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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.
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.
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 2011 – veteran’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.”
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.
III. THE ORIGINS OF THE PENAL STATUTES IN QUESTION
“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.