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I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.
First, it’s a clear-eyed and thorough analysis of the present danger.
Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹
And third, it’s a prompt for me to ask all of you for your thoughts.
There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).
¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.
The State of Texas Is Legally Prohibited From Supplying Confidential Voter Information to Kris Kobach
As you may know, Kansas Secretary of State Kris Kobach has sent a letter to the state voter registrars in all 50 states, asking for a broad range of both public and private personal information about registered voters. The Brennan Center for Justice has the details here: https://www.brennancenter.org/press-release/brennan-center-states-examine-legal-obligations-providing-voters-personal-information
As the Brennan Center reports:
Kobach’s letter, reportedly sent to every Secretary of State in the country, asked for extensive details including: “the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” His letter also stated that “any documents submitted to the full Commission will also be made available to the general public.”
(For more information about President Trump’s commission on “voter fraud” see this recent Slate story by Rick Hasen).
Secretary Kobach’s request is so broad, in fact, that in his position as the Secretary of State of Kansas, he can’t respond to the portion of the request asking for voters’ social security numbers (as noted here).
Similarly, under Texas law, certain information collected from voters as part of the voter registration process is confidential and cannot be disclosed. In failing to submit an affidavit relating to the purpose of the request, and in requesting social security numbers, Secretary Kobach’s request does not comply with Texas law.
I should also note that (per both the Texas Election Code and laws relating generally to public information requests) the State of Texas imposes a prerequisite reasonable fee for producing a copy of the statewide voter registration list. If Secretary Kobach amends and conforms his request to comply with Texas law, he will also need to pay for the list.
The following statutes are relevant:
Section 13.004(c), Texas Election Code:
The following information furnished on a registration application is confidential and does not constitute public information for purposes of Chapter 552, Government Code:
(1) a social security number;
(2) a Texas driver’s license number;
(3) a number of a personal identification card issued by the Department of Public Safety;
(4) an indication that an applicant is interested in working as an election judge; or
(5) the residence address of the applicant, if the applicant is a federal judge or state judge, as defined by Section 13.0021, the spouse of a federal judge or state judge, or an individual to whom Section 552.1175, Government Code, applies and the applicant:
Section 18.066, Texas Election Code:
(a) The secretary of state shall furnish information in the statewide computerized voter registration list to any person on request not later than the 15th day after the date the request is received.
(b) Information furnished under this section may not include:
(1) a voter’s social security number; or
(2) the residence address of a voter who is a federal judge or state judge, as defined by Section 13.0021, or the spouse of a federal judge or state judge, if the voter included an affidavit with the voter’s registration application under Section 13.0021 or the applicable registrar has received an affidavit submitted under Section 15.0215.
(c) The secretary shall furnish the information in the form and order in which it is stored or if practicable in any other form or order requested.
(d) To receive information under this section, a person must submit an affidavit to the secretary stating that the person will not use the information obtained in connection with advertising or promoting commercial products or services.
(e) The secretary may prescribe a schedule of fees for furnishing information under this section. A fee may not exceed the actual expense incurred in reproducing the information requested.
(f) The secretary shall use fees collected under this section to defray expenses incurred in the furnishing of the information.
Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.
I. TL;DR Q&A
(1) Ugh! This blog post looks like it’s really long.
So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?
ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …
(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.
ANSWER: Yes. The plaintiffs won.
(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?
The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).
However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.
I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.
ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.
(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?
ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.
(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?
II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.
Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.
- Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
- The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
- Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
- On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
- Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
- The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
- In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally). Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
- The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
- The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
- Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
- Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
- Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
- My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.
III. So now what?
So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?
- Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
- As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
- Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.
As reported in a recent Ken Herman Austin American-Statesman column, Senator Don Huffines of Dallas has filed S.B. 703 in order to eliminate the use of non-permanent early voting locations; while Representative Valoree Swanson of Spring has filed H.B. 1773, which imposes a big limitation on tax and bond elections by imposing a floor requirement that in order to pass, tax rate increases and voter-approved bonds would have to be voted on by a minimum of 25% of the total number of registered voters in a jurisdiction.
Legislative efforts to limit the amount of early voting and to limit approval of bond elections are consistent with planks 59, 76, and 178 of the current Texas Republican Party platform. As I mentioned in my previous post about two other election bills, we can see the genesis of these election-related bills expressed in various election reform policy statements made by the Texas Republican Party. So in one sense (i.e., as legislative codifications of Republican Party policy statements) S.B. 703 and H.B. 1773 are neither remarkable nor particularly surprising.
I. S.B. 703 BARS THE USE OF TEMPORARY STRUCTURES FOR BRANCH EARLY VOTING IN ALL ELECTIONS, AND INVALIDATES THE RESULTS OF ANY REVENUE-RELATED ELECTION THAT IS CONDUCTED USING TEMPORARY STRUCTURES FOR EARLY VOTING
In Ken Herman’s story, Senator Huffines describes the goal of S.B. 703 in the following terms:
“What we’re trying to solve is manipulation of the result of an election by moving the polling location to benefit one side or the other.”
He’s particularly suspicious about school district bond elections. He claims school officials, seeking approval for bonds for a new football stadium, have put mobile early voting places at the old stadium on Friday nights, eager to connect with fans who’d like a new stadium.
“When you move the mobile polling booth to the football stadium on Friday nights, that does seem to have an impact on the election results,” Huffines said, offering no examples but adding: “There’s no question they do it.”
Interestingly, (and as a clarification of S.B. 703’s effect as drafted), the bill globally affects the ability of election administrators to use temporary structures to accommodate early voting in all elections—federal, state, local, elections for officers, party primaries, etc.
First, S.B. 703 proposes new language in Section 85.062(b) of the Texas Election Code. As the law currently reads, mobile structures may be used as polling places in political party primaries and in the general elections for district, county, state and federal offices. Basically, in those elections that tend to have higher turnout, county election officials may make use of moveable structures in order to handle the press of voters — this is particularly useful for assisting voters in rural areas that lack suitable permanent structures for early voting.
By specifically prohibiting the use of mobile structures (think trailers or portable buildings) as early voting locations for all elections, the bill substantially limits early voter access to polls in areas that lack available permanent buildings for the November general elections for county, district, state and federal offices, and for early voting in primary elections (which are already more difficult to schedule, owing to the fact that each party conducts a separate election in each county, making it harder to find buildings to accommodate these elections).
Second, by repealing Section 85.062(e) of the Texas Election Code, the bill removes the regulatory framework for the use of mobile structures for temporary early voting polling places in all primary elections as well as all general and special elections conducted by county officials.
And yes, with respect to the author’s stated intent of focusing the effect of the bill on local government tax rate and bond elections, the bill does also specify (in text to be codified as Section 85.062(h) of the Election Code) that if any revenue election requiring voter approval is conducted with the use of mobile structures, the election result is automatically invalidated.
More specifically, the bill states that in such a circumstance, “the election for approval of the proposition is invalid.”
The bill is written so broadly that this invalidation would also apply to any statewide revenue proposition election, such as (for example) a state constitutional amendment election relating to taxes or bonds.
This is an astonishingly odd bill, whose possibly unintended global effects may have arisen out of a misunderstanding about the distinction between two related but different things, namely (1) where early voting happens, and (2) what kind of building the early voting happens in.
In any election, there is such a thing as additional branch early voting locations. Sometimes for practical reasons (lack of suitable buildings, natural disasters, rural setting, etc.), these additional branch early voting locations are placed in temporary or moveable structures.
Here’s the problem — where early voting takes place (say, on the corner of 5th and Main Street) isn’t the same thing as what kind of building the voting takes place inside (a tent, a construction trailer, a brick and mortar county courthouse, etc.).
One might arguably hold the philosophical view that people shouldn’t be allowed to vote early at, say, the corner of 5th and Main (although one is hard-pressed to offer a reason in the abstract as to why early voting locations are bad things). One might arguably assert that people shouldn’t be allowed to vote in temporary structures.
But these two objections are about different things.
Under current law, early voting locations aren’t less legal simply because they happen to be in a temporary building; those buildings do have to meet some basic common-sense standards of durability and accessibility, of course, just so rain and wind won’t accidentally make a mess out of the election equipment. But apparently in his eagerness to regulate what he may perceive as the creation of too many branch early voting locations, the author of S.B. 703 has decided to attack the problem by getting rid of the use of temporary buildings for early voting in primaries and general elections.
Because S.B. 703 prohibits the use of temporary or mobile structures as polling locations in all elections, the bill is likely to gore many oxen, including the interests of state and federal candidates in both primary and general elections for public office who want to get votes where their constituents live, particularly in conservative rural Texas.
Not to mention the fact that the bill expressly invalidates the results of revenue elections up to and including statewide bond elections that happen to be conducted with early voting in mobile structures. That statewide effect on matters of state revenue control might cause the ears of bond attorneys to prick up, at the very least.
One could fairly wonder whether S.B. 703 is constitutional by any stretch of the imagination, and whether the bill (by limiting the siting of early voting locations to permanent structures) violates state and federal laws regarding making polling places accessible for voters with disabilities, for example.
But my more immediate critique of the bill is that it’s incoherent. Even people who think we have way too much early voting don’t care whether or not we use trailers. And sometimes temporary buildings are just the best or only options available to county elections offices who are trying to set up branch early voting in areas without suitable permanent structures.
At least as of today, I’ve only seen the one newspaper story about S.B. 703, and maybe it’s because we’re still early in the session. But I hope that this deeply flawed bill gets more than merely passing scrutiny, given the effect that the bill would have on election administrators statewide.
Okay, now on to the second bill mentioned in Ken Herman’s story.
II. H.B. 1773 SUBVERTS ELECTION EXPECTATIONS AND OUTCOMES BY MAKING WINNERS INTO LOSERS
H.B. 1773H.B. 1773 tracks Plank 178 of the Texas Republican Party Platform pretty closely — the idea behind this bill is that elections for voter-approval of tax rates and tax-revenue supported bonds would only pass if at least 25% of the registered voters in the election territory actually participate in the tax or bond election. (The platform only requires 20% participation of the registered voters in the affected territory, so the proposed bill is more strict than the platform plank.)
In other words, if the bill were to pass, it would create a situation in which, if no one is particularly opposed to a tax rate increase, and turnout is small (as it tends to be in local elections), the bond or tax rate increase would be deemed to have failed even when a majority of the votes favor that increase, unless at least 25% of the registered voters actually voted.
A “minimum turnout” requirement that invalidates the results of certain tax and bond elections is in direct conflict with numerous sections of state law that describe how bond and tax election results are tabulated and canvassed. Hundreds of statutes authorize various bond and tax revenue elections, and often with traditional legal formulaic language, referring to “a majority of the voters voting …” or words to that effect.
So H.B. 1773 adds Section 2.101 to the Election Code, attempting to specify that for any local tax or revenue election, 25% of the total number of registered voters in the election have to vote in the election in order for the outcome to be valid. But the Election Code isn’t the authorizing statute that gives the local entities power to conduct these elections.
The authority to conduct the various tax, bond, and other revenue elections is scattered throughout Texas law, from the Agriculture Code all the way to the Water Code. I’m not going to exhaustively run down every statute that is placed in direct conflict with H.B. 1773 right here, because there are just too many, but here is just one example:
Section 504.251 of the Local Government Code. This statute authorizes a municipality to conduct an election to approve a sales and use tax in support of a so-called “Type A” municipal corporation for the purpose of economic development projects.
Already I can feel your eyes glazing over as I describe what this statute does. Briefly, it authorizes an election to increase a tax for the purposes of supporting local economic improvement. And the election passes if (in the words of the statute, a “majority of the voters of the municipality voting at the election” approve the rate increase. See that? “A majority of the voters … voting.” If only three voters show up out of thousands, and two of the voters vote in favor of the tax, it passes per this statute.
What the author of H.B. 1773 has set up is an irreconcilable conflict with tax and bond election authorizations in the Education Code, the Finance Code, the Government Code, the Local Government Code, and on and on. Hundreds of laws, all of which read more or less the same as Section 504.251 of the Local Government Code, and all of which specify that tax and bond measures pass on a simple majority vote.
H.B. 1773, from the perspective of a government finance expert, is an invitation to almost instant and pervasive lawsuits, given that the statute can’t be reconciled with the vast body of state statutory law relating to tax and bond elections.
For this legislative session, Representative Mike Lang has filed two bills to further a couple longstanding goals that have been planks in the Texas Republican Party’s party platform; namely (1) enforcing voter registration by party (see party plank 66), and (2) drastically cutting down on the frequency with which elections take place (party plank 76).
I. CLOSING THE DOOR ON OPEN PRIMARIES – VOTER REGISTRATION BY PARTY
H.B. 1072 — Sometimes, voters who philosophically identify with one party or the other will “cross over” to vote for spoiler candidates who happen to be running for nomination in the other party’s primary election. To combat this, Representative Lang has authored legislation to enforce closed primaries by requiring voters to register by party
Voter registration by party is a common feature of registration in a number of states that have so-called “closed” primary elections, such as New Mexico, New York, and Oregon. (In this context, a primary election is “closed” if the election is administered in such a way as to exclude participation by voters who are not registered as members of the same party).
Current state law already specifies that by voting in a party primary, a person affiliates with that party for a full calendar year, and is prohibited from voting for or signing a nominating petition for any candidate not affiliated with that party.
But under current Texas law, registered voters are not compelled to self-identify as being members of one party or another, and functionally are unaffiliated with any party unless and until they decide to vote in one or another party primary election. Additionally, under current law, Texas voters aren’t permanently assigned to be members of one party or another.
H.B. 1072 proposes a change in the existing law by outlining a procedure for permanent voter registration by party affiliation in Texas.
Currently, a voter’s party affiliation (or lack of same) in Texas is determined by the individual voter’s choice in affirming support for a particular party’s slate of candidates, either because the voter has chosen to vote in that party’s primary (for political parties that conduct primary elections), has subscribed to an oath of affiliation to participate in the party convention, has signed a candidate’s nominating petition (for political parties that nominate their candidates by means of a convention process), or has signed an independent candidate’s petition for placement on the ballot (for those candidates who do not seek party affiliation at all).
So to recap, under current Texas law, our primaries are “closed” in the sense that as voters we aren’t allowed to vote in more than one party’s primary in any particular calendar year, but are “open” in the sense that we can choose which party primary we want to vote in, as long as we don’t also try to vote in the other party’s primary. We are required to affiliate with a party for one full calendar year when we support any of that party’s candidates for nomination in the general election.
H.B. 1072 would require registered voters to assert party affiliation when registering to vote; that affiliation would renew and “follow” the voter indefinitely.
H.B. 1072 would also make closed party registration a requirement for candidates running in a particular party’s primary. In other words, in order to run as, say … a Republican Party candidate for county commissioner, one would be required to have previously identified as a Republican Party member when registering to vote.
Representative Lang’s bill is likely to alarm voters who recognize that for local races, one party’s primary is often the de facto general election.
In brief, if this bill passes, the proposed law is likely to leave Republican voters in solidly Democratic urban areas like Dallas, Houston, San Antonio, or Austin unhappy with their lack of primary ballot choices for local offices. At the same time, Democrats in solidly Republican rural areas, or in contemplation of statewide primaries, will similarly be frustrated with a lack of meaningful choice in their nominating elections.
Representative Lang’s other bookend election bill is designed to cut down on the number of elections that we participate in each year.
II. FEWER ELECTIONS
H.B. 1271 – A reduction in the number and frequency of local elections is (as noted above) a key legislative goal of the Republican Party.
Prior to 2005 (and the enactment that year of H.B. 57, which eliminated the winter and summer election dates, and severely curtailed the capacity of local governments to order special elections for non-uniform election dates), elections in Texas were traditionally conducted on one of four days in a year. Winter elections took place in January (later moved to February), Spring elections happened in April (later moved to May), Summer elections were held in July (later moved to August), and Fall elections were held in November.
Winter elections tended (for reasons relating to fiscal budget cycles) to be bond elections for cities and school districts. Spring elections were officer elections for local governments. Summer elections were used for run-offs, local incorporations, and some small government officer elections. And the November elections were (as they are now) the “big show” – federal and state officer elections in even-numbered years, and state constitutional amendment elections in odd-numbered years.
In a bold stroke as part of an omnibus school finance bill enacted in the third called special legislative session in 2006, local elections in odd-numbered years were largely eliminated with a change in the Texas Education Code regarding school district board election schedules.
Subsequent legislative efforts have been focused on “cleaning up” all those nooks and crannies of state law that still permit some flexibility on election scheduling, in order to further limit the number of elections taking place in any particular year.
H.B. 1271 would get rid of all elections in odd-numbered years, and all May elections.
The bill would limit all elections (including bond elections, water district elections, local government elections of all forms, etc.), by requiring that these elections either take place on the same day as the political primaries or the statewide officer elections (i.e., the first Tuesday of March or the first Tuesday after the first Monday in November of even-numbered years).
The bill shuts down local tax-rate and bond control by limiting the number of funding elections, and limits the rate of turnover in local governments in order to preserve existing incumbencies.
But here’s the thing – while local governments do “save” money by having fewer elections, we the voters lose out.
I put the word “save” in scare quotes for a reason – the administrative expense of conducting democracy isn’t offset by what economists would refer to as the “negative externalities” resulting from a lack of civic engagement and the lost opportunities for voter participation in the decisions made by local government.
Hey, we could save even more money by not having any elections, right? In fact, that savings has been implemented by allowing for the cancellation of local elections when races are uncontested.
How far do you as voters want to push this cost savings argument? Because really, the infrastructure of democracy, and of government itself, costs money. Why even bother with elections at all?
For another take on the damage caused by the “cost saving” argument in favor of disenfranchisement of voters, see this online essay by Hal Berghel, a professor of computer science at the University of Nevada, Las Vegas. Why am I citing a computer science prof? Because he makes an interesting argument that I have not seen elsewhere: “This postmodern Jim Crowism is all about challenging voter access, 21st-century style, but with a new twist.”
Here’s a simple question with a complicated answer:
Who conducts elections in Texas?
I ask this question in part because I got a call about a week ago from a reporter with the Victoria Advocate, asking about the January 17, 2017, resignation of George Matthews, the county’s first and only elections administrator.
Mr. Matthews had held the non-partisan county position since 1992, and (I say, based on having talked to George and his staff over the years) was highly regarded and well-liked by those he had worked with, including both the Victoria County Democratic Party Chair and the Victoria County Republican Party Chair.
Mr. Matthews’ resignation reminded people of the existence of a “County Elections Commission,” as described by Section 31.032 of the Texas Election Code, which surprised those county residents who had never heard of or knew about the existence of this governing body. That ignorance is understandable; the Victoria County Elections Commission probably last met in 1992 when it created the position of County Elections Administrator.
Do the County Elections Commissions within the counties have any direct responsibility for conducting elections?
The short answer to that question is … no.
County Elections Commissions have one tiny slice of legal responsibility (i.e., hiring or firing county elections administrators). That authority gets exercised once in a blue moon.
County Elections Commissions are consequently invisible and nearly powerless; they certainly don’t pay for the conducting of elections or supervise the conduct of those elections.
I think it’s interesting that county officials in Victoria have responded to this story by urging that the Victoria County Elections Commission will conduct quarterly meetings henceforth, presumably to preserve greater visibility and to ensure that voters won’t once again react with shock and surprise upon discovering that there is such a thing as a county elections commission.
So, who conducts elections?
In matters of voting (as with so much else) the State of Texas has adopted an aggressively decentralized approach. In one sense, the answer to the question is this:
- Each political entity (whether that entity is a semi-autonomous political subdivision or a division of the State or federal government) conducts its own elections.
That answer has the ring of seeming authenticity. Every county, city, school district, water district, hospital district, community college district, special law district, municipal development district, et cetera, has the formal legal responsibility for conducting its own elections, starting with the State of Texas and moving on down to the tiniest subdivision of local government.
But that answer doesn’t quite capture reality.
Let’s try again with this answer:
- Each political entity is empowered to conduct elections, but practically speaking, there’s no way that thousands of tiny government entities (many of which don’t even have employees or permanent offices) can possibly handle the tedious and labor-intensive job of actually running their elections.So the equipment and election workers are provided by the counties. County workers print the ballots, program the voting machines, manage the early voting polling places and the Election Day precincts, count the votes and deliver the results to the tiny government entities.
Okay. So that pretty much answers our question right?
If someone asks, “who runs elections?” we’ll just say, “The counties.” And then we’re done, right?
Well, not quite.
Most people might be satisfied with this answer, but some people still want to know who specifically pays the invoices for the ballot programmers and hires the election workers. They ask,
“Who within the county government actually prepares the budget, leases the equipment, puts gas in the pick-up truck that delivers the voting booths, and keeps the lights on at the courthouse on Election Night?”
So here’s a more nuanced answer:
- In Texas, elections are traditionally conducted by the County Clerk, while voter registration is administered by the County Tax Assessor/Collector (as a holdover duty of that office from the era of poll taxes). The costs associated with elections are largely paid out of general tax revenues, as budgeted and distributed by the County Commissioners’ Court.
Okay. Weird (what with the retro throwback reference to the collection of poll taxes), but okay.
Except … wait.
If elections are conducted by County Clerks (who are elected county officials) and if voter registration lists are created and maintained by Tax Assessor/Collectors (who are also elected county officials), then where do Election Administrators come into the mix?
- County governments (i.e., the County Commissioners’ Courts) may choose to exercise statutory authority to create the position of County Elections Administrator. A County Elections Administrator is a paid county employee to whom is delegated the authority inherent in the offices of County Clerk and County Tax Assessor to (1) run elections, and (2) administer voter registrations for county voters. The County Elections Administrator is hired by the County Elections Commission and answerable to that (almost invisible, easily forgotten) government body. Meanwhile, the County Commissioners’ Court determines the budget, staffing, and all other decisions relating to the management of the county elections.
So in those counties with elections administrators, there is an interesting dynamic at work (and by “interesting,” I mean “complicated”).
The Elections Administrator is a special kind of county employee answerable to two separate deliberative bodies.
The Elections Administrator has to keep the County Elections Commission’s members happy in order not to be fired, but at the same time, the Elections Administrator has to keep the County Commissioners happy in order to have an office and a budget.
So … here are the members of those two bodies that a county Elections Administrator answers to:
- The County Judge — the elected chief executive officer of the county, voting member and chair of the County Commissioners’ Court, and chair of the County Elections Commission.
- Four elected county commissioners, each representing a geographic portion of the county (Commissioners’ precincts 1–4) as voting members of the County Commissioners’ Court.
- The County Clerk — the elected records officer of the county; responsible for the minutes and records of the county court, managing all vital and property records of the county, voting member of the County Elections Commission.
- The County Tax Assessor — the elected financial officer of the county; responsible for the assessment and collection of county tax revenue; voting member of the County Elections Commission.
- The County Democratic Party Chair — chief executive officer of the county Democratic Party (if one exists); voting member of the County Elections Commission.
- The County Republican Party Chair — chief executive officer of the county Republican Party (if one exists); voting member of the County Elections Commission.
So that’s nine people with some measure of influence over the Elections Administrator. And one person in particular looms large. Because the County Judge sits on both bodies, that person has even greater influence over the process of creating the position and hiring the Elections Administrator.
While the Commissioners’ Court can’t directly hire or fire the Elections Administrator, the ability to control the existence of the position and the purse strings is all-important. If the Commissioners threaten to abolish the position or put the Elections Administrator in a broom closet, the message will come across loud and clear.
Why would the State authorize such an odd delegation of election authority by county government? I mean, why split the authority to hire the administrator from the authority to pay the administrator?
On the one hand, election administration is in many ways a complicated, thankless job. Elections are expensive (thanks in part to the many issues of legal compliance with state and federal laws) and emotionally fraught. From the perspective of an elected official like a county clerk, it’s often a relief to be able to delegate the management of dozens of local elections (as well as the high-profile, high-risk county, state, and federal elections) to a bipartisan “Switzerland” of blessed political neutrality.
On the other hand, election administration is very much about mucking about in the gears and levers of the political machine. While nobody wants to actually do the job of running elections, there are plenty of people who would like to preserve leverage over the administration of the election itself.
This Gordian Knot of conflicting county loyalties could be cut at a single stroke if the Legislature simply decreed that all counties would be required to have a non-partisan Elections Administrator, with all funding and administration supervised by the existing framework of county elections commissions.
But that legislative act would strip the county commissioners and county judges of an essential tool of budget control over elections administration. Therefore, it is unlikely that any such reform will be forthcoming.
As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.
The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:
DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.