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Three Little Words: I Was Right
My wife and I joke that the three most beautiful words in the English language are either “you were right,” or maybe, “I was wrong.”
Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.
So … The Plaintiffs Won the Texas Redistricting Lawsuit, Right? Right?
I. TL;DR Q&A
(1) Ugh! This blog post looks like it’s really long.
So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?
ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …
(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.
ANSWER: Yes. The plaintiffs won.
(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?
ANSWER: Um.
The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).
However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.
I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.
(4) What?
ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.
(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?
ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.
(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?
ANSWER: Yes.
II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.
Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.
- Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
- The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
- Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
- On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
- Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
- The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
- In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally). Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
- The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
- The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
- Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
- Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
- Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
- My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.
III. So now what?
So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?
- Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
- As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
- Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.
#Trump’s Twitter Problem: Life In “Post-Truth” America
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).
To repeat: Mr. Trump made this statement based on absolutely no evidence, and in the teeth of overwhelming rebutting evidence that what he has said is simply and unequivocally false.
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.
State Law That Limited Interpreters at Polls Struck Down
As I’ve noted before, the Texas Election Code is a mess.
Our state election laws are a cruel jumble, much of it born of mean-spirited political expediency, sloth, torpor, and ignorance.
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.
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?
- 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.
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.
Ginsburg Wasn’t So Wrong About Texas and Veteran’s I.D.s
As a number of news organizations have noted, Justice Ginsburg’s dissent in Veasey v. Perry contained a minor factual error – originally, the dissent contained a sentence stating that Texas did not accept veteran’s I.D.s as acceptable forms of photo I.D. in the polling place.
In fact, this statement was true when S.B. 14 was signed into law in 2011 – veteran’s i.d.s were not acceptable forms of identification, specifically because they were not subject to regular renewal, and were not regarded as the equivalent of active military i.d.s.
Really, the statement that the law doesn’t permit the use of veteran’s I.D.s is still true, or at least would be true, but for a clever bit of sophistic maneuvering by the State.
Nothing in the language of the law has changed between 2011 and now, and so Justice Ginsburg’s mistake is entirely understandable. In fact, to have not spoken in error, she would have had to know about the unwritten internal politics surrounding the implementation of the voter I.D. law.
When Section 63.0101 of the Texas Election Code was amended to impose the requirement for photo I.D., subsection (2) of that section defined one form of acceptable I.D. as being “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.”
Media sources and veterans groups castigated the law for what what veterans groups saw as a betrayal of their constituency. The outrage caught Governor Perry and the bill drafters by surprise, and came at an awkward time for Governor Perry (who was at that time campaigning for the Republican nomination in the 2012 Presidential election, and who was touting his support for a strong military).
The proponents and drafters of the Texas picture I.D. law had been so eager to disenfranchise minorities, the poor, the disabled, the elderly, and students, etc., that they had rushed headlong into accidentally disenfranchising a large, politically active, and vocal voting bloc with symbolic importance for conservatives.
Oops.
The political reaction was swift. After delicate consultations (the rumblings of which are lightly hinted at within an October 17, 2013 memo issued by Keith Ingram, which among other things, urges county election officials to “discard” earlier materials regarding voter I.D.), the Secretary of State determined that the proper interpretation of the law was that veteran’s I.D.s were acceptable because they didn’t expire (glossing over the fact that technically, veteran’s I.D.s are not military I.D.s, and veterans are not members of the military). But things were briefly touch and go between groups touting veteran’s rights and the State of Texas.
Of course, what the episode illustrated in a more general way was the fundamental hypocrisy of the 2011 law – that the law was subject to ad hoc changes in its application and textual interpretation to benefit one group of voters over another, if those voters happened to be “the right kind of voters.”
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.
Texas Election Law Blog 