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Professor Lawrence Lessig & Team Offering Free Confidential Legal Advice For Presidential Electors

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.

And here’s Harvard law professor Lawrence Lessig’s article explaining how the Electors Trust works, and what his intentions are in offering this advice.

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.

Do Over: Election Woes in the City of Martindale

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?

  1. Get the ballots printed and reviewed as early as possible.
  2. Make it a fixed and automatic routine to require outside review and analysis of the election’s administrative burdens by experienced election law experts.
  3. Confirm jurisdictional boundaries early, and specify exactly which jurisdictional territories can and can’t vote on each ballot issue.
  4. 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.
  5. Remember that an election services contract with another entity is not a mechanism for abdicating responsibility for the local conduct of an election.
  6. 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.
  7. 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.

Happy Birthday, Texas Election Law Blog! – A Look Backward and Forward

I have a lot to write about, but first, I wanted to acknowledge the just-passed two-year anniversary of the Texas Election Law Blog.

Two Years Ago

On July 2, 2013, just days after the Supreme Court issued its decision in Shelby County, Alabama v. Holder, I was fired from my job as a staff attorney at the Elections Division of the Texas Secretary of State’s office. My employer’s stated reason for firing me was that I had made intemperate remarks about what I can now call a particularly egregious miscarriage of a special district election in Montgomery County, Texas.

That election is now back in the news, after the 14th Court of Appeals remanded the first criminal case for a new trial.

I started this blog the day after I was fired, because

  • My job — to provide unbiased explanation and advice about administering fair and legal elections in the state of Texas — still needs to be done, in part because
  • In my professional opinion, the Elections Division at the Texas Secretary of State is now falling down at its mission — not because of the hard-working staff, but because of changes under the previous governor.

Unpacking the details of my termination raises all sorts of questions, not just about my professional qualifications and my flaws or merits individually as an attorney specializing in election-related matters, but also about the role of the Texas Secretary of State as chief elections official for the State of Texas, the complex interactions of money, self-interest, and law in elections administration, the slow diminishment of a once-effective advisory agency over the course of former Governor Perry’s tenure as chief executive officer of the State, and the larger battles over the soul of American democracy that are being fought state-by-state across the United States.

At least initially, I saw this blog as a platform for providing hard-working citizens (including election administrators) with some very modest enhancements to the dissemination of election law information relevant to Texans. Although I’m not a information architect or user experience expert, I was frustrated for years that the Elections Division’s website, while good in many respects, had such a peculiarly structured design. Election law opinions were missing; forms were not not where you’d expect to find them, and so on.

Just putting all the forms in one list was a comparatively easy fix (though I’ve been remiss in keeping it updated; that’s one of my tasks looking forward), and at some level I hoped that my own modest and amateurish improvements would shame top agency decisionmakers into paying attention to the agency’s role as an advisor to local, county, and state officials in elections administration.

What’s Changed for Me

I had been scrupulously nonpartisan while employed at the Secretary of State’s office — party affiliations and policy preferences were outside the ambit of my purview. (I wouldn’t even let my wife put political signs in our yard or bumperstickers on our car.)

I was, and remain, sympathetic to the day-to-day management concerns faced by county clerks and tax assessors who likely would not see eye-to-eye with me on many political questions at a personal level.

While at the Elections Division, and now, party planks and philosophical disagreements never angered me. I’m slow to anger. What did get to me was willful maladministration at the county level. (Here my editor has redacted a few specific examples, noting this blog is not the venue for what is now — since years have passed — lukewarm political chatter.) All that said, however, with almost no exceptions, I liked everyone I talked to — even the people I was annoyed with.

I mean everyone …  even the possibly disturbed caller who floridly cursed me as “a maggot on Satan’s cracked hoof.”

All the callers I talked with, day in and day out, are gloriously, endlessly varied human beings, with rich contradictions and complicated feelings, and they were — and are — all trying to various degrees and with varying levels of success to conform their actions to some great social ideal as articulated in our state and federal election laws.

What got to me near the end of my tenure in the Elections Division was the Supreme Court’s decision to dismantle the regulatory framework of the Civil Rights era.

Moving Democracy Backward

Picture I.D. laws, restrictions on volunteer deputy registrars, and racially discriminatory redistricting, as well as Wild West campaign finance laws, stupid residency definitions, fear-driven race baiting, the disruption of polling places, candidate intimidation, and other acts of dirty political pool are all of a package with a more general philosophy adopted by members of the extreme Right — that political coups are preferable to elections, because the “wrong side” sometimes wins elections.

This political strategy is toxic to democracy and to our nation’s founding values. At what point will the extreme Right conclude that overt coups are preferable to elections (or subtle coups), because the “wrong side” sometimes wins elections?

As the mechanisms for free and fair elections are rendered less effective, the resentments of those shut out will grow. As our legislatures and leaders short-sightedly vandalize the instruments of suffrage, they turn the clock back to a time when our cities burned. Our cities are burning again, and will burn again and again until (some) policymakers learn that short-term political victory through anti-democratic means is self-defeating and costly.

A Way Forward

More to come. And your ideas welcome. This is important, folks!

Back Again After A Long Hiatus

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.

Veasey v. Perry – Commentary and Fallout After the Supreme Court Order

There have been a number of news stories and editorial commentaries regarding the decision by the U.S. Supreme Court to allow Texas to conduct an illegal election; here are a few of particular interest –

Scott Lemieux at The Week asks why the Supreme Court allowed Texas to hold an unconstitutional election (his answer, more or less, is that the conservative justices are more loyal to the Republican Party than they are to the preservation of their own legal principles – http://theweek.com/article/index/270228/why-the-supreme-court-is-allowing-texas-to-hold-an-unconstitutional-election

In a witty, angry piece, Jonathan Chait at New York Magazine describes the GOP strategy to simultaneously attract and disenfranchise minority voters – http://nymag.com/daily/intelligencer/2014/10/gop-trying-to-woo-suppress-minority-vote.html

Rick Hasen describes the importance of Ruth Bader Ginsburg’s canary-in-a-coalmine dissent from the Supreme Court’s order, in Slate – http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/ginsburg_s_dissent_in_texas_voter_id_law_supreme_court_order.html

Professor Hasen also tracks down a minor factual error in Justice Ginsburg’s dissent – http://electionlawblog.org/?p=67193

The Dallas Morning News (that hotbed of liberalism) takes the time to excoriate the Supreme Court for its terrible decision – http://www.dallasnews.com/opinion/editorials/20141020-editorial-in-voter-id-ruling-justices-side-with-more-obstacles-at-the-polls.ece

Michael Waldman at Politico explains how the Supreme Court has made a mess out of our elections – http://www.politico.com/magazine/story/2014/10/supreme-court-voting-rights-112026.html#.VEbSuhZ0akI

Ari Berman at The Nation unsparingly points out that the Supreme Court has eviscerated the Voting Rights Act – http://www.thenation.com/blog/183561/supreme-court-eviscerates-voting-rights-act-texas-voter-id-decision

Mr Berman goes on to describe how across the country, the Republican Party is manipulating voting laws to its advantage – http://www.thenation.com/article/182233/gop-winning-war-voting#

Bob Bauer at More Soft Money Hard Money points out the errors in judicial judgment that opened the floodgates on state voter id laws – http://www.moresoftmoneyhardlaw.com/2014/10/crawford-politics-voter-id/

The Wall Street Journal notes the longer-term legal questions that must now be resolved – http://online.wsj.com/articles/voter-id-actions-push-fight-past-november-1413760050

If you don’t have time to read all these pieces, let me summarize the general consensus emerging across the country – in allowing Texas to conduct an illegal election, the U.S. Supreme Court did something monumentally wrong, further tarnishing its already discredited reputation, and eroding what remains of the public’s trust in the rule of law.

As I mentioned in my critique before the Court ruled to uphold the 5th Circuit’s stay of the trial court’s injunction, the Supreme Court has laid out a banquet at which every losing candidate can feast, thanks to the synergistic effects of the trial court decision and the state laws allowing for election contests (in particular, I would direct your attention to Title 14 of the Texas Election Code, and especially to chapters 221, 231, 232, 241, and 242 of that title). The contests of the statewide executive offices and the state and federal legislative seats will be a little trickier, because of the role played by the Texas Legislature as the tribunal before which such complaints are filed.

But for local races, the contests just need to be filed in state district court. That’s not to trivialize the procedural details, which require familiarity with the local rules of court, the Texas Rules of Civil Procedure, and the unusual modifications to discovery schedules, pleadings, and hearing schedules that are peculiar to election contests. But for any litigators, the single most daunting element of an election contest (namely, collecting evidence showing that an irregularity in the conduct of the election had a material effect on the outcome of that election) just got so, so much easier.

What’s good news for losing candidates is bad news for the winners, which could make for some strange bedfellows among civil rights advocates and affected candidates who are upset with the natural consequences of the Supreme Court’s ruling.

The Secret Texas Election Code

To tell the truth, there isn’t really a secret Texas Election Code, at least not in the strictest sense. But there is a body of administrative rules that materially affect how elections are conducted in Texas. The rules themselves (found at Title 1, Part 4, Chapter 81 of the Texas Administrative Rules – see the Links page) are a mixture of frustratingly terse and oblique exercises of administrative interpretation of the Texas Election Code, together with extremely detailed and technical rules, betraying a kind of schizoid development process.

But assuming that the Election Code can be completely understood without the administrative rules is dangerous. I’ll illustrate examples of that later in connection with rules for accessible voting system security, confidential voting by victims of domestic violence, and management of primary finance.

A second kind of secret election code has developed over the years in the form of unwritten, informal interpretations of the sometimes incomprehensible Election Code. I’ll point out a couple examples of this as well in future posts.