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Monthly Archives: April 2015

Some thoughts on the eve of oral argument in Veasey v. Perry

As you may know, tomorrow (April 28), a three-judge panel of the 5th Circuit Court of Appeals in New Orleans will hear oral argument in Veasey v. Perry. Texas has appealed the trial court’s damning conclusion that the State had used its voter I.D. law to enact a deliberately racially discriminatory barrier to voting.

Back in March, as the April 1, 2015 deadline for its reply brief loomed, the State asserted that it would only need 11,500 words to successfully argue that its draconian picture I.D. law wasn’t targeting minorities. After all, it wouldn’t take much paper to say that Texas’ voter I.D. law is more universally and generally horrible than merely racist. It doesn’t just discriminate against protected racial and language minority groups – it also discriminates against elderly voters, student voters, the poor, voters with disabilities, and inconveniences or hinders voting in general for everyone.

And there’s the State’s argument on appeal – which I shall broadly and meanly paraphrase as follows. “This law is so bad, it can’t possibly have been motivated by mere racial animus. We just hate all voters.” (That’s actually the second part of the State’s argument. The first part is, “well … all the people who were disenfranchised should have just voted by mail.” Unfortunately for the State, that’s a terrible argument, in part because it violates equal-rights provisions of the 14th Amendment. In fact, it’s such a self-destructive “shot in the foot” argument that everyone else feels a little sorry for the State’s litigators for being forced to repeat it. I mean … they do know that equating voting by mail with in-person voting is sort-of cringe inducingly bad form in civil rights litigation, right?)

Embarrassingly, the powers-that-be at the Texas Solicitor-General’s office dawdled a bit over the crafting of their succinct brief, and accidentally filed it a few minutes after midnight on April 2nd. These things happen, and nobody (other than me) felt particularly inclined to capitalize on the minor technical error in order to gently ridicule the already hapless appellant.

Ha ha.

On a more serious note, people interested in same-day coverage of tomorrow’s oral argument should contact Erik Opsal at the Brennan Center.

Erik Opsal
Communications Manager

Finally, for a nice perspective on why the international reputation of the United States currently hangs in the balance over voting rights, here’s a nice paper by Patricia Broussard, published as part of a recent symposium on the Voting Rights Act conducted by the Journal of Race, Gender and Ethnicity. “Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes With a Price” (Journal of Race, Gender and Ethnicity, Volume 7, No. 1, Fall 2015)

Historical Survey of Voting Discrimination Confirms the Disastrous Short-Sightedness of the Roberts Court

We all knew that Shelby County v. Holder was wrongly decided, and now we have more data to add to the mountain of statistical evidence of why preclearance under Section 5 of the Voting Rights Act was so important.

Check out today’s editorial in the New York Times: “Voting Rights: By the Numbers.An October 2014 statistical survey by J. Morgan Koussler (available at Social Science Research Network or SSRN) confirms that discriminatory practices relating to voting are more common in the jurisdictions covered by Section 5 of the Voting Rights Act under the old formula, and that while voter turnout and minority participation might seem to be a fairly blunt instrument on which to base social engineering, it was a pretty good proxy for determining where actual racial exclusions from voting were being perpetrated.

Not for nothing, but I’d like to point out that just about anybody with an interest in the preservation of voting rights for minority voters should be pushing for a renewal of the preclearance process. Congress needs to legislate away the awful Shelby County v. Holder decision.

And … I’d point out with just a hint of impatience that there are lots of potential interim solutions that might serve at least as stopgap measures to limit the appalling current trespasses against our voting rights. My own suggestion is to bootstrap preclearance into the administration of the Civil Rights Act of 1964.

I get why my suggestion might not be one that the Justice Department is enthusiastic about – there are budget issues to be concerned about, and the physical staffing of the Voting Rights section of the Civil Rights division is a politically charged topic; any attempt to create modest election procedure reporting requirements for U.S. jurisdictions will doubtless draw howls of protest from the very jurisdictions that most desperately need to be scrutinized.

But the damage done by the Supreme Court isn’t going to magically fix itself – if Congress can’t pass a renewed Voting Rights Act (as it clearly can’t in its current status as the least functional branch of government), the only remaining avenue for reform is through administrative rule-making and executive action.

C’mon – you have to admit that some form of recordkeeping relating to changes in election procedures is better than what we have available right now, which is just a hodgepodge of piecemeal, bespoke civil rights lawsuits that are expensive and limited in effect.

Indignities and Tyrannies in Local Elections

I am informed that the city secretary for the City of Bartlett in Williamson County has asserted once again for the fourth year running that there is “no state law” requiring the city to conduct early voting within its city limits during the entirety of the early voting period for the May election, and that despite the fact that in-person early voting is to be conducted from April 27, 2015 through May 5, 2015, there will only be one day of early voting within the City of Bartlett city limits; namely on Saturday, May 2nd. This is both annoying and wrong, and a disservice to the voters of that city, but it may also be a shortcut chosen by other political entities as well, given that various other entities inside Williamson County also have weirdly truncated and limited early voting.

Last year, in response to complaints about the lack of early voting, the Temple Daily Telegraph ran a story asserting the city’s position that an election services contract with Williamson County justified the lack of early voting locations. The story is behind a paywall, but there’s not much point in reading it, given that the city’s premise is wrong and is flatly contradicted by state law, as I’ve explained before.

The May elections are coming up, and the voters in thousands of cities, school districts, and a myriad of other special and general law districts will be going to the polls – as ever, the Texas Secretary of State has a handy (if somewhat daunting) calendar describing the procedural deadlines and events before and after the May election date.

I want to be clear that it is emphatically not okay for a city, a school district, or any other entity to fail to offer early voting at its main place of business for each day of the early voting period – Section 85.002 of the Texas Election Code is unambiguously clear on this point. To recap – if your city is having an election, then there has to be a main early voting polling place inside your city limits, and it has to be open at least during regular business hours every weekday of the early voting period. There’s no intervening or superseding statute that “forgives” or “excuses” not providing this minimal level of in-person early voting.

As frustrating as it is to see that a number of political subdivisions have failed to provide the requisite number of hours of early voting within their jurisdictional boundaries (and therefore have indicated that they will be breaking state law), I am mindful of the reasons why even the best-intentioned public employees might be inclined to take this admittedly illegal shortcut.

In a great number of political jurisdictions, the job of conducting the local election falls to whichever public employee was slowest to say “not it.”

The truth is that running a local election is a tedious and largely thankless task that has gotten more complicated and harder over the last decade and a half, given that (1) ballots must be prepared and mailed out to military and overseas voters not later than 45 days before the election; (2) accessible voting systems must be available at all early voting and Election Day polling places, and therefore must be leased, programmed with ballots, tested, and correctly installed; (3) intergovernmental joint election agreements and election services contracts must be negotiated at least three months or more before Election Day; (4) election expenses have to be budgeted and accounted for in local government budgets almost a full year prior to being incurred; (5) legal notices must be posted, election workers must be hired, polling places must be found, candidate applications must be reviewed, public records must be archived, public meetings must be conducted, voter registration lists must be ordered, posters printed, supplies gathered, training sessions scheduled …, and on, and on, in an unending, more-or-less year-long cycle of bureaucratic management before and after each election.

And so … mistakes happen. Steps are skipped. Inconvenient obligations are forgotten or passed over. As the infrastructure of democratic participation is expensive and tedious to maintain, and as the actual labor is sometimes delegated to those who are least trained, or least inclined, or least equipped to preserve the niceties of procedural regularity, compliance with the law becomes a luxury not afforded to every voter.

The pressures associated with conducting an election may explain why entities like the City of Bartlett break the law. But an explanation is not an excuse. Political subdivisions throughout the state must adhere to the voting schedule imposed by the state legislature, whether it is tedious to do so or not.