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I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.
First, it’s a clear-eyed and thorough analysis of the present danger.
Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹
And third, it’s a prompt for me to ask all of you for your thoughts.
There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).
¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.
Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.
I. TL;DR Q&A
(1) Ugh! This blog post looks like it’s really long.
So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?
ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …
(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.
ANSWER: Yes. The plaintiffs won.
(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?
The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).
However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.
I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.
ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.
(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?
ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.
(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?
II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.
Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.
- Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
- The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
- Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
- On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
- Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
- The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
- In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally). Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
- The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
- The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
- Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
- Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
- Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
- My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.
III. So now what?
So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?
- Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
- As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
- Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.
Here’s a simple question with a complicated answer:
Who conducts elections in Texas?
I ask this question in part because I got a call about a week ago from a reporter with the Victoria Advocate, asking about the January 17, 2017, resignation of George Matthews, the county’s first and only elections administrator.
Mr. Matthews had held the non-partisan county position since 1992, and (I say, based on having talked to George and his staff over the years) was highly regarded and well-liked by those he had worked with, including both the Victoria County Democratic Party Chair and the Victoria County Republican Party Chair.
Mr. Matthews’ resignation reminded people of the existence of a “County Elections Commission,” as described by Section 31.032 of the Texas Election Code, which surprised those county residents who had never heard of or knew about the existence of this governing body. That ignorance is understandable; the Victoria County Elections Commission probably last met in 1992 when it created the position of County Elections Administrator.
Do the County Elections Commissions within the counties have any direct responsibility for conducting elections?
The short answer to that question is … no.
County Elections Commissions have one tiny slice of legal responsibility (i.e., hiring or firing county elections administrators). That authority gets exercised once in a blue moon.
County Elections Commissions are consequently invisible and nearly powerless; they certainly don’t pay for the conducting of elections or supervise the conduct of those elections.
I think it’s interesting that county officials in Victoria have responded to this story by urging that the Victoria County Elections Commission will conduct quarterly meetings henceforth, presumably to preserve greater visibility and to ensure that voters won’t once again react with shock and surprise upon discovering that there is such a thing as a county elections commission.
So, who conducts elections?
In matters of voting (as with so much else) the State of Texas has adopted an aggressively decentralized approach. In one sense, the answer to the question is this:
- Each political entity (whether that entity is a semi-autonomous political subdivision or a division of the State or federal government) conducts its own elections.
That answer has the ring of seeming authenticity. Every county, city, school district, water district, hospital district, community college district, special law district, municipal development district, et cetera, has the formal legal responsibility for conducting its own elections, starting with the State of Texas and moving on down to the tiniest subdivision of local government.
But that answer doesn’t quite capture reality.
Let’s try again with this answer:
- Each political entity is empowered to conduct elections, but practically speaking, there’s no way that thousands of tiny government entities (many of which don’t even have employees or permanent offices) can possibly handle the tedious and labor-intensive job of actually running their elections.So the equipment and election workers are provided by the counties. County workers print the ballots, program the voting machines, manage the early voting polling places and the Election Day precincts, count the votes and deliver the results to the tiny government entities.
Okay. So that pretty much answers our question right?
If someone asks, “who runs elections?” we’ll just say, “The counties.” And then we’re done, right?
Well, not quite.
Most people might be satisfied with this answer, but some people still want to know who specifically pays the invoices for the ballot programmers and hires the election workers. They ask,
“Who within the county government actually prepares the budget, leases the equipment, puts gas in the pick-up truck that delivers the voting booths, and keeps the lights on at the courthouse on Election Night?”
So here’s a more nuanced answer:
- In Texas, elections are traditionally conducted by the County Clerk, while voter registration is administered by the County Tax Assessor/Collector (as a holdover duty of that office from the era of poll taxes). The costs associated with elections are largely paid out of general tax revenues, as budgeted and distributed by the County Commissioners’ Court.
Okay. Weird (what with the retro throwback reference to the collection of poll taxes), but okay.
Except … wait.
If elections are conducted by County Clerks (who are elected county officials) and if voter registration lists are created and maintained by Tax Assessor/Collectors (who are also elected county officials), then where do Election Administrators come into the mix?
- County governments (i.e., the County Commissioners’ Courts) may choose to exercise statutory authority to create the position of County Elections Administrator. A County Elections Administrator is a paid county employee to whom is delegated the authority inherent in the offices of County Clerk and County Tax Assessor to (1) run elections, and (2) administer voter registrations for county voters. The County Elections Administrator is hired by the County Elections Commission and answerable to that (almost invisible, easily forgotten) government body. Meanwhile, the County Commissioners’ Court determines the budget, staffing, and all other decisions relating to the management of the county elections.
So in those counties with elections administrators, there is an interesting dynamic at work (and by “interesting,” I mean “complicated”).
The Elections Administrator is a special kind of county employee answerable to two separate deliberative bodies.
The Elections Administrator has to keep the County Elections Commission’s members happy in order not to be fired, but at the same time, the Elections Administrator has to keep the County Commissioners happy in order to have an office and a budget.
So … here are the members of those two bodies that a county Elections Administrator answers to:
- The County Judge — the elected chief executive officer of the county, voting member and chair of the County Commissioners’ Court, and chair of the County Elections Commission.
- Four elected county commissioners, each representing a geographic portion of the county (Commissioners’ precincts 1–4) as voting members of the County Commissioners’ Court.
- The County Clerk — the elected records officer of the county; responsible for the minutes and records of the county court, managing all vital and property records of the county, voting member of the County Elections Commission.
- The County Tax Assessor — the elected financial officer of the county; responsible for the assessment and collection of county tax revenue; voting member of the County Elections Commission.
- The County Democratic Party Chair — chief executive officer of the county Democratic Party (if one exists); voting member of the County Elections Commission.
- The County Republican Party Chair — chief executive officer of the county Republican Party (if one exists); voting member of the County Elections Commission.
So that’s nine people with some measure of influence over the Elections Administrator. And one person in particular looms large. Because the County Judge sits on both bodies, that person has even greater influence over the process of creating the position and hiring the Elections Administrator.
While the Commissioners’ Court can’t directly hire or fire the Elections Administrator, the ability to control the existence of the position and the purse strings is all-important. If the Commissioners threaten to abolish the position or put the Elections Administrator in a broom closet, the message will come across loud and clear.
Why would the State authorize such an odd delegation of election authority by county government? I mean, why split the authority to hire the administrator from the authority to pay the administrator?
On the one hand, election administration is in many ways a complicated, thankless job. Elections are expensive (thanks in part to the many issues of legal compliance with state and federal laws) and emotionally fraught. From the perspective of an elected official like a county clerk, it’s often a relief to be able to delegate the management of dozens of local elections (as well as the high-profile, high-risk county, state, and federal elections) to a bipartisan “Switzerland” of blessed political neutrality.
On the other hand, election administration is very much about mucking about in the gears and levers of the political machine. While nobody wants to actually do the job of running elections, there are plenty of people who would like to preserve leverage over the administration of the election itself.
This Gordian Knot of conflicting county loyalties could be cut at a single stroke if the Legislature simply decreed that all counties would be required to have a non-partisan Elections Administrator, with all funding and administration supervised by the existing framework of county elections commissions.
But that legislative act would strip the county commissioners and county judges of an essential tool of budget control over elections administration. Therefore, it is unlikely that any such reform will be forthcoming.
As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.
The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:
DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.