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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.
Our presumptive President-Elect chose to take time out from his Sunday (November 27) to inform us via Twitter (with no evidence) that millions of people voted illegally, and that but for those illegal votes, he would have won the popular vote nationally. (As of this writing Hillary Clinton is more than 2,200,000 ballots ahead of Trump in the popular vote).
Not to mention that he has in the space of a couple of inflammatory Tweets managed to insult the professionalism and intelligence of every county and state voter registrar, election worker, poll watcher, precinct judge, county elections board member, and state election officer in the country, not to mention every—or at least 3 million—of us voters.
If this is what we have to look forward to for the next four years, the ratings for Trump’s reality TV version of the federal government should be through the roof, right? So at least we have that going for us. It’s obscene—if understandable; this is the PEOTUS, after all— that this story got any traction at all.
But first, given that in my last post I opined that the Clinton campaign would be unlikely to seek recounts in Wisconsin, Pennsylvania, and Michigan, and given that events have proven my opinion to be wrong, let’s address the decision by the Clinton campaign to piggyback on the Jill Stein campaign’s recount requests.
General counsel to Hillary for America Marc Elias (via a statement posted on Medium, and as quoted extensively in Rick Hasen’s blog) makes it clear that Hillary Clinton is wholly realistic about the likelihood that the recounts will not change the outcome of the election, but that such recounts should prove useful as audits of the accuracy and integrity of the election process and to settle fears regarding the risks of result-changing “hacks.”
Briefly, the Clinton campaign would not have pursued recounts but for the fact that
(1) The Stein campaign raised the money and filed the paperwork to get the ball rolling, and
(2) Voters were collectively so disturbed and agitated by evidence of foreign meddling and interference in the election that it made sense for the Clinton campaign to join in the recount effort in order to bring closure to the election.
So why did Stein’s campaign ask for recounts in the first place?
I don’t know—I guess it’s possible that the Stein campaign coordinated with the Clinton campaign, but that seems unlikely, given that neither campaign will benefit in any direct political way from behind-the-scenes cooperation.
I suspect that the Stein recount was motivated by no more than what it seems to be on its face—a grassroots-driven gift propelled by very real and understandable anxiety on the part of committed Stein supporters who could not have been happy with the idea of a Trump victory, especially if it was the result of some sort of direct interference or manipulation of the vote totals in key precincts.
Finally, Paul Musgrave, an assistant professor of political science at the University of Massachusetts Amherst, has written a nice summary explanation as to why Russia benefits—at least in the short term—from all this anxiety.
One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”
The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.
After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.
But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.
That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.
But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.
The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.
That’s a weird, restricting, artificial reason to thwart voter intent.
The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.
Ari Berman analyzes the effects of the Fifth Circuit’s March 9, 2016 order. This is bad news for the plaintiffs, and for Texas voters generally. The foot-dragging has been especially galling, given the airtight factual evidence in support of the plaintiffs’ arguments.
(Note to the non-attorneys out there: the linked article explains this, but not everyone knows what “en banc review” means. After five months of delay, the court has collectively decided that the previous decisions regarding the State’s unconstitutional voter I.D. law need to be reconsidered by the entire panel of all the Fifth Circuit appellate judges, the majority of whom happen to be conservative political appointees).
As an additional follow-up; the Fifth Circuit Court of Appeals has rebuffed arguments for stopping implementation of the unconstitutional law until after the whole body of judges hear additional oral argument later this year. The law will likely continue to be enforced through the November 2016 presidential election, despite the fact that it has been found to be unconstitutional.
Today I got a call from a Houston-area radio journalist asking questions about how Texas makes it harder for homeless people to vote. On the one hand, the timing of the question was a little late (what with the registration deadline already having passed for the statewide and local November 3, 2015 elections here in Texas). On the other hand, the question was timely, given that a five-month lead-in to the early February deadline to register to vote for the March 2016 primary elections probably gives homeless voters the time they need to organize their identification paperwork and fight their legal and bureaucratic battles so that they’ll be able to cast a ballot next year.
If ever there was a class of voters that was easy to disenfranchise, it would have to be the homeless – even before we had voter I.D. laws, only an estimated 10% of the eligible voting-age homeless population participated in elections. (This statistic is widely cited, and consistent with statements made by Neil Donovan, the executive director of the National Coalition for the Homeless. See, e.g., http://www.pbs.org/newshour/rundown/forgotten-voters-dc-volunteers-work-to-register-the-homeless/.)
Why are the turnout numbers so small for the homeless? Let me turn that question around. Why wouldn’t we expect the number of homeless people successfully engaging in the political process to be a tiny minority of the homeless population? After all, our government has raised enormous barriers to discourage homeless participation in politics, with ballot limitation policies that often appear to be motivated more by petty cruelty or simple mean-spiritedness than by any legitimate administrative concerns; is it any wonder that homeless have gotten the message that they are not wanted at the polls?
That’s not to say that there aren’t organizations making an effort to counter this powerfully negative message of exclusion – there are regional groups like Homeless Not Powerless (which was active in early 2014 and centered around urban centers in Alabama and North Carolina), as well as national groups like the aforementioned National Coalition for the Homeless (who produced a .pdf brochure in 2012 urging the homeless to register to vote and go to the polls).
I would hope that homeless advocates would similarly work to encourage voting by the homeless in 2016, but nobody doubts that the Texas photo i.d. law makes that a lot harder.
DOESN’T EVERYBODY HAVE A DRIVER’S LICENSE ALREADY?
Uh … no. Could anybody still say this sort of thing with a straight face? Well, yes – at last weekend’s Texas Tribune Festival here in Austin, State Representative Jason Villalba (R) (Dallas) said that a photo I.D. requirement was “no big,” because everybody already has a license to do things like rent cars and book airline tickets.
Ah, the power of anecdotal experience. Ah, the failure of imagination. Since a Texas lawmaker has a driver’s license, everybody must have one. You know, except for the 600,000 eligible already-registered voters who lack such a thing.
Seriously, does Representative Villalba think that the whole development of evidence and discovery phase of a contested civil rights trial just takes place in an ’80s movie montage? Has it somehow escaped the understanding of our state lawmakers that when lawyers clash in a courtroom setting, spending huge sums of money on depositions, expert witnesses, and intensive documentary analysis and research, that the resulting mountains of evidence are somehow just … irrelevant to their own fantasies about how the other half lives? It isn’t some made-up statistic – the Texas Secretary of State’s own records confirm that around 600,000 registered voters lack sufficient i.d. to vote. A much larger number of non-registered voting-age citizens also lack the documentation required to cast a ballot.
OKAY, SO NOT EVERYONE HAS A DRIVER’S LICENSE. BUT … I MEAN, COULDN’T THEY ALL GET DRIVERS’ LICENSES?
With unlimited resources, time and money, problems like a lack of supporting documentation magically vanish for eligible voting-age Texans. Except … people don’t have unlimited resources, time and money. That’s sort-of the problem, isn’t it?
To be fair, the State of Texas makes it possible for people without drivers’ licenses to get specialized picture I.D.s to be used for the narrow purpose of voting. And these I.D.s are at least legally issued free of charge to anyone who can cough up sufficient documentary proof of their identity – such as a birth certificate or a passport.
Here’s the kicker (as I have mentioned before, more than once) – not everyone has a birth certificate or a passport. And getting a birth certificate or a passport isn’t a cost-free transaction.
A little digging uncovered some private charitable groups that help homeless people get I.D. forms, and subsidize the cost of those forms – there’s a coalition of Presbyterian churches in downtown Houston (Main Street Ministries) that offers a homeless I.D. workshop on Tuesdays and Thursdays from 9:00 to 11:30 a.m., excluding holidays. But … that service is limited in scope, and is only available to homeless people who have a valid referral letter from an approved referring agency.
To be fair, I’ll grant you that “some limited charitable resources for getting a picture I.D.” isn’t the same thing as “no resources for getting a picture I.D.” It would be inaccurate to say that there are no avenues by which an impoverished homeless person could get the materials necessary to register to vote and cast a ballot.
But some things are just inherently harder to do when you don’t have a fixed residence address. For instance, there’s the problem of providing a residence for purposes of identifying a voting precinct.
Here in Austin, a homeless person could successfully complete a voter registration application by filling out the form and listing a physical geographic location (“under the overpass at IH35 and 12th Street”) as the residence. For a mailing address (in order to get the voter registration certificate), a person could then list “General Delivery” along with the zip code for the main post office.
Problem solved, right? Except … a person must provide two forms of i.d. and a valid residence address in order to receive mail from the General Delivery window at a regional mail distribution center, per the USPS Domestic Mail Manual. Except … there’s an exception to this requirement in the discretion of the local postmaster if a transient person is “known to the postmaster” and sufficiently well-identified.
Subjective, mushy, exceptions to general rules create certain fairness problems. A nice local postmaster might go to great lengths to assist homeless mail clients with securing no-cost P.O. boxes and long-term General Delivery accounts. Or not – when Seattle homeless sued the Postal Service in the late 1990s for failing to provide mail delivery, they were more-or-less poured out of court with an appellate decision that upheld the Postal Service’s broad discretion to chose how much or how little it needed to do to in terms of providing mail services to the homeless.
So, yay to you, homeless person, if you happen to live in an area where you can get mail delivery. But if you live somewhere where you can’t get mail delivery (say, if transportation issues and a lack of i.d. make it impossible for you to sign up for General Delivery), the Postal Service isn’t obligated as a matter of law to help you out.
Homeless people get to experience annoying Catch-22s involving ignorant voter registrars who insist on the primacy of a street address, wherein the homeless person submits a voter registration application, but has the application rejected because it doesn’t list a place that the voter registrar believes is a “real residence.”
WELL, OKAY. MAYBE HOMELESS PEOPLE HAVE TO WORK A LITTLE HARDER TO REGISTER TO VOTE. BUT VOTING IS IMPORTANT – IF THEY REALLY WANT TO VOTE, TRANSIENTS SHOULD BE WILLING TO PUT UP WITH A LITTLE PAIN AND FRUSTRATION
Um … okay. This is the sort of absentminded cruelty that leads to civil rights violations, because it belies a popular and common attitude – that the homeless are morally inferior and undeserving of any particular care or consideration when it comes to voting.
If that’s how one feels, why not apply that philosophy to other groups as well. Why do we coddle people who are disabled on Election Day? Why have we had a law on the books for the last 110 years allowing people in the extremis of terrible illness the right to vote from their sick beds on Election Day? And why do we coddle people who have just had a death in the family and been called away by the need to bury a loved one?
For that matter, why bother accommodating the absentee voting of people who are actually under fire in a foreign war zone? Shouldn’t we expect soldiers to just tough it out? I mean, if voting is so important and all, why should we make it easier for anyone to vote? Why not just have the entire electorate crawl through broken glass to get to the polling place? I mean, if democracy is so precious and all, shouldn’t we all be willing to suffer indignities, costs, and hardships that are thrown up as roadblocks to our vote?
Well, no. obviously. First of all, most of us aren’t heartless psychopaths who take pleasure from the pain of other human beings. And secondly, most of us understand how the whole “fairness” thing works, because we occasionally benefit from the kindness of others, and can empathize with people who find themselves in need of kindness.
I mean, it would be one thing if we all faced exactly the same burdens on our ability to cast a ballot – then one could at least argue that the pain and cost of voting was distributed evenly among all voters. But that isn’t the case – some people have a significantly harder time casting a ballot than others. And to the extent that some people face greater hurdles to participation means that those people are disproportionately less likely to be able to participate as voters in an election.
We would only exclude those people from participation (and preserve the exclusionary barriers limiting participation in the organs of self-government) if we really didn’t want those people to participate. And that way lies the path to insurrection, rebellion, and death.
The homeless are entitled to participate in elections with the same ease and transparency of process as any of the rest of us, whether we are renters, homeowners, fabulously wealthy, desperately poor, or living under a bridge. And until the homeless are able to participate in elections with the same ease and lack of constant scrutiny and suspicion. we cannot say that we are free citizens of a democracy.