I’ve been pretty quiet, and I realized that I should at the very least remind people that the deadline to register to vote in the upcoming March 1, 2016, primary elections is Monday (February 1, 2016). So register. You’ll have to drop off an actual application, and make sure that it gets postmarked by Monday. (Of course, in benighted Texas, we can’t simply register to vote online, but that’s properly a subject for another post).
There’s a lot to write about. In particular, I note this interesting January 11, 2016, decision from the El Paso Court of Appeals regarding residence and eligibility requirements for county commissioners. (In Re Perez, 08-15-00381-CV, Tex. App – El Paso January 11, 2016) (text provided by Texas Lawyer, at: http://www.texaslawyer.com/home/id=1202747328543/In-re-Perez-081500381CV-TexApp-Dist8-01112016?mcode=1202615269686&curindex=1&slreturn=20160030135229).
Vincent Perez is the current incumbent and candidate for reelection as Commissioner for Precinct 3 in El Paso County – he argued that his opponent in the March 1, 2016, Democratic Party primary election, Antonio Quintanilla, was ineligible to run for that office, on the grounds that Mr. Quintanilla had not been a registered voter within Precinct 3 for the requisite six months prior to the filing deadline to run in the primary.
Until September 1, 2015, candidates for public office were not generally required to be registered voters; there were a few rare exceptions that applied to specific offices, but the default was only a requirement that a candidate reside in the territory in which he or she was running for office. A bill passed in the most recent legislative session (H.B. 484) changed the status quo significantly, and required that candidates for local, district, or state office must now be eligible to vote in the jurisdiction from which they are elected. (See Section 141.001(a)(6), Texas Election Code).
Of course, the candidates for the various special law districts scattered throughout the state are exempt from this requirement, as those individuals are generally not required to register to vote within the boundaries of their districts (many of those said special taxing entities are created specifically without any inhabitants, and therefore would not possess registered voters upon creation anyway). See Section 141.001(d), above.
Alas, for Mr. Quintanilla, the change in state law was fatal to his application for a place on the primary ballot.
Did it make any sense for the legislature to add the requirement to be a registered voter as a requisite for public office-holding? Eh. Not really.
I don’t dispute the symbolic importance of civic engagement represented by being a registered voter, and for years I had told candidates (who inquired) that not being registered to vote in a particular district or territory was a potential public relations problem.
The reason why I think the new law is a little stupid is that the lead times for candidate applications are stretched ludicrously far in advance of the election date. As of March 1, 2016, Mr. Quintanilla will be eligible to cast an angry vote against Mr. Perez. That’s because Mr. Quintanilla’s registration as a voter in Commissioner’s Precinct 3 was effective as of mid-January of this year; he submitted his application for registration at about the same time that he filed to run in the primary. But his application to run in the primary had to be filed two months before the election, and his registration had to be effective as of the deadline to file as a candidate. Since registrations are by law effective 30 days after the date submitted, that meant that Mr. Quintanilla would have had to register to vote in Precinct 3 by no later than mid-November, slightly more than one month after the new law went into effect.
In other words, our lawmakers (and, let’s just be charitable to the bill’s drafter and assume that the bill was drafted in simple ignorance of the long lead-time for filing deadlines) passed a bill that now obligates candidates to register to vote in a specific territory three months prior to running for office in that territory. That makes no sense.
Although (candidates, take note): the new law has set up an excellent new “gotcha” mechanism for kicking one’s opponents off of the ballot.
As we anticipate the Supreme Court’s ruling in Evenwel v. Abbott, here’s a rundown of recent academic scholarship regarding “one person – one vote.” Some of this is from Rick Hasen’s summary of hot draft law review articles on the Social Science Research Network, and some is just from simple searching.
Rick Pildes, Symposium: Misguided hysteria over Evenwel v. Abbott, SCOTUSblog (Jul. 30, 2015, 12:01 AM), http://www.scotusblog.com/2015/07/symposium-misguided-hysteria-over-evenwel-v-abbott
Rick Hasen, Symposium: Ideology, partisanship, and the new “one person, one vote” case, SCOTUSblog (Jul. 31, 2015, 12:01 AM), http://www.scotusblog.com/2015/07/symposium-ideology-partisanship-and-the-new-one-person-one-vote-case
Fishkin, Joseph, “Be Careful What You Wish For in Evenwel, Justice Kennedy” Texas Law, December 10, 2015; https://law.utexas.edu/news/2015/12/10/be-careful-what-you-wish-for-in-evenwel-justice-kennedy
Berry, Thomas, The New Federal Analogy: Evenwel v. Abbott and the History of Congressional Apportionment (December 9, 2015). NYU Journal of Law & Liberty, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2701538
Klarner, Carl Eoin, Assessing the Potential Impact of Evenwel v. Abbott (December 6, 2015). Available at SSRN: http://ssrn.com/abstract=2699850
Parsons, Gary Michael, Clearing the Political Thicket: Why Political Gerrymandering for Partisan Advantage is Unconstitutional (December 1, 2015). Available at SSRN: http://ssrn.com/abstract=2698183
Muller, Derek T., Perpetuating ‘One Person, One Vote’ Errors (December 1, 2015). Harvard Journal of Law and Public Policy, Forthcoming; Pepperdine University Legal Studies Research Paper 2015/16. Available at SSRN: http://ssrn.com/abstract=2697719
Tokaji, Daniel P., Realizing the Right to Vote: The Story of Thornburg v. Gingles (November 30, 2015). Election Law Stories, Foundation Press, 2016 Forthcoming; Ohio State Public Law Working Paper No. 322. Available at SSRN: http://ssrn.com/abstract=2697007
Edelman, Paul H., Evenwel, Voting Power and Dual Districting (November 13, 2015). Journal of Legal Studies, Vol. 44, 2016; Vanderbilt Law and Economics Research Paper No. 15-16; Vanderbilt Public Law Research Paper No. 15-19. Available at SSRN: http://ssrn.com/abstract=2631666 or http://dx.doi.org/10.2139/ssrn.2631666
Hasen, Richard L., Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn but with Speed Bumps and Surprising Twists (August 4, 2015). UC Irvine School of Law Research Paper No. 2015-70. Available at SSRN: http://ssrn.com/abstract=2639902