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In the shadow of our statewide election, the City of Martindale (a town of about 1,200 people in Caldwell County, not far from San Marcos) is having a November 3, 2015, mayoral election.
This election is taking place because of a disastrously error-filled May 9, 2015, mayoral election that had to be contested by the losing mayoral candidate. The Election Academy at the University of Minnesota shares the story, quoting extensively from an Austin-American Statesman story about the city’s election problems.
Briefly, Martindale’s election had the following problems:
- Owing to a misunderstanding about how ballots and voting work when uncontested races are on the ballot, none of the uncontested candidates for city council got any votes.
- The voter registration list combined all the city voters with the non-eligible county voters in the city’s extraterritorial jurisdiction, allowing non-city voters to vote in the contested mayoral election.
As unfortunate as these errors were (and as expensive as the correction proved to be, requiring that a losing candidate had to file a formal election challenge in state district court in order for a new election to be ordered), the lion’s share of the blame for the bad May 9, 2015, city election must be placed on our pitiful Texas Election Code, reflecting systemic flaws resulting from a combination of legislative initiatives to make local elections cheaper and less frequent, and from a lack of state and federal oversight of elections administration in general.
As is so often the case, the problem lies not with individuals, but with poorly engineered systems.
- CERTIFICATION OF UNOPPOSED CANDIDATES, AND WHY STATUTES THAT CANCEL ELECTIONS ARE A VERY BAD IDEA
In 1995, the Texas Legislature amended the Texas Election Code to provide that as long as there weren’t any contested races, a political subdivision could go ahead and cancel an election. Thus was sounded the death knell of the tradition of open write-in candidacy—a political subdivision couldn’t very well treat its races as uncontested if open write-in votes could be counted for any eligible candidate, and therefore entities would have to enforce candidate registration requirements in order to benefit from the cost savings that could be realized by canceling elections.
When the bill passed and was being submitted to the U.S. Department of Justice for preclearance review under the Voting Rights Act, staff at the Texas Secretary of State’s office noted in passing that one of the negative consequences of the law could be a loss of local institutional familiarity with the conduct of elections. In towns, school districts, and other political entities, the capacity to cancel sleepy unexciting elections meant that years or decades might pass in which said local entity wouldn’t conduct an election of any sort. Institutional experience and memory would fade, procedures would lie fallow, and the capacity for mistakes would expand.
So when (after decades of canceled elections) the City of Martindale found itself with two actual candidates sparring over the position of mayor, nobody knew that the other candidates (for uncontested city council seats) were supposed to be put on the ballot in such a way so that voters could actually vote for them.
Enthusiasm for the undemocratic cancellation of elections is such that now the Texas Election Code also provides a convoluted procedure whereby unopposed candidates for state or county office can be listed on the ballot as elected by fiat. Not surprisingly, this procedure (which doesn’t apply to local races) gets all bolloxed and confused with local election procedures, and leads to mistakes like a city listing its uncontested candidates for city council without also providing any mechanism for recording votes for those candidates.
In point of fact, allowing for the cancellation of elections is contrary to … oh … I don’t know … a tiny little thing like the whole weight of the entirety of English and American law, not to mention the history of Democracy. In other words, everything found in subchapters C and D of Chapter 2 of the Texas Election Code is a giant snarl of terrible ideas that should never have seen the light of day. The notion of “cost saving” is inimical to and incompatible with the necessary expense of maintaining the infrastructure of democracy. And yes, that truth means that small political subdivisions should be expected to conduct elections at fixed regular intervals even when nobody wants to run for office.
By allowing political subdivisions to cancel elections for the last two decades, we have incentivized discouraging people from running for office. (Admittedly, this incentive is counterbalanced to some extent by criminalizing the act of coercion against candidacy, but we’ve lost the ancient tradition of open write-in candidacy, which is dead and buried in Texas.)
- MISTAKES WITH VOTER REGISTRATION LISTS, AND WHY BOUNDARY LINES MATTER
To save money, the City of Martindale conducted its May 2015 mayoral election jointly with a Hays County–area school district, and both the city election and the school district election were administered by the Hays County elections administrator. But the City of Martindale is located in Caldwell County, meaning that the Hays County elections administrator had to cross a county line, setting up and deploying Hays County–owned voting equipment and workers in Caldwell County–sited polling locations, and using a hodgepodge of Hays County jurisdictional voting lists (for some of the school district voters) mixed in with Caldwell County jurisdictional voting lists (for the City of Martindale election, which included a ballot referendum for the approval of an extraterritorial-jurisdictional Martindale Development District that non-Martindale residents of the city’s extraterritorial jurisdiction were eligible to vote on).
I’m sorry. That’s … just wrong.
Who can blame the Hays County elections administrator for failing to distinguish the voting eligibility of two distinct groups of voters, defined by geographic boundaries the management of which are entirely outside the scope of the Hays County voter registrar’s office?
Not for nothing, but the November 3, 2015, do-over election will be conducted by the Caldwell County elections office.
This particular recipe for disaster should be laid squarely at the feet of our state election laws. In particular, the confusion over voting eligibility was exacerbated by a ugly, punitive anti-school-district law passed in 2006 (Section 11.0581 of the Texas Education Code) that specified that school districts were obligated to conduct their officer elections jointly with the general elections of a municipality.
On the face of it, that doesn’t seem like such a bad law, until you realize that school districts don’t actually have territorial boundaries wholly encompassed by, and coterminous with, city boundaries. The real purpose of the law was to strip school district local governance away and place control of school district elections with geographically separated city government elections.
So the San Marcos Consolidated Independent School District (SMCISD) had no say about whether their trustee election would be paired with the City of Martindale mayoral election—the school district was required by law to conduct its single-member district trustee election jointly with a city election.
In May 2015, the available city election on which the school district trustee election could piggyback was the general and special municipal election for the City of Martindale (which shares overlapping territory with the Single Member District 2 trustee position for SMCISD). And while some of SMCISD is located in Caldwell County, the bulk of the school district is in Hays County, leading the school district to naturally rely on the Hays County Elections office to take on the administrative burden of conducting “the election.”
And by “the election,” I mean in fact two elections—the school district trustee election for single-member District 2 of the SMCISD and the City of Martindale election for mayor.
But really, by “two elections,” I mean three distinct elections in three different territorial regions:
(1) the SMCISD school district trustee election,
(2) the general election for officers for the City of Martindale, and
(3) the referendum election in the City of Martindale ETJ (extraterritorial jurisdiction) to approve the creation of the Martindale Development District.
Is it any wonder that voters got the wrong ballots, with some Martindale ETJ voters voting in the City of Martindale mayoral election? The whole election was like the set-up for a bad sit-com joke about an administrative disaster resulting from impossible-to-follow instructions.
Now, Dimsdale, the conduct of this election is the very essence of simplicity. Why, even a toddler could do it.
When a voter comes into the polling place, simply consult this badly printed and faded mimeographed list, and then compare the voter’s residence address with this smudged and slightly wrinkled map of the boundary lines of the city, the county, the school district single-member districts, and the city extraterritorial jurisdiction. Oh, except that you’ll need to consult a separate map for the ETJ, but only for that portion of the ETJ that overlaps with the District. Not the whole district, but just District 2 of the District, except in the portion that isn’t being affected by the vote to approve the District (and by that District, I mean the Development District, not District 2 of the District. Or the District). Now, just cross-reference the block range and street name with this slightly out-of-date block list, and you’ll note the lowercase abbreviation codes for each of the jurisdictions, assuming that the person is within Hays County. But, if the voter has a Caldwell County address, you’ll need to consult this incompatible list that uses a completely different abbreviation code. Now, whatever you do, don’t fail to not provide Version B of the ballot (containing the SMCISD trustee election) to someone ineligible to vote in the city election, unless it is clear that you should be providing Version C of the ballot (when the city voter also happens to live inside the boundaries of SMCISD single-member district 2) except when you need to provide Version A, but only to those who live in Hays County. And obviously, apply those requirements to Versions B2, C2 and A2 in like measure for voters in Caldwell County. So, good luck, and remember, there’s no reason to not not call the voter registrar for Caldwell County, unless it’s for a voter in Hays County, and … oh dear, I seem to have spilled grape jelly on the map, which was printed using a shade of purple ink disturbingly similar in shade to the color of the spilled jelly. But no matter—I’m sure that despite this being the first election that you’ve ever volunteered for that you’ll have no difficulty whatsoever managing the long line of angry voters who are already gathering outside the locked doors of this tiny, un-air-conditioned polling site with inadequate parking and intermittent power outages. Oh, and voting booth number two has always been a bit wonky. Just give it a good shake from time to time, but be careful not to knock the battery pack loose.
Good luck, Dimsdale, I have every confidence in you.
- OKAY, I KID, BUT THIS KIND OF DISASTER IS BOTH PREDICTABLE AND PREVENTABLE
The City of Martindale doesn’t have a lot of money—it’s a modest town with a small tax base, and no appreciable industry. And yet, thanks to the need to re-do the election, the city must shell out thousands of dollars in precious city revenue in order to conduct a do-over election, all because of the “cost-savings” gained from being able to cancel elections in preceding years. The news coverage is embarrassing, and according to the Statesman story, has exacerbated the ill-will between the former mayor of Martindale and the person who won the May 2015 mayoral election.
But this was just one of those one-in-a-million flukes, right? I mean, these kinds of disasters don’t happen that often, right?
Sadly, no. This may have been the City of Martindale’s first brush with the awful and costly election contest process, but the same factors that led to this disaster repeat over and over again across the State of Texas with depressing regularity.
So, what should a city secretary do to ensure that this sort of thing doesn’t happen in future elections?
- Get the ballots printed and reviewed as early as possible.
- Make it a fixed and automatic routine to require outside review and analysis of the election’s administrative burdens by experienced election law experts.
- Confirm jurisdictional boundaries early, and specify exactly which jurisdictional territories can and can’t vote on each ballot issue.
- Assign final responsibility for each local election specifically to one person per jurisdiction, rather than relying on an extraterritorial “joint” early voting clerk or county voter registrar forced to act outside the scope of his or her job description.
- Remember that an election services contract with another entity is not a mechanism for abdicating responsibility for the local conduct of an election.
- Even when state law permits you to cancel an election, follow the formal procedural steps for ordering the election, defining the contractual responsibilities associated with that election, and documenting the cancellation or declaration of unopposed candidacy.
- Maintain a detailed permanent election register for all elections, whether cancelled or not.
Yes, it’s embarrassing, what happened in the City of Martindale. But don’t blame the city secretary. It wasn’t her fault that state law created a perfect storm of administrative confusion. An early call to the Elections Division (say, sometime in March of 2015) would (optimistically) have saved the city from this disaster, but in a larger sense the city’s woes are just a demonstration of how we need to reform state law regarding election cancellations.
It’s a good time to be writing about Texas Elections, given that the 50th anniversary of the March from Selma to Montgomery was just two days ago, and given that we are still struggling to counter the corrosive effects of endemic institutional racism even now. There’s also quite a bit of action vis-a-vis public law generally in Texas, what with the Legislature’s latest experiments.
In the midst of all this election-related news, my wife had surgery recently. Everything went great, and we’re all doing fine, but the medical prelude and aftermath were distracting, to say the least, and now I feel like the kid who comes back to school after a long break and hopes that he can still remember the combination for his locker.
Also in the midst of all this, I finished a novel for middle-grade readers called “Sky Pirates of the Aetherosphere.” What does it have to do with Texas elections? Absolutely nothing whatsoever. As in, it is about as far removed from the law and elections as it can possibly get.
If the novel is in any way tied to my work as an attorney, it grows out of the rich loam of my extended hiatus from government employment. So thanks for that, State of Texas!
Very briefly, here’s a recap and highlights of some of the things I’ll be looking at this week:
I. Selma and the the future of voting rights
Everybody and their cousin have provided transcripts and links of varying quality to one of President Obama’s best speeches, namely the remarks he delivered on the 50th anniversary of the march from Selma to Montgomery. His speech was reprinted in full in a number of newspapers, including the Washington Post, the Wall Street Journal, and the New York Times, but what the heck, I’ll provide the link as well. It deserves as wide an audience as possible, and if you haven’t read it elsewhere, go check out the official transcript.
2. Calls for Electronic Voter Registration
Each time a legislator calls for Texas election law to enter the 21st Century, I admire the ambition, given that nobody’s managed to drag it into the 20th Century yet. But who knows? Hope springs eternal, etc. Anyway, there are a number of proposals for encouraging voter registration, including provisions for online registration. This seems like a no-brainer, which means we’ll probably get to see it happen sometime in the mid-2100s.
3. Election administrators exit Stage Left
Major elections impose a certain amount of wear and tear on election administrators, but 2014 seems (at least anecdotally) to have been worse than usual for causing turnover among county election officials.
4. Fixing the Texas Election Code
It’s my pet peeve – what can I say? The Texas Election Code isn’t just evil, it’s badly written. I mean, evil … well, that’s a policy choice – if you want your politics evil, you’ve come to the right state. But badly written? That’s just embarrassing.
I look forward to working through this daunting backlog of election-law-related stuff. One nice thing about writing on election issues is that there’s always something going on.
A nice summary is available from Texas Redistricting.
The text of the charge is here, along with all the other interim charges. See page 16 for the interim charge to the Elections Committee.
It looks like the committee is responding to constituent complaints, or that the committee is thinking about budget issues, considering the committee charges relating to the responsiveness and programmatic efficiency of election-related agencies. “Agencies” in this context can be read to refer to the Texas Secretary of State, the Texas Ethics Commission, and the License Division of the Texas Department of Transportation.
I should clarify that this isn’t some sort of singling out of election agencies. Every committee was given exactly the same “agency oversight” charge across the board, from Agriculture all the way to Transportation, so the budget or responsiveness angle is being pursued across the entire regulatory framework of state government, and not just in the field of elections.
The Elections Committee is typically busy – the Election Code and its administration is a topic of interest in almost every legislative session. I’m a little disappointed that the Committee charge doesn’t include a suggestion for re-writing the Election Code, which has become increasingly and hopelessly unreadable and self-contradictory over the last 60 years. That’s not a partisan position, by the way. Independent of whatever policy objectives might be the flavor of the hour, the fact is that the Texas Election Code is a train wreck, and has been since prior to the last two recodifications (in 1985 and 1951).
A recent bit of kerfuffle has arisen regarding the practice of listing all of a voter’s prior names on the voter registration certificate – this isn’t a new law, but heightened concerns about how voter I.D. may be enforced have left some women concerned that (1) their voter registration lists some odd typographical mangling of a maiden and married name, or (2) lists a former name that hasn’t been used for many years.
I haven’t been shy in my criticism of voter I.D. laws generally, but I think one must be careful to separate one issue (the dreadful policy decision to dramatically restrict the forms of photo I.D.) from another (the format and treatment of prior names when printing the voter registration certificate).
As is so often the case with the state law, the Texas Election Code is not particularly clear about how the voter’s name is supposed to appear on the registration certificate.
When applying for voter registration, a voter must provide his or her “first name, middle name, if any, last name, and former name, if any,” per Section 13.002(c)(1) of the Election Code. The certificate itself must be printed with “the voter’s name in the form indicated by the voter, subject to applicable requirements prescribed by Section 13.002 and by rule of the secretary of state,” per Section 15.001(a)(1).
The first problem is that Section 13.002 of the Election Code doesn’t prescribe any requirements regarding how the voter’s name is printed on the certificate – it prescribes what information the voter has to submit in order to register to vote. The second problem is that the statute gives discretion to the voter to define the form of the voter’s name, and then immediately undercuts that discretion by making it subject to an agency administrative rule. Whatever one may think of the statutory drafting, it does appear that the legislative intent was to ensure that the name provided by the voter would get printed on the certificate.
On July 29, 2013, the Secretary of State issued a routine biennial directive to voter registrars, emphasizing the statutory requirements associated with voter registration certificates. Among other things, Section 2.7 of the directive described how the voter’s name should appear on the certificate, stating, “The voter’s surname together with the first name or a combination of the first, middle, and former name must appear on the certificate. The voter registrar may also include abbreviations of names indicated on the voter registration application. As a routine matter, print the former name on the certificate if it is given on the application.” (Emphasis added).
This is boilerplate language that has been included in similar directives issued every summer in odd-numbered years for many years (or at least since the statutory language in Section 15.001(a)(1) was adopted in more-or-less its current form in 1995) (74th Leg. R.S., ch. 390). To the extent that name changes disproportionately affect women voters (because of the practice of adopting a husband’s surname, etc.), and to the extent that such name changes may be strangely formatted or mangled as the result of data entry errors, those annoyances have been part of the voting experience for a long time.
The biggest printing problems were reported in Travis County. In response to angry voters, the county voter registrar issued a press statement indicating that the listing of prior names was the result of changes in the law following the adoption of picture I.D. requirements.
I have to disagree with the county’s interpretation – whatever ills may have been born out of the whole “substantially similar name” mess did not mandate the format of the voter’s name on the voter registration certificate.
[PLEASE NOTE: I now know that voter registrars across the state were reacting to a September 13, 2013 memo from the Secretary of State that more-or-less directed them to print voters’ current and former names in a particular format. For the updated story, see the following post.]
Voters across the state were mad
in Travis County because their names didn’t appear on the voter registration certificates in the same format that the voters had provided on their registration forms. In other words, Travis County apparently stored older voter information (including name changes) in some sort of database, and then printed the voters’ names as they appeared in the database, rather than as they appeared following the voters’ submission of corrections on new registration forms after the name changes. The Travis County voter registrar is likely not motivated by a desire to suppress votes by women, but by a desire to redirect voter anger over misprinted voter registration certificates. The real meanness of Texas photo I.D. requirements isn’t revealed in the voter registration certificates (which have become sort-of useless appendages to the voting process, since they aren’t treated as I.D. any more) but in the polling place procedures for accepting voters.