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What To Make of Party Platforms?

Last week, remarks by the Democratic gubernatorial candidate Wendy Davis were reviewed and researched by PolitiFact.com, an organization that rates the truth or falsity of selected quotes by elected officials and candidates.

The gist of Senator Davis’s quote was that the Republican gubernatorial candidate Greg Abbott supported the wholesale repeal of the Voting Rights Act of 1965. As it turns out, the Texas GOP has adopted a party platform that includes the following statement:

We urge that the Voter [sic[ Rights Act of 1965, codified and updated in 1973, be repealed and not reauthorized.

While Greg Abbott isn’t the Texas GOP, and hasn’t explicitly said that he wants the Voting Rights Act to be repealed, his campaign has confirmed that he is in general agreement with the adopted party platform.

So Politifact ruled that with the caveat that it would be incorrect to assert that Greg Abbott has publicly called for the repeal of the single-most important piece of civil rights legislation enacted in the last 150 years, it is true that he generally supports and does not disavow any particular element of his political party’s formally adopted platform, including his party’s formal urging that the Voting Rights Act be repealed.

I suspect a fair number of people read this story and thought that it was a bit anticlimactic, because we all know that GOP policy expressions over the last decade or so have become unusually strident and extreme. It’s not as though anything about the platform is particularly surprising – the whole document reads as a wishlist of ideas for creating a nativist, self-contradictory, and intermittently theocratic state government.

As part of the process that goes into drafting a party platform, both Republican Party and Democratic Part precinct chairs across the state ask their party members to “dream big” and leave their censoring superegos at the door. Party platforms are, as a consequence, bizarre and slightly surreal documents. They are also fascinating cultural artifacts that are far removed from the carefully polished remarks of candidates.

The platform doesn’t hold a mirror up to the candidate’s agenda – it holds a mirror up to the desires of the party rank and file members. Sometimes the platform is embarrassingly far more revealing than even its drafters realize.

For instance, the membership of the Texas GOP would like it to be known that they are against homosexuality (on principal, as such an orientation is to their eyes unchristian) but do think that it’s curable. They are in favor of being able to take their guns to anti-abortion rallies, in favor of solving our water crisis with a desalination plant, (not that there’s anything wrong with the weather, given that climate change is just a socialist plot to redistribute wealth) opposed to Palestinian statehood (on Biblical grounds), in favor of the legal right to beat one’s own children, opposed to no-fault divorce, and in favor of returning to the gold standard.

They think Republicans should get kicked out of office if they turn out to be too moderate, they think the current Texas Speaker of the House Joe Strauss is too liberal, and that if the office were elected by the state voters, we’d get a Tea Party-vetted Speaker.

They also want to remind us that they still hate the defunct ACORN, don’t like the ACLU, and really have it in for the UN, especially over all that business about considering the Alamo to be a world heritage site or declaring that children have legal rights.

They support the freedom to worship Christ in any manner that one chooses (as long as it’s a sound, recognized Christian doctrine), but are dubious about those other religions, and want it to be known unequivocally (and wholly unironically) that they are opposed to the adoption of Sharia law. And no, they don’t get the joke, and they don’t appreciate my tone.

Immigrants, poor people, and minorities make them nervous, and they’d like all the foreigners coming in to switch over to just speaking English in about 3 years. Also, they think just a few more investigations of the death of an American ambassador in Benghazi are called for, although the connection to Texas is admittedly a bit tenuous.

Alright, so we’ve established that (hopefully) the GOP party platform was developed in order to mollify and occupy the less-helpful, less-focused, less-articulate party loyalists, while the real players presumably made deals in smoke-filled rooms. And having had some fun at the expense of the cave-dwelling, platform-writing wing of the Republican Party, I should allow a few good-natured jabs at the Texas Democratic Party platform.

But …, perhaps because the Democrats are the underdogs, they didn’t have the luxury of treating the development of their party platform as make-work for paranoid, anti-social extremists. So there isn’t really anything crazy or funny about the Democratic Party platform (unless perhaps one finds humor in the very notion that such things as public education, small business investment, or health care exist).

For those of you using web readers, the cited links are:





What Does Holder’s Resignation Portend for Voting Rights Advocates?

As you know, it’s been widely reported in the national press that after six years as President Obama’s Attorney General, Eric Holder is stepping down. There are all sorts of messages that one can read in the tea leaves here – to the extent that Holder has been an effective A.G., he’s also been a favorite target of criticism from the far right, and it’s possible that as the midterm elections loom, President Obama is trying to neutralize some of that criticism.

The Department of Justice is a huge agency, and I’m sure that anyone working there would agree that it’s not a perfect place – certainly the criminal investigation and criminal prosecution arms of the Department have had their ups and downs over the past half-decade.

Similarly, I’m sure that the rank-and-file employees of the Voting Rights Section could, in moments of candor, express dissatisfaction with one or another aspect of the Department’s management. But no matter what opinion one may have of Attorney General Holder, and regardless of one’s political affiliations, one must agree that the Department of Justice has responded aggressively and consistently with respect to voting rights litigation after Shelby County v. Holder.

I think that on balance, Attorney General Holder’s resignation presages both a bruising confirmation fight for his successor (as predicted by every major media source), and a hit to the Voting Section’s employees’ morale.

Currently, the trial attorneys working for the Department in high-profile cases like the Texas 2011 redistricting case, the Texas voter I.D. case, the Ohio voter registration case, the Wisconsin voter I.D. case, the North Carolina voter I.D. case, and many other less visible voting rights cases, are doing absolutely stellar courtroom work, in both their filed motions and pleadings, and in the oral advocacy that they are doing.

Even if they aren’t interested in the issues being contested in these suits, law school students would do well to study and emulate the lucidity and organization of the Department of Justice-authored briefs that have been filed in these cases. This is top-notch, major league lawyering by many of the nation’s best civil rights litigators.

Such excellent work is possible in part because of the political and institutional support supplied to the Voting Section by Attorney General Holder. My fear is that the Republicans will now shift their resources away from attempting to defend their frankly indefensible restrictions on voting, and instead will use the Senate confirmation hearings to cripple voting rights advocacy.

For instance, here are a couple of illuminating pull quotes from the USA Today story about the A.G.’s resignation:

Majority Leader Mitch McConnell, R-Ky., a Holder critic, said Republicans would scrutinize the next nominee to make sure he or she “finally returns to prioritizing law enforcement over partisan concerns.”

Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, urged Obama to take his time. “Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress,” he said.

“Prioritizing law enforcement over partisan concerns” should be read between the lines to mean “abandoning voting rights litigation,” because for decades, Republicans have characterized enforcement of the Voting Rights Act as a purely liberal Democratic Party concern.

And “I hope the president will now take his time to nominate a qualified individual” should be read as meaning, “After the November election, and with an (expected) Republican-led House and Senate, President Obama can kiss goodbye any hope of ever getting Senate confirmation of any nominee he chooses from now until the end of his term.”

My hope is that as Attorney General Holder leaves office, his status as a lame-duck head of the Department of Justice will free him to some extent to end his tenure with bold, fearless policy actions. Like maybe … I don’t know … boldly pushing for the enactment of a proposed Civil Rights Act-based set of administrative rules designed to curb the worst excesses of post-Shelby County restrictions on voting. That’s what I’d suggest.

For those of you using web readers, here are the cited links:





In Ohio, A Stirring Defense of Early Voting That Leaves Everyone Unhappy

As a number of bloggers have reported,  (including, separately, Professors Rick Hasen and Derek Muller) a generous pro-voter convenience decision has just come out of the 6th Circuit Court of Appeals. The court found that by eliminating a five-day period where voters could do same-day-registration and early voting all in one go, the State of Ohio had unjustifiably curtailed the opportunity for poor and minority voters to cast ballots.

The reason why some analysts of the decision (including legal scholars from the Left) aren’t enthusiastic about the decision is that they find their credulity strained by the argument that voting rights are badly injured when a 35-day early voting period is reduced to a 28-day early voting period.

The decision in Ohio State Conference of the NAACP v. Husted, et al. (pdf helpfully provided by Rick Hasen’s election law blog) is receiving criticism because of a perception that the court is going crazy and ruling that even the most inconsequential, incidental or de minimus injuries to voters rights are unacceptable.

As Derek Muller pointed out in his blog, Ohio didn’t even have early voting until 2005, and (from his perspective) the court is getting into a high dudgeon over a frankly inconsequential reduction. Are Ohioans walking through broken glass to vote? Are they having to cut through minefields and no-man’s land? – they’ve got a month to cast their ballots.

Luxury! Why, when I was a lad, we had to struggle uphill through towering snowdrifts to vote, and we only had voting on Election Day!

As a general principle of election law, voters are not “owed” early voting opportunities. Early voting (at least traditionally) has been regarded as a convenience that the State offers to voters more for the sake of the State’s own administrative ease and benefit than because of any inalienable right inherent in citizenship. One is not endowed with the right to cast a ballot prior to Election Day. There are a number of states that offer either no in-person early voting whatsoever, or offer much less early voting than Ohio.

And generally in the past, civil rights arguments against a lack of early voting (say, based on the 14th Amendment, the Voting Rights Act, or on other theories) go exactly nowhere, given that the States have broad authority to conduct their elections pursuant to state laws.

But critics of the decision in Ohio State Conference of the NAACP v. Husted, et al. are being a little disingenuous. To the extent that the plaintiffs got an injunction against the State’s reduction of early voting, it wasn’t because they argued about the unfairness of a slightly shorter early voting period.

It was because the State was getting rid of in-situ same-day voter registration at the polls, a legislative remedy that had been adopted in 2005 in response to, as a remedy against, and as a corrective of the gross sins committed against Ohio voters by the organs of state government prior to the November 2004 election in Ohio.

The fight isn’t a quibble over a few days in the early voting schedule.

The fight is about the loss of same-day registration, which arguably signals a retrenchment and governmental backsliding into a tacit endorsement of the unconscionable tactics used against black voters in Cleveland in 2004.

The story has been better told by others elsewhere, but here’s a quick summary:

Recall that in advance of the November 2004 presidential election, by intentionally rationing polling places and election equipment to create artificial shortages, the then-Secretary of State of Ohio deliberately engineered abysmal voting conditions in Cuyahoga County (i.e., Cleveland). This tactic was successful, resulting in the collapse of the voting infrastructure in that county. The dysfunctional polling place conditions and general chaos that resulted discouraged black voters from voting).

Same-day registration is luxurious. It’s a luxury unavailable in most jurisdictions, including Texas. But same-day registration wasn’t enacted by the Ohio Legislature to pamper Ohio voters, or to coddle them with an extravagant privilege. It was enacted as a counterweight to the illegalities and political dirty tricks that predominate in the cutthroat atmosphere of a competitive swing state.

Other states didn’t enact same-day registration and expansive early voting after the November 2004 presidential election because other states weren’t as notoriously inclined to mistreat their minority voters.

Not surprisingly, attorneys for the State immediately filed a request with the U.S. Supreme Court for an emergency stay of the appellate court order. We shall see what happens next.

But really, Professors Hasen and Muller need to go back and actually read the appellate court’s decision, rather than casting aspersions by depicting Ohio voters as pampered softies who lounge in obscene splendor. That’s insulting to people who waited in line for 7 hours to vote after suffering numerous other political dirty tricks and indignities.

For those of you using web readers, here are the links I cited:










What Happens Next

Rick Hasen was quoted in today’s Austin-American Statesman, giving his prognosis for the pending voter I.D. litigation in Corpus Christi. There aren’t any big revelations, although Prof. Hasen seems pretty pessimistic about how the 5th Circuit is likely to treat the case.

I’m terrible at future projections, because I can’t understand why everyone doesn’t think exactly the way I do – in my world, the 5th Circuit and Supreme Court would have to uphold the likely ruling by the trial court against the voter I.D. law, because any other outcome would be so intellectually bankrupt as to be embarrassing and damaging to the institutions of the court.

But, as people frequently remind me, the consequences of intellectual bankruptcy aren’t nearly so dire as to be a deterrent to bad decisionmaking, unfortunately.

The link in this case is http://electionlawblog.org/?p=65762

Texas Practices The Cut Indirect Toward All Those Asking for More Mobile I.D. Sites

The deadline to register to vote for the November election is Monday, October 6, 2014. Keep that date in mind as you consider the obstacles faced by voters who lack the required picture I.D. to vote.

In the parlance of Regency dandies, the gross insult of ignoring an acquaintance is a “cut,” with various gradations and forms, including the cut direct (the explicit snub), the cut indirect (the “accidental” snub), the cut sublime (“missing” the snubbed party by staring intently at the sky), the cut infernal (opportunistically staring at one’s own feet), and so on.

In response to requests from the League of Women Voters, Dallas County Elections, the Texas Democratic Party, Battleground Texas, and others, all asking that the State make some gesture towards resolving the lack of picture I.D. for hundreds of thousands of Texas voters, Texas officials have answered with a particularly insulting snub.

Now, keep in mind that attorneys for the State of Texas have touted the outreach efforts of the State in order to blunt the argument that the 2011 picture I.D. requirements are intended to disproportionately disenfranchise the poor, the elderly, the disabled, and minority voters, and that the creation of “mobile EICs’ (mobile election I.D. centers) by the Department of Public Safety is a centerpiece of the State’s effort to mitigate the negative consequences of the voter I.D. law.

So Texas officials must have really put their heart into getting i.d.s into the hands of voters who otherwise will be ineligible to vote, right? Let’s take a look at the schedule:

1. Mobile EIC for Dallas County – Tuesday, September 23, 2014 (i.e., two days from today, or 13 days before the deadline to register to vote).

Dallas County Elections Department 10:00 AM – 4:00 PM 2377 N. Stemmons Frwy., Suite 820, Dallas, Texas 75207

Hmm. One location. One day. A Tuesday. Six hours. In the middle of the day on a weekday. In a county with a voting-age population of 1.7 million, of whom an estimated 220,000 lack sufficient I.D. to vote.

Well, that’s one way to address the problem of lack of I.D. for voters in Dallas County. A few more slaps across the face with a silk glove, and all of Dallas County’s issues will simply melt away.

Presumably, the State would argue in response that (1) in 2013, more extensive efforts by both the State and Dallas County to address the lack of I.D. prior to the November 2013 constitutional amendment election (a sleepy off-year election) netted the production of only 6 I.D. cards, indicating (2) a lack of public concern or need for picture I.D.s.

Unfortunately, the State’s argument is undercut by selection bias and self-serving justification, and (as demonstrated below) by the disparate treatment of populations in other parts of the State. I don’t doubt that this lone mobile EIC won’t see much business, because really, how could it see much business?

Here’s a sure-fire recipe for failure:

(1) Take a group of voters who lack mobility, funds, adequate I.D., or any direct awareness of their ineligibility to vote (given that the targeted voters are less likely to see or know about “votetexas.gov,” or have any access to a computer or the Internet).

(2) Fail to address any of the obstacles these voters face in knowing about or getting adequate I.D.,

(3) Host a mobile I.D. clinic that is designed as a symbol and proof of failure and corrupted endeavor, and then announce that all those forgotten voters don’t actually exist, arguing that obviously if they did exist, they would have shown up promptly at the Dallas County Elections Office on Stemmons Freeway. at 10:00 a.m. on a weekday, with their original birth certificates or unexpired passports in hand and ready to apply for their election I.D.s.

But (you might think) maybe the State is so overwhelmed and so limited in resources that it can’t do a better job even if it wanted to. Hmm.

2. Mobile EIC for Tom Green County – Tuesday, September 23, Wednesday, September 24, and Thursday, September 25th, 2014.

September 23, 2014

Location Address
Goodwill 10:00 A.M-4:00 P.M. 4216 College Hills Boulevard, San Angelo, Texas 76904

September 24, 2014

Location Address
Lowe’s Food Store 10:00 AM – 4:00 PM 1926 North Bryant, San Angelo, Texas

September 25, 2014

Location Address
Southside Recreation Center 10:00 AM – 4:00 PM 2750 Ben Ficklin, San Angelo, Texas

Hmm. The times of day aren’t any better – and each location is available only on one of three weekdays. But that’s three locations over three days, serving a voting-age population of 84,000, of whom an estimated 15,000 lack sufficient I.D.

So … Tom Green County has a little less than 5% of the voting-age population of Dallas County, but gets three times the amount of mobile I.D. stations.

Here’s another way to look at this. If you are a voter without the required photo I.D. in Tom Green County, the State of Texas loves and cares about you about 60 times more than it loves and cares about a voter without I.D. in Dallas County. Civil rights litigators take note – that looks to me like a prima facie violation of the Voting Rights Act.

3. Mobile EIC for Upshur County – Thursday, September 25

Location Address
Upshur County Tax Office 9:00 – 4:00 P215 N Titus, Gilmer TX 75644

Okay, Upshur County gets an hour more than Dallas County, albeit also on a weekday during business hours. For a voting population of 29,500.

Upshur County’s voting population is 1.7% of Dallas County’s voting population. So, if you’re a voter in Upshur County, and you’re competing for the State’s affections with a voter in Tom Green County, how do you fare? You don’t get three days of help at three locations, admittedly, but there are fewer of you.

Well, my back-of-the envelope math suggests that the State only loves and cherishes you 58 times more than a similarly situated voter in Dallas County. Time to outbid Tom Green County on sending flowers to the Secretary of State.

But (you ask) what about Harris County? I mean, that’s one of the most populous counties in the nation, with a correspondingly large number of voters who lack picture I.D. How does Harris County fare?

4. Mobile EIC for Harris County – Saturday, September 27

Location Address
Moody Community Center Houston Multipurpose Room 9:00 AM – 3:00 PM 3725 Fulton Houston, Texas 77009

Saturday! For six hours! That’s a plus. But … that’s one location, one week prior to the deadline to register to vote. That’s for a countywide voting-age population of almost 2.95 million voters, of whom an estimated 529,000 lack sufficient I.D. to vote.

So, citizens of Harris County – the State is willing to give you six glorious hours of weekend access to a mobile EIC, offset somewhat by the fact that that sole mobile EIC is expected to serve a voting population that’s larger than the voting population of Dallas County by more than a third. So either the State cares slightly more for Dallas County voters, or slightly more for Harris County voters, depending on how one feels about not having to take time off on a weekday to get a picture I.D. Let’s call it a wash.

Now, I could keep on going – the State has scheduled mobile EICs to serve various towns and territories from now until October 15th, all holding generally to the pattern that the smaller, whiter, and more rural areas will get more opportunities than larger urban areas.

And my very rough summary doesn’t really capture the indignity of the schedule, because I’ve treated each mobile EIC as if it’s dedicated just to serving the voters in a single county. The disparate treatment of different populations is more pronounced when one engages in a more accurate analysis based on the total multi-county population served by each station. Because it’s not just that Dallas County only gets one mobile EIC between now and Election Day. It’s that the entire heavily urbanized and built up North Texas region gets one mobile EIC between now and Election Day – that spot at the Dallas County Offices will be the only mobile EIC offered to any voter without picture I.D. anywhere closer than halfway between the City of Dallas and the City of San Angelo. To put it in very rough geographic terms, one could say that the mobile EIC on Stemmons Freeway on Tuesday, September 23rd is serving all of the communities in Texas within about 100 miles of the City of Dallas. That includes all the cities and towns of the greater Dallas-Fort Worth area.

What is even more shocking than the poor service offered to Dallas County and Harris County residents is the complete snubbing (I guess we’d have to call it a “cut direct”) of Bexar County. There were a few locations in and around the San Antonio area that were manned leading up to the May elections, but the State currently plans to have no mobile EICs whatsoever for the greater San Antonio region between now and Election Day. Similarly, there will be no mobile EICs in the Austin area, but we already knew that the State hates Austin.

The handy thing about the schedule for mobile EICs that’s been posted by the State (http://votetexas.gov/election-identification-certificate-mobile-stations) is that by using it as a guide, you can get an excellent sense of just how much the State cares about you as a voter, and about how well-liked you are in the eyes of the State’s executive officers, based on how accommodating the State is of your needs between September 23 and November 4.

If you live in Amarillo, Waco, Tyler, Floresville, New Braunfels, Canyon Lake, San Angelo, or Gilmer, congratulations. The State likes you. If you live in or around Dallas, Fort Worth, Houston, or San Antonio and you lack sufficient I.D., please note that the State is only as concerned for your welfare as is absolutely necessary to keep from breaking out in spontaneous snickering while defending against Section 2 Voting Rights Act claims in Federal court.


Between now and Election Day, voters in the unloved areas of Texas still have a chance to push for additional mobile EICs – at least based on this statement by the Secretary of State that, “[m]ore locations will be added as they are scheduled and confirmed. Based on the mobile nature of the units, locations, dates and times are subject to change.”

It is certainly possible that this picture will improve, but only if we compel the State to improve it. As Emily Post noted regarding the archaic and boorish practice of openly and deliberately ignoring someone’s presence:

Anyone who is preoccupied is apt to pass others without being aware of them, and without the least want of friendly regard. Others who have bad memories forget even those by whom they were much attracted. This does not excuse the bad memory, but it explains the seeming rudeness. A “cut” is very different. It is a direct stare of blank refusal, and is not only insulting to its victim but embarrassing to every witness. Happily it is practically unknown in polite society. -Emily Post, “The Cut Direct” in Etiquette (1922) (emphasis added).

Meanwhile, in Wisconsin …,

The State of Wisconsin is having its own voter I.D. troubles, brought on by a stunningly rash decision by the 7th Circuit Court of Appeals to lift a stay on the enforcement of Wisconsin’s photo I.D. law. The timing was terrible, given the long lead times associated with running an election – the decision leaves Wisconsin voters and election workers in an untenable position, as there isn’t time to recall and resend thousands of absentee ballots, there isn’t time to implement the voter I.D. law prior to the registration deadline before the election, and there isn’t time for anyone who lacks I.D. to actually acquire such I.D.

It seems likely that the 7th Circuit en banc will reverse the decision, but who knows. The New York Times has come out with an editorial that summarizes the whole issue about as succinctly as anyone could desire.

For those of you using web readers, the link is: http://www.nytimes.com/2014/09/16/opinion/electoral-chaos-in-wisconsin.html?ref=opinion&_r=1

Abbott Plays the Race Card In Response to the Houston Votes Raid Scandal

Charles Kuffner has linked to and commented on this interesting story from the Dallas Morning News investigative blog. Briefly, members of the Texas Democratic Party have asked the U.S. Department of Justice to investigate the 2010 armed raid by the Texas Attorney General’s office on the group Houston Votes.

So, why do I say that Abbott has played the race card?

In the body of the story, there’s this press-release response from the Abbott campaign, claiming that the executive director of Houston votes admitted that the group’s members had “fraudulently signed voter registrations and illegally collected information to sell to ACORN-linked Project Vote.”

There’s no mention of race within that sentence. But there is the word “ACORN.” On the right (and especially on the extreme fringe of the far right, e.g., among white supremacists who communicate their views online), “ACORN” is understood to mean “black,” or more particularly, to refer to a defined class of poor African-American voters who bear the brunt of white supremacist hatred. Illustrations of this odd but patently successful re-branding of ACORN by racists abound, most of them too vile and profanity-laced to cite politely (the link is to a follow-up story about Abbott supporter Ted Nugent’s description of President Obama as an “subhuman mongrel ACORN community organizing gangster.”) This story describes how the ACORN slander translated into racially-motivated threats in specific instances.

The well-placed (and baseless) smearing of Project Vote with the “ACORN” slander in a press statement is deliberate – it sends a message to the more openly bigoted hardcore racists in Texas, letting them know that Greg Abbott is on their side.

For those of you making use of web readers, the cited links are:






In Georgia, GOP Responds to Minority Voter Registration Drive With Criminal Complaint

This is a familiar pattern, and one that we’ve seen at both the national and state level – as I had noted recently, one sure way to draw down the wrath of Republican Party members is to encourage voter registration among minority populations. For obvious reasons (such as the desire not to get voted out of office), Georgia Republicans have filed a criminal complaint against a group that has boosted African-American voter registration numbers.

Slate magazine has the story here: http://www.slate.com/articles/news_and_politics/politics/2014/09/stacey_abrams_new_georgia_project_shocks_georgia_s_gop_republicans_fighting.html?wpsrc=sh_all_dt_tw_bot

A Thought On the Gubernatorial Race

You’ve probably noticed that I usually don’t say much about campaign financing laws – that reflects a longstanding (and somewhat odd) division of labor brought about by the creation of the Texas Ethics Commission over two decades ago. The Elections Division at the Texas Secretary of State once housed an Ethics Section, but those days were long over by the time I got into the election law business, and I spent all my time thinking about the quotidian details of the voting process (i.e., where to set up the folding chairs and long tables at the polling places, making sure the machines were plugged in, and trying not to violate the Voting Rights Act).

But the ethics stuff is critically important – the role of “one dollar, one vote” in American politics is the most serious destabilizing factor that our government faces. In fact, future generations may one day point to this era as the one in which the United States explicitly transformed its form of government from an indirect representative democracy into a corporate oligopoly. Yes, I’m looking at you, U.S. Supreme Court.

But in the midst of the larger national turmoil caused by the escalating monetizing of elections, Greg Abbott has tried to steal a little of Wendy Davis’s thunder by arguing that her newly published biography allows for the injection of corporate money into her campaign, in violation of state ethics laws.

Who would have thought that Greg Abbott would position himself as a champion of the enforcement of campaign ethics laws? There’s just one problem.

Section 253.100(d) of the Texas Election Code prohibits a corporation from directly supporting a candidate or cause – the money must instead be filtered through a general purpose political action committee. Greg Abbott argues that because Wendy Davis has published a book, and because that book is being circulated at a time coincident with the run-up to the November election, that the printing and promotion of the book constitute corporate spending in direct support of a candidate.

The problem is that if Section 253.100 of the Election Code is used to shut down the publication or distribution of a biography, such a use constitutes governmental prior restraint on free speech. The biography is reportage – it expresses the political opinions and development of ideas of the candidate. It is not a TV ad or rally for the candidate. The candidate is not handing out beer or hot dogs to voters. The candidate is speaking about her life. As the Texas Supreme Court ruled in In Re Newton, 146 S.W.3d 648 (2004), one cannot merely impose the prohibition against a specific kind of corporate spending without analyzing whether that limitation violates the First Amendment.

That book must be a good read for Abbott to be so fixated on tossing it in the fire.

Anti-Voter Registration Laws And Criminal Investigations Prompted By the 2008 Presidential Election

As promised, here are what I refer to as the “anti-ACORN” laws (the story of the ACORN slander is fairly well-known, and has been better told by others. Briefly, conservatives targeted an innocuous and fairly successful national community service non-profit for perceived crimes involving voter registration, and managed to so thoroughly trash the non-profit’s reputation that all of its funding dried up and it ceased to exist.

That the organization was subsequently vindicated and found to be innocent was irrelevant, as those who attacked ACORN likely were indifferent to whether the non-profit had actually committed any crimes or not. ACORN’s crime, such as it was, was to be perceived as an unusually successful political organizer of Democratic Party voters). Convicted felon James O’Keefe (the notorious right-wing agent provocateur) was instrumental in crafting faked videos that contributed to ACORN’s downfall.

In the wake of the ACORN slander, a number of Republican-controlled states considered or enacted laws designed to handicap voter registration efforts using more formal statutory powers. Notable examples of these restrictions were enacted in New Mexico, Florida, Wisconsin, and (of course) Texas. (For a comprehensive survey of these restrictions, and an interactive map of the restrictions state-by-state, see http://www.brennancenter.org/analysis/voter-registration-drives).

The statutory suite enacted by the Texas legislature was one of the most restrictive in the country, and included the following elements:

  • A new mandatory testing and certification requirement for people acting as volunteer deputy voter registrars (Tex. Elec. Code Sections 13.031(e) and 13.047);
  • Additional grounds for cancelling volunteer deputy registrar’s commissions, and (in a cruel twist) the rejection of voter registrations collected by a “defrocked” volunteer deputy registrar after the cancellation of appointment (Tex Elec. Code Section 13.036);
  • An in-person voter registration delivery requirement (which effectively shuts down statewide or non-county specific volunteer deputy voter registration) (Tex. Elec. Code Section 13.042); and
  • New and existing provisions that place volunteers at risk of criminal prosecution (e.g., if the deputy voter registrar transcribes confidential information on the application form (Tex. Elec. Code Section 13.004); fails to meet the delivery deadline for returning the applications in person to the county voter registrar (Tex. Elec. Code Section 13.043); knowingly induces false statements on the voter registration form (Tex Elec. Code Section 13.007), or (and this was added in 2011), if the deputy voter registrar is compensated on a performance basis for delivering voter registration forms (Tex. Elec. Code Section 13.008)).

So voter registration drives became more heavily regulated in 2011. But what has the practical effect been of these new laws?

The Texas Attorney General’s investigation and raid of the Houston Votes organization (which had been prompted by a complaint from the notorious True The Vote organization) occurred in 2010, prior to the enactment of the most recent laws., but the raid reinforced the risks faced by the organizers of voter registration drives.

It appears that the most dangerous thing a non-profit can do these days is distribute voter registration applications to minorities and the poor. The destruction of ACORN didn’t salve conservative anger following the 2008 Presidential election, and it appears that nothing less than scorched earth will answer the efforts of non-profit organizations to get more Texans registered to vote.