Home » Historical Background

Category Archives: Historical Background

Divided Against Itself – Bipartisan County Elections Administration

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:

  1. 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.
  2. Four elected county commissioners, each representing a geographic portion of the county (Commissioners’ precincts 1–4) as voting members of the County Commissioners’ Court.
  3. 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.
  4. 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.
  5. The County Democratic Party Chair — chief executive officer of the county Democratic Party (if one exists); voting member of the County Elections Commission.
  6. 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.



Electoral College: Thoughts About the December 19 Presidential Election at the Texas Capitol

Monday the next POTUS will be elected

As the nation rumbles at a low boil, I’ve tried to summarize my thoughts about how, as 2016 draws to a close, voters seem to be more aware of (and more alarmed by and anxious about) our weird Electoral College. I mean weird as compared to the systems of other democracies across the planet. 

In those other countries that choose their chief executive officers through a voting process, the highest offices are awarded via popular vote, but in the United States, the two chief executive offices are chosen by the votes cast by state-constituted panels of electors.

These panels are constituted and organized based on the result of statewide popular elections that take place on the first Tuesday after the first Monday in November, and in Texas, as in 47 of the other states, those panels are organized on a principle of “winner take all” based on whoever won a strict plurality of the state popular vote. The panels then meet and cast their ballots on the first Monday after the second Wednesday in December, which is the actual Presidential Election.

High levels of concern

This year, more than in 2000, 2004, 2008, or 2012, advocacy for dramatic reform in the constitutional process of Presidential elections has been loud and persistent.

The public level of concern regarding the Electoral College and the outcome of Monday’s vote has no direct historical parallel. The closest analogous election might be the 1876 presidential election, which in its divisiveness had raised concerns of a second Civil War (about that, see my historical note at the end of this post).

This previously unheard of public discourse—about “Hamiltonian electors” stepping up to exercise independent judgment and discretion to deny the office of presidency to an unfit candidate—is happening right now in a way different from the last 224 years of post-Twelfth Amendment Presidential contests because:

(1) There is a gap between the national popular vote, which favors Hillary Clinton by more than 2 percentage points, and the apportionment of electoral votes, which favors Donald Trump by a projected total of 306 electoral votes to Clinton’s 232.

(2) This is only the fifth time in more than 200 years in which the Electoral College vote has not reflected the popular vote. (The previous four occurrences were in 1824, 1876, 1888, and 2000.)

(3) Trump is perceived by some conservative and most progressive voters to be unfit to serve (particularly as the Russia stories continue to pile up); and

(4) The anger of at least half the voters regarding (among other things) Mr. Trump’s nonexistent electoral mandate arguably exceeds in intensity and furor the amount of public scorn heaped on the winners of the 1824, 1876, 1888, and 2000 Presidencies—which I am shorthanding as “lame duckling Presidencies”—ugly duckling meets lame duck.

Save us, Electors, you’re our only hope!

Our Electoral College system has broken before, but arguably never so badly as it has this year. So now we have public pleas and hopeful invocations addressed to the members of the Electoral College to fix what many are calling our national mistake.

Many are asking the “Hamiltonian electors” to (in effect) mirror (or honor) the national popular vote. (The previous link is to the National Popular Vote initiative, a multistate legislative initiative to enact state laws that would enforce the selection and votes cast by state electors to conform to the national vote.)

To mirror the popular vote this Monday, 37 of the total 306 Republican electors would have to break their oaths to cast their ballots in favor of the candidates who won their state. The breach of tradition would be unprecedented.

Texas electors get a fair amount of attention on Monday because our state has a large population and a correspondingly large number of electors (38) out of the total of 538 electors. (The seeming correspondence between the number of Texas electors—38—and the margin of Mr. Trump’s expected Electoral College victory—37—is purely coincidental; each state’s electoral votes are calculated by counting up the number of Congressional delegates assigned to that state. Texas, with 36 members of the House of Representatives and two members of the Senate, gets 38 electors.)

If the electors in Texas were to vote proportionately in line with the popular vote in this state, 20 of the 38 votes would be for Trump (i.e., 52.23% of 38, rounded up), 16 would be for Hillary Clinton (43.24% of 38, rounded down), 1 would be for Gary Weld (3.16% of 38, rounded down) and the remainder (1 vote) would be for Jill Stein (.8% of 38, rounded up).

So … is that what’s going to happen?

Uh. No. There is simply too much institutional, cultural, and, perhaps, other pressure on the electors to conform to prior tradition.

While electors are typically invisible political party functionaries and fundraisers who never enter the public sphere, two of the Texas electors are in the national public spotlight. One has resigned because of a moral objection to casting his ballot for Trump, and the other has indicated that he will not vote for Trump on Monday.

So I predict that on Monday when the results are announced, the Texas electors will have maybe one dissenting ballot, and the dissenter (a Republican Party loyalist who was chosen for his position as an elector by the Trump campaign team when the campaign office filled out its paperwork for the election late last year) will almost certainly not cast his ballot for Hillary Clinton.

Why are people so angry about all this?

So … let’s go back to our lame duckling President, put in office through a circumstance where the Electoral College vote doesn’t match the popular vote. In this context, which I will term for convenience a “broken election,” the President is installed by the Electoral College, but the disparity between the popular vote and the Electoral College outcome frustrates the will of those whose preferred candidate won the popular vote.

The reason why this election presents such a risk and challenge to our nation is different from (and worse than) than our previous “broken” elections for at least two reasons — the Russian interference (more on that here and here — but also, for balance, see The Nation‘s critique, here) and the growing evidence that the President-elect is so profoundly unsuited to hold office. 

Compare Donald Trump to the four other winners of the Electoral College who were also losers of the popular vote :

  1. George W. Bush — At the time of his Electoral College victory in 2000, Bush was the elected governor of Texas; while he was admittedly a policy lightweight, he had, by his duties of office, engaged in the basic functions of government oversight, such as legislative review, public speaking, policy analysis, staff management, and constituent services.
  2. Benjamin Harrison — At the time of his Electoral College victory in 1888, Harrison had represented the State of Ohio in the United States Senate for roughly one full term; while he had previously made unsuccessful runs for state office in Ohio, he was familiar with parliamentary procedure, bill drafting and analysis, the budget process, public speaking, staff management, and constituent services.
  3. Rutherford B. Hayes — Before he became President in 1876, Hayes was the elected governor of Ohio; while he (like George W. Bush) was a policy lightweight, he had proven himself to be a popular state executive officer with prior experience in government operations.
  4. John Quincy Adams — At the time of his election in 1824, Adams was the Secretary of State; while he had not previously been elected to an executive office, he had a lifetime of international diplomatic and government service under his belt, was supremely well-educated, and was a noted jurist, writer, and public speaker.

Neither Bush, nor Harrison, nor Hayes, nor Adams were as ensnared by financial conflicts of interest as Trump is, nor (arguably) were any of them as inexperienced and disinterested as Trump appears to be in essential principles of foreign policy, domestic administration, and actual governance — not to mention political checks and balances and other basic concepts of American constitutional law.

So there are broken Presidential elections, and then there is 2016. That’s why people are so upset; in his recent editorial in the Atlantic, James Fallows eloquently explains the foundations of despair.

What about the prospects of an electoral college revolt?

I have mentioned in a previous post that Professor Lawrence Lessig has published an idealistic constitutional argument as to why the members of the Electoral College should not cast their ballots for Donald Trump.

In advocating this course of action, Professor Lessig finds himself in the swelling ranks of a number of legal experts and public service professionals who similarly see the 2016 election as the most serious political crisis of our lifetime, and who additionally see a repudiation of Trump in the Electoral College vote as the only way we can save ourselves from disaster.

But people who suggest this revolt face a steep uphill climb, and not just because of tradition. An “exciting” December 19th Presidential Election creates two problems:

(1) Challenges to the Electoral College erode public faith in the process of the smooth and non-violent transition of power from one government to another. The Electoral College may be a stupid and weird procedural step, prone to this kind of brokenness, but it’s what we expect and are used to.

(2) The challenge to the expected Electoral College outcome is almost instantly reframed by supporters of Donald Trump as a petulant bad-faith refusal on the part of Clinton supporters to play the game by the rules as written. 

What the most hard-core Trump supporters need to acknowledge is that a broken election has subtle but important negative consequences for the winner of that election.

By failing to address the valid concerns of voters who favored the candidate who won the popular vote, the winning candidate makes the country more ungovernable.

All the winners of the previous “broken” Presidential elections faced this problem. Neither George W. Bush, nor Benjamin Harrison, nor Rutherford Hayes, nor John Q. Adams had as free a hand with the management of their administration as they would have if they hadn’t been elected with a metaphorical asterisk next to their names, and they had to accommodate this political reality. They all had to reach across the aisle.

And these historical loser-winners of the Presidential prize at least had some capacity (based on their own education, experience or sociopolitical awareness) to achieve this accommodation of their political reality.

In contrast, and heightening our fears for the future, Donald Trump seems emotionally and temperamentally unfit for the office, and we are worried (and I’m including myself in that “we”) that he cannot or does not know how to win—and more importantly, how to govern—with grace and a spirit of compromise.

Realistically, is Donald Trump going to get his 270 electoral votes on Monday? Yeah. I think so.

Whether or not he does, though, the only way we all get out of this intact is if he accepts the idea of a more blended power-sharing government than the one he erroneously believes and says that he has a mandate for.


Let’s consider the candidates and issues involved in those four previous broken presidential elections, and see how those elections compare to 2016.


In the only election determined in the House of Representatives following a failure by any candidate to receive a majority Electoral College vote, John Quincy Adams was elected over his nearest rival (and the winner of the national popular vote), Andrew Jackson.

The election marked the dissolution of the riven and internally fractured single-party system that had existed roughly since the War of 1812, and signaled the reemergence of a two-party system that would win Jackson the presidency in 1828.

There were four strong regional candidates for President, all running on the same party ticket, and all of whom won at least two states. With such a diffuse and fractured election, it wasn’t surprising that none of the candidates won a simple majority of the popular vote or the needed 131 electoral votes; Jackson came closest with 41.4% (and 99 electoral votes), Adams had 30.9% (and 84 electoral votes), Clay had 13% (and 37 electoral votes) and Crawford had 11.2% (and 41 electoral votes). By the terms of the Twelfth Amendment, Jackson, Adams, and Crawford, as the top three electoral vote winners, would be elected by the House of Representatives, with each state delegation getting one vote.

Voters who favored Jackson were not happy that their chosen candidate was “robbed” of office by the House of Representatives; Henry Clay, as Speaker of the House, threw his legislative support to Adams in return for a cabinet position; this “corrupt bargain” gave fuel to Jackson’s supporters to engage in four years of running political warfare with the Adams administration.

In contrast to 2016, all four of the candidates running for President in 1824 possessed reasonably strong political pedigrees, education, and experience for public office.

Adams was Secretary of State, and as the son of President John Adams, he had spent his formative years in overseas diplomatic postings, spoke multiple European languages fluently, negotiated the Treaty of Ghent, was an accomplished scholar and writer, and a witty, thoughtful and erudite expert on international law and relations.

Jackson was a U.S. Senator, the former military governor of Florida, and a nationally famous military strategist and hero following the Battle of New Orleans.

Crawford was the Secretary of the Treasury, former Secretary of War, former U.S. Senator and President Pro Tempore, and former state legislator with a lifetime of public service and legal experience.

Henry Clay was the Speaker of the House, having had a long career and influential career in Congress and previously in state government as a powerful and skilled orator and legislative expert.

As hard as these candidates fought with each other, and as bitter as the 1824 election may have been, none of these four potential Commanders-in-Chief had political or personal baggage that could be compared to Trump’s “negatives.”

To the extent that the election in February 1825 in the House of Representatives was constitutionally fraught, it was because Clay bargained for a cabinet position because he hated Jackson, not because the integrity of the election process was tainted by foreign interference.

2. THE SHAME OF 1876

In the shadow of the Civil War, violence against black voters and rampant corruption in the Ulysses Grant administration came the 1876 contest between Samuel J. Tilden and Rutherford B. Hayes, the most serious post-Civil War constitutional crisis the United States has ever experienced, and one which came dangerously close to reigniting open warfare and rebellion over the unsatisfied grievances of defeated Southern pro-slavery sympathizers.

This was an election so fraught with connivance and error that all we know for sure is that Tilden won the popular vote, probably as the consequence of intense and violent suppression of the black vote in Mississippi, Louisiana, South Carolina, and Florida; of the electoral votes, 20 remain intractably indeterminate (partly because executive control of the state electoral colleges was disputed in a number of states and two sets of electoral returns were submitted by the governments of Oregon, Louisiana, South Carolina, and Florida).

In January of 1877, Congress passed a law creating a bipartisan Electoral Commission to award the missing electoral votes. Armed conflict seemed likely, and military defenses were strengthened around Washington D.C.; ultimately, Hayes was granted the 20 missing electoral votes in return for a compromise where Congress ended military oversight and removed federal troops from former Confederate states.

Hayes as governor of Ohio was the less well-known candidate, and was widely regarded as having a fairly thin resume of government experience. Nevertheless, he had served with distinction in the U.S. Army during the Civil War and was a popular executive officer in his home state.

Tilden, as governor of New York, was much more well known nationally as a “good government” reformer, and as the prosecutor who had cleaned out the corruption in Tammany Hall.

But as weak (in terms of public perception or media attention) as Hayes may have been compared to Tilden, he was an elected public official with experience as a state executive officer, and hardly comparable to a failed real estate mogul without any prior knowledge or understanding of government.


In the 1888 election, the incumbent Grover Cleveland won 48.6% of the popular vote to Benjamin Harrison’s 47.8%. Harrison nevertheless won the Presidency by a combination of hard campaigning in key states and the help of a corrupt New York political machine. Cleveland in effect lost his home state and the advantage of incumbency by failing to counter Harrison’s machine.

While Harrison was not a particularly strong candidate (in terms of the qualifications of experience) in comparison to a sitting President, he was a member of the U.S. Senate with a long record of public service.

4. FLORIDA, 2000

In the 2000 election, Al Gore won 48.4% of the popular vote to George W. Bush’s 47.9%, but lost by a thin, hanging chad of electoral votes in large part because of a partisan U.S. Supreme Court decision to foreclose further review of the Florida electoral process in the face of an extremely close statewide vote tally.

Given the recentness of the 2000 broken election, and the untidiness and unseemly way in which the 2000 election was resolved, voters who are upset with the 2016 election are making frequent references to the 2000 election, seeking parallels and citing the election for its relevance to the question of constitutional reform of the presidential election process.

In one sense, 2000 wasn’t as messy as 1876; the 2ooo election involved a systemic failure of election procedures in just a couple of states, and there was no credible risk that the Civil War would be reignited. Though violence and intimidation were certainly present in Florida during the abortive recount process, the risk of a nation-wide military conflict was essentially nonexistent.

And in another sense, 2000 wasn’t as messy as 2016; while the winning candidate had a weak résumé in comparison to that of the incumbent Vice President, at the time of his election he held office as the elected chief executive officer of a populous state.

State Law That Limited Interpreters at Polls Struck Down

As I’ve noted before, the Texas Election Code is a mess.

Our state election laws are a cruel jumble, much of it born of mean-spirited political expediency, sloth, torpor, and ignorance.

One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”

The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.

After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.

But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.

That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.

But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.

The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.

That’s a weird, restricting, artificial reason to thwart voter intent.

The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.


A Rare Judicial Ruling on Residence Issues in Weslaco Election Contest

Houston attorney Jerad Najvar has passed along a press release and a .pdf of his opening brief in Lopez v. Rivera, the election contest resulting from the hotly-contested November 2013 municipal election in the City of Weslaco. Central to the contestant Letty Lopez’s initial complaint was the assertion that a number of illegal votes had to be thrown out.

20141229 Lopez opening brf and appx FILED

That election has been in the news lately because the Secretary of State forwarded a criminal complaint to the Attorney General’s office with evidence of illegal voting in that election. Signatures on ballot applications and ballot envelopes were allegedly forged, and ballots were cast by voters who assert that they did not actually vote in the election.

Importantly, this lawsuit and criminal complaint highlight the profound difference between election fraud as it is actually practiced in Texas, and the purely hypothetical election fraud addressed by the state’s questionable voter I.D. law.

As actually practiced, election fraud (1) does not involve in-person voting, but rather voting by mail, and (2) is a coordinated subornation of an election conducted either by a candidate or by election consultants working on a candidate’s behalf.

In fact, the requirement to show picture I.D. in the polling place would not have in any way prevented the illegal voting that occurred in the 2013 municipal election in Weslaco.

Ginsburg Wasn’t So Wrong About Texas and Veteran’s I.D.s

As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.

In fact, this statement was true when S.B. 14 was signed into law in 2011veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.

Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.

Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.

When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”

Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).

The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.


The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.

Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”

What’s The Administrative Cost of Voter I.D. in Texas?

[Post corrected to reflect that DPS didn’t get funding through a contingent rider in 2011 for improvements in drivers’ license services].

Yesterday, I got an interesting email from a reader asking a slight variation on a question I’ve looked at before. Previously, I’ve examined how expensive it is to acquire an election I.D. for an individual voter, but this reader asked, “Would you have any idea how much it will cost the State of Texas to issue the “free” ID cards and where that money is coming from?  Is DPS covering the cost and if not, which agency will cover it?”

After I took a stab at answering the question, the reader asked in passing if I had ever blogged about the issue, and I thought, “no, but why not?”

First, the question is an excellent one, and not easily answered based on the limited budget information provided by the State of Texas. The most accurate answer would be for me to say, “I don’t know” and leave it at that, but there are some clues that allow us to guess what Texas taxpayers spend to implement the provisions of the 2011 Texas picture I.D. law.

Digging through the DPS budget is a bit numbing, so let me summarize what I found, before you have to go read through my long post.

It looks like the cost of implementing the issuance of “free” election identification certificates might have been included in a 2011 contingent appropriations rider for improvements in DPS computer systems, database management, and driver license systems, and that the cost was part of a larger $64 million package. My guess is that voter i.d. didn’t account for the whole $64 million (although that would certainly be eye-opening).


What complicates things is that the contingent rider never went into effect – the associated public safety bill (S.B. 9, 2011 Tex. Leg., R.S.) never passed, and the money that DPS might have hoped for didn’t materialize, at least not in that one-time rider.


My guess is that the portion of the cost to the taxpayers attributable to the free I.D. program in Texas is somewhere in the neighborhood of $14-20 million, based on cost estimates from other states that adopted picture i.d. requirements and that are a little less shy about discussing their budgets.

(Although I’m not consistent about this myself, I think it’s more accurate to call the Texas law a “picture I.D. law” than a “voter I.D. law.” Texas already had voter I.D. law for over a hundred years, and it worked perfectly well for that entire time, it just didn’t involve a restrictive list of a few select types of picture I.D. in order to qualify to cast a ballot).


Anyway, proponents of new, punitive picture I.D. laws tend to be quite shy about discussing the price tag associated with providing free I.D.s – that’s been the pattern not just in Texas, but also in other states such as Pennsylvania, Missouri, Georgia, and elsewhere).


But this budgetary reticence is quite pronounced in Texas, and might be worse here than in other jurisdictions, in part because the Texas Legislature has proven to be very allergic to the idea of spending any state money whatsoever on social programs or services.

In 2009, the proponents of an earlier version of the strict photo-ID requirements for voting were unsuccessful in getting that law passed (H.B. 125, 81st Leg. R.S. (2009)). The reason for that difficulty was that the Lieutenant Governor (David Dewhurst) feared the legal and political consequences that would result from a passage of the law. But the specific mechanism by which the law was killed was with the addition of a fiscal note.


The Texas Legislature is famously hostile to the creation of any program, benefit, or service that costs money to implement. Therefore, a quick and easy way to derail legislation is to have the Texas Comptroller or some other state agency attach a fiscal note estimating the cost of implementation of the law.

Like the 2011 bill that ultimately passed and became law (S.B. 14, 82nd Leg., R.S. (2011)), the proposed 2009 law required the Texas Department of Public Safety to issue photo i.d at no cost upon request from voters who qualified for them. DPS (allegedly bowing to political pressure from the Office of the Governor) declared that any expenses associated with the issuance of I.D.s could be absorbed seamlessly into the existing agency funds.
The Secretary of State’s office, meanwhile, indicated that statewide voter education relating to the 2009 law would require a one-time expenditure of $2 million. Although this is a minuscule amount in comparison to the total state budget, it was more than enough of a fiscal note to torpedo the bill.
In 2011, the bill’s supporters were better organized, and applied political pressure more effectively to avoid the pitfalls that had doomed the 2009 bill – the new law was declared to be completely cost-neutral to the state. In other words, DPS and the Secretary of State both declared that the adoption of more restrictive photo I.D.s would have absolutely no impact on the state budget.
Needless to say, most people thought that the lack of a fiscal note was crazy. How could an entirely new photo I.D. program be launched and implemented statewide at zero expense? Nevertheless, the photo I.D. program officially costs nothing to the State. (And to be fair, this pathological need for public reassurance that programs which will obviously cost money must be enacted at no-cost is a not-uncommon event in Texas lawmaking, and is certainly not peculiar just to election bills. It’s part of a larger endemic structural problem with the state budget process, and with our state’s simultaneously hilarious and tragic inability to make use of deficit financing in any sort of mature or intelligent way).
No separate line-item accounting has been done for free I.D.s, and DPS has issued so few of the I.D.s that the variable costs are probably quite low. But that still leaves the fixed costs that are more-or-less unaffected by the level of demand for the free I.D.s (equipment and computer programming costs, employee training, advertising, etc.)
To get some sense of costs, I looked at the reported estimates for the fixed costs associated with implementation of changes in voter I.D. requirements in other states.
State officials estimated that the costs for implementation of picture I.D. laws were over $16 million for Missouri and around $11 million for Pennsylvania, but there was considerable uncertainty about these numbers. As with Texas, both of the other states tended to low-ball the estimated costs in response to legislative inquiries, (for instance, proponents of the law in Pennsylvania estimated a budget cost of just $1 million, paid for with spare Federal grant money for implementation of the Help America Vote Act of 2002).
There are a lot of variables here that make it hard to treat costs in other states as being directly comparable to the costs in Texas. In Texas, administrative costs associated with statewide laws are often shifted “off the books” to county budgets and paid for with county property tax money. Also, it’s fair to point out that in terms of population, Texas is significantly larger than either Missouri or Pennsylvania, and that the Texas picture I.D. law was not directly comparable to the generally more forgiving laws adopted in other states.
My guess is that $16 million is probably at least in the same order of magnitude as the costs experienced by the state (i.e. that the taxpayer’s burden of voter I.D. in Texas is somewhere in the tens of millions of dollars, with a wide margin of uncertainty due to the lack of any public audit). Some of the variables likely make the program cheaper in Texas (i.e., the fact that so few people who lack adequate I.D. have bothered to jump through the hoops to get picture I.D.s for voting in Texas), and some variables make the Texas program more expensive (the physical size of the state, the number of DPS offices, the significantly larger population, and the concomitant increase in fixed labor and equipment costs).
The DPS budget request for 2014-2015 is online (warning – the .pdf is 1,038 pages long), and the parts that apply to this question are found in Section 3.A.71 (rolled into driver license services, which is the division of DPS that issues the free election I.D.s).
As a general overview, the actual expenses of the division (before implementation of the voter I.D. law, which began in very late FY2012) for FY2011 (fiscal year 2011, from Sept. 1, 2010 to Aug. 30, 2011) had been just shy of $19 million, the estimated expenses for FY2012 were just shy of $22 million, and the budget for 2013 was $25.6 million. Despite the one-year $3.6 million bump in the budget compared to the previous biennial funding request (which had been made when the 2011 picture I.D. law was still just a twinkle in Rep. Debbie Riddle’s eye), the 2014-2015 requests were for a modest increase (a smidge less than $23 million for 2014, and $22 million for 2015).
But … this does not tell the whole story. Article IX, Section 18.09 of the 2011 general appropriations act (H.B. 1 (2011)  included a contingent rider for around $64 million (broken into $27.7 million in estimated FY2012 expenses, and $36.3 million in the FY2013 budget) to cover “improvements in the driver license system” for 2012-2013. The related rider in Article IX, Section 18.07 of the same budget included provisions for an increase of 112 FTE (full-time equivalent) staff positions in FY2012 and 361 FTE positions budgeted for FY2013 to implement improvements of the driver license system.
But DPS would only get the money if another bill (describing various improvements in DPS drivers’ license services) passed. The other bill (S.B. 9, 82nd Leg. R.S. (2011)) didn’t pass, and so the contingent rider failed. But was that rider at least possibly part of the funding for voter I.D.?
Digging further into the budget, one finds that the Drivers’ License Division also budgeted about $7 for capital improvements in FY2013, having estimated that it would spend roughly that amount in FY2012.
But there’s only so much that one can read into all this – DPS had a number of budget concerns associated with the driver license system – most of these concerns had nothing to do with the issuance of free election I.D.s. For one thing, DPS was faced with a number of complaints regarding poor customer service for such things as driving tests, motorcycle safety, online license renewal, and records management, and years of budget cuts had drastically reduced staffing in the Drivers’ License Division.
Further complicating matters is that DPS separated out some of its requests for improvements in communications and IT infrastructure (directly impacting issues like identification records and inter-agency database operations with the Voter Registration section of the Secretary of State) into line items for capital improvements to its central headquarters division. As a result, it’s likely that pointing to any one line item and declaring “that’s how much the free I.D.s cost” is risky, since the actual expenditures for that system could be subsumed under multiple funding sources relating to DPS field office improvements, computer systems, field office staff, customer service improvements, and so on.
In other words, the DPS budget probably folds the cost of free I.D. into at least two or more funding sources, and that program probably shares resources with at least two other strategic funding objectives (namely, general improvements to the driver license system, and general improvements to DPS computer systems and database management).
On March 31st of this year, the plaintiffs in Veasey v. Perry asked how much the election identification certificate program cost – as part of a discovery request ahead of the voter I.D. trial. (See item 6 on page 8 of the discovery request). As far as I can tell, the State of Texas never answered this question (presumably arguing that no record exists of the cost of the program) – if the answer is in the court records, I’d appreciate a cite.
My guess is that the fixed “start-up” cost of election identification certificates in Texas was expected to be some fraction of the $36 million appropriations rider for FY2013 for “improvements to the driver license system.” When that source became unavailable, I suspect there may have been some “robbing Peter to pay Paul” shifting of funds from capital improvements and appropriations for database and inter-agency communication to cover the expense.

Aside from its historical allergic reaction to spending money, there’s probably another reason why Texas is so coy about the start-up costs. Given the miniscule number of people who have applied for election identification certificates, the per-unit cost is huge. If you were at DPS, would you want to admit that you had spent millions in order to get laminated cards made for half a dozen people?

Some Encouraging Thoughts

In the midst of excoriating both the 5th Circuit and the U.S. Supreme Court for their dreadful decisions, I am encouraged by several bits of news.

1. Charles Kuffner Reports A Huge Upswing In Voter Registration Numbers

As some columnists and academics have speculated, more restrictive voter I.D. laws may have contributed to a surge in voter registrations. Among other things, fear (of the loss of voting rights) and anger (towards the officials and institutions responsible for these restrictions) may have energized a kind of immune-system response by the body politic – Mr. Kuffner reports a tweet by the Texas Secretary of State that voter registrations in Texas have topped 14 million, a substantial and relatively recent increase following a decade of more-or-less stagnant growth (Texas voter registration has bobbled around 12 million since 2004, with predictable surges before presidential elections, and gradual declines immediately afterwards).

This is very good news, and (as Mr. Kuffner notes, is a testament to the hard work being done by volunteers across the state in this election cycle).

2. Even An Apologist For Voter Suppression Thinks that Texas Photo I.D. Requirements Are Doomed

I don’t have much use for J. Christian Adams or his generally awful pandering to the extreme right-wing. He’s like my evil twin (my much higher-profile evil twin) – like me, he’s an election law attorney, and like me, he lost a government job for political reasons (in his case, the Department of Justice). Also like me, he reacted to his termination by starting a blog.

As a representative of the Mirror Mirror Universe, Mr. Adams (who confusingly lacks the goatee that is more-or-less mandatory for male residents of the evil alternate reality) does a fair job of collecting and republishing various defamatory rants and screeds (Ebola-Infected Taliban Prayer Rugs Found In Preschool! North Korean Troops Massing In The Florida Panhandle! Biden Caught Drinking Blood In Sewer Lair!) He shares Greg Abbott’s view that the trial court decision in Veasey v. Perry is a deplorable accommodation of the peasant class, and a terrible miscarriage of justice that must be remedied at once, before the lower caste rabble get swept up in revolutionary zeal.

But Mr. Adams is still a lawyer, and his professional training obligates him to inform his audience that while the decision is an outrageous attack on right-wing efforts to purify, sanctify and cleanse the democratic process of any lingering secular humanism, that there are no valid legal grounds for an appeal by the defendants, and no likelihood of the decision being overturned by an appellate court.

On this point, Mr. Adams and I are in complete agreement.

3. A New Group of Scrappy Underdogs Are Emerging In Local Races

Another thing that Mr. Kuffner has pointed out is that there are new entrants to local politics who are challenging safe Republican seats in heavily conservative areas.

This suggests a new sociopolitical benchmark, the Quixote Index, which would be an abstracted measure of persistence by liberal candidates running in long-shot local elections.

Persistence pays off – candidates with staying power who are not discouraged by long odds (1) drain resources from their opponents, (2) place themselves to take advantage of unexpected vulnerabilities, (3) gain organizational experience, (4) increase brand visibility and name recognition, and (5) benefit from tectonic shifts in the political landscape.

“Bottom-up” strategies for gaining political power are nothing new, and I don’t generally think of myself as a proponent of “bottom-up” coalition-building to the exclusion of other strategies – I’m more of a “whatever works” supporter – actual shifts in political momentum come from both the top and the bottom of the ballot, and the only reason why any distinction is made in the first place is because even though the underdogs should spend their money everywhere, they are constrained by their underdog status and lack of resources to pick their battles.

What I suspect is that as momentum and pressure builds towards a more profound political realignment, more and more long-shot candidates for local offices leave off worrying or caring about the supposed impregnable strength of their opponents, the trite, timid, reactive advice of their advisers and consultants, and all the other obstacles in their path.

In part, candidates run in impossible races because they are gambling that the tide is turning in ways too subtle to be seen or understood by the smart money (And by the way, the smart money is often stupid about paradigm shifts). In part, the mere act of running is both the cause of and the reaction to that turning of the tide of public thought.

Ross Ramsey wrote a piece recently for the Texas Tribune, interviewing conservative political consultant Wayne Thornburn about the 2014 election, and discussing “Red State: An Insider’s Story of How the GOP Came To Dominate Texas Politics.

Mr. Thornburn is understandably dismissive of Democratic Party candidates’ chances, given his background and expectations. Nevertheless, he does see a parallel between the fall of the once-monolithic segregationist Texas Democratic Party and the waning prospects of the current Texas Republican Party.

In Mr. Thornburn’s view, the 1950s-era Texas Republican Party was organizationally stronger and better situated to take advantage of openings than the Democratic Party is now.

I disagree with his historical assessment – Texas Democrats have a number of organizational strengths that the “honorable opposition” lacked in the 1950s, including (1) a geographic power base with unassailable safe districts in South Texas and the major cities, (2) mature fundraising and campaign networks, and (3) a restive population of still-living and relatively young current and former officeholders who have personal experience in holding elective office in state government. In comparison, Texas Republicans of the 1950s had (1) no geographic power base, (2) no campaign networks or mentoring, and very little in-state fundraising, and (3) no living cadre of current or former officeholders.

While I might disagree with Mr. Thornburn’s (understandably partisan) dismissal of Democratic Party chances, I do note that Mr. Thornburn, a staunch Republican political veteran, nevertheless believes that the state Republicans are on the losing side over the long term (“six to eight years”) if the Texas Democrats make a sustained effort.

The Texas GOP is divided, bickering, and ideologically adrift. As it turns farther and farther to the right, it loses moderate votes. Eventually, those lost votes will translate into lost elections. I think it’ll happen in 2014, Mr. Thornburn thinks it’ll happen in 2020 or 2022, but we agree that it’ll happen.

Out of curiosity, I took a look at one of the earliest successful congressional elections of a Texas Republican after Reconstruction – that of Representative Bruce Alger, who represented the Dallas area from 1955-1964. Representative Alger was the sole Republican in the Texas Congressional delegation until 1963.

What’s interesting is that Representative Alger’s 1954 election presaged the tactics that would eventually lead the Texas Republicans to triumph. Alger was not expected to win in 1954, but defeated the former City of Dallas mayor Wallace Savage by about 6%. Mayor Savage’s political weakness among Southern Democrats was that he had pushed generally for additional housing for blacks and fair treatment of black workers in Dallas, and he had desegregated the city ambulance service.

Bruce Alger was unusual among pre-Civil Rights-era Republicans in that he broke with his party on segregation (which at the time the Republicans were still against) and civil rights issues (which the national Republican Party still championed), was vehemently opposed to any civil rights legislation, and was solidly in the bosom of the (traditionally Democratic Party) white Dallas segregationist elite.

His success and personal mentoring helped John Tower win LBJ’s Senate seat in 1961, thereby planting the seeds of the Southern Strategy (i.e., the Republican Party’s strategy of opposing the Civil Rights movement and appealing to Southern segregationists), and he only fell from grace after JFK’s assassination as the result of matters unrelated to race, when his obstructionism on regulatory matters, his inability to negotiate, and his unrepentant virulent hatred of JFK began to look insensitive and unseemly. In short, he was the proto-Ted Cruz.

Today, all the factors that had worked for Bruce Alger and made the Southern Strategy successful work against the Republican Party in Texas.

A commitment to the ideal of racial equality is now much more solidly incorporated into our national culture than it was in the 1950s, and segregationist leanings are much less useful politically than they once were. (Racism remains a powerful motivating factor among a core group of voters, but must be communicated elliptically and with muted rhetoric, except in private).

Additionally (and thanks to the same Civil Rights movement that so effectively changed the tenor of cultural discussions of race), minority voters have more leverage in elections today than in the 1950s, and can therefore exert at least a tenuous influence on election outcomes.

Finally, by yoking its party platform to the concerns of radicalized poor rural whites, the Republican Party has had to adopt unpopular militant policies regarding abortion, gay marriage, resource management, education, housing, religion, government, health care, immigration, the environment, and so on. The party is caught on the horns of a dilemma.

If the Republican Party was able to successfully embrace segregation and pull a complete 180-degree reversal on civil rights within the space of a decade in the 50s and 60s, it certainly has the organizational capacity to change course again, just as violently, and outdo the Democratic Party on social justice issues.

Because of the overall homogeneity of American political discourse (which is always aimed at the mainstream centrist voter), and because the national Democratic Party is currently quite conservative, there’s plenty of room for a completely unrecognizable leftist Republican Party (maybe it would look like some hybrid of Netherlands-style social welfare and extreme libertarianism). But the problem is that such a radical alteration would be the end of the Party – it would lose its shrinking voter base completely, and would not be able to court a leftist voter base fast enough to make up for the losses.

The Texas Republican Party is sitting on an ice floe that is starting to melt and crack. The party membership is angry, cold, and uncomfortable, and (maybe) regrets having picked this particular ice floe back in the day, but sitting on the ice is preferable to the inevitable dunking in the freezing water. They can’t run, and they can’t stand still, and so they just have to close their eyes. Political maneuvers like redistricting, picture I.D., limitations on voter registration, and so on, are just the involuntary anticipatory muscle-clenches that come immediately before the dunking.

Tomorrow (October 20), early voting starts. Go vote!

Taking the Long View on the Governor’s Indictment

One way to stir up excitement and interest in public law is to get a grand jury indictment of a sitting Texas Governor – it’s the sort of thing that happens every 97 years or so, and it certainly gets people’s attention. And one cannot help but enjoy a bit of schadenfreude when the target of such an indictment happens to be a former Aggie cheerleader who has made a career of Louisiana-style cronyism while espousing appallingly bad political ideas in order to attract support from people who thought George W. Bush was too cerebral.

But I have to reluctantly agree with a number of legal critics that the indictment (http://www.scribd.com/doc/236935338/Rick-Perry-Indictment-via-KXAN) is a stretch, based on the history of the criminal statutes that the prosecutor has relied upon.

Governor Perry was indicted on two criminal counts, as follows:

I. COUNT NUMBER ONE – First Degree Felony – Abuse of Official Capacity

The first count (Abuse of Official Capacity) is a daring interpretation of Section 39.02 of the Texas Penal Code, which criminalizes (1) a public servant’s (2) intentional or knowing (3) misuse of government property under the servant’s control (4) when done with the intent to harm another person. Here’s the statute in question: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.39.htm#39.02

The indictment alleges that (1) Governor Perry (a public servant) (2) intentionally or knowingly (3) threatened to withhold around $7.4 million in government funds (i.e., the government property) that had been appropriated by the Legislature for the Travis County District Attorney’s Office, in order to (4) harm the Travis County District Attorney. The “intentional or knowing misuse” in this case is alleged to be the politically vindictive veto of the budget line item in the General Appropriations Act passed by the 2013 Texas Legislature.

This criminal charge doesn’t seem particularly sporting or cricket at first glance, given that the Governor’s innate and reflexive political vindictiveness has never been deemed anything other than a moral outrage before now. Why is this veto so special as to merit criminal prosecution when none of Perry’s other vetoes ever led to criminal charges?

I suspect that the prosecutor’s argument will be that this particular veto is different because (1) it was not a veto of a policy statement or change in the law, but a veto that functioned to intentionally misdirect statutorily mandated and previously earmarked State money, and that (2) this veto was the explicit execution of the Governor’s clear and plainly-stated threat to punish the voters and taxpayers of Travis County in retaliation for the Travis County D.A.s refusal to resign her elected office, and was self-interested political payback with a dual motive, because the veto not only would have punished Travis County voters, but would also have shut down the very Public Integrity Unit that is responsible for investigating crimes of official misconduct committed by Texas public officials.

(A brief explanation as to why the Travis County D.A. has jurisdiction over crimes of official misconduct may be in order for some visitors. The State of Texas is regarded as having it’s official “home” in Austin, Texas, which is in Travis County. Crimes of official misconduct are regarded as crimes committed against the State of Texas – the State is therefore the victim, and because the State “lives” in Austin, the Travis County D.A. has jurisdiction over these crimes, even when committed by officials anywhere else in Texas. By law, the State pays the cost of this extra statewide investigative work that gets imposed on the Travis County government, given that the extra work is burdensome (most counties don’t have to conduct statewide investigations) and is imposed as an incidental consequence of the county’s political geography).

Why is this crime a first degree felony?

Like a lot of property-related offenses, this crime has a range of punishments depending on the value of the misused State property in question. Because the vetoed legislative appropriation was for (a lot) more than $200,000, and that level of money determines the severity of the offense, this specific indictment is alleging the commission of a first degree felony. That’s the kind of indictment that can knock stories about Ebola epidemics and Justin Bieber’s comeback tour right off the front page of the paper.

II. COUNT NUMBER TWO – Third Degree Felony – Coercion of Public Servant

(News sources I’ve seen have indicated that the second count is described as a third-degree felony, which indicates that the prosecutor’s intent is to argue that Governor Perry threatened to commit a felony. That’s because unless the charge is enhanced by the assertion that the Governor’s threatened act (vetoing the budget line item) is a felony, this would be a Class A Misdemeanor).

The second count is an equally audacious application of Section 36.03 of the Texas Penal Code (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.36.htm#36.03), which criminalizes the (1) use of coercion (2) by a person to (3) influence, or attempt to influence (4) a public servant (5) in a specific exercise or specific performance of that public servant’s official duty or (6) to violate the public servant’s known public duty.

If you looked at the text of the statute supplied by the Texas Legislative Council, you probably noticed the last paragraph of that law. Subsection (c) provides a blanket exception to the crime of coercion of a public servant if the person doing the coercion is the member of a governing body, and if the influence is being applied in the form of an official action taken by the member of the governing body.

Gentle readers, Section 36.03(c) is going to be a huge hurdle for the prosecution to clear, given that a veto is a decidedly official act when performed by the Governor. Admittedly, the Governor isn’t a “member” of a governing body in the usual sense – he’s not one of several people co-exercising the power of the State’s executive office. But he is the titular head of the Executive Branch, and he is authorized by the Texas Constitution to veto line item budget appropriations.

Here, the prosecutor is alleging that (1) the threat to veto funding of the Public Integrity Unit (the coercion) was used by (2) Governor Perry (a person) to (3) force (influence) (4) Rosemary Lehmberg (a public servant) to (5 or 6) resign from her elected post as Travis County D.A. (specifically exercising her official duty or violating her known public duty to continue to serve as D.A.).

Well, there was definitely a threat in there, and it was definitely applied to influence the Travis County D.A. to quit her elected office. And (at least in everyday parlance) the threat was coercive – “Quit, or else.”

“Coercion” is a defined statutory term in this context (the relevant portion of the definition is found in Section 1.07(a)(9)(F) of the Texas Penal Code. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.1.htm#1.07. Notice that in the context of Texas criminal law, the threat to take or withhold action as a public servant is automatically coercive.

So how will the prosecutor maneuver through the rocky shoals surrounding the second count? I imagine the prosecutor will argue that while the act of vetoing legislation is in general a sanctioned legal act of the Governor, that this specific veto was illegal (because it was a misuse of State funds), and therefore this veto can’t be described as an official act performed by the member of a governmental deliberative body. The veto itself needs to be an illegal act, because if the veto wasn’t illegal, than the threat of the veto would only have supported a Class A misdemeanor and not a felony charge.

And it’s felony charges that help get this lawsuit onto the front page of the New York Times.


“Coercion of a Public Servant” and “Abuse of Official Capacity” are not new crimes – they have existed in roughly their current wording since the adoption of the 1973 Texas Penal Code, which was itself closely modeled on the 1925 Texas Penal Code (for the 1925 laws, see the State Law Library resources at http://www.sll.texas.gov/library-resources/collections/historical-texas-statutes-%281879-1925%29/1925/).

People tend to forget that Texas has used a formal penal code and associated code of criminal procedure since 1856, but even those who know about the 1856 Texas Penal Code are often unaware of how closely all the subsequent state criminal codes were modeled on the general organization and structure of the 1856 laws.

Although the 1856 Penal Code doesn’t contain crimes that are exact analogues of the “coercion” statute and the “abuse of official capacity” statute, the older law does encompass the two divisions of public crimes from whence the current statutes sprang, those divisions originally being referred to as crimes of office and crimes of public justice.

(The endlessly entertaining 1856 Penal Code (with whole sections devoted to dreadful punishments (whipping and castigation for poor demeanor or to aid in the instruction of children! Pillories and hanging for horse thievery!) and reminders of pre-Civil War barbarity (crimes associated with assisting escaped slaves! Disparate punishments for freedmen!) is available in its entirety through the Texas Legislative Reference Library, here: http://www.lrl.state.tx.us/scanned/statutes_and_codes/Penal_Code.pdf

“Abuse of Official Capacity” is, at its heart, a property crime – it is a malfeasance of office that materially affects things of value that are owned by the State. In that respect, the current crime is a descendant of extortion and misapplication of tax revenue, and related crimes such as embezzlement and theft of State land titles. One can see the statute begin to stretch and tear at the seams – it’s a property offense which is being repurposed from criminalizing the misuse of State property to punishing the vindictive use of gubernatorial veto power.

And “Coercion of a Public Servant” is, at its heart, a crime against public administration. It is a fraud or manipulation of public institutions for private ends, and shares textual DNA with crimes like bribery and perjury. From the indictment, one can also see this statute start to pucker and collapse as it is put to a new use categorizing a particular veto as a criminal act.

I’m popping up a big vat of popcorn and settling in for what should prove to be entertaining legal fireworks, no matter what the outcome may be.


Resurrecting Submissions (But Not Preclearance) Using Title VI of the Civil Rights Act – Tracking Election Procedural Changes After Shelby County


What’s Up With Shelby County v. Holder?

Most readers of this blog already know the answer to that question, but to recap — on June 25, 2013, the United States Supreme Court issued an opinion in a voting rights lawsuit involving Shelby County, Alabama, and the Attorney General of the United States. As court watchers had expected, the Supreme Court found a key section of the Voting Rights Act (Section 5) to be unconstitutional. One consequence of the decision was that a process called “preclearance” ended, meaning that as of June 25, 2013, the U.S. Department of Justice no longer reviews and approves changes in voting procedures that have been adopted in certain jurisdictions.

I think the U.S. Department of Justice (DOJ) has a strong and defensible statutory reason for tracking election procedures across all jurisdictions in the United States, independent of the specific requirement in Section 5 of the Voting Rights Act (VRA) that covered jurisdictions had to submit changes in their voting procedures for preclearance. (For those of you asking, “What the heck is Section 5?” the Voting Section of the Civil Rights Division at DOJ has an excellent short summary of this key element of the Voting Rights Act of 1965, along with historical background.)

Mandatory Notification of Changes in Election Procedures Under Title VI of the Civil Rights Act

I propose that DOJ should promulgate some new rules that would more or less recapitulate the guidelines for preclearance submissions under Section 5 of the Voting Rights Act, but in the context of compliance reporting under Title VI of the Civil Rights Act of 1964 (hereafter “the Civil Rights Act” or “the Act.” With statutes such as the Civil Rights Act of 1964, one has to specify the date, because there are a lot of laws with the name “Civil Rights Act”).

Some explanation is in order for people who may not be familiar with how the Act is organized. The Civil Rights Act of 1964 (along with later amendments) is a breathtakingly broad and powerful response to a century’s worth of endemic racial discrimination; the Act has lots of parts that accomplish different goals, all with the objective of shutting down the often slippery and duplicitous efforts of Southern segregationists to avoid meaningful enforcement against institutional racism.

Because the Act is so large, it is broken down into smaller sections (Titles) that focus on different ways that institutional racism manifests. Title I is the “voting part” of the Civil Rights Act, but it is pretty weak — unlike the Voting Rights Act of 1965, Title I of the Civil Rights Act doesn’t get rid of tests or qualifications to vote, but just requires that such tests be applied fairly. Title II of the Civil Rights Act allows the use of court-issued injunctions against private businesses that cater to the general public but refuse service on the basis of race (examples would include restaurants or hotels that might prohibit African-Americans, or that might offer inferior or different service based on race). Title III of the Civil Rights Act accomplishes the actual desegregation of public accommodations. Title IV desegregates public education, and Title V creates the Commission on Civil Rights.

Title VI (the part of the Civil Rights Act that I’m talking about) prohibits acts of discrimination by agencies or organizations that receive federal financial assistance. I’m focusing on Title VI because that part of the law includes very broad authorization of rulemaking authority by federal agencies such as the DOJ. In terms of rulemaking, Title VI of the Civil Rights Act is very different from Section 5 of the Voting Rights Act, which contains no explicit rulemaking authority.

In fact, one of the limitations of the Voting Rights Act is the incapacity of federal agencies to make use of that law to justify formal administrative enforcement. The Voting Rights Act enables access to the Federal courts in order to protect against discrimination in voting, but it doesn’t explicitly enact much in the way of non-judicial bureaucracy to enforce it.

Some of the other titles in the Civil Rights Act are famous (such as Title VII, which creates equal employment opportunities and guards against discrimination in employment), while others are less well-known (Title VIII authorizes the Commerce Department to collect statistical data on voter registration, and Title IX authorizes removal of civil rights cases from the courtrooms of segregationist Southern judges). There are other titles as well, but as I mentioned, I’m mostly interested in looking at Title VI.

Title VI of the Civil Rights Act and Part 42 of Title 28, Code of Federal Regulations

The rules that Federal agencies adopt are collected into a series of volumes entitled the “Code of Federal Regulations,” which is organized thematically into titles and sections. Title 28 of the Code of Federal Regulations contains rules promulgated by DOJ, and Part 42 of Title 28 contains DOJ rules for enforcing Title VI of the Civil Rights Act of 1964.

This is where my proposed rules would logically be placed, but this is not where you would look to find the “administrative guidance” adopted by DOJ to guide entities in making submissions under Section 5 of the Voting Rights Act. That “guidance” (because, remember, the Voting Rights Act didn’t authorize the creation of agency rules) is found in Part 51 of Title 28.

I mention Part 51 because I freely cut and pasted huge swaths of that preclearance submission guidance into my proposed rules. That’s because I want to enrich and expand the submission process, preserving the administrative apparatus of Section 5 submission as much as possible. I don’t want to reinvent the whole thing because it’s better public policy to build off the established framework.

Thus, 28 C.F.R. Part 42 (the administrative rules promulgated by the DOJ to administer the Civil Rights Act) should be amended to include a new Subpart J (labeled beginning with Sections 42.801 through 42.826) that would recapitulate the structure and contents of the submission guidelines in 28 C.F.R. Part 51, but  exclude the enforcement provisions or selective categories of covered jurisdictions (that had previously been addressed in Section 5 of the Voting Rights Act).

Replacing “Submissions” with “Reports”

Notice the stylistic changes I made in the proposed rules. No mention is made of “submissions,” and there’s no mechanism for reviewing the “reports” that federally funded agencies must, under these proposed rules, submit to DOJ. That removal of review is intentional — no longer are jurisdictions (e.g., states, or any part of states, or any other jurisdiction) being singled out for preclearance of their voting changes. Instead, the proposed rules would compel jurisdictions to report voting changes to continue to qualify for federal funding.

Applying the “Report” Requirements to All Political Subdivisions

You’ll also notice something pretty major when you read the proposed rules. As drafted, the rules apply to all political subdivisions, not just in the South or in “trouble spots,” but everywhere. This drafting constitutes a dramatic expansion of reporting requirements, far beyond the old submission process, and it’s not accidental.

First, the expansion would enable  DOJ and Congress to acquire the hard data they need to reconfigure and revive the coverage formula in Section 4 of the Voting Rights Act of 1965. Second, the expansion addresses the implicit or explicit complaints of conservative critics of the Voting Rights Act, which was (in a nutshell) that the Voting Rights Act of 1965, as applied, was unfairly burdening the South in comparison to other jurisdictions, without regard to whether those other jurisdictions exhibited patterns of racist behavior.

These Rules Don’t Substitute For a Robust Voting Rights Act

I applaud efforts to fix or rehabilitate the Voting Rights Act of 1965 (and there are all sorts of good proposals, from piggybacking some new “non-binding guidance” onto Section 2 of the Act, to getting Congressional reauthorization of Section 4 with beefed-up sociological data showing that the South is still a hotbed of racial discrimination to a greater degree than are other jurisdictions. See, for example, Christopher Elmendorf and Douglas Spencer, The Geography of Discrimination in Voting: MRP Meets the VRA., UC Davis Legal Studies Research Paper Series No. 339 (May 2013). at 47.)

My proposed “reporting” rules aren’t intended to diminish or reroute efforts to restore Section 4(b) VRA covered jurisdiction formulas. If anything, the proposed rules are intended to complement, but not replace, the submission process. We still need federal preemptive blocking of  potentially discriminatory changes in voting procedures (e.g., in addition to voter ID and voter registration laws, the shortening of early voting windows and ending of Sunday voting,  distribution of polling places based on population, physical layout of polling places, and so on).

Saving the Voting Rights Act of 1965 is a big, intimidating goal, with complicated political risks. Arguably the House of Representatives has  been hijacked by extremists who have no interest in governing the country, the conservative-dominated Supreme Court has already succinctly demonstrated its bias with respect to civil rights laws, and DOJ faces having to litigate, court by court and state by state, to mitigate discriminatory election procedures.

Consider the proposed “reporting” rules as having far more modest goals. The intention here is to recreate the mechanical, or “easy,” part of the submission process while working toward other bigger and harder goals.

Why We Need Something Analogous to Section 5 of the Voting Rights Act Submissions

Section 5 of the Voting Rights Act (that is, preclearance) enabled a federal agency (the Department of Justice) to preemptively shut down state and local legislation that weakened minority voting rights. But preclearance was also a powerful statistical and data-gathering tool for policymakers and planners.

The identification of minority voting interests should be a “best practice” of legislative drafting, but such identification often isn’t done unless there is some external requirement compelling  involvement and comments from protected classes of language and racial minority groups. Preclearance submissions enforced greater care in the legislative drafting process across all covered jurisdictions.

Preclearance submissions also encouraged greater awareness by lawmakers of the geographic distribution and demographics of the voting-age population in a covered jurisdiction, and not just for purposes of planning redistricting, but also for placing polling sites and scheduling early voting. Preclearance encouraged accountability to local interests and cut down on accidental errors in voting site placement, protected against the underestimation of the level of language assistance needed in a territory, and encouraged the review and remediation of architectural barriers affecting voters with disabilities.

The administrative framework of at least the reporting part of the preclearance framework has to be rebuilt. As a nation, we can either do it now (when there’s still enough institutional memory and structure to make the process slightly less painful) or we can do it later (when it will be much more expensive and painful) after the successor to Section 4 of the Voting Rights Act of 1965 (in whatever form that future law may exist) finally gets passed.

It’s also time for “non-covered jurisdictions” — that is, the jurisdictions that weren’t identified by the formula for coverage in Section 4(b) of the Voting Rights Act of 1965, and that therefore weren’t subject to the Section 5 preclearance process  — to start getting used to the idea of tracking and reporting changes in voting procedures to the DOJ. The stated reasons for historical exemption of most non-Southern jurisdictions merely undercut the goals promoted by the Voting Rights Act, and contributed to the gutting of the law when the Supreme Court ruled that Section 4 of the Voting Rights Act was unconstitutional.

Cost Considerations and Administrative Burdens

It would be misleading to suggest that “reporting” detailed changes in voting procedures wouldn’t take any money or effort. Preclearance submissions were tedious, expensive, and time-consuming. When the Shelby County decision was handed down, we election attorneys were in some sense like kids who had been told that we had a snow day.

We were giddy with excitement that we wouldn’t have to go through the laborious process of tracking and submitting every change in voting procedures to the Voting Section of the Civil Rights Division of the Department of Justice. No more having to read numbing 300-page omnibus bills looking for the one section that might affect election procedures. Suddenly, rooms full of boxed manila folders were free to be used for other things. Shelby County meant no more maintenance of detailed lists of legislative materials dating back to the mid-1970s, and no more endless rounds of phone tag with legislative aides, law firms, and federal preclearance analysts. It would be fair to say we were delighted.

That was what the atmosphere felt like in the Elections Division at the Texas Secretary of State’s office, even among attorneys who were philosophically predisposed to support the Voting Rights Act. I suspect it was the mood elsewhere, given that the immediate practical effect of the verdict in Shelby County v. Holder was the dismantling of a decades-long structure of administrative guidance and office practices to support regular written submissions of detailed dossiers on changes in election procedures. Money that would otherwise have gone toward the Section 5 submission industry was saved for other uses.

I don’t doubt that Shelby County cut down on the billable hours at law firms representing political subdivisions subject to the Section 5  preclearance requirements, shifted the workload of preclearance analysts at DOJ, and cleared out file rooms across the Deep South.

For all I know, the civil servants at DOJ also treated the end of preclearance as a holiday — the administration of preclearance certainly cost money and time for DOJ as well as for the states. Analysts at DOJ would describe the Texas submissions file room (a few years ago, a DOJ analyst told me that Texas alone accounted for half of the submissions received by DOJ each year) as a cramped warren of buckling, teetering towers of cardboard boxes stacked floor to ceiling. Not surprisingly, the staff at the Voting Section of the Civil Rights Division seemed to dread the labor associated with retrieving a specific file from the unruly mess.

But just as every snow day must eventually be made up, our vacation from the mechanical tedium of tracking and reporting changes in voting procedures needs to end. It’s time to get back to work.

Despite the practical unpleasantness and cost involved, I think it is still the case that the reestablishment of some archive of procedural changes in election administration is cheaper if it’s done now, rather than later when  years of legislative efforts will have to be retroactively reconstructed.

Reporting Changes in Election Procedures After June 25, 2013

As I mentioned , the Voting Rights Act of 1965 did not provide DOJ with any explicit binding rulemaking authority, and DOJ did not claim rulemaking authority in issuing various guidelines for compliance with the Voting Rights Act. In fact, the administrative procedures for Section 5 preclearance submissions were  alternatives to judicial review and therefore not binding on any of the covered jurisdictions.

At least one scholar has speculated that the DOJ’s lack of formal rulemaking authority may have further undermined potential Supreme Court deference to DOJ as an executive agency, and in fact created an atmosphere of “anti-deference.” See Arpit K. Garg, A Deference Theory of Section Five (Draft as of April 1, 2012), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2209636; Jennifer Nou, Sub-Regulating Elections (Public Law and Legal Theory No. 462, 2014) (Chicago Unbound, University of Chicago Public Law and Legal Theory Working Paper), at p. 27.

The reason why the non-binding Section 5 submission “guideline” process was so popular (accounting for well over 99% of all Section 5 preclearances) is that it was so fast and cheap compared to judicial preclearance. With Section 5 reduced to a hollow shell, DOJ now responds to any requests for preclearance with the following boilerplate language:

On June 25, 2013, the United States Supreme Court held that the coverage formula in Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), as reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006, is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Shelby County v. Holder, 570 U.S. ___, 2013 WL 3184629 (U.S. June 25, 2013) (No. 12-96). Accordingly, no determination will be made under Section 5 by the Attorney General on the specified change. Procedures for the Administration of Section 5 of the Voting Rights Act, 28 C.F.R. 51.35. We further note that this is not a determination on the merits and, therefore, should not be construed as a finding regarding whether the specified change complies with any federal voting rights law.

Woodlands RUD Criminal Lawsuits Covered In Houston Press Story

Of personal interest is this well-written and detailed article from the Houston Press about the ongoing prosecutions for illegal voting in the 2010 Woodlands Road Utility District No. 1 bond and officer election. Kudos to Steve Miller for pulling together a fairly complicated topic.

Charles Kuffner (in his excellent Off the Kuff blog) had reposted the story on Valentines Day, and surprised me by writing that he didn’t know until now that road utility districts were a thing. This statement from a politically active, deeply informed, and publicly influential Houston-area resident and journalist is troubling, given that he lives in a part of the state that has an astonishingly high density of almost invisible special law political subdivisions, and given that politics is his passion.

Mr. Kuffner’s residence places him in nine different political taxing entities, some of which he certainly knows about (Harris County, City of Houston, Houston ISD, Houston Community College District), some of which he may be unaware of (Harris County Flood Control District, Port of Houston Authority, Harris County Department of Education, Harris County Hospital District), and one that I strongly suspect he is unaware of (Greater Northside Management District). Not all of these entities have elected boards – for instance, the flood control district board is selected by the county commissioners, and the management district board is selected by the Houston city council).

But all of the districts have the authority to call and conduct elections, set tax rates and collect property taxes, and enact other policies that have a direct impact on Mr. Kuffner and his neighbors. All of the entities have websites, are subject to the Texas Public Information Act and the Texas Open Meetings Act, and conduct regular meetings that are open to the public. Admittedly, none of the districts are as peculiarly organized as the Woodlands RUD No. 1, as that is a political entity of a type more commonly encountered in the unincorporated territory of a county. But as Mr. Kuffner drives through the counties in and around the greater Houston area, he will cross the boundaries of hundreds of municipal utility districts, road districts, water control districts, emergency services districts, management districts, and other special law districts, all of which directly or indirectly affect the lives and welfare of his friends and colleagues.

The scope of his political “beat” has suddenly and perhaps unexpectedly become much broader.