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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.
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.
Early voting records are public. That includes the applications for ballots by mail, a fact that I considered too obvious to dispute, until I ran across accounts of a pending election contest involving a state representative.
Representative Lon Burnam, who represents House District 90 in the Texas Legislature, lost in the March 4, 2014 Democratic Party primary to Ramon Romero Jr. This loss prompted Rep. Burnam to file an election contest, arguing that the outcome of the primary was skewed by absentee ballot requests that he thinks should have been rejected. The margin of loss is small (around 111 votes out of some 5,000 votes cast), and as is often the case, this circumstance makes an election contest more attractive.
Burnam’s lawsuit has gotten some press over the last few days, because the Texas Supreme Court shot down Burnam’s discovery request for copies of the applications for ballots by mail. The twist here is that a Burnam alleges that a substantial number of the applications were submitted electronically (rather than by the traditional methods of mail, in-person delivery, or via fax). Whether this was actually the case or not is unclear – it is possible that campaign workers were merely using iPads with targeted voter registration lists, but may have given paper applications to the voters.
In any case, Burnam wanted to see copies of all the applications, so that he could see if there was any funny business vis-a-vis the early voting.
Here’s what the law says about requesting ballots by mail:
An application must be submitted to the early voting clerk by:
(2) common or contract carrier; or
(3) telephonic facsimile machine, if a machine is available in the clerk’s office.
Notice that the law doesn’t authorize applications via iPad app, laptop or Skype, or any other cool modern technology. People commenting on the lawsuit have tended to focus on the public policy arguments for and against expanding the ways in which people could request ballots by mail, and the consensus seems to be that the law seems out-of-date.
Keep in mind that there is a signature comparison issue here – before ballots by mail can be accepted, a group of election workers have to compare the signatures on the applications for ballots with the signatures on the ballot carrier envelopes. If the signatures don’t match, ballots can be rejected. One issue is whether an electronic method of transmission allows for a sufficiently accurate and detailed reproduction of a voter’s signature so that the comparison between the two documents can be made. Tex. Elec. Code Sections 87.027(i), and 87.041(b).
The discovery argument went badly for Representative Burnam – the county fought releasing the applications on the grounds that those documents contain sensitive private information, and the judge agreed. (This story from the Fort Worth Star-Telegram covers some of the background).
And frankly, this result is wrong. As a basic matter (and with a few rare exceptions involving Social Security number and drivers’ license number information in voter registration) every document generated by an election is a public record (Tex. Elec. Code Section 1.012), including all of the applications for ballots by mail. The only limitation is an embargo on public inspection until the first business day after the election; the statute makes explicit that public inspection of the applications is allowed after that time. Tex. Elec. Code Section 86.014.
In order to be able to audit an election, any person must be able to march into the early voting clerk’s office and ask to see the original applications for ballots by mail – unredacted, and unedited. Privacy concerns do not apply, because when voters vote, they are taking the reins of government into their hands, and we are all entitled to know which of us exercised our franchise. This shouldn’t even be a topic of litigation – a simple public information request should allow for inspection and copying of any and all applications for ballots by mail as a matter of routine.