessarily criminal. http://www.slate.com/articles/news_and_politics/jurisprudence/2014/08/the_perry_indictment_is_one_more_example_of_criminalizing_politics_watch.html
So (to engage in a little hyperbole), why are all these law professors giving aid and comfort to the enemy? Professor Hasen goes so far as to imply that many ethics-related criminal investigations are infirm, and he makes use of a phrase that has suddenly become very popular among a certain set of talking heads by decrying the “criminalization of politics.”
That’s a catchy phrase that belies a somewhat facile argument, given that politicians can and sometimes do actually commit crimes. And no one in Texas would be particularly shocked or surprised if in the end it turned out that Perry had committed crimes, given that many of us strongly suspect that he’s been playing things pretty fast and loose for as long as he’s been in politics. I suspect Rick Hasen’s underlying fear isn’t that Perry is innocent, but that conservatives might take advantage of any legal misstep on the part of the special prosecutor to justify launching an all-out retaliatory nuclear strike of criminal charges against liberal politicians.
The problems that I’m having as a reader of Texas criminal statutes is that I’m worried that the Texas Legislature has kept the door open to the commission of political crimes by failing to adequately address such criminal acts with effective laws.
It’s not that I think Perry is innocent, but that I’m afraid he might be taking advantage of loopholes in Section 39.02 of the Texas Penal Code that are wide enough to allow no end of truly reprehensible criminal acts to be conducted without consequence.
As a parting thought, here’s a hypothetical situation to consider if you are having trouble imagining any circumstance in which the threat of a veto might be a criminal act.
Suppose a Governor had spent a fair amount of time building and promoting the transfer of taxpayer money from the State Treasury to various trust accounts, knowing that those trust accounts were designed in such a way as to discourage public oversight and facilitate the funneling of money to private interests for the benefit of the Governor and his or her friends. For the sake of the scenario, call one of these funds the “XYZ Fund.”
In other words, assume for the sake of argument that the Governor had engaged in straight up simple theft, a plain-old regular everyday sort of crime no different in nature than a purse snatching, a smash and grab or a burglary, except on a much larger scale.
Now suppose that after years of dogged legwork, criminal prosecutors had started to put the pieces together, tracing through all the shell corporations and dummy accounts, figuring out where hundreds of millions of dollars of the State’s money that had been “lost” actually ended up.
Assume for the sake of argument that the Governor in question began to have a dawning awareness that his or her tracks hadn’t been covered perfectly, and that the game of cops and robbers was drawing to a close. Further assume that fortuitously, and at about the same time as the criminal investigation was going on, the nominal or titular supervisor of the agency conducting the criminal investigation was arrested while very, very drunk, and was videotaped while being embarrassingly belligerent.
Assume in this scenario that the Governor then placed a few phone calls to the people conducting the criminal investigation, in which he or she said, “You need to shut down your ongoing investigation of the XYZ Fund, or I will shut you down.”
Most criminals who fear being caught don’t have the luxury of actually possessing any leverage over the investigators pursuing them. But the Governor occupies an unusual position, one in which it actually is possible to strong-arm law enforcement by threatening to withhold funding.
I don’t share Professor Hasen’s fear that the criminal prosecution of political acts is fraught with problems associated with the separation of powers among the judicial and executive branches of government, or that the prosecution of statements made by officials acting in the course and scope of their duties raises insurmountable First Amendment free speech concerns.
I agree that the structural constitutional and legal problems of criminal prosecution can sometimes run afoul of other important political doctrines in the abstract, but context counts for everything. I (and anyone with an imagination, really) can construct scenarios in which the whispered threat of a veto isn’t an official act, but a private and wholly illegal extortion.
One way to stir up excitement and interest in public law is to get a grand jury indictment of a sitting Texas Governor – it’s the sort of thing that happens every 97 years or so, and it certainly gets people’s attention. And one cannot help but enjoy a bit of schadenfreude when the target of such an indictment happens to be a former Aggie cheerleader who has made a career of Louisiana-style cronyism while espousing appallingly bad political ideas in order to attract support from people who thought George W. Bush was too cerebral.
But I have to reluctantly agree with a number of legal critics that the indictment (http://www.scribd.com/doc/236935338/Rick-Perry-Indictment-via-KXAN) is a stretch, based on the history of the criminal statutes that the prosecutor has relied upon.
Governor Perry was indicted on two criminal counts, as follows:
I. COUNT NUMBER ONE – First Degree Felony – Abuse of Official Capacity
The first count (Abuse of Official Capacity) is a daring interpretation of Section 39.02 of the Texas Penal Code, which criminalizes (1) a public servant’s (2) intentional or knowing (3) misuse of government property under the servant’s control (4) when done with the intent to harm another person. Here’s the statute in question: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.39.htm#39.02
The indictment alleges that (1) Governor Perry (a public servant) (2) intentionally or knowingly (3) threatened to withhold around $7.4 million in government funds (i.e., the government property) that had been appropriated by the Legislature for the Travis County District Attorney’s Office, in order to (4) harm the Travis County District Attorney. The “intentional or knowing misuse” in this case is alleged to be the politically vindictive veto of the budget line item in the General Appropriations Act passed by the 2013 Texas Legislature.
This criminal charge doesn’t seem particularly sporting or cricket at first glance, given that the Governor’s innate and reflexive political vindictiveness has never been deemed anything other than a moral outrage before now. Why is this veto so special as to merit criminal prosecution when none of Perry’s other vetoes ever led to criminal charges?
I suspect that the prosecutor’s argument will be that this particular veto is different because (1) it was not a veto of a policy statement or change in the law, but a veto that functioned to intentionally misdirect statutorily mandated and previously earmarked State money, and that (2) this veto was the explicit execution of the Governor’s clear and plainly-stated threat to punish the voters and taxpayers of Travis County in retaliation for the Travis County D.A.s refusal to resign her elected office, and was self-interested political payback with a dual motive, because the veto not only would have punished Travis County voters, but would also have shut down the very Public Integrity Unit that is responsible for investigating crimes of official misconduct committed by Texas public officials.
(A brief explanation as to why the Travis County D.A. has jurisdiction over crimes of official misconduct may be in order for some visitors. The State of Texas is regarded as having it’s official “home” in Austin, Texas, which is in Travis County. Crimes of official misconduct are regarded as crimes committed against the State of Texas – the State is therefore the victim, and because the State “lives” in Austin, the Travis County D.A. has jurisdiction over these crimes, even when committed by officials anywhere else in Texas. By law, the State pays the cost of this extra statewide investigative work that gets imposed on the Travis County government, given that the extra work is burdensome (most counties don’t have to conduct statewide investigations) and is imposed as an incidental consequence of the county’s political geography).
Why is this crime a first degree felony?
Like a lot of property-related offenses, this crime has a range of punishments depending on the value of the misused State property in question. Because the vetoed legislative appropriation was for (a lot) more than $200,000, and that level of money determines the severity of the offense, this specific indictment is alleging the commission of a first degree felony. That’s the kind of indictment that can knock stories about Ebola epidemics and Justin Bieber’s comeback tour right off the front page of the paper.
II. COUNT NUMBER TWO – Third Degree Felony – Coercion of Public Servant
(News sources I’ve seen have indicated that the second count is described as a third-degree felony, which indicates that the prosecutor’s intent is to argue that Governor Perry threatened to commit a felony. That’s because unless the charge is enhanced by the assertion that the Governor’s threatened act (vetoing the budget line item) is a felony, this would be a Class A Misdemeanor).
The second count is an equally audacious application of Section 36.03 of the Texas Penal Code (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.36.htm#36.03), which criminalizes the (1) use of coercion (2) by a person to (3) influence, or attempt to influence (4) a public servant (5) in a specific exercise or specific performance of that public servant’s official duty or (6) to violate the public servant’s known public duty.
If you looked at the text of the statute supplied by the Texas Legislative Council, you probably noticed the last paragraph of that law. Subsection (c) provides a blanket exception to the crime of coercion of a public servant if the person doing the coercion is the member of a governing body, and if the influence is being applied in the form of an official action taken by the member of the governing body.
Gentle readers, Section 36.03(c) is going to be a huge hurdle for the prosecution to clear, given that a veto is a decidedly official act when performed by the Governor. Admittedly, the Governor isn’t a “member” of a governing body in the usual sense – he’s not one of several people co-exercising the power of the State’s executive office. But he is the titular head of the Executive Branch, and he is authorized by the Texas Constitution to veto line item budget appropriations.
Here, the prosecutor is alleging that (1) the threat to veto funding of the Public Integrity Unit (the coercion) was used by (2) Governor Perry (a person) to (3) force (influence) (4) Rosemary Lehmberg (a public servant) to (5 or 6) resign from her elected post as Travis County D.A. (specifically exercising her official duty or violating her known public duty to continue to serve as D.A.).
Well, there was definitely a threat in there, and it was definitely applied to influence the Travis County D.A. to quit her elected office. And (at least in everyday parlance) the threat was coercive – “Quit, or else.”
“Coercion” is a defined statutory term in this context (the relevant portion of the definition is found in Section 1.07(a)(9)(F) of the Texas Penal Code. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.1.htm#1.07. Notice that in the context of Texas criminal law, the threat to take or withhold action as a public servant is automatically coercive.
So how will the prosecutor maneuver through the rocky shoals surrounding the second count? I imagine the prosecutor will argue that while the act of vetoing legislation is in general a sanctioned legal act of the Governor, that this specific veto was illegal (because it was a misuse of State funds), and therefore this veto can’t be described as an official act performed by the member of a governmental deliberative body. The veto itself needs to be an illegal act, because if the veto wasn’t illegal, than the threat of the veto would only have supported a Class A misdemeanor and not a felony charge.
And it’s felony charges that help get this lawsuit onto the front page of the New York Times.
III. THE ORIGINS OF THE PENAL STATUTES IN QUESTION
“Coercion of a Public Servant” and “Abuse of Official Capacity” are not new crimes – they have existed in roughly their current wording since the adoption of the 1973 Texas Penal Code, which was itself closely modeled on the 1925 Texas Penal Code (for the 1925 laws, see the State Law Library resources at http://www.sll.texas.gov/library-resources/collections/historical-texas-statutes-%281879-1925%29/1925/).
People tend to forget that Texas has used a formal penal code and associated code of criminal procedure since 1856, but even those who know about the 1856 Texas Penal Code are often unaware of how closely all the subsequent state criminal codes were modeled on the general organization and structure of the 1856 laws.
Although the 1856 Penal Code doesn’t contain crimes that are exact analogues of the “coercion” statute and the “abuse of official capacity” statute, the older law does encompass the two divisions of public crimes from whence the current statutes sprang, those divisions originally being referred to as crimes of office and crimes of public justice.
(The endlessly entertaining 1856 Penal Code (with whole sections devoted to dreadful punishments (whipping and castigation for poor demeanor or to aid in the instruction of children! Pillories and hanging for horse thievery!) and reminders of pre-Civil War barbarity (crimes associated with assisting escaped slaves! Disparate punishments for freedmen!) is available in its entirety through the Texas Legislative Reference Library, here: http://www.lrl.state.tx.us/scanned/statutes_and_codes/Penal_Code.pdf
“Abuse of Official Capacity” is, at its heart, a property crime – it is a malfeasance of office that materially affects things of value that are owned by the State. In that respect, the current crime is a descendant of extortion and misapplication of tax revenue, and related crimes such as embezzlement and theft of State land titles. One can see the statute begin to stretch and tear at the seams – it’s a property offense which is being repurposed from criminalizing the misuse of State property to punishing the vindictive use of gubernatorial veto power.
And “Coercion of a Public Servant” is, at its heart, a crime against public administration. It is a fraud or manipulation of public institutions for private ends, and shares textual DNA with crimes like bribery and perjury. From the indictment, one can also see this statute start to pucker and collapse as it is put to a new use categorizing a particular veto as a criminal act.
I’m popping up a big vat of popcorn and settling in for what should prove to be entertaining legal fireworks, no matter what the outcome may be.
In partial satisfaction of her Ph.D., Keesha Middlemass published a dissertation in 2004 that surveyed a specific area of government regulation under the Voting Rights Act. That dissertation (available online through the library of the University of Georgia, at https://getd.libs.uga.edu/pdfs/middlemass_keesha_m_200405_phd.pdf). wasn’t the first scholarship that surveyed the contents of preclearance letters issued under Section 5 of the Voting Rights Act, but it was (as far as I can tell) the first survey that looked specifically at how the Department of Justice’s approach towards the preclearance of or objection to state and local government redistricting plans evolved from the 1960s through the 1990s.
(For those of new who are new to all this talk of “preclearance” and “Section 5” of the Voting Rights Act, a short summary of this topic can be found here: http://www.justice.gov/crt/about/vot/redistricting.php).
In the wake of Shelby County v. Holder, and with the passing of years, one might ask what relevance Ms. Middlemass’s dissertation still holds. The relevance I see is in the dissertation’s documentation of the early and consistent tendency of conservatives to ascribe partisan (i.e., liberal) motives to the generally non-partisan enforcement of the Voting Rights Act, the consistency with which the Department of Justice internalized court decisions relating to redistricting, and the evolution of the administrative guidance (at 28 C.F.R. Part 51) written by the Department of Justice in the wake of a general failure by Congress to provide any sort of specific statutory framework for enforcement of these civil rights laws.
All of these issues remain very much in the front and center of the redistricting debate, even after Shelby County.
I. Methodology and a hint to future researchers
For raw data, Ms. Middlemass sampled 431 written responses by the Department of Justice to preclearance requests associated with state and local redistricting plans. In presenting her sample, the author admitted both that (1) there had to be more approval letters than just the ones she found, but owing to the Voting Section’s notoriously awful filing system, no one could say where the missing letters were. The letters spanned a period between 1970 and 2000, and whether they were a complete sample or not, they displayed a distinct stylistic trend.
There are a couple things that the researcher could have done to beef up her data a little bit. First, in Texas and in other states, state-law equivalents of the Federal Freedom of Information Act generally allow for the retrieval of public documents, such as the complete correspondence files exchanged between local governments and the Voting Section at the Department of Justice. Since part of Ms. Middlemass’s effort was to determine which factors the Department of Justice used in decided to reject a preclearance plan, having the other side of the correspondence would have been helpful.
Second, the problem of missing approval letters may not have been as critical as it appeared. The laws relating to preclearance under the Voting Rights Act provided that the Department of Justice had a 60-day deadline to respond to preclearance requests, or (in effect) forever hold their peace. From time to time, depending on staffing levels and the complexity of the issues being reviewed, relatively non-controversial redistricting efforts may not ever have generated any explicit approval letter, since silence is the same thing as approval.
II. What the research found
Here’s what I took away from this dissertation:
- The Department of Justice serves many competing political interests, and has to walk a tightrope across the partisan divide in order to retain funding and legal authority. At various times, the Executive Branch (during the Nixon and Reagan eras), Congress (when partially or wholly controlled by Republicans), and the courts (e.g.,the U.S. Supreme Court during Rehnquist’s tenure after the Warren and Burger eras) have been hostile to all or part of the idea of preclearance under Section 5 of the Voting Rights Act.
- The assertion that the Department of Justice flaunts it’s power by ignoring Federal court mandates that limit what constitutes voting discrimination, and that the agency improperly tries to force political entities to create a surplus of new minority-ability single-member districts is an old canard, dating back to the 1970s.
- Except for a brief time prior to a substantial limiting of the Voting Rights Act’s requirements (before the Supreme Court took a decidedly more restrictive tack, and adopted the doctrine that redistricting was only infirm if it made minorities worse off than they had previously been), the Department of Justice has been scrupulously careful not to require the creation of new minority-ability voting districts.
- The Voting Rights Act created a number of political vulnerabilities for the Department of Justice, not least of which was the fact that the law didn’t give the Department any explicit rule-making authority to implement the statute, and didn’t include any guidance on how “preclearance” was supposed to work. To the extent that the Department is subjected to criticism for overreaching its authority, that criticism is opportunistic and is made possible by the functional consequences of Congressional inability to actually draft a preclearance law.
- The explicitly temporary nature of the Voting Rights Act also tends to leave the Department of Justice vulnerable, given that the jurisdictions subject to Section 5 preclearance under the Act initially gave reluctant Congressional support to the passage of the Act only because they thought that the law would go away by 1970. The law kept getting renewed in part because with the sole exception of the Voting Rights Act, the last century and a half of U.S. political history has been marked by a Congress that is institutionally incapable of otherwise bringing a conclusive and lasting end to racial discrimination in voting.
- Contrary to the explicit requirements of the Voting Rights Act, noncompliance with the law was widespread below the state level. Many, many covered Section 5 jurisdictions conducted annexations, adopted redistricting plans, and made other election-related changes without ever submitting those changes to the Department of Justice.
2004 may seem like ancient history to some, especially since we currently have no such thing as “preclearance,” and now face a civil-rights landscape very much like the one that existed before 1965, where each individual illegality has to be challenged in court, expensively, inefficiently, and one wrong at a time. But scholarly analysis and debate about how the Section 5 preclearance process was applied can help us figure out what kind of civil-rights enforcement mechanisms we need to create and protect from the vagaries of partisan politics right now.
If we don’t hang together, we will all surely be hung separately.