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[UPDATED] A Story About an Election, or, why Texas needs a new Constitution: Voter residency and the Woodlands Road Utility District No. 1

Some of you know why I’m no longer at the Elections Division of the Texas Secretary of State, but many of you do not. The circumstances behind my being fired are certainly of interest to me, but they are also potentially of interest to others, because they highlight a number of election law issues, and are intimately tied to the ways that we think about elections in general.

THE SHORT AND UNINTERESTING SUMMARY OF THIS STORY

The short story is that three years ago, in an unguarded moment during an hour-long phone conversation with a Texas voter, I expressed dissatisfaction with a judicial decision on the question of voter residence. My problem with the decision wasn’t the final ruling, but with the failure to “show the work.”

In retrospect, my dissatisfaction was pedantic. Whatever the failings of the trial court decision, those failings were resolved to my satisfaction by the appellate court decision, which does carefully “show the work” leading to the determination that a group of voters didn’t really reside in the place that they claimed as home (the text of the appellate decision is available online here. In particular, read the court’s analysis of the sufficiency of the evidence).

In any event, a surreptitiously taped and edited version of my three-year-old phone conversation emerged in the form of a YouTube video that was recently posted by one of the criminal defendants in a case of alleged illegal voting being prosecuted by the office of our politically ambitious state Attorney General. My then-employer saw the video, and had a viscerally powerful emotional and political reaction.

[UPDATE: Since this entry was first posted, I have been contacted by both the prosecutor and the defense attorney for one of the criminal cases that resulted from the 2010 election for officers for the Woodlands Road District No. 1.

These attorneys have been very helpful in providing additional information, and their generosity has once again powerfully reminded me of one of the central truths about litigation in general. If there is any such thing as an objective truth, it often lies between the two poles of the defendant’s position and the position of the State, and no amount of summarizing can ever possibly hope to capture the whole truth.

First, I learned the voters who were judged by the appellate court in the civil election contest to be the legitimate voters in this election really do own a house within the boundaries of the district, and if the photos of the house interior (part of the public record from the civil election contest lawsuit, and graciously provided by the prosecutor) accurately reflect the condition of that property at the time of the 2010 election, then the legitimate voters did not do something like claim residence in a vacant field or a mere pro forma simulacrum of a residence. I have amended portions of this post to clarify that point.

Second, the surreptitious recording of my phone conversation with one of the defendants, when listened to in its entirety (thanks to an unedited copy provided by the defendant and the defendant’s attorney) makes clear two things.

  • My clear frustration with the trial court decision in the civil lawsuit wasn’t exaggerated by the defendant’s edit of the audio recording
  • My statements and advice regarding voter residence issues were sober, measured, and careful—and based on my analysis of the statutes and the case law.

Whether or not my analysis of the civil election contest was justified, my criticism was frankly born out of frustration with what I still contend was an opaque trial court decision that doesn’t specify any findings of fact or conclusions of law, but that merely rules that the defendants weren’t residents of the district without bothering to explain why they weren’t residents of the district.

In addition, my opinion of the criminal prosecution of the alleged illegal voting has softened. What frustration I still have is  mostly reserved for my former employer, and I am still undecided about the sum total of social good or injury done by the State and the defendant.

But there is some room for reasonable people to differ on whether there is reasonable doubt that the defendants actually knowingly committed election fraud by voting in this election; the defendants certainly suggest as much. But the State can also fairly claim that independent of any possible proper or improper bias on the part of the judge or juries hearing these cases, the criminal prosecution has not been particularly political, mean-spirited, or vindictive, and that mercy and forgiveness have not been taken off the table.

Both sides could benefit from moving a little closer together — the prosecution is motivated in part by desire to discourage any future contempt acts of the voting process, and the defense is motivated in part by a similar motive, as a matter of principle.]

As I said in the previous version, the long story is much more interesting.

THE LONG VERSION OF THIS STORY

So as I promised, here’s the long version. Some residents of the Woodlands decided to protest what they saw as an essentially undemocratic election in a special law district by voting in that election. See, e.g., http://www.yourhoustonnews.com/courier/news/road-to-where/article_e57eb34b-e959-5195-b213-de1aef3cdc13.html

These voters now stand accused of having voted illegally in a territory where they are not permanently domiciled, and one of their number has already been convicted and sentenced to three years in prison. My feelings about the criminal prosecution are complex, because on the one hand I tend to agree that the accused voters appear to have intentionally suborned an election that was both crazily unfair and completely legal, but on the other hand I think the resulting criminal prosecution is a stupid, hypocritical, and vindictive waste of state and local resources

[UPDATE: On the one hand, I do believe the prosecutor is being sincere when he indicates that the State was not particularly hell-bent on incarceration, and that the jury reaction to the defendants is as much the result of the defendants’ presentation of their case  as the evidence presented. On the other hand, I still think that the special law district administration (as the most visible victim of the crime) showed a lack of political savvy in demanding a criminal investigation, given that even the most successful outcome of the criminal prosecution just draws more attention to an election that was riddled with irregularities. Other special law district administrators might feel that way as well, since a victory in this criminal prosecution could lead to legislative tinkering with various special district laws].

SPECIAL LAW DISTRICTS AND THE CONSEQUENCES OF FORGETTING HISTORY—WHY MINIMUM POPULATION DENSITY SHOULD BE A PREREQUISITE OF SELF-GOVERNMENT

The story begins in an unincorporated suburb of Houston, Texas called the Woodlands, a sprawling real estate development of gated residential neighborhoods and commercial developments. The Woodlands (and indeed much of the urban landscape of Texas) is the product of legislative action, through government entities called “special law districts.”

Special law districts are political entities that are created by special or local legislative acts, often for the purpose of authorizing public debt instruments to fund commercial real estate development (as well as for other purposes, such as the allocation of water rights, or the construction of dams). Such entities exist in many states, but they are unusually prominent and numerous in Texas because of peculiar historical limitations in state statutory law and the Texas constitution that prohibit the lending of public money for private ends. But more about that later.

Within the Woodlands, there is a political entity called the Woodlands Road Utility District Number One. No one lives in this district anymore, as its governing body carefully and deliberately disgorged every residential property within its former boundaries, deannexing aggressively until the district territory is now nothing but a tenuous lace of road surfaces and commercial properties. Some of the details and consequences are described here: http://www.texaswatchdog.org/taxonomy/term/4551

(Strictly speaking, it isn’t true that “no one” lives in the district. Although the district administrators thought that there were no residential territories within the district boundaries, the land that the road district was built on had not been completely uninhabited prior to the creation of the district. All told, around two dozen people were found living inside the district just prior to the May 2010 election.)

Anyway, this legal capacity to hold binding legal elections without actually having voters is the centerpiece of the problem caused by reliance on special law districts. The Woodlands Road Utility District Number One didn’t violate any state law restrictions by so disgorging itself of all its voters, because unlike towns and cities, special law districts don’t have to have any residents.

In the common law, traditionally a collection of people could not accrue the power of local self government until they had accumulated a particular density and population. The specific requirements varied, but for the sake of our story, the current state of Texas codified requirements for a tiny village work pretty well: a village cannot incorporate until it contains a minimum of 201 people all living within a territory of two square miles or less. See Sections 5.901 and 8.001, Texas Local Government Code.

These restrictions illustrate a fact often forgotten. People of any prior era were just as smart as we are about ordering society. Sometimes they may have been smarter, or more likely, they may have had more intense collective memories of prior mistakes in social organization. When we forget those mistakes, we forget why our ancestors regulated things in the ways that they did.

SELF-GOVERNMENT REQUIRES A CRITICAL MASS OF PEOPLE.

Without that critical mass, self-government doesn’t operate—there are too many conflicts of interest, too few people to get the jobs done, too small a pool of collective interests to inspire caution before making stupid decisions.

It takes a village to make a village.

As has probably happened again and again over the course of human history, at some point roughly a century ago, someone asked, “But what should I do if I need a ‘village’ without the people, in order to make use of governmental power for what might be called pro forma reasons? Maybe I need to formally legitimize some action or put some sort of preemptive local government structure in place in order to get around some other legal restriction, but in an area where people don’t currently live. What should I do?”

The correct answer is obvious. Until a territory can govern itself, it should be governed in absentia by the sovereign exercising current legal dominion over that territory. But the correct answer is unsatisfying, because it doesn’t address a terrible policy mistake embedded in 1876 within the foundation of the current Texas Constitution. The sovereign that should technically exercise legal dominion over uninhabited territory in Texas—that is, the county—can’t lend credit or cash to the owner of the territory, except by relying on some exception to the general state law prohibition against public loans for private ends. As with so much else in life, money is the problem.

GOVERNMENT AND SELF-INTEREST

One of the essential, and I would say self-evident, functions of government is to give people money, in addition to, or as a natural consequence of, some of government’s core functions—such as public services, common defense, and mutual assistance. Those who claim otherwise are either misinformed, obtuse, or in the throes of some irrational passion that hasn’t worked itself out yet, and are unaware or in denial of the collective greed and selfish desires that give rise to the existence of government in the first place.  We have government because we want stuff, or at least some of the comforts that come from the security of mutual government.

In fact, political science was often described by my college professors as the study of “the coercive allocation of limited resources among alternate uses,” in parallel with the professorial definition of economics as the study of “the allocation of limited resources among alternate uses.”

Unfortunately, the 1876 Texas Constitution was drafted by people who were in the throes of irrational passions, and given the incredible viscosity of the law (i.e., the law’s conservatism such that the law changes in response to social pressures as slowly as cold tar responds to sunlight), we still haven’t worked our way out of the 1876 population’s momentary loss of economic sanity and level-headedness.

In 1876, the state’s political zeitgeist was dominated by a number of intense emotions, mostly originating in the denouement of the Southern Rebellion (the only war in which the losers seem to have forgotten what the word “loser” means), and not incidentally from the economic depression that followed after the traitorous secessionists had been driven down to defeat.

First, the state’s white voters wanted a weak central government, with most of the real power being delegated to the county governments. Second (or maybe fifth, or seventeenth, but definitely in the top twenty), the voters wanted to avoid being ripped off again by con artists posing as railroad agents and promoters.

Intercontinental rail was the World Wide Web of the 19th century, and it inspired the same kind of feverish hype and criminal behavior that feed any financial bubble. “Rail” was the magic word that could unlock the most tightly guarded coin purses and city vaults, and the promise of rail access made people set aside their natural skepticism of promises seemingly too good to be true.

The rail bubble was perfect for the con artist. One merely needed to buy an expensive suit, shell out the money to an engraver to print some floridly illustrated common stock, and then head out into the depressed countryside with a promise of economic salvation via rail. Many, many Texas communities were the victims of such cons. City or county or state officials would enthusiastically hand over land, tax revenue, or hard cash to distinguished-looking gentlemen, who would make assurances that construction of the spur line was already underway, and then take their leave of the place in the dead of night.

These thefts were outrages against the guileless hopes and trust of desperate people, and the victims’ reaction to these crimes was intense and all-consuming, as expressed in Article III, Section 51 of the 1876 Constitution:

The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; provided that the provisions of this Section shall not be construed so as to prevent the grant of aid in cases of public calamity.

(see also Section 50 of the same article, wherein the Legislature is similarly prohibited from lending the state’s credit to private interests).

Well, organic law—that is, fundamental or foundational law, such as a state constitution—written in anger rarely turns out well. The rest of the Texas Constitution (and the sum of Texas legislative history) arguably consists of nothing but the numbing bureaucratic quest for exceptions, exclusions, and justifications in order to get around this article, or to get around the equally disastrous constitutional prohibitions against state deficit financing or the imposition of state income taxes, or the legal roadblocks set up against centralized government authority in general. As a result of this self-administered, self-denying, self-inconsistent, tail-eating, illogical madness, the Texas Constitution has hundreds of amendments and is one of  the longest constitutions in the United States.

One of the “fixes” to the Texas constitution lies in the authorization of special districts that do not have minimum population requirements. Interestingly, this fix was enacted a scant thirty years after the drafting of the flawed constitution (see Article III, Section 52, Texas Constitution, added in 1904).

SPECIAL LAW DISTRICTS: PUBLIC MONEY FOR PRIVATE CONCERNS

As I mentioned before, the lending of public money for private ends is one of the essential functions of government (the proof of which is left as an exercise for the reader, but may be summarized by reference to the existence of self-interest, competition, natural monopolies, oligopolies, economies of scale in public investment, and oh, I don’t know, the entire intellectual bedrock on which political economic theory is built), and so almost from the moment that the voters imposed the restrictions on the use of public debt in the 1876 state constitution (this part of the constitution being an unthinking limbic reaction by the voters to the financial crimes of the robber barons, mixed into a document that is mostly a triumphant overturning of Reconstruction and a refutation of the military defeat in the Civil War), much of the business of the state legislature has been taken up with the tedious rhetorical circumvention of this blunt constitutional prohibition against the too obvious conflation of public and private commercial business.

There are a couple ways that a legislature can get around a prohibition against the expenditure of public funds on private interests. The easiest way is to redefine particular private interests as public interests, thereby eliminating rhetorical objections to the issuance of public debt. Another way is to redefine public funds as private funds, but that involves trickier mechanisms that are outside the scope of this discussion (for examples of the latter strategy, see, e.g., the assignment of public revenue through certificates of obligation, creative toll road construction financing, etc.)

One way to redefine private interests as public interests is to get the voters within the area subject to the debt to approve issuing the debt. After all, if the voters of a territory collectively approved the issuance of debt instruments in an election (and consequently agreed as a community to repay that public debt by paying taxes), it stands to reason that those voters must have regarded the money as satisfying a public need.

But when a territory is uninhabited, how does one go about getting voters for that territory’s elections?

HOME, HEARTH, AND DOMICILE, FREELY CHOSEN AND HEARTFELT

Texas codified the traditional common-law definition of domicile as the legal definition of “residence” for the purpose of voting and running for office. Per Section 1.015 of the Election Code, residence is “one’s home and fixed place of habitation, to which one returns after any temporary absence.” It isn’t lost through physical absence; it isn’t gained through physical presence. It is dependent on locus (i.e., contact with a geographic location) and intention (i.e., hearth-cleaving, or home sense).

This definition, hammered out over hundreds of years by court after court dealing with the frictional and conflict-filled lives and interests of residents who lived all their lives in one location, is eminently practical. “Home is where the heart is,” isn’t just a poetic ornament. It is a statement of black-letter law.

So if one is in possession of a territory without voters, all one needs to do is gather together a group of people who will honestly transfer their sense of home from wherever it currently might be to the uninhabited territory, and then register to vote there. The sincerity and intensity of these voters’ home sense is between the voters and their consciences.

When they register to vote, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they arrive at the polling place, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they cast their votes, they will do so in fear of prosecution for illegal voting. With all these fearful oaths and affidavits floating around, we must legally presume that the voters’ statements and votes are valid and true.

But if one is in possession of a territory without voters—and here we are still talking in the abstract—why bother bringing in voters from outside the territory? There are no population minimums set for special law districts. Move one person into a tent in the middle of a field. Register to vote. Wait thirty days. Conduct the “election.” Count the vote. (Spoiler alert—the measure, slate, or issue on the ballot will pass with one vote for, and none against.) For most people, the reaction to such a story is incredulity.

How could a pretend-election with one voter be valid? It’s valid because it’s not a pretend-election.

Admittedly, an election in a jurisdiction with only one voter violates most of the provisions of the Texas Election Code, piling one irregularity on top of another. In an election with only one registered voter, the voter is also the election judge, the alternate election judge, and the clerk, as well as the presiding officer and the member of both the early voting ballot board and the ballot counting committee. As a consequence, the polling place is understaffed, provisional ballots are not prepared, the ballot is handled by the same person who voted the ballot, etc. But the election took place on a date certain, and during the hours that state law mandates the polls must be open. Despite all the irregularities, the election results are not void as a matter of law, but merely voidable.

Here’s a suggestion to any budding election activists who are outraged by these “pretend elections.” First, please don’t give a false residence address on your voter registration application just for the sake of proving a point. The safest course is to encourage your state lawmakers to make a simple amendment to the laws relating to special or local law districts—just specify that special districts require a minimum of 201 people in order to be created.

It isn’t unusual that disputed domicile must be resolved from time to time by a court of law, and that in so doing, a court must tackle such abstract concepts as hearth-cleaving and heart-home. But we call on courts to determine abstractions all the time, and to do more than that, to make abstractions concrete.

Courts place dollar amounts on the value of companionship, or on peace of mind. Courts assign severity to levels of criminal complicity. Courts regularly and explicitly identify the number, weight, and character of each angel dancing on the head of a pin, because we ask them to. We brook no evasion by a judge from defining these impossible-to-define quantities, from quantifying these impossible-to-quantify feelings and thoughts. We say, “You’re a judge. It’s your job.”

So how does a court decide how “real” someone’s sense of domicile is?

CIRCUMSTANCE AND SENSIBILITY: HOW IS TRUE DOMICILE DECIDED?

A court determines the mixed legal and factual question of a voter’s true permanent domicile by weighing all the evidence that may be circumstantial of the voter’s connection to a place, and the voter’s intent.

For some reason related to selective hearing, a disturbing number of voters and candidates would respond to this information by brightly chirping “so you’re saying I can vote wherever I want!” Perhaps the quality of civic education in this country is seriously lacking, as people can  hear “voter’s intent” and assume that the phrase means “voter’s self-serving statement in the teeth of all other evidence.”

That cheerful self-assured justification for misrepresenting  where one actually resides seems particularly relevant to the various criminal cases proceeding from the 2010 election in the Woodlands Road Utility District No. 1. The voters being prosecuted for illegal voting appear generally to have decided that establishing domiciliary intent in a hotel for the purpose of voting didn’t require them to actually inconvenience themselves with all the bothersome details that would at least have suggested sincerity. That is the impression given by the appellate court decision reviewing the related civil election contest (see McDuffee v. Miller).

But the defendants should probably point out that until they voted, no one in the road district’s administration much cared one way or another about the niceties of residence and voter registration. As described in McDuffee v. Miller, for the district, “residence” was just a pro forma requirement for a few known voters, who were set up on commercial properties as caretakers roughly 30 days before the election in order to conduct the election, cast the votes, and go back to their “real” houses.

[UPDATE: To be fair to the road district management, the “real” road district voters did at the time of the election have the advantage of actually owning a property that meets many of the common-sense requisites of a house—that is, a mailbox, a kitchen, and so on. As to whether this house was a home, one must accept that the prosecution and defense will not agree, and that ultimately, even if the defense is right, and the “real” voters weren’t legal residents of the district, two wrongs don’t make a right, and don’t justify anyone’s misrepresentation of residence status.]

So in one sense, the road district was merely reaping the bitter harvest of its own lax attitude towards election administration.  The district in the 2010 election, having benefited from a definition of residence that was sufficiently flexible to include voters who weren’t likely to actually regard the district as home, had to contend with voters who hadn’t been anticipated by the road district administration, but who also took advantage of the flexible legal definition of residence.

THE HUMAN COST, AND THE MORAL OF THE STORY

For the defendants who didn’t accept a plea deal, the future is dark.  One of the seven has already been sentenced to three years in prison, and there’s no particular reason for the other defendants to hope for better outcomes. I think that there is reasonable doubt, not with respect to the voters’ residence status, but with respect to their understanding of the legal significance of residence. In other words, the defendants might well argue that (1) while they didn’t really live in the district, (2) they also didn’t know that voters were required to really live in the district. In other words, they would argue that while their votes were invalid, they didn’t knowingly vote illegally.

Mr. Adrian Heath has subpoenaed me to testify in his defense, although I honestly don’t know that anything I say would be of any use to him—I might actually hurt his chances. What I would probably say is that the appellate review of the civil election contest got the facts right: neither Mr. Heath nor any of his buddies really regarded themselves as permanently residing in the road district, and so they voted under false pretenses, as allegedly did all of the other voters in the May 2010 election in the Woodlands Road District No. 1.

In my considered opinion, the moral of this long story is as follows:

1. The Texas Legislature should, at a minimum, include a boilerplate requirement as a prerequisite to the creation of special law districts that those districts must contain at least 201 inhabitants. When funding subdivision development in areas where no one lives, the Legislature should enact some other exception to the prohibition against grants of money or credit to private interests, and not continue fostering this habit of creating “in name only” political subdivisions.

2. The best way to protest what you perceive as a sham election isn’t to falsify what you report as your residence in order to vote in those elections. In this case, the protesters could simply have signed up to run for office for the road district board of supervisors (there was no residence requirement for the office-seekers in this particular road district), and then, after losing their elections to office, they could have contested the validity of the pretend election, partly on the grounds that the only people who did vote in the election didn’t live in the district. According to Mr. Heath’s defense attorney, the real estate mogul who is represented as the legitimate voter in this election claimed his office was his residence, and hung a sheet across part of his office to demarcate the boundary of his “home.” In other words, the defense implies that the “real” voters had just as weak (or just as strong) a claim to residence as the defendants.

[UPDATE: The prosecutor has provided photos that were entered into evidence in the civil election contest, showing that the house claimed as a residence by the so-described “legitimate”-residency voters does indeed have all the requisites of a place one would consider a house. The pictures, at least, suggest that this house was / is substantially more than just a sheet hung across an office partition.]

3. The people of Texas need a new, rational, modern state constitution. They almost got one in 1975, so it is doable. Any new constitution should include (a) mechanisms for deficit financing of state government, (b) a state income tax, and (c) simple mechanisms for state subsidies for economic development and water conservation. Oh, and (d) uniform statewide funding of primary and secondary education.

History and Memory: Racism in Texas

Those of us who have worked at the Elections Division of the Texas Secretary of State before and after the 2008 presidential election are bemused by national arguments regarding structural racism and voting, because hardly a week passes at that office without a direct and visceral reminder of the deeply engrained racial prejudices that mar the cultural character of Texas.

That this is so was a surprise to me, because in my naive way, I had thought that if nothing else, the Civil Rights Movement had at least had the effect of making overt racism socially unacceptable. I suppose overtly expressed personal racism does still carry some social stigma, at least for most people. But some people clearly feel that they have been given license by mainstream media demagogues to give full flower to their personal racial biases.

My impressions are anecdotal, and I am not attempting to offer a rigorously scholarly analysis of the origins or extent of Texas racism. Think of this post instead as a series of brief sketches of what I (as a naive white male) learned about Texas from my election-related job:

1. Texas is a Southern State

As a kid growing up, I was told by more than one teacher that slavery was not a vital component of the antebellum economy of Texas, and that the plantation model of agricultural development common in many of the other Southern states like Mississippi and Louisiana was not particularly prevalent here. Ranching and cattle production didn’t make use of a massive indentured labor force, and so to the extent that Texas aligned itself with the powerhouse slave states, it was because of more general cultural identifications, and a political reaction to Mexico (where slavery was at least technically illegal).

Ah, but this was not so.

Slave ownership and the use of slave labor was extensive in Texas, on a scale roughly equal to that found in Louisiana and North Carolina, based on 1860 census records provided by the University of Virginia (at http://mapserver.lib.virginia.edu/). In absolute numbers, Texas had fewer slaves in 1860 (around 180,000) than Louisiana (332,000) or North Carolina (331,000), but in proportion to the state population, the ratio of slaves to non-slaves was about the same in all three states (around 29% for Louisiana, and around 28% for Texas and North Carolina). Plantation agriculture was a significant revenue producer in Texas, and the wealthiest members of Texas society were slave-holding plantation owners. Randolph B. Campbell, “SLAVERY,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/yps01), accessed September 02, 2013. Published by the Texas State Historical Association. Moreover, slavery was rapidly expanding in Texas, and likely would have dominated the agricultural economy of North Central Texas as soon as adequate rail service had developed, but for the intervening emancipation following the Civil War. Id.

2. Racism Dies Hard in Texas

One might echo Chief Justice Roberts’ rather sophistical take on history and argue, “Well, but you’re talking about ancient history. I mean, who cares what happened 150 years ago? For that matter, who cares what happened 35-40 years ago (i.e., when Congress did extensive fact-finding in the course of renewing the protections of the Voting Rights Act)? I mean, it just isn’t cricket to penalize states for prior bad acts by forcing them to let us look over their shoulders when they fiddle about with election-related laws.”

This sort of anti-intellectual take on history is profoundly irritating, especially coming from a court whose members are presumably acculturated to the basic tenets of the common law (namely, that authority is authority, even if it was expressed a thousand years ago), but we’ll leave the field to Justice Ginsberg, who no doubt will eventually be vindicated in this stupid debate.

Taking Chief Justice Roberts’ criticism to heart, I’ll confine myself to various suffrage-related bad acts that occurred within the last 10 years in Texas. I hope that the Chief Justice’s memory can stretch back that far, because we are talking about events that occurred in the dim recesses of recorded history, if you happen to be a fruit fly.

First, this bit of antiquity from www,civilrights.org:

In 2003, Harris County election officials failed to comply with Section 203 by not providing Vietnamese ballots on its electronic voting machines. The county attempted to fix this first noncompliance problem by creating paper ballot templates in Vietnamese, but these were not made available to voters at polling sites. Thus, no bilingual assistance was made available to the Vietnamese voters in Harris County for the 2003 election.

Pressure by the Asian American Legal Center of Texas, a local community-based organization, the National Asian Pacific American Legal Consortium, and the Department of Justice resulted in an agreement whereby the County agreed to ensure compliance with Section 203 of the Voting Rights Act, including a full-time employee to coordinate the Vietnamese election program for all elections within the County; establishment of an advisory group to assist and participate in the Vietnamese language program; and requirement in most cases of a bilingual poll worker where a polling place has more than 50 Vietnamese-surnamed registered voters at the time of an election.

In the wake of these changes, the November 2004 election saw the first and only Vietnamese candidate, Hubert Vo, win a legislative seat in Harris County. (http://www.civilrights.org/voting-rights/vra/real-stories.html#harris)

On a broader scale, why not ask some elderly person about the 2003 racial gerrymandering in Texas? Emily Bazelon recalled the following:

The voters of District 23 sent a Democrat to Congress every term until the 1992 election. At that point, following the 1990 census, which gave Texas three additional seats, District 23 was redrawn to include a Republican-leaning part of San Antonio. Republican Henry Bonilla won the 1992 election. And in 2003, the district was redrawn again to keep him there, by moving 100,000 Latinos out.

Bonilla was still in office in 2006, when the Supreme Court ruled that District 23 violated the Voting Rights Act. The act bars states and cities from discriminating against minority voters with crude tools like poll taxes and literacy tests (and in our time, some voter ID requirements); it also aims to ensure that when district lines are redrawn, they can’t be gerrymandered in a way that dilutes the electoral power of minorities. District 23 was supposed to be a Hispanic opportunity district—one in which Latinos could potentially elect their preferred candidate despite the racially polarized voting patterns of Anglos in the area. From ’92 on, Latinos were voting against Bonilla in greater numbers each time, nearly ousting him in 2002. But the 2003 map, the Supreme Court said, in essence “took away the Latinos’ opportunity because Latinos were about to exercise it.”

(from Emily Bazelon’s February 11, 2013 article in Slate).

3. How Institutional Racism Happens – A Tale of Two Hurricanes

Hurricane Katrina exposed a number of uncomfortable fault lines in American culture with respect to poverty, social class, and racism. Aside from killing people and destroying politically active African-American middle-class neighborhoods in the Gentilly area of New Orleans (among others), the hurricane scattered two-thirds of the residents of New Orleans to other places, resulting in a huge demographic diaspora.

Many of those displaced New Orleans voters more-or-less permanently resettled further down the Gulf Coast, in Houston and elsewhere. There was considerable anxiety among certain groups of conservative white voters that these transplant voters (the majority of whom were black) would “steal” elections by fraudulently registering to vote in Texas.

Ultimately, the relocation of New Orleans voters didn’t significantly affect any state or local Texas elections, but even as late as the 2012 elections, anxious voters were calling our office, worried that black voters formerly from Louisiana would somehow “throw” the electoral votes for Texas to Obama. (Such an outcome would have been demographically impossible, and tended to be a concern only for unsophisticated voters with an incomplete understanding of the electoral process).

In 2008, Hurricane Ike caused widespread devastation along the Texas coast, particularly to buildings and homes in and around the island City of Galveston. Reconstruction went fairly quickly, except in one area. Due to storm damage, the city lost all 569 available units of affordable housing formerly administered by the Galveston Housing Authority.

There was strident opposition to the reconstruction of any affordable housing AT ALL within the city, essentially on the grounds that people on welfare shouldn’t live in Galveston. Notwithstanding the pressing demand for affordable housing in Galveston, or the fact that the population served by affordable housing is not a fortiori “on welfare,” as of five years after the storm, GHA has constructed and administers a total of only 52 units of Section 8-compliant affordable housing in Galveston.

A phone conversation I had with a Galveston County official made the real reason for residents’ hostility to affordable housing abundantly clear.

The official called to express skepticism and shock that displaced residents of Section 8 housing could still legally claim residence inside the City of Galveston. After all, their houses had been knocked down; so why were they still claiming that they lived in the city? I explained that regardless of the length of time they were absent from their home, their displacement by disaster didn’t make them any less “real” residents of the city, and that they could continue to vote absentee by requesting ballots by mail.

The official was not convinced, and tried to point out that these voters (who happen to be African-American) are the “wrong element.” She hastened to assure me that it wasn’t because they’re black, but because they were poor, marginal people; a source of crime, drug use, and economic decline. Surely they would be happier if they registered to vote at whatever spot they were now living.

Sad to say, at least some residents of Galveston saw the hurricane as an opportunity to do a little pruning of the voter registration list in order to remove undesirables, who only coincidentally happened to be predominantly black and poor.

I could go on. And on. Look up the travails of black college students in Waller County, and the extremes to which that county has gone to keep blacks from voting. Look up the incendiary racial politics of Pasadena, Texas, or of Baytown, or of the justly infamous Vidor. The potentially dispiriting circumstances are such that at least some of the battles that had been fought and won in 1975 must now be re-fought and re-won.

Revisiting Sub Rosa Election Laws: Example Two – Address Confidentiality Voting in Texas

What should a state agency do to limit the damage of poor legislative drafting? Is it overreaching for an agency to “fix” bad law with administrative rules, or is the potential for social harm simply the burden we must bear to preserve a separation of executive and legislative powers? Or does equity sometimes justify a blurring of legislative and executive roles, even to the point of making the law and its implementation completely irreconcilable?

These questions come up in the following context. Under state law, voter registration information is public. That public information includes voter residence addresses. Victims of domestic violence have a limited ability to shield their residence address from public disclosure, but that limited confidentiality doesn’t extend to the public records generated when an election occurs.

Over the years, a number of states have experimented with various mechanisms intended to protect victims of domestic violence from further harm, with mixed results. Unfortunately, the traditional institutions of justice and criminal punishment are impotent to stop patterns of domestic abuse, as we have seen again and again. See, e.g., the sad tale of Dorothy Giunta-Cotter, as related in a recent issue of the New Yorker. Rachel Louise Snyder, Annals of Prevention, “A Raised Hand,” The New Yorker, July 22, 2013, p. 34

Briefly summarizing the archived New Yorker article, a Massachusetts-based expert on domestic violence named Kelly Dunne was inspired by a particularly awful (and obviously preventable) domestic violence tragedy to do a comprehensive statistical study of domestic murder, seeking both to (1) identify the observable, predictable behavioral patterns that led to murder, and (2) engineer effective legal responses to those high-risk cases of domestic violence that would otherwise likely end in murder. In the short term, more aggressive and longer-term preventative incarceration of abusers cuts down on the death rate.

Ms. Dunne’s findings and recommendations have stirred some controversy, in part because those recommendations might shift limited resources away from notoriously underfunded family shelters, and in part because the most important recommendation (imposing long pre-trial protective incarcerations) is deeply contrary to our traditional presumption of innocence and the rights associated with due process in criminal cases. There are shades of totalitarian horror in the decidedly Philip K. Dickian idea that a series of statistical models could send people to prison without trial, and before those people were even aware of their own criminal tendencies.

Whether the more traditional approach to domestic violence is broken or not, it can be very crudely characterized as the “run and hide” approach. In the “run and hide” model, an abuser oversteps by engaging in obvious or public violence that results in visible injury, compelling a social response in which the victim is more-or-less compelled to give up the comforts and protections of home in order to escape to a shelter. The abuser posts bail and a trial date is set, a protective order is entered, and eventually the abuser is sentenced to a probation that involves some domestic violence counseling. Notice that the victim is the accommodating party in the “run and hide” model, one of the most damning elements of that approach, and one reason why that approach works so poorly.

Address confidentiality programs (pioneered in the Pacific Northwest and California) grew out of the “run and hide” model, and are designed to allow high-risk victims to stay better hidden from their potential killers. The programs allow a select class of domestic violence victims to “erase” their residence addresses from various public records to a greater or lesser degree, so that their killers will hopefully have a harder time finding them.

Advocacy groups fought for over a decade to get the Texas Legislature to enact some sort of address confidentiality program, and finally succeeded in 2007. The program allows victims of domestic violence to use the Office of the Attorney General as a mail-forwarding service, so as to limit public availability of the victims’ residence addresses.

Relatively few people participate in the address confidentiality program, in part because the program has so many unattractive features. The program is only available to people who are willing to disappear and have no ongoing contact with their abusers, register through a domestic violence shelter or counseling service, foreswear ever again getting anything other than first-class domestic mail (the A.G. throws all the other forwarded mail away, for space-saving reasons), and so on. The victim gets some limited accommodation of day-to-day life by being allowed to get a drivers license and voter registration, nominally without revealing a residence address.

In other states, the participants in the address confidentiality program can register to vote and cast ballots without having to confirm a specific residence address – they don’t have to void the security provided by not having an official residence address on public records. Unfortunately, the Address Confidentiality Program enacted in Texas was not seamlessly integrated into state election law. This may have happened partly because the Texas Election Code is itself so badly organized that a few things were bound to go missing.

Sections 4 through 9 of the 2007 law provide that participants in an address confidentiality program must register to vote in person using their state-supplied forwarding address, and that those voters will be included on the official lists of registered voters, but listed with their generic addresses instead of their actual residence addresses. Those voters will then vote by mail, receiving their ballots through the generic mailing address.

Except …

the state law neglected to alter the requirement that applicants for ballots by mail must provide their residence address – so that the voter registrar can figure out which ballot those voters are supposed to get.

Our physical residence is more-or-less indivisible from our right to vote. Our applications for ballots by mail, our signature rosters, our affidavits and provisional ballot envelopes and requests and statements and every piece of paper we generate or mark on when we vote is available for public inspection. Every single voter is asked, “Do you still reside at … [your residence address]?” when voting. Any supposed protections earned by not having one’s address on the voter registration list melt away when one must reveal that address in a dozen other formats in order to actually vote. Add to that the purely practical issue that because the A.G. is slow to process re-delivered mail, if the participants in the program actually did attempt to vote by mail, they wouldn’t actually get their ballots in time to mail them back before the election closed.

Advocacy groups came to the Elections Division at the Texas Secretary of State to express their concerns about the law as written, and asked that the Secretary of State exercise the authority granted by S.B. 74 to adopt administrative rules that would “fix” the glaring gaps in security for voter-participants in the Address Confidentiality Program. And this is what we came up with.

Notice the gap between the law and the rule. Under the rule, participants in the Address Confidentiality Program aren’t allowed to register to vote in the usual way. Instead, they must go through an in-person voting process wherein they orally identify which voting precinct they live in, and then vote as if they were voting by mail. Their ballots are mixed in with other ballots cast by mail, and their status as Address Confidentiality Program participants is clouded, so that their votes won’t stand out.

So if one merely read the law, one would assume that participants in the Address Confidentiality Program register to vote and then simply vote by mail. The actual process is almost completely different, to the point that if anyone challenged our rules-based implementation in court, the rule would likely be thrown out as exceeding the statutory scope of our rulemaking authority.

I generally disapprove of election laws that create disparate classes of voters who experience the election through different levels of bureaucratic procedure. But I drafted Rule 81.38 as I did so as to afford victims of domestic violence at least a little real security in voting.

Revisiting Sub Rosa Election Laws – Example One: Voting Age

Earlier I had written in a very general sense about the “secret” Texas Election Code; or more to the point, I had highlighted the importance of not taking Texas election statutes at face value without knowing how the law is interpreted by those who administer it. And I had said that I would provide some examples. Well, here’s the first belated example.

When is a person old enough to vote?

At first glance, this seems like an easy question to answer. A person has to be 18 in order to vote, per Section 11.002 of the Texas Election Code.

But when is a person 18? Common sense would suggest that one turns 18 on the anniversary of one’s birth. What with the cake and the candles and the presents, that date seems pretty unassailable as being the important date.

And yet …, owing to a peculiarity of the common law, one generally achieves the age of majority on the day before one’s birthday; and it was this common-law calculation of the age of majority that was made explicit in the Election Code for many years. Section 1.016 of the Election Code (and don’t bother looking for it – it’s been repealed) stated that one “turned” a certain age on the day before the anniversary of one’s birth. In other words, a person could vote when the person was 17 years and 364 days old.

This doctrine (often referred to as the “coming of age rule” and originating, as far as anyone can tell, in a 1677 inheritance case in the Court of Common Pleas (Nichols v. Ramsel, 86 Eng. Rep. 1072 (C.P. 1677)) is an object of scorn and frustration among legal scholars (see, e.g., this entertaining and thorough discussion of the doctrine in a recent Maryland case).

The common-law rule may be stupid; many people are of the opinion that it is stupid. Nevertheless, it is presumptively how age is calculated in Texas law, except in those circumstances where the Legislature has acted to set it aside. (As for example when the Penal Code explicitly defines a person attaining a particular age on the anniversary of the person’s birth, per Section 1.06).

So … all of this would naturally leave one with the impression that in Texas, a person whose 18th birthday falls the day after an election could still legally vote.

True, Section 1.016 was repealed, which might be seen as a legislative repudiation of the “coming of age rule.” But it takes more than a repeal of a statute to clear away a common law presumption.

Nevertheless, a person whose eighteenth birthday falls on the day after the election cannot vote. Why? There’s no legal citation to give in support. The reason is entirely bound up in a software design … feature.

When the State of Texas contracted to create an authoritative electronic statewide voter registration database, various computer programmers were engaged to build the logic for the database. Unfortunately, computer programmers do not have an innate awareness of or appreciation for the poetic fever dream that is the common law. Therefore, when the database was created, voters’ ages were calculated by using their dates of birth.

So poor database design has the effect of disenfranchising roughly one 365th of the 18 year-olds in the State of Texas. And you wouldn’t know it just by reading the Election Code.

What is a Public Official?

Is a member of a school board a public officer? Most people would automatically say “yes.” What about a superintendent for the same school district? The answers might be a little more hesitant, there might be a few faint “noes” heard from the crowd. Now, what about the elementary school principal? What about the fourth-grade math teacher? What about the school nurse?

If a school nurse or a fourth-grade math teacher isn’t a public officer, what makes that position different from the position of school board trustee? Is a school board trustee a public officer in the same degree and of the same capacity as a city mayor? Is a mayor more or less of a public officer than a county constable? Attorneys are referred to as “officers of the court.” Are they somehow legally affected or bound by that appellation? Police officers get commissioned by government; does that mean the beat cop is a public official? Is there such a thing as “officer-ness?”

There are all sorts of practical reasons why people ask these questions. A superintendent is dismissed – does that affect the validity of a contract for the construction of a new gym? Does a mayor continue to accrue insurance benefits while contesting the results of a recall election?

Disputes arise over money, assignments of liability, sovereign immunity, legitimacy, real and apparent authority, and an uncountable number of other legal fights that are grounded in public law.  Questions about public office and office-holding are of real and immediate importance, and the answers affect people’s lives and welfare, so it’s a good idea to come up with some kind of answer.

When the United States declared independence from Great Britain, our judges were careful to preserve an English common law corpus as the foundation for our laws; this promoted continuity in commerce and civil institutions. But we didn’t preserve the philosophical continuity of English public law.

The central crisis facing colonial lawyers during and after the Revolutionary War was to identify where laws come from. In the lands subject to the British Crown, the question was and is easy to answer – all law and all authority rests in the monarch, and is delegated by degrees to various institutions that owe their creation and continued existence to the pleasure of the hereditary ruler. To the extent that there is a body of English public law, it can be summed up almost completely as “the will of the sovereign,” softened by a few enfolding centuries of legal reform and Victorian principles of honest government.

The colonial rejoinder to English sovereignty was to assert that law derived from the will of the governed – that the people are sovereign. This seems like a perfectly workable substitution – one could imagine a post-Revolutionary War judge or lawyer mentally substituting the amorphous collective “people” whenever trying to interpret the effect of some pre-1776 case or statute.

But almost immediately after Independence, American law began to diverge from English common law traditions in more fundamental, unintended, unexamined, and unexpected ways. For political and social reasons, our public law (i.e., the laws of government organization and sovereignty) slowly became enmeshed in a labyrinth of confused policies and divided purposes. Eventually, American public law became entangled in philosophical dead ends that (in retrospect) would have been entirely avoidable if we had just stuck to the simple notion that the people are sovereign.

For reasons that I suspect have to do with early American Romanticism in philosophical fads, newly enfranchised American courts began applying principles of civil public law to questions relating to the exercise of public office and public authority.

1,200 years before the Revolution, Emperor Justinian got to put his name on one of those massively obsessive-compulsive public works that the Romans were so fond of manufacturing -namely, the Justinian Code or Codex – a sweeping compilation of a millennium of legal tradition, tidied up, indexed, and organized by topic. In the course of creating this work, its editors made distinctions between public and private law that have no parallel in the English legal tradition, and then they built massive thematic outlines to restate and pin down the relationships and parallels between all laws.

In other words, the Byzantine legal editors were looking for organizing principles of legal theory, and they had the academic firepower, money, and will to succeed at their task. Ultimately, they built beautiful self-consistent and organized crystalline hierarchies of public legal authority based on the notion of degrees of discretionary governmental authority and judgment.

So … imagine an organizational chart, with the Emperor at the very top. The Emperor exercises unlimited discretion, with the power of life and death over everyone. Just below the Emperor are a group of senior managers, who exercise slightly less discretion. Below those managers are still more managers, with narrower fields of authority.

Eventually the whole organizational chart gets revealed, and someone reviewing the chart can look up a particular praetor, or consul, or whatever, and say, “the person with that job title has the discretion to order x, y, and z, but not other things, and answers to whoever has the job title one level up, who has the authority to order t,u, and v.”

Of course, the Lex Publica was just part of the whole Codex, which was immensely useful as a document for managing public and private rights and duties. So when Western Europe fell apart politically, a lot of local strongmen just kept on referring to the Codex (maybe throwing in a few tribal laws for a little color).

Now, there’s nothing particularly democratic about either the Roman-derived continental European civil law or the English common law. And there’s nothing particularly distinct about the ends accomplished by one philosophy of law or the other; the common law and the civil law are just two different ways of organizing one’s thoughts about ordered society. Both systems are tradition-bound; both are the product of autocratic dictatorial forms of government; and in either one, policy changes are swaddled in some sort of deliberative justification that may be disconnected from the actual reason for the change. When the common law needs to change, a policy maker appeals to some perceived (and possibly infinitesimal) change in factual circumstances that justifies a new principle. When the civil law needs to change, a policy maker appeals to an intellectual reexamination and (possibly almost insubstantial) reorganization of hierarchical philosophical principles. In the end, the trains still have to run on time.

But arguably, English public common law expresses a bracingly blunt and brutal “realpolitik” about the nature of sovereign power that civil codes tend not to articulate. There is no distinction between public or private officers in English common law. A British soldier on parade, a striving Cockney who manages a fish and chips stand, Graham Norton on TV, Dame Judy Dench  in the West End, the Archbishop of Canterbury, the Prime Minister, and the Lord Exchequer are all in the same position with respect to the monarch – each continues in his or her post and employment (whether that employment is private and commercial, charitable, religious, nakedly capitalistic, military, political, or in any other field of human endeavor) only at the will, sufferance, and pleasure of Queen Elizabeth II, subject to an enormous body of monarchial concessions and franchises that have been granted over the millennium. Neat organizational charts exist to categorize and organize positions of trust and discretion, but those charts exist only for convenience, and in the common law, every hierarchy could theoretically be swept away with a single blow of the headsman’s axe.

Meanwhile, in the U.S., we have clumsily grafted legalisms of title and comparative levels of discretionary authority onto an arguably incompatible larger body of court-made law. Then, to compound the problem, we have steadily and consistently neglected to examine the historical and philosophical origins of our laws, weakening any sort of claim to logical consistency in the ways that we apply public laws.

What do we mean when we say that someone is a public official? Usually, the term is used to refer to someone who is at least in the informal sense “in charge” of some governmental department or agency. One can find many examples regarding “public office” where the answer to the question seems to be a final and definitive, “who knows?” For example, see the following opinion of the Texas Attorney General (Op. Tex. Att’y Gen. GA-886 (2011)).

In response to the question “Is a notary public a public officer?”, the best answer that the State’s own legal counsel can offer is “maybe.” The opinion concludes,

Some authorities that discuss notaries and state officers indicate that notaries are not officers, others indicate that notaries are officers, and others indicate very little, if anything, about the issue. Furthermore, no Texas constitutional provision, statute, or appellate court decision has directly addressed whether a notary public is an officer for purposes of chapter 603 [of the Texas Government Code]. Accordingly, we cannot definitively determine whether or not notaries are officers under chapter 603 of the Texas Government Code.

Op. Tex. Att’y Gen. GA-886, at 2.

In the course of coming to this decision, the opinion mentions a significant test of “public officialness” used in Texas, and the court opinion that articulated that test. Per the opinion, “Texas courts have held that “‘the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others.'” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955).” Id., at 1.

So the test, (which is rooted in the hierarchical civil law way of looking at the public office), is dependent on whether the person holding a position is given the power to exercise sovereign functions for public benefit independently. Well, terms like “sovereign functions”, “public benefit”, and  “independently” are terribly mushy and indistinct; they offer no solid ground on which to stand.

It’s not that the concepts are meaningless; but that ideas like sovereignty, public benefit, and independence of supervision all describe relative conditions. Hence we see that the legal definition of public office in Texas is fundamentally broken – if there is no way to know whether or not notaries are subject to certain laws applicable to public officers, the same might be true of other types of office as well.

This legal confusion about a fundamental element of public law (which was bad in 1955, and has only gotten worse since) is frustratingly symptomatic of even larger philosophical problems in American jurisprudence; the sort of problems that lead to miscarriages of the law such as Citizens United v. Federal Elec. Comm’n., 558 U.S. 310 (2010), and to the peculiarly wrongheaded notion that corporations are something more than just revocable franchises of the sovereign.

The Forgotten Election Laws of Antebellum Texas

The Handbook of Texas has a generally excellent article on the origins and development of Texas statutory law relating to elections (see, O. Douglas Weeks, “ELECTION LAWS,” Handbook of Texas Online (http://www.tshaonline.org/handbook/online/articles/wde01), accessed July 03, 2013. Published by the Texas State Historical Association).

However, the article omits any discussion of the pre-Civil War election laws that prevailed in Texas. Luckily, the University of North Texas has created an incredibly powerful resource for researching early Texas law online.

What should a set of election laws accomplish? We’d expect at a minimum that the laws would (1) describe where and when elections should take place; (2) how to appoint people to conduct the election; (3) how to accept the voters at the polls; (4) how the votes should be cast and tabulated; (5) how the results should be applied; (6) how to resolve ties and disputes; and (6) describe procedures for guarding against fraud.

On May 11, 1846, the Texas Legislature passed a comprehensive law in 30 sections that regulated elections in all the above respects. See: Gammel, Hans Peter Mareus Neilsen. The Laws of Texas, 1822-1897 Volume 2, Book, 1898; pages 1515-1524; digital images, (http://texashistory.unt.edu/ark:/67531/metapth6726/ : accessed July 03, 2013), University of North Texas Libraries, The Portal to Texas History, http://texashistory.unt.edu; crediting UNT Libraries, Denton, Texas. The 1846 law is remarkable not only for the differences that it represents, but also for the ways in which it is similar to current law.

One huge difference is that voting in 1846 was not secret – votes told the election officials who they were voting for, with plenty of witnesses around, and with the exact nature of each individual’s vote written down for all to see. One can quickly see how this process enforces conformity; one isn’t likely to vote against a powerful empresario or haciendado when everyone will know.

But there are some deep similarities as well. Voters were exempt from arrest while voting; election officials were required to take an oath to execute the election in an impartial way; and elections could be contested through a written judicial review process.

The 1846 law was by no means the first legislative enactment in Texas relating to voting (a body of inherited Spanish colonial law and numerous emendations to voting procedures following Mexican independence already existed, even before Texas was a republic, and there were a number of ad hoc laws to regulate voting in specific plebiscites as well as regular local and state elections). But the 1846 law does appear to be the first comprehensive body of post-statehood Texas laws that carefully regulate elections in general, rather than just in special cases.