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Here’s a simple question with a complicated answer:
Who conducts elections in Texas?
I ask this question in part because I got a call about a week ago from a reporter with the Victoria Advocate, asking about the January 17, 2017, resignation of George Matthews, the county’s first and only elections administrator.
Mr. Matthews had held the non-partisan county position since 1992, and (I say, based on having talked to George and his staff over the years) was highly regarded and well-liked by those he had worked with, including both the Victoria County Democratic Party Chair and the Victoria County Republican Party Chair.
Mr. Matthews’ resignation reminded people of the existence of a “County Elections Commission,” as described by Section 31.032 of the Texas Election Code, which surprised those county residents who had never heard of or knew about the existence of this governing body. That ignorance is understandable; the Victoria County Elections Commission probably last met in 1992 when it created the position of County Elections Administrator.
Do the County Elections Commissions within the counties have any direct responsibility for conducting elections?
The short answer to that question is … no.
County Elections Commissions have one tiny slice of legal responsibility (i.e., hiring or firing county elections administrators). That authority gets exercised once in a blue moon.
County Elections Commissions are consequently invisible and nearly powerless; they certainly don’t pay for the conducting of elections or supervise the conduct of those elections.
I think it’s interesting that county officials in Victoria have responded to this story by urging that the Victoria County Elections Commission will conduct quarterly meetings henceforth, presumably to preserve greater visibility and to ensure that voters won’t once again react with shock and surprise upon discovering that there is such a thing as a county elections commission.
So, who conducts elections?
In matters of voting (as with so much else) the State of Texas has adopted an aggressively decentralized approach. In one sense, the answer to the question is this:
- Each political entity (whether that entity is a semi-autonomous political subdivision or a division of the State or federal government) conducts its own elections.
That answer has the ring of seeming authenticity. Every county, city, school district, water district, hospital district, community college district, special law district, municipal development district, et cetera, has the formal legal responsibility for conducting its own elections, starting with the State of Texas and moving on down to the tiniest subdivision of local government.
But that answer doesn’t quite capture reality.
Let’s try again with this answer:
- Each political entity is empowered to conduct elections, but practically speaking, there’s no way that thousands of tiny government entities (many of which don’t even have employees or permanent offices) can possibly handle the tedious and labor-intensive job of actually running their elections.So the equipment and election workers are provided by the counties. County workers print the ballots, program the voting machines, manage the early voting polling places and the Election Day precincts, count the votes and deliver the results to the tiny government entities.
Okay. So that pretty much answers our question right?
If someone asks, “who runs elections?” we’ll just say, “The counties.” And then we’re done, right?
Well, not quite.
Most people might be satisfied with this answer, but some people still want to know who specifically pays the invoices for the ballot programmers and hires the election workers. They ask,
“Who within the county government actually prepares the budget, leases the equipment, puts gas in the pick-up truck that delivers the voting booths, and keeps the lights on at the courthouse on Election Night?”
So here’s a more nuanced answer:
- In Texas, elections are traditionally conducted by the County Clerk, while voter registration is administered by the County Tax Assessor/Collector (as a holdover duty of that office from the era of poll taxes). The costs associated with elections are largely paid out of general tax revenues, as budgeted and distributed by the County Commissioners’ Court.
Okay. Weird (what with the retro throwback reference to the collection of poll taxes), but okay.
Except … wait.
If elections are conducted by County Clerks (who are elected county officials) and if voter registration lists are created and maintained by Tax Assessor/Collectors (who are also elected county officials), then where do Election Administrators come into the mix?
- County governments (i.e., the County Commissioners’ Courts) may choose to exercise statutory authority to create the position of County Elections Administrator. A County Elections Administrator is a paid county employee to whom is delegated the authority inherent in the offices of County Clerk and County Tax Assessor to (1) run elections, and (2) administer voter registrations for county voters. The County Elections Administrator is hired by the County Elections Commission and answerable to that (almost invisible, easily forgotten) government body. Meanwhile, the County Commissioners’ Court determines the budget, staffing, and all other decisions relating to the management of the county elections.
So in those counties with elections administrators, there is an interesting dynamic at work (and by “interesting,” I mean “complicated”).
The Elections Administrator is a special kind of county employee answerable to two separate deliberative bodies.
The Elections Administrator has to keep the County Elections Commission’s members happy in order not to be fired, but at the same time, the Elections Administrator has to keep the County Commissioners happy in order to have an office and a budget.
So … here are the members of those two bodies that a county Elections Administrator answers to:
- The County Judge — the elected chief executive officer of the county, voting member and chair of the County Commissioners’ Court, and chair of the County Elections Commission.
- Four elected county commissioners, each representing a geographic portion of the county (Commissioners’ precincts 1–4) as voting members of the County Commissioners’ Court.
- The County Clerk — the elected records officer of the county; responsible for the minutes and records of the county court, managing all vital and property records of the county, voting member of the County Elections Commission.
- The County Tax Assessor — the elected financial officer of the county; responsible for the assessment and collection of county tax revenue; voting member of the County Elections Commission.
- The County Democratic Party Chair — chief executive officer of the county Democratic Party (if one exists); voting member of the County Elections Commission.
- The County Republican Party Chair — chief executive officer of the county Republican Party (if one exists); voting member of the County Elections Commission.
So that’s nine people with some measure of influence over the Elections Administrator. And one person in particular looms large. Because the County Judge sits on both bodies, that person has even greater influence over the process of creating the position and hiring the Elections Administrator.
While the Commissioners’ Court can’t directly hire or fire the Elections Administrator, the ability to control the existence of the position and the purse strings is all-important. If the Commissioners threaten to abolish the position or put the Elections Administrator in a broom closet, the message will come across loud and clear.
Why would the State authorize such an odd delegation of election authority by county government? I mean, why split the authority to hire the administrator from the authority to pay the administrator?
On the one hand, election administration is in many ways a complicated, thankless job. Elections are expensive (thanks in part to the many issues of legal compliance with state and federal laws) and emotionally fraught. From the perspective of an elected official like a county clerk, it’s often a relief to be able to delegate the management of dozens of local elections (as well as the high-profile, high-risk county, state, and federal elections) to a bipartisan “Switzerland” of blessed political neutrality.
On the other hand, election administration is very much about mucking about in the gears and levers of the political machine. While nobody wants to actually do the job of running elections, there are plenty of people who would like to preserve leverage over the administration of the election itself.
This Gordian Knot of conflicting county loyalties could be cut at a single stroke if the Legislature simply decreed that all counties would be required to have a non-partisan Elections Administrator, with all funding and administration supervised by the existing framework of county elections commissions.
But that legislative act would strip the county commissioners and county judges of an essential tool of budget control over elections administration. Therefore, it is unlikely that any such reform will be forthcoming.
My apologies for having not posted more frequently lately; I guess the impending collapse of Western Democracy has been leaving me feeling a bit unmotivated. (More about that in a later post). Here are a few quick links to catch up on some Texas election news:
I. TEXAS PRESIDENTIAL ELECTORS DO THEIR THING
I’ll unpack this story in a separate post because it deserves more scrutiny (what with democracy teetering on the brink and all), but essentially the Standard-Times story repeats the received experiential wisdom of many election experts — that nothing exciting or new is going to happen with the Electoral College, because nothing exciting or new ever happens with the Electoral College.
The story notes in passing that Republican state officials are now considering legislation to punish any future so-called “rogue electors” in response to the defections. The text of the proposed bill (H.B. 543, filed by Representative John Raney) is here, and as currently drafted, the bill imposes a $5,000 fine on electors who fail to vote the party line.
II. IS THE TOWN OF BROCK EVEN REALLY REAL?
From the Palestine Herald-Press, this story about a dispute between the newly incorporated village of Brock and the city of Weatherford, regarding a proposed May 2017 election in Brock to choose a mayor and city council. The problem here is that when Brock incorporated, it did its incorporation election “wrong” by failing to include an initial slate of city officials in the ballot. Oops.
So the Weatherford city attorney is taking the position that the proposed May 2017 municipal general election in Brock is illegal. Meanwhile, the attorney for the putative legal entity (the town of Brock) is arguing in effect, “well, what exactly are we supposed to do? We got a judge to order a make-up election to fix our mistake, and we have to have a city council at some point, right?”
At heart, I suspect this is really a fight driven by the zero-sum game of local property tax revenue — another taxing entity in the county means another governmental competitor for statutorily limited tax dollars (because of the tax rate ceiling cap on local tax assessments).
In effect, the City of Weatherford’s attorney is saying that the town of Brock never really incorporated, because the town’s incorporation election was such an error-strewn screwed-up mess. Those are technical legal terms, by the way.
III. WHAT IS GOING ON IN KAUFMAN COUNTY?
From InForney.com comes this story about a newly elected county commissioner submitting paperwork to decline the oath of office. Greg Starek campaigned actively for the post in the March 2016 Republican Party primary, and (as with most Republican candidates in Kaufman County) was unopposed in the general election. The story gives no indication as to why Mr. Starek is now declining the seat, which will need to be filled by appointment. The lack of details means my curiosity about the circumstances is unsatisfied.
IV. SCHOOL BOARD ELECTIONS IN THE VALLEY ARE ALWAYS EXCITING!
The losing candidates (who ran together on a slate referred to as the ‘U.S.S. Restore’ team) allege that the winning candidates (who ran together on a slate referred to as the ‘Kid’s Choice’ political team) relied on 200 forged or unsigned mail ballots to carry the election, and also that election workers improperly harassed voters who requested “assistance” from campaign workers in casting their ballots.
Like I said, this is depressingly familiar, even in the weird details of the election’s alleged “wrongness.” There’s the allegation of ballot farming and signature forgery. There’s the partisan factionalism, a feature of Valley politics that we don’t generally see in more settled and sleepy school board elections in other parts of the state. There’s the fight over the legitimacy of the commonplace but fundamentally icky practice of campaign workers “offering assistance” to voters in the polling place.
And the weirdest element of the story for someone not living in the Valley may be the intensity and scorched-earth rhetoric of the criminal allegations in an election where by law (per Section 11.061(d), Texas Education Code) the winners earn no salary or other emolument and have what in most communities is perceived as the largely invisible, dull, and thankless job of running a school district (as an illustrative example of this observation, note the summary descriptions of cancelled unopposed trustee elections and elections with unfilled seats in this October 2016 Waco Tribune story about independent school district elections in and around the Waco area).
As is so often the case, the story “behind the story” is left untold. Again, it’s about money, and not just whatever income the school district can derive from the admittedly limited local property tax base, but also the money redistributed to Rio Grande City CISD by the Texas Education Agency. In a community of limited resources, control of that money is a matter of intense, all-consuming importance, to the point where elections become epic no-holds battles.
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.
‘Tis the beginning of October of an odd-numbered year, and as is traditional for this time of year, the Texas electorate is being asked to approve various schemes and notions that will be etched in the bloated, badly-written edifice that we call our state constitution.
As I note below, I have serious concerns about one of the pieces of enabling legislation that was passed in conjunction with Proposition One. Section 8 of S.B. 1 appears to violate the criminal law prohibition against bribery. The potential for abuse is serious, and I am frankly surprised that the provision survived the process of legal analysis prior to passage.
Setting that issue aside, let’s see what the Texas Legislature have cooked up for us this time. (For our raw material, I will draw from that excellent resource, the House Research Organization, which at least historically has tended to post more candid descriptions of proposed constitutional amendments than some other state government agencies. For the HRO’s summary of the November 2015 amendments, see: http://www.hro.house.state.tx.us/pdf/focus/amend84.pdf ). For the text of the actual resolutions, see the Texas Legislature Online (at http://www.capitol.state.tx.us/).
We’ve got seven propositions on the ballot this time, and with some exceptions the broad theme is the same as its been for many years – namely, reducing property tax revenue for school districts, some special-interest driven amendments, and fixing local problems with statewide constitutional language.
“So, Joe,” you say, “I’m a busy person on the go. Without a lot of legalistic mumbo-jumbo, can you just give me an objective and totally unbiased review of the seven proposed amendments to the Texas Constitution?”
To which I say, “Why, sure. Here’s a handy chart explaining each proposition:”
- Prop. 1 – Throttles back property tax revenue for school districts by adding another $10,000 to the homestead exemption.
- Prop. 2 – Exempts a handful of surviving spouses of disabled vets from homestead taxes
- Prop. 3 – Releases statewide elected officials from their historical requirement to reside in Austin, despite the fact that their jobs happen to be located in the capitol.
- Prop. 4 – Would authorize professional sports team charitable foundations to conduct charitable raffles.
- Prop. 5 – Would adjust the population cap that prohibits all but the tiniest of counties from using county road crews to build and maintain private roads, so as to ensure that slightly-less tiny counties will be able to use county road crews to build and maintain private roads.
- Prop. 6 – Would specify that Texans have a fundamental constitutional right to hunt, kill and harvest wildlife and fish, including by “traditional means.” Doesn’t define “traditional means,” but presumably that includes hitting things with rocks.
- Prop. 7 – Would redirect roughly 10% or more of the state’s annual tax revenue exclusively to transportation projects.
So that’s seven propositions.
But now I hear you ask, “Well, can you tell me just a little bit more about these propositions in detail?”
PROPOSITION 1 – SJR 1
This proposition sets out to accomplish a number of tweaks in order to improve the ad valorem tax exemptions for homesteads, while offering the promise of a legislative adjustment in tax revenue redistribution in order to spread the pain around among school districts. More specifically, the resolution proposes that:
- The current exempt part of a homestead property’s value described in Article 8, Section 1-b(c) of the Texas Constitution will be increased. Meaning the school property property taxes will go down. When calculating the property tax bill for school district taxes, the part of the property value that isn’t taxable would be increased from $15,000 to $25,000, meaning that the first $25,000 of a homestead’s value would be off the table when calculating the school tax bill for that homestead property.
- To sweeten existing and future exemptions offered to the elderly and the disabled, those homeowners would also have a proportionate amount of their homestead valuations taken off the table prior to applying additional tax breaks. (Another way to put this is that people who enjoy additional exemptions by virtue of their special exemption status will also be treated as if their homesteads were valued at $25,000 less than actual value, so as to further enhance their current and future special-case exemptions, such as tax freezes, abatements, refunds, etc).
- Local governments (specifically school districts, cities, and counties) would be prohibited from repealing any existing tax reductions;
- After January 1, 2016, state or local real estate transfer taxes would be illegal. Taxes could still be collected on mineral production or business activity (i.e., sales tax) and on title insurance. So as real estate appraisals increase, and as current owners cash out and reap the benefits of appreciations in the market value of real estate, the proceeds of such sales would be off limits for taxation, and both the state and local governments would be screwed out of capturing any of the market appreciation realized at the time of sale.
- The amendment applies retroactively to the 2015 tax year. Local appraisers must prepare their tax bills for 2015 on the assumption that this amendment will pass. If the amendment doesn’t pass, then the burden is on the local appraisers to make up any lost revenue by sending out new tax bills.
- The accompanying enabling legislation (S.B. 1) provides a mechanism whereby school districts would be entitled to some relief by applying for funds from the Foundation School Fund in order to make up lost maintenance and operations tax revenue, and to help service existing eligible debt (i.e., non-capital improvement debt or the sinking fund), but not to cover construction bonds or any new costs based on changes in enrollment, etc.
INDUCEMENTS IN THE FORM OF FINANCIAL INCENTIVES OFFERED TO VOTERS TO FAVOR PASSAGE OF SJR 1 – A SERIOUS LAPSE IN LEGISLATIVE DRAFTING OVERSIGHT
Senate Bill 1 is a particularly nasty piece of work, from a school district’s perspective, because it requires school districts to send out tax bills that serve as advertising to push voters to approve SJR 1. In effect, school districts have to put a note in the 2015 tax bill saying, “Dear voter. The Texas Legislature has cut your tax bill by this much: LOADS OF CASH (Calculated based on an exemption of $25,000 as opposed to your piddly little current exemption of $10,000). But we mustache-twirling villains at the school district will make you pay THIS ENORMOUS TAX WHICH IS TOTALLY UNFAIR if the law doesn’t change. To avoid paying more, make sure that everybody you know votes in favor of SJR 1 at the November 3, 2015 election. Thanks!
I’m exaggerating, but not by much. Here’s the actual text in what Section 8 of S.B. 1 adds to Section 31.01(d-2) of the Texas Tax Code:
- The tax bill or the separate statement must indicate that the bill is a provisional tax bill and include a statement in substantially the following form:
“If the amount of the exemption from ad valorem taxation by a school district of a residence homestead had not been increased by the Texas Legislature, your tax bill would have been $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill).
Because of action by the Texas Legislature increasing the amount of the residence homestead exemption, your tax bill has been lowered by $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000), resulting in a lower tax bill of $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill), contingent on the approval by the voters at an election to be held November 3, 2015, of a constitutional amendment authorizing the residence homestead exemption increase.
If the constitutional amendment is not approved by the voters at the election, a supplemental school district tax bill in the amount of $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000) will be mailed to you.“
Section 8, S.B. 1, 84th Texas Legislature, Regular Session (May 25, 2015); (implementing SJR 1) (textual emphasis added).
So … why is this a problem?
Take a look at Section 36.02(a) of the Texas Penal Code:
A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter
“Oh,” but you say, “I thought there was an exception to the bribery statute in circumstances where the offer of a benefit is made by a government institution in the form of an official governmental act.”
No. You’re thinking of an exception to prosecution found under Section 36.03(c) of the Penal Code – that exception applies to the separate offense of “coercion” as applied to a public servant or voter. I’ll pass for now on the question whether this exception would even apply to bar prosecution of the author of S.B. 1 for “coercion,” because the potential that S.B. 1 constitutes bribery is a far more serious legal matter.
There is an exception to prosecution in the bribery statute that allows for campaign contributions, but again, that narrowly-drawn exception would not apply in this circumstance.
There’s a reason why you don’t see legislation like this – normally, concerns about targeting taxpayers with financial incentives to favor the passage of a constitutional amendment would be flagged by the Texas Legislative Council. That may well have happened in this case, but the bill shouldn’t even have been drafted like this, much less passed. To quote the character of “Senator Gil John Biggs” (as played by John Goodman) from the opening scene of the first episode of Amazon’s “Alpha House,” “Well, that’s just piss-poor staff work.”
School district attorneys should seriously consider consulting with their local prosecutors regarding the legal implementation of S.B. 1.
There’s more to the proposition, but basically the Legislative Budget Board review tells you everything you need to know about this proposed change – it guts public education funding by another $1.2 billion per legislative biennium, and further limits the options available to local governments to find alternatives to lost revenue.
PROPOSITION 2 – HJR 75
Back in 2009, voters approved a constitutional amendment that gave totally disabled vets a 100% exemption from property taxes. Then in 2011, voters approved an amendment extending that exemption to the surviving spouses of dead totally disabled vets. But whoops! The law didn’t retroactively grant the exemption to the 3,800 or so surviving spouses of dead disabled homeowners who had died before January 1, 2010. So as a corrective, this proposition would eliminate property taxes for those individuals who happened to have been married to all those totally disabled vets that made the mistake of dying before January 1, 2010.
Some political entities might see a hit to revenue, and so Section 25 of H.B. 7 provides that local governments that lose at least two percent of their expected property tax revenue as a consequence of this proposition (i.e., because for whatever reason a bunch of the 3,800 affected spouses of dead totally disabled veterans happen to live within their tax authority) can get relief from the Comptroller in the form of a payment equal to one percent of expected property tax revenue. In other words, the State will reimburse local governments to the tune of no more than 50 cents on the dollar of lost revenue in compensation for those local governments having lots of qualifying surviving spouses.
It’s not a big deal in the grand scheme of things – the number of affected people make this more like a private economic relief bill. But everybody loves vets, right? Except for the homeless ones that ask for spare change – nobody likes those guys.
PROPOSITION 3 – SJR 52
For 140 years, the Texas Constitution has provided that elected state officials (i.e., the Governor, the Lieutenant Governor, etc.) have to personally reside within Austin Texas. The problem is that none of the current elected leadership in the State actually wants to live in Austin – the city is expensive, and is just not the place to see and be seen if you want to get ahead in conservative bastions like Midland-Odessa or Beaumont. So what’s a state official to do?
Most elected officials simply ignore the requirement to “officially reside” in Austin, given that residence is pretty much a ridiculously amorphous legal status. But for those officials who simply can’t stomach the idea that anyone might think they actually willingly reside in Austin, there’s this proposition.
PROPOSITION 4 – HJR 73
Professional sports teams often have charitable functions – for instance, teams might occasionally hand T-shirts out at the local school, or host a sports camp. Given that professional sports teams are for-profit business ventures, this kind of charity never seemed particularly burdensome, nor worthy of much comment or concern.
But people realized that if the Dallas Cowboys Foundation or the San Antonio Spurs Foundation could hold a raffle, they could make a mint.
There was just one problem – state gambling laws restricting the conduct of charitable raffles don’t really have a loophole wide enough for a professional sports team to stride through (oh, excuse me, “a professional sports team foundation.“) Hence there was impetus for this amendment.
If professional sports foundations are allowed to conduct charitable raffles, they’ll be permitted to sell tickets for drawings for prizes. As with other charities, they’ll have to offer prizes worth at least 50 percent of the cash taken in with the raffle sales. In calculating this amount, the sports foundations can set aside up to ten percent of the raffle income to defray the administrative expenses associated with conducting the raffle.
So, the Cowboys, the Spurs, the Rangers, or the Texans could sell, say, $10 million in raffle tickets, bank $1 million to cover the expense of running the raffle, hand out half of the remaining $9 million in raffle income in prizes ($4.5 million in prizes) and then use the remaining $4.5 million to … you know … theoretically make the world a better place. T-shirts for everybody!
PROPOSITION 5 – SJR 17
Once upon a time, governments weren’t supposed to build private roads. It was considered unseemly and an affront to private industry for local governments to gift individuals and businesses with labor and equipment nominally dedicated to the construction, preservation, and maintenance of public roads.
But then in 1980, the voters were convinced to add a provision to the Texas Constitution granting around two-dozen tiny counties (defined as having 5,000 people or less) the right to redirect their resources towards the construction of private infrastructure. The thinking went something like this, “It’s wrong in the abstract for government resources to be used to benefit specific private commercial interests. But frankly, nobody cares who paves the driveways and parking lots in the dinkiest little counties.”
Over the years, some of the dinky counties have declined in population, but a few have grown. Not because anybody wants to live in those counties, but because rural places are great settings for privately managed prisons, whose restive, captive prisoner populations are included in the county census data. So today, 21 counties in Texas that used to have 5,000 or fewer residents now have 7,500 or fewer residents.
Who, pray tell, is going to pave those parking lots in the not-sufficiently-dinky counties that have more than 5,000 people in them?
This amendment would preserve the legal right of those marginally less dinky counties to continue to spread asphalt and fix potholes on privately-owned roads.
The amendment is an administrative adjustment to Article III, Section 52f of the Texas Constitution. If Proposition 5 passes, I’m guessing that sometime around the distant year 2051, voters will have to approve yet another amendment to up the population ceiling for this exception from 7,500 residents to 10,000 residents. And so on, through future generations ad infinitum.
PROPOSITION 6 – SJR 22
Oh, for heaven’s sake. This amendment ensures, enshrines, frames, and underlines the historical right of all red-blooded Texans everywhere to hunt, kill, maim, slaughter, round up, shoot, snare, poison, blow up, stab, bite, scratch, and strangle any creature of the land, sea, or air, in the exercise of dominion over all things that taste like chicken and that aren’t wearing reflective clothing. Subject to … you know … regulations.
Strangely, the companion proposition affirming our right to pee in the bushes did not get out of committee.
PROPOSITION 7 – SJR 5
Traffic in Texas is bad, and only likely to get worse as we descend into a post-apocalyptic Mad Max: Fury Road-style environment resulting from drought, extreme weather events, and a collapse of social order. And if we are going to slide into barbarism typified by reliance on roving gangs of spear-throwing bikers, tumor-ridden Warboys, and the occasional war-rig caravan run to the bullet farms and the guzzle-lene refineries, we’re going to need good roads.
And that’s where Proposition 7 comes in. First, for a period between 2018 and 2032, the amendment would “skim” up to $2.5 billion in state sales tax revenue off of all revenue in excess of $28 billion per fiscal year, and lock that money away to be used solely for highway development. Second, for a period between 2020 and 2029, the amendment would skim 35 percent of all motor vehicle sales, use, and rental tax in excess of $5 billion and similarly restrict that money to highway development.
There would be some built in safety valves allowing the Legislature to enact statutes to adjust the specific highway fund dedications down by one-half in specific fiscal years, on a two-thirds vote. The constitutional dedication of funds could be extended by majority vote for additional 10-year increments.
Here’s the thing – when a sovereign entity declares that it will only use a pile of money for one purpose, that money is suddenly unavailable for all other purposes, some of which might turn into emergencies.
To its credit, the Legislature learned that the phrase “toll road” is dirty, and that it would not be a good idea to dedicate state funds to building toll roads. But why specify that a certain pile of money can only be used to build roads? I sure hope you never need that money to, you know, build hospitals. Or schools. Or high-speed inter-urban commuter rail. Or provide health insurance for retired state employees. Or adequately fund your public pensions. Or whatever.
Assuming low voter turnout and almost zero visibility, all of these amendments probably will pass. Our schools will get a little poorer; our state revenue will be a little more strained; and the Dallas Cowboys Foundation will be able to have a raffle.
May 9th, inconveniently placed just prior to Mother’s Day, is Election Day for thousands of political subdivisions across Texas. No, it’s not the Presidential Election. And no, it isn’t an election that draws a lot of media attention.
It’s just the election that determines a tremendous amount of your day-to-day interaction with government. Depending on where you are, there are likely to be school bond issues, city council elections, water district tax approvals, Emergency Services Districts creation elections, incorporation elections, civil service agreements, animal registration authorizations, city charter amendments, school board elections, irrigation district board of supervisor elections, community college annexations, property tax exemptions, county road district elections, local option liquor elections, library district elections, hospital district elections, navigation district elections, freshwater conservation district elections, annexations, deannexations, rate increases, rate decreases, airport management district elections, city referenda, and on, and on, and on.
Although the May election is diminished somewhat of late (because of recent changes in the law and in the management of elections that throttle back on democracy and limit what was once a much more visible and obvious civic event), this election will have a direct and immediate impact on your life. So yeah, it’s important.
Limiting Public Participation In Government
Chapter 41 of the Texas Election Code describes generally how and when elections happen in Texas, more or less. (See, e.g., Section 41.001 of the Election Code).
Except … there are specific, particular laws both within and outside the Election Code that explicitly limit how often elections can happen. County governments can no longer schedule elections in May of even-numbered years. The February and September election dates were eliminated almost a decade ago. School districts have to move their trustee election dates to conform to the election schedules of some other political entity (as a consequence of Section 11.581 of the Texas Education Code, one of the most diabolical and disruptive pieces of anti-school-district legislation of the past decade). To add to the limitations, county election administrators don’t have to help local entities conduct elections in May of even-numbered years, but in the era of electronic voting systems, county assistance is critical to the conduct of local elections.
If I’m going to throw out words like “diabolical” and disruptive” in reference to Section 11.581 of the Education Code, I suppose I owe it to my readers to explain myself.
In the general and special legislative sessions of 2005-2006, the Legislature was once again brought face to face with its functional incapacity to do anything about the abysmal state of public education funding. Finally, in the 3rd Called Session in 2006, the members managed to pass H.B. 1, a massively flawed and vindictive “screw you” public education finance bill that had as its primary intent the stripping away of local taxing authority for school districts.
At the last minute a rider was added to the bill – a floor amendment that drew almost no debate. It specified that school district trustee elections had to be conducted jointly with regular city council elections, notwithstanding (1) the fact that many cities now cancel their city council elections for lack of opposed races; (2) school districts don’t share the same territorial boundaries as cities, and often aren’t associated with incorporated city territories; and (3) imposing city control over school district trustee election schedules is a further limitation of school district autonomy.
The effect of the law was electric – it dramatically disrupted trustee election schedules, delayed elections in many districts, violated the state constitutional prohibition against terms of office being extended beyond four years, prompted years of political wrangling and waste, and accomplished exactly nothing positive. In short, it was a stupid, mean-spirited “fix” of a nonexistent school-related problem that our Legislature seems to excel at. Ostensibly, it was intended to promote “one-stop” voting in order to increase turn-out in school district trustee elections, but practically, it functioned to further limit voter input into the government of school districts.
Speaking of the Legislature, the 2015 general session is winding down towards what looks to be another interminable collection of special sessions. In my next post, I’ll take a look at the “accomplishments” of the House Elections Committee and the Senate State Affairs Committee with respect to election-related laws this session.
In my experience, the by-far single biggest and most pressing question posed by voters on Election Day is this: “Where do I vote?” The question, “What is on the ballot?” runs a distant second.
The best place to find the answers to those questions is not centralized at the state level. Voters are going to have to call someone locally to get a definitive answer, which is why the Texas Secretary of State provides a generally good list of phone numbers and contact information for the people administering county elections throughout the state. It is true that organizations and agencies have made heroic efforts to automate and provide polling place data for all voters throughout the state, but these efforts tend to be thwarted by last-minute emergencies and contingencies, errors, omissions, and misunderstandings.
Here is the last set of aggregated voter resource websites my wife asked about. These sites tend to focus on issue advocacy to the exclusion of answering voter questions. Many, many special interest groups, (as well as many lobbyists posing as grassroots special interest groups) post websites promising “tools and resources for voters” or something similar. Often the tools and resources amount to not much more than a “DONATE” button.
Significantly, political advocacy sites (in general) tend not to provide much in the way of actual voter assistance of a practical sort. I suspect that this is because voter assistance is localized, difficult to automate, and time-consuming.
As elections approach, these sites proliferate for good and ill. Some do make a stab at providing sample ballots or polling place information, but none would be my choice if I actually wanted to find out where and when to vote.
Some examples include:
(League of Conservation Voters – a national conservation advocacy group)
(Netroots Foundation – political campaign strategies for progressive interests)
(Voter Participation Center – formerly Women’s Voices, Women’s Votes – organized voter registration of traditionally underrepresented populations. The whole focus seems to be on building VPC’s mailing list and database for targeted voter outreach).
(Video Game Voters – this website is a good example of “astroturfing,” in this case from a video game industry trade association).
“Astroturf” in this context is a slightly derogatory political insider slang term for an industry lobbyist posing as a humble grassroots organization – so called because an astroturfed organization, like the eponymous artificial turf, has fake grassroots. Astroturfing is a way of repackaging political advocacy to make it look more popular.
At least Video Game Voters is quite open and honest about itself as a lobbyist arm of the video game industry. More insidious forms of astroturf also exist – wherein earnest-seeming organizations troll for political support by appearing to tap into nonexistent voter bases, or function mostly as money-laundering fronts for repurposed political donations.
Here’s the second of three voter information aggregator websites that my wife asked me to look at:
(2) League of Women Voters
This is the real deal. The League of Women Voters was founded in 1920 as an resource to help women make the best use of their new enfranchisement, and is generally recognized as the best-organized and best-funded non-profit advocacy group for the electoral process. League of Women Voters does not endorse candidates, and does not advocate for or against particular political parties, but by adopting a progressive stance on voting rights and social issues, generally finds itself labeled by both conservatives and liberals as a left-leaning organization. (As an aside, it is both revealing and troubling that simple advocacy in favor of the act of casting a ballot is now politicized as leftist. That speaks volumes for how far out of touch with political reality that the radical right has gotten when compared to mainstream, centrist voters).
Of particular interest is Vote411.org, which does attempt to answer the most basic Election Day questions (i.e., “Where do I vote?” and “What’s on the ballot?”)
By virtue of pedigree and organizational longevity, the League of Women Voters is really the gold standard non-governmental provider of voter information and resources, particularly at the national level. At the local level, the quality of information provided for specific elections is dependent on varying levels of volunteer participation, candidate engagement with the League of Women Voters, and local government cooperation. If the local water district election is flying under everyone’s radar, it’s probably an election that the local chapter of the League of Women Voters doesn’t have any information about either.
The City of Cuney, Texas was supposed to conduct a general election this May, but apparently didn’t. This little failure of democracy didn’t make much of a splash outside of Cherokee County, and was likely of only passing interest to most of the residents in Cherokee County, who may have presumed that the city council had successfully cancelled its election owing to a lack of contested races.
The philosophical and legal underpinnings of election law do not accommodate the notion that an election can be cancelled – the very idea that the fundamental civic exercise of government could be abrogated by an executive act is both profoundly disturbing and counter to centuries of accumulated tradition. But … there is no idea so bad that a legislator somewhere in Texas can’t be found to support it, and so in 1995, Sections 2.051-2.054 of the Texas Election Code were added to Chapter 2, allowing local entities to, well, not technically cancel elections, but to declare unopposed candidates elected without bothering to actually have those elections, assuming that open write-in candidacy wasn’t allowed. The law has been extended and altered somewhat over the years, and now provisions in both Subchapters B and C of Chapter 2 of the Election Code allow for the mooting, preemption, or cancellation of various elections, including (in some circumstances) measure elections.
Why is it a bad idea to allow the preemption of elections that nobody cares about anyway? I mean, if anybody cared about city council elections, or water district elections, or school board elections, they would motivate themselves to run for office. If there aren’t any contested races, why get excited over this non-controversy?
Why? Because without an election, there is no legal ratification of succession to office; there is no final approval by the voters. The voters’ franchise is the distillation of ultimate sovereignty – it cannot legally be delegated to any other entity, and it can’t be legally usurped by any other entity. More practically, without elections, or without at least some official act of formal approval by the voters, the opportunity for tremendous mischief and fraud is created. In the decades since the law changed so that unopposed candidates could be “declared” elected, the tempting opportunity offered to local officials to commit bad acts has been irresistible.
Don’t want an election? Play games with the candidate application forms or deadlines (as happened in Cuney, apparently). Close up the city office early. Call up the challenger and play hardball. Lose paperwork. Deny, obfuscate, obstruct. As if someone’s going to file an election contest and spend $20,000 on legal fees just for the chance to run for an unpaid office on the city council, or on the school board, or whatever. Why would anybody take out a second mortgage on their house just to get on the ballot?
I wanted to illustrate (in a general way) how self-interest, ego, and the general injustices we commit against each other can be magnified and extended by the political process and bad policy choices in the design of election law, and sadly, I have no shortage of examples drawn solely from local, non-partisan elections.
In small towns, things can get really ugly, as the voting process becomes a proxy for open warfare between people who may have known each other since birth. or who may have inherited the burden of continuing the feuds begun by their ancestors.
In that context of sometimes-vicious political warfare, we voters are ill-served by a state law that allows local governments to cancel elections.