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Monthly Archives: July 2015

50 Years of Conflict Over Voting Rights – Mourning and Hope

Jim Rutenberg has written a must-read cover story for the New York Times magazine about the Voting Rights Act, providing context for the relentless pressure exerted by segregationists to kill black voting throughout the history of that landmark act.

This story has come out at the same time that Professor Heather Gerken has written a mournful look back at the Voting Rights Act. Her elegiac commentary on a recent scholarly article in the Iowa Law Review is both somber and despairing.

Because I favor the use of a purely regulatory expansion of administrative oversight of the Civil Rights Act as a substitute for the moribund Voting Rights Act “superstatute,” I perked up at this paragraph in Professor Gerken’s introduction:

  • Regulatory schemes have a funny habit of surviving, in large part because they become normalized after a few years. I have little doubt that a civil rights statute would be trimmed by this Court and subject to inconsistent levels of enforcement, depending on the administration. But if it were possible to pass a new statute—and that’s an enormous “if” in an era in which Congress is all but sclerotic—it’s not clear to me that it would be destined for failure. The Department of Justice has administered the VRA under executives of all sorts, and the federal courts include many a judge willing to apply the law as-is. A new civil rights-oriented statute might limp along at times, but the game might still be worth the candle.

Gerken, An Academic Elegy, 100 Io. L. R. 109, 115 (2015).

The subject of Professor Gerken’s elegy is the paper by Guy-Uriel Charles and Luis Fuentes-Rohwer, “The Voting Rights Act in Winter: The Death of a Superstatute.” Briefly, that paper masterfully recounts the political climate in 2006 that caused Congress to fail in any meaningful way to revitalize or expand the scope of the Voting Rights Act, and the sea change in American politics that rendered the traditional, geographically limited scope of Section 5 coverage of certain “troubled” political jurisdictions untenable.

Today, race and party are inextricably intertwined; the Republican Party has effectively transformed itself into the Apartheid Party, (amply demonstrated by how well Donald Trump’s explicitly segregationist campaign plays with Republican voters) while the Democratic Party has by default taken on the role of the anti-apartheid faction. The subversion of race and class issues in pursuit of the Republican Party’s concrete practical goal of winning elections means that (1) the traditionally Southern brand of focused anti-black bigotry has now been successfully exported to almost all jurisdictions, and (2) has been broadened to its natural conclusion, to target not just protected classes of minority voters for suppression, but to extend voting suppression efforts to all likely Democratic Party voters.

Of course, in one sense the suppression of racial equality has always been about winning elections; in another sense, racial discrimination has always been a root motivator for at least some part of American political competition; bigotry (as an inherent cultural element) and the exploitation of bigotry (as a viable political tactic or strategy in the pursuit of power) are just reflected elements of our nation’s original sin.

My bias is that I believe my solution to the problem (applying anodyne, depoliticized regulatory “reporting” rules that give the Department of Justice the ability to track changes in election procedures) at least points to the way out of this dilemma, and perfectly dovetails with the legal prescriptions offered by Professors Charles and Fuentes-Rohwer, for three reasons.

1. My proposed reporting rules aren’t predicated on historical or geographic patterns of racial discrimination, but instead apply to all jurisdictions equally, and without singling any specific jurisdiction or jurisdictions out based on prior bad acts; and

2. My proposed reporting rules are enforced by robust, explicit monetary incentives (i.e., through the threat of withholding federal funding from political jurisdictions that fail to comply), using tried and well-understood Civil Rights Act enforcement tools.

3. My proposed reporting rules may be adopted by purely executive action without the involvement of the vestigial and powerless Congress.

Not to keep harping on this … but, well, yes …, to keep harping on this. The loss of the preclearance mechanism of Section 5 of the Voting Rights Act was devastating to the effective management of fair elections in the United States. Therefore, some regulatory balance must be restored by adopting a replacement regulatory process.

NPR Looks at Vote-Buying In South Texas

National Public Radio has been doing a multi-part investigative report into political corruption in South Texas, and on July 7th, KERA (the Dallas-area public radio and TV station) published a transcript of the segment of the report focusing on the role that politiqueras (which could roughly be translated as canvassers) play in securing votes for public office.

An interesting question for which I have yet to see a satisfying social-science answer is this: Why is the time-honored tradition of buying votes now engendering so much resistance in South Texas (as evidenced by public organizing against the practice, more active law enforcement, and a spike in criminal prosecutions and convictions)? Does this signal a shift in political culture, voting demographics, economic factors, or (likely) a complex mix of many factors?

One huge unexamined elephant in the room is this – the economy of rural South Texas is profoundly affected by the fact that it sits squarely on the most lucrative drug-smuggling routes into the United States; the immensely wealthy organized Mexican cartels could buy and sell all the local governments of South Texas many times over. To what extend must elected officials proceed in accommodating a rapprochement with cartel interests while also competing with each other? Does the restive nature of inter-cartel warfare alter the treatment of politiqueras and vote-buying practices generally?

I don’t have the answers to these questions, but others might. Let me know what you think.

Resignations and Vacancies – An Endless Source of Confusion

The Odessa-American reported on July 14th that Ector County Judge Susan Redford is leaving office in mid-October to take a position with the Texas Association of Counties. In the course of reporting this, the paper noted that the judge didn’t want to refer to this as a resignation and couldn’t “do so formally because of how the law is written.” BZZZT. Wrong!


Once again, a misleadingly worded statute has left someone confused. In this case, the culprit is Section 201.023 of the Texas Election Code, which says that a vacancy occurs immediately when a governing body accepts an officer’s resignation, even if the resignation itself is for a future date. The Ector County commissioners were afraid that if their county judge tendered a prospective resignation, the county would be instantly without a judge, and Judge Redford would instantly be without a paycheck.

That’s not how it works, and that’s not the correct reading of the statute. If Judge Redford had resigned with an effective date of October 15th, say, the acceptance of the resignation would only be treated as a vacancy on July 14th (or whenever it might have been accepted) FOR THE PURPOSE OF FIGURING OUT WHEN TO SCHEDULE AN ELECTION, not for the purpose of actually leaving the position vacant.

This is a common error, and it’s unfortunate that in this case, the misunderstanding actually affected how a county judge worded her notice to her county commissioners’ court.

Section 201.021 of the Texas Election Code notes that the subsequent statutes relating to vacancies and vacancy-filling are just meant to provide a certain arbitrary date “for this title (i.e., for Title 12 of the Texas Election Code, relating to elections to fill vacancies)” to fix when a vacancy in office has occurred for the sole purpose of identifying filing deadlines and other ministerial administrative tasks.

So, no. County Judge Susan Redford would not have lost her elective office if she had tendered a resignation effective for mid-October. She would not have lost her job until such time as she actually left office.

If she had tendered a written resignation, the county commissioners could have asked, “Okay, given that county offices are filled by election only in November of even-numbered years, when can we appoint someone to temporarily fill the position of County Judge?”

That question isn’t answered by the Election Code – it’s answered by the common-law determination of actual physical vacancy from office. In other words, the commissioners would not have been authorized to act to fill the vacancy until mid-October.

And how exactly would they fill the vacancy? That question isn’t answered by the Election Code either. It’s answered by Section 87.041 of the Texas Local Government Code. If there’s a vacancy in the position of county judge, the remaining commissioners may appoint someone to serve until the next general election. The person they appoint will serve from mid-October of 2015 (or whenever) until the canvass of the November 2016 election, more than a year-and-half from now.

Happy Birthday, Texas Election Law Blog! – A Look Backward and Forward

I have a lot to write about, but first, I wanted to acknowledge the just-passed two-year anniversary of the Texas Election Law Blog.

Two Years Ago

On July 2, 2013, just days after the Supreme Court issued its decision in Shelby County, Alabama v. Holder, I was fired from my job as a staff attorney at the Elections Division of the Texas Secretary of State’s office. My employer’s stated reason for firing me was that I had made intemperate remarks about what I can now call a particularly egregious miscarriage of a special district election in Montgomery County, Texas.

That election is now back in the news, after the 14th Court of Appeals remanded the first criminal case for a new trial.

I started this blog the day after I was fired, because

  • My job — to provide unbiased explanation and advice about administering fair and legal elections in the state of Texas — still needs to be done, in part because
  • In my professional opinion, the Elections Division at the Texas Secretary of State is now falling down at its mission — not because of the hard-working staff, but because of changes under the previous governor.

Unpacking the details of my termination raises all sorts of questions, not just about my professional qualifications and my flaws or merits individually as an attorney specializing in election-related matters, but also about the role of the Texas Secretary of State as chief elections official for the State of Texas, the complex interactions of money, self-interest, and law in elections administration, the slow diminishment of a once-effective advisory agency over the course of former Governor Perry’s tenure as chief executive officer of the State, and the larger battles over the soul of American democracy that are being fought state-by-state across the United States.

At least initially, I saw this blog as a platform for providing hard-working citizens (including election administrators) with some very modest enhancements to the dissemination of election law information relevant to Texans. Although I’m not a information architect or user experience expert, I was frustrated for years that the Elections Division’s website, while good in many respects, had such a peculiarly structured design. Election law opinions were missing; forms were not not where you’d expect to find them, and so on.

Just putting all the forms in one list was a comparatively easy fix (though I’ve been remiss in keeping it updated; that’s one of my tasks looking forward), and at some level I hoped that my own modest and amateurish improvements would shame top agency decisionmakers into paying attention to the agency’s role as an advisor to local, county, and state officials in elections administration.

What’s Changed for Me

I had been scrupulously nonpartisan while employed at the Secretary of State’s office — party affiliations and policy preferences were outside the ambit of my purview. (I wouldn’t even let my wife put political signs in our yard or bumperstickers on our car.)

I was, and remain, sympathetic to the day-to-day management concerns faced by county clerks and tax assessors who likely would not see eye-to-eye with me on many political questions at a personal level.

While at the Elections Division, and now, party planks and philosophical disagreements never angered me. I’m slow to anger. What did get to me was willful maladministration at the county level. (Here my editor has redacted a few specific examples, noting this blog is not the venue for what is now — since years have passed — lukewarm political chatter.) All that said, however, with almost no exceptions, I liked everyone I talked to — even the people I was annoyed with.

I mean everyone …  even the possibly disturbed caller who floridly cursed me as “a maggot on Satan’s cracked hoof.”

All the callers I talked with, day in and day out, are gloriously, endlessly varied human beings, with rich contradictions and complicated feelings, and they were — and are — all trying to various degrees and with varying levels of success to conform their actions to some great social ideal as articulated in our state and federal election laws.

What got to me near the end of my tenure in the Elections Division was the Supreme Court’s decision to dismantle the regulatory framework of the Civil Rights era.

Moving Democracy Backward

Picture I.D. laws, restrictions on volunteer deputy registrars, and racially discriminatory redistricting, as well as Wild West campaign finance laws, stupid residency definitions, fear-driven race baiting, the disruption of polling places, candidate intimidation, and other acts of dirty political pool are all of a package with a more general philosophy adopted by members of the extreme Right — that political coups are preferable to elections, because the “wrong side” sometimes wins elections.

This political strategy is toxic to democracy and to our nation’s founding values. At what point will the extreme Right conclude that overt coups are preferable to elections (or subtle coups), because the “wrong side” sometimes wins elections?

As the mechanisms for free and fair elections are rendered less effective, the resentments of those shut out will grow. As our legislatures and leaders short-sightedly vandalize the instruments of suffrage, they turn the clock back to a time when our cities burned. Our cities are burning again, and will burn again and again until (some) policymakers learn that short-term political victory through anti-democratic means is self-defeating and costly.

A Way Forward

More to come. And your ideas welcome. This is important, folks!