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.
My wife asked about The Electors Trust, a group of lawyers offering “free and strictly confidential legal support to any Elector who wishes to vote their conscience,” and so at her suggestion, I’m posting the link for its relevance to the Texas electors.
I’m still working through my own thoughts regarding the Electoral College, so-called “faithless electors,” and our oddly structured Presidential elections, and will take some time to unpack them in a (very near) future post.
My apologies for having not posted more frequently lately; I guess the impending collapse of Western Democracy has been leaving me feeling a bit unmotivated. (More about that in a later post). Here are a few quick links to catch up on some Texas election news:
I. TEXAS PRESIDENTIAL ELECTORS DO THEIR THING
I’ll unpack this story in a separate post because it deserves more scrutiny (what with democracy teetering on the brink and all), but essentially the Standard-Times story repeats the received experiential wisdom of many election experts — that nothing exciting or new is going to happen with the Electoral College, because nothing exciting or new ever happens with the Electoral College.
The story notes in passing that Republican state officials are now considering legislation to punish any future so-called “rogue electors” in response to the defections. The text of the proposed bill (H.B. 543, filed by Representative John Raney) is here, and as currently drafted, the bill imposes a $5,000 fine on electors who fail to vote the party line.
II. IS THE TOWN OF BROCK EVEN REALLY REAL?
From the Palestine Herald-Press, this story about a dispute between the newly incorporated village of Brock and the city of Weatherford, regarding a proposed May 2017 election in Brock to choose a mayor and city council. The problem here is that when Brock incorporated, it did its incorporation election “wrong” by failing to include an initial slate of city officials in the ballot. Oops.
So the Weatherford city attorney is taking the position that the proposed May 2017 municipal general election in Brock is illegal. Meanwhile, the attorney for the putative legal entity (the town of Brock) is arguing in effect, “well, what exactly are we supposed to do? We got a judge to order a make-up election to fix our mistake, and we have to have a city council at some point, right?”
At heart, I suspect this is really a fight driven by the zero-sum game of local property tax revenue — another taxing entity in the county means another governmental competitor for statutorily limited tax dollars (because of the tax rate ceiling cap on local tax assessments).
In effect, the City of Weatherford’s attorney is saying that the town of Brock never really incorporated, because the town’s incorporation election was such an error-strewn screwed-up mess. Those are technical legal terms, by the way.
III. WHAT IS GOING ON IN KAUFMAN COUNTY?
From InForney.com comes this story about a newly elected county commissioner submitting paperwork to decline the oath of office. Greg Starek campaigned actively for the post in the March 2016 Republican Party primary, and (as with most Republican candidates in Kaufman County) was unopposed in the general election. The story gives no indication as to why Mr. Starek is now declining the seat, which will need to be filled by appointment. The lack of details means my curiosity about the circumstances is unsatisfied.
IV. SCHOOL BOARD ELECTIONS IN THE VALLEY ARE ALWAYS EXCITING!
The losing candidates (who ran together on a slate referred to as the ‘U.S.S. Restore’ team) allege that the winning candidates (who ran together on a slate referred to as the ‘Kid’s Choice’ political team) relied on 200 forged or unsigned mail ballots to carry the election, and also that election workers improperly harassed voters who requested “assistance” from campaign workers in casting their ballots.
Like I said, this is depressingly familiar, even in the weird details of the election’s alleged “wrongness.” There’s the allegation of ballot farming and signature forgery. There’s the partisan factionalism, a feature of Valley politics that we don’t generally see in more settled and sleepy school board elections in other parts of the state. There’s the fight over the legitimacy of the commonplace but fundamentally icky practice of campaign workers “offering assistance” to voters in the polling place.
And the weirdest element of the story for someone not living in the Valley may be the intensity and scorched-earth rhetoric of the criminal allegations in an election where by law (per Section 11.061(d), Texas Education Code) the winners earn no salary or other emolument and have what in most communities is perceived as the largely invisible, dull, and thankless job of running a school district (as an illustrative example of this observation, note the summary descriptions of cancelled unopposed trustee elections and elections with unfilled seats in this October 2016 Waco Tribune story about independent school district elections in and around the Waco area).
As is so often the case, the story “behind the story” is left untold. Again, it’s about money, and not just whatever income the school district can derive from the admittedly limited local property tax base, but also the money redistributed to Rio Grande City CISD by the Texas Education Agency. In a community of limited resources, control of that money is a matter of intense, all-consuming importance, to the point where elections become epic no-holds battles.