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Electoral College: Thoughts About the December 19 Presidential Election at the Texas Capitol

Monday the next POTUS will be elected

As the nation rumbles at a low boil, I’ve tried to summarize my thoughts about how, as 2016 draws to a close, voters seem to be more aware of (and more alarmed by and anxious about) our weird Electoral College. I mean weird as compared to the systems of other democracies across the planet. 

In those other countries that choose their chief executive officers through a voting process, the highest offices are awarded via popular vote, but in the United States, the two chief executive offices are chosen by the votes cast by state-constituted panels of electors.

These panels are constituted and organized based on the result of statewide popular elections that take place on the first Tuesday after the first Monday in November, and in Texas, as in 47 of the other states, those panels are organized on a principle of “winner take all” based on whoever won a strict plurality of the state popular vote. The panels then meet and cast their ballots on the first Monday after the second Wednesday in December, which is the actual Presidential Election.

High levels of concern

This year, more than in 2000, 2004, 2008, or 2012, advocacy for dramatic reform in the constitutional process of Presidential elections has been loud and persistent.

The public level of concern regarding the Electoral College and the outcome of Monday’s vote has no direct historical parallel. The closest analogous election might be the 1876 presidential election, which in its divisiveness had raised concerns of a second Civil War (about that, see my historical note at the end of this post).

This previously unheard of public discourse—about “Hamiltonian electors” stepping up to exercise independent judgment and discretion to deny the office of presidency to an unfit candidate—is happening right now in a way different from the last 224 years of post-Twelfth Amendment Presidential contests because:

(1) There is a gap between the national popular vote, which favors Hillary Clinton by more than 2 percentage points, and the apportionment of electoral votes, which favors Donald Trump by a projected total of 306 electoral votes to Clinton’s 232.

(2) This is only the fifth time in more than 200 years in which the Electoral College vote has not reflected the popular vote. (The previous four occurrences were in 1824, 1876, 1888, and 2000.)

(3) Trump is perceived by some conservative and most progressive voters to be unfit to serve (particularly as the Russia stories continue to pile up); and

(4) The anger of at least half the voters regarding (among other things) Mr. Trump’s nonexistent electoral mandate arguably exceeds in intensity and furor the amount of public scorn heaped on the winners of the 1824, 1876, 1888, and 2000 Presidencies—which I am shorthanding as “lame duckling Presidencies”—ugly duckling meets lame duck.

Save us, Electors, you’re our only hope!

Our Electoral College system has broken before, but arguably never so badly as it has this year. So now we have public pleas and hopeful invocations addressed to the members of the Electoral College to fix what many are calling our national mistake.

Many are asking the “Hamiltonian electors” to (in effect) mirror (or honor) the national popular vote. (The previous link is to the National Popular Vote initiative, a multistate legislative initiative to enact state laws that would enforce the selection and votes cast by state electors to conform to the national vote.)

To mirror the popular vote this Monday, 37 of the total 306 Republican electors would have to break their oaths to cast their ballots in favor of the candidates who won their state. The breach of tradition would be unprecedented.

Texas electors get a fair amount of attention on Monday because our state has a large population and a correspondingly large number of electors (38) out of the total of 538 electors. (The seeming correspondence between the number of Texas electors—38—and the margin of Mr. Trump’s expected Electoral College victory—37—is purely coincidental; each state’s electoral votes are calculated by counting up the number of Congressional delegates assigned to that state. Texas, with 36 members of the House of Representatives and two members of the Senate, gets 38 electors.)

If the electors in Texas were to vote proportionately in line with the popular vote in this state, 20 of the 38 votes would be for Trump (i.e., 52.23% of 38, rounded up), 16 would be for Hillary Clinton (43.24% of 38, rounded down), 1 would be for Gary Weld (3.16% of 38, rounded down) and the remainder (1 vote) would be for Jill Stein (.8% of 38, rounded up).

So … is that what’s going to happen?

Uh. No. There is simply too much institutional, cultural, and, perhaps, other pressure on the electors to conform to prior tradition.

While electors are typically invisible political party functionaries and fundraisers who never enter the public sphere, two of the Texas electors are in the national public spotlight. One has resigned because of a moral objection to casting his ballot for Trump, and the other has indicated that he will not vote for Trump on Monday.

So I predict that on Monday when the results are announced, the Texas electors will have maybe one dissenting ballot, and the dissenter (a Republican Party loyalist who was chosen for his position as an elector by the Trump campaign team when the campaign office filled out its paperwork for the election late last year) will almost certainly not cast his ballot for Hillary Clinton.

Why are people so angry about all this?

So … let’s go back to our lame duckling President, put in office through a circumstance where the Electoral College vote doesn’t match the popular vote. In this context, which I will term for convenience a “broken election,” the President is installed by the Electoral College, but the disparity between the popular vote and the Electoral College outcome frustrates the will of those whose preferred candidate won the popular vote.

The reason why this election presents such a risk and challenge to our nation is different from (and worse than) than our previous “broken” elections for at least two reasons — the Russian interference (more on that here and here — but also, for balance, see The Nation‘s critique, here) and the growing evidence that the President-elect is so profoundly unsuited to hold office. 

Compare Donald Trump to the four other winners of the Electoral College who were also losers of the popular vote :

  1. George W. Bush — At the time of his Electoral College victory in 2000, Bush was the elected governor of Texas; while he was admittedly a policy lightweight, he had, by his duties of office, engaged in the basic functions of government oversight, such as legislative review, public speaking, policy analysis, staff management, and constituent services.
  2. Benjamin Harrison — At the time of his Electoral College victory in 1888, Harrison had represented the State of Ohio in the United States Senate for roughly one full term; while he had previously made unsuccessful runs for state office in Ohio, he was familiar with parliamentary procedure, bill drafting and analysis, the budget process, public speaking, staff management, and constituent services.
  3. Rutherford B. Hayes — Before he became President in 1876, Hayes was the elected governor of Ohio; while he (like George W. Bush) was a policy lightweight, he had proven himself to be a popular state executive officer with prior experience in government operations.
  4. John Quincy Adams — At the time of his election in 1824, Adams was the Secretary of State; while he had not previously been elected to an executive office, he had a lifetime of international diplomatic and government service under his belt, was supremely well-educated, and was a noted jurist, writer, and public speaker.

Neither Bush, nor Harrison, nor Hayes, nor Adams were as ensnared by financial conflicts of interest as Trump is, nor (arguably) were any of them as inexperienced and disinterested as Trump appears to be in essential principles of foreign policy, domestic administration, and actual governance — not to mention political checks and balances and other basic concepts of American constitutional law.

So there are broken Presidential elections, and then there is 2016. That’s why people are so upset; in his recent editorial in the Atlantic, James Fallows eloquently explains the foundations of despair.

What about the prospects of an electoral college revolt?

I have mentioned in a previous post that Professor Lawrence Lessig has published an idealistic constitutional argument as to why the members of the Electoral College should not cast their ballots for Donald Trump.

In advocating this course of action, Professor Lessig finds himself in the swelling ranks of a number of legal experts and public service professionals who similarly see the 2016 election as the most serious political crisis of our lifetime, and who additionally see a repudiation of Trump in the Electoral College vote as the only way we can save ourselves from disaster.

But people who suggest this revolt face a steep uphill climb, and not just because of tradition. An “exciting” December 19th Presidential Election creates two problems:

(1) Challenges to the Electoral College erode public faith in the process of the smooth and non-violent transition of power from one government to another. The Electoral College may be a stupid and weird procedural step, prone to this kind of brokenness, but it’s what we expect and are used to.

(2) The challenge to the expected Electoral College outcome is almost instantly reframed by supporters of Donald Trump as a petulant bad-faith refusal on the part of Clinton supporters to play the game by the rules as written. 

What the most hard-core Trump supporters need to acknowledge is that a broken election has subtle but important negative consequences for the winner of that election.

By failing to address the valid concerns of voters who favored the candidate who won the popular vote, the winning candidate makes the country more ungovernable.

All the winners of the previous “broken” Presidential elections faced this problem. Neither George W. Bush, nor Benjamin Harrison, nor Rutherford Hayes, nor John Q. Adams had as free a hand with the management of their administration as they would have if they hadn’t been elected with a metaphorical asterisk next to their names, and they had to accommodate this political reality. They all had to reach across the aisle.

And these historical loser-winners of the Presidential prize at least had some capacity (based on their own education, experience or sociopolitical awareness) to achieve this accommodation of their political reality.

In contrast, and heightening our fears for the future, Donald Trump seems emotionally and temperamentally unfit for the office, and we are worried (and I’m including myself in that “we”) that he cannot or does not know how to win—and more importantly, how to govern—with grace and a spirit of compromise.

Realistically, is Donald Trump going to get his 270 electoral votes on Monday? Yeah. I think so.

Whether or not he does, though, the only way we all get out of this intact is if he accepts the idea of a more blended power-sharing government than the one he erroneously believes and says that he has a mandate for.

HISTORICAL FOOTNOTE

Let’s consider the candidates and issues involved in those four previous broken presidential elections, and see how those elections compare to 2016.

1. THE FOUR WAY SCRAPE OF 1824

In the only election determined in the House of Representatives following a failure by any candidate to receive a majority Electoral College vote, John Quincy Adams was elected over his nearest rival (and the winner of the national popular vote), Andrew Jackson.

The election marked the dissolution of the riven and internally fractured single-party system that had existed roughly since the War of 1812, and signaled the reemergence of a two-party system that would win Jackson the presidency in 1828.

There were four strong regional candidates for President, all running on the same party ticket, and all of whom won at least two states. With such a diffuse and fractured election, it wasn’t surprising that none of the candidates won a simple majority of the popular vote or the needed 131 electoral votes; Jackson came closest with 41.4% (and 99 electoral votes), Adams had 30.9% (and 84 electoral votes), Clay had 13% (and 37 electoral votes) and Crawford had 11.2% (and 41 electoral votes). By the terms of the Twelfth Amendment, Jackson, Adams, and Crawford, as the top three electoral vote winners, would be elected by the House of Representatives, with each state delegation getting one vote.

Voters who favored Jackson were not happy that their chosen candidate was “robbed” of office by the House of Representatives; Henry Clay, as Speaker of the House, threw his legislative support to Adams in return for a cabinet position; this “corrupt bargain” gave fuel to Jackson’s supporters to engage in four years of running political warfare with the Adams administration.

In contrast to 2016, all four of the candidates running for President in 1824 possessed reasonably strong political pedigrees, education, and experience for public office.

Adams was Secretary of State, and as the son of President John Adams, he had spent his formative years in overseas diplomatic postings, spoke multiple European languages fluently, negotiated the Treaty of Ghent, was an accomplished scholar and writer, and a witty, thoughtful and erudite expert on international law and relations.

Jackson was a U.S. Senator, the former military governor of Florida, and a nationally famous military strategist and hero following the Battle of New Orleans.

Crawford was the Secretary of the Treasury, former Secretary of War, former U.S. Senator and President Pro Tempore, and former state legislator with a lifetime of public service and legal experience.

Henry Clay was the Speaker of the House, having had a long career and influential career in Congress and previously in state government as a powerful and skilled orator and legislative expert.

As hard as these candidates fought with each other, and as bitter as the 1824 election may have been, none of these four potential Commanders-in-Chief had political or personal baggage that could be compared to Trump’s “negatives.”

To the extent that the election in February 1825 in the House of Representatives was constitutionally fraught, it was because Clay bargained for a cabinet position because he hated Jackson, not because the integrity of the election process was tainted by foreign interference.

2. THE SHAME OF 1876

In the shadow of the Civil War, violence against black voters and rampant corruption in the Ulysses Grant administration came the 1876 contest between Samuel J. Tilden and Rutherford B. Hayes, the most serious post-Civil War constitutional crisis the United States has ever experienced, and one which came dangerously close to reigniting open warfare and rebellion over the unsatisfied grievances of defeated Southern pro-slavery sympathizers.

This was an election so fraught with connivance and error that all we know for sure is that Tilden won the popular vote, probably as the consequence of intense and violent suppression of the black vote in Mississippi, Louisiana, South Carolina, and Florida; of the electoral votes, 20 remain intractably indeterminate (partly because executive control of the state electoral colleges was disputed in a number of states and two sets of electoral returns were submitted by the governments of Oregon, Louisiana, South Carolina, and Florida).

In January of 1877, Congress passed a law creating a bipartisan Electoral Commission to award the missing electoral votes. Armed conflict seemed likely, and military defenses were strengthened around Washington D.C.; ultimately, Hayes was granted the 20 missing electoral votes in return for a compromise where Congress ended military oversight and removed federal troops from former Confederate states.

Hayes as governor of Ohio was the less well-known candidate, and was widely regarded as having a fairly thin resume of government experience. Nevertheless, he had served with distinction in the U.S. Army during the Civil War and was a popular executive officer in his home state.

Tilden, as governor of New York, was much more well known nationally as a “good government” reformer, and as the prosecutor who had cleaned out the corruption in Tammany Hall.

But as weak (in terms of public perception or media attention) as Hayes may have been compared to Tilden, he was an elected public official with experience as a state executive officer, and hardly comparable to a failed real estate mogul without any prior knowledge or understanding of government.

3. THE DIRTY SQUEAKER OF 1888

In the 1888 election, the incumbent Grover Cleveland won 48.6% of the popular vote to Benjamin Harrison’s 47.8%. Harrison nevertheless won the Presidency by a combination of hard campaigning in key states and the help of a corrupt New York political machine. Cleveland in effect lost his home state and the advantage of incumbency by failing to counter Harrison’s machine.

While Harrison was not a particularly strong candidate (in terms of the qualifications of experience) in comparison to a sitting President, he was a member of the U.S. Senate with a long record of public service.

4. FLORIDA, 2000

In the 2000 election, Al Gore won 48.4% of the popular vote to George W. Bush’s 47.9%, but lost by a thin, hanging chad of electoral votes in large part because of a partisan U.S. Supreme Court decision to foreclose further review of the Florida electoral process in the face of an extremely close statewide vote tally.

Given the recentness of the 2000 broken election, and the untidiness and unseemly way in which the 2000 election was resolved, voters who are upset with the 2016 election are making frequent references to the 2000 election, seeking parallels and citing the election for its relevance to the question of constitutional reform of the presidential election process.

In one sense, 2000 wasn’t as messy as 1876; the 2ooo election involved a systemic failure of election procedures in just a couple of states, and there was no credible risk that the Civil War would be reignited. Though violence and intimidation were certainly present in Florida during the abortive recount process, the risk of a nation-wide military conflict was essentially nonexistent.

And in another sense, 2000 wasn’t as messy as 2016; while the winning candidate had a weak résumé in comparison to that of the incumbent Vice President, at the time of his election he held office as the elected chief executive officer of a populous state.

#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.

 

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 2011veteran’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.

State of Texas Comes Out Swinging, With Its Eyes Clenched Shut and Its Arms Windmilling Frantically

As you likely know, the U.S. Supreme Court had asked the State of Texas to file a response brief in answer to the Department of Justice’s appeal in Veasey v. Perry by no later than 4:00 p.m. today (Central Time). (To recap the action so far – the trial court issued extensive findings of fact and determined that the State’s photo I.D. law was unconstitutional, ordering the immediate suspension of the illegal statute. The State applied to the 5th Circuit for an emergency stay so that it could continue to disenfranchise minority voters  … violate the Fourteenth Amendment, … er … avoid voter confusion for the upcoming election. The 5th Circuit, agreed that it was much more important to avoid voter confusion than to actually protect voters, and ruled that the State was indeed entitled to continue breaking the law. The Department of Justice and other plaintiffs in the voter I.D. suit then appealed the 5th Circuit’s emergency stay of the trial court decision to the U.S. Supreme Court).

The State did indeed submit its argument by the deadline; here is a version omitting the appendix material.

In reviewing the brief, I’ve found one odd factual error that is likely to go missed by readers who are not “in the biz” of elections.

Contrary to the assertion on page 12 of the brief (page 15 in the .pdf file pagination), the State’s 254 counties don’t order “election kits” from the Secretary of State, – they get their election forms from private vendors, or they print them out themselves. The assertion is made in order to bolster the argument that the trial court’s order created “chaos” (and yes, the brief does actually venture into hyperbole on this point) because the poor State of Texas simply doesn’t know what to do.

Adopting the “kitchen sink” approach to appellate briefing, the State solicitor has filed a rambling 74-page brief, which I will endeavor to summarize.

And let me warn you right now. I am being mean, and flip, and sarcastic. But the brief filed by the State of Texas is embarrassing – it deserves every bit of the scorn I’m about to heap on it. And if you think that I’m misrepresenting the State’s argument, well, then, feel free to slog through the brief and do your own summary. Because while I’m being flip, and sarcastic, and mean, I’m also describing more or less exactly what the brief argues.

So heap your outrage upon me. I have read as much of the brief as I can stomach, and here’s what I was able to digest. And I’ll warn you – my summary may be long, but it pales in comparison to the numbing repetition of the actual brief:

1. We Totally Didn’t Expect the Trial Court to Issue A Ruling So Soon

Nobody told us that we were about to get dinged. Did I mention that the election is just around the corner? As the Supreme Court made clear with respect to both Wisconsin and North Carolina, by citing the principles expressed in Purcell v. Gonzalez, 541 U.S. 1, at 4-5 (2006), courts really shouldn’t take actions that affect the conduct of an election just around the corner, because it might confuse the voters. And that theory applies here, because we were sucker-punched. It’s like the trial court judge had it in for us.

2. It’s the Plaintiffs’ Fault that the Timing is So Bad

The plaintiffs could have given us a heads-up that they didn’t want us to apply the voter I.D. requirements for the November 2014 election, but they didn’t say anything! They waited until our guard was down, and then, boom! They totally pressed for some kind of injunction. How could we have known? We barely had time to cut and paste all the arguments out of our earlier briefs. (I mean we had no warning, aside from the months of legal maneuvering,  two-week trial and parade of expert witnesses all attesting to the fact that we were breaking the law. Which we totally weren’t).

3. Also, They Made Up All That Stuff About Disenfranchised Voters

Where are these 600,000 disenfranchised minorities? I’ve never seen them. The plaintiff just made them up. There aren’t any facts – this is all just preposterous. They took our badly organized, barely coherent voter registration records, and just read whatever into them. We can’t be racists if we can’t find the minorities that we supposedly discriminated against, now can we? I mean, normally it’s not the appropriate role for an appellate court to substitute new findings of fact, given that the weighing of evidence from dozens of respected academic researchers and legal scholars was the role of the trial court, but we would certainly appreciate it if you would just go ahead and agree that there aren’t actually any disenfranchised voters. Because obviously, if there were so many disenfranchised voters, why haven’t I ever seen them vote?

4. You Know Why the 5th Circuit Didn’t Need To Say That the Plaintiffs Were Unlikely To Prevail On the Merits? Because Duh, It’s Obvious That This Whole Lawsuit Is Stupid

Okay, so first of all, we’re not racists. Plus, we didn’t do anything wrong. Lots of states put up little roadblocks to voting – that’s just the nature of red tape and bureaucracy. All perfectly legal.

It’s not the height of the obstacles that matters, it’s whether it’s okay to have procedures. Well, it is okay, and all picture I.D. is, is just a procedure. Just an innocent procedure. Nothing to see here. You said it was okay for other states to have procedures. Ergo, quod erat demonstram, it is therefore proven that the State of Texas can have procedures for voting. Which is all this photo I.D. stuff is, just a procedure.

5. Statement of the Case – Here’s What Happened

Okay, so the People of Texas wanted us to impose photo I.D. requirements. Well, we aim to please, right? So we innocently enacted these photo I.D. requirements. Which, by the way, everybody loves. Did I mention that people are absolutely gaga over picture I.D.

And here’s the thing. I don’t see anybody complaining. We’ve had a couple off-year elections, and none of these minority voters showed up trying to get picture I.D.s. Why? Because everybody’s happy. That’s why. So just to make it clear, the People of Texas asked us to make a totally non-racist law, which we did. And it worked! Nobody complained. I mean, except for the plaintiffs and some other people. But the important thing is that none of those disenfranchised voters complained. Why? Because they were happy with the new law too. And, … um …

But then, incredibly, this Federal Judge issues an “opinion” (if you can call it that) that actually refers to our procedures (which, as you recall, I mentioned are innocent) as a “poll tax.” Well, that’s just insulting, choosing a loaded term like that. And probably racist. Oh right, just because we’re a State that fought to preserve human bondage and enforced laws for a century that were intended to explicitly deny the vote to blacks and Hispanics, suddenly we’re the bad guys. We can’t reform? Whatever happened to “innocent until vindicated by a more levelheaded appellate court.” Amirite?

So anyway, the trial court just hauls off and issues this order, and I mean we tried. We really tried to understand what we were supposed to do, but it’s just impossible. Did I mention this all just happened last week?

We would have been willing to sit down like adults and discuss all this through the avenue of ponderous, months-long briefing schedules, interim hearings, en banc reviews, revisions, motions for rehearings, hearings on motions for rehearings, and so on. You know, using the civilized mechanisms of proper appellate court procedure.

But I mean, that judge left us no choice! How can we possibly be expected to drop everything in order to drop everything at the drop of a hat? Laws just don’t stop enforcing themselves – someone actually has to set the manual handbrake on the grinding, rusty gears of government in order to stop enforcing a law. We can’t stop on a dime, you know – there’s institutional momentum. Plus, consider the poor voters.

Heck, you can see that we made a hash of things just in that last two days – canceling voter I.D. issuance, restarting voter I.D. issuance, canceling mobile voter I.D. stations. Our hopelessly inept bureaucracy just can’t take this kind of whipsaw action.

6. Okay, Obviously The 5th Circuit Wasn’t Demonstrably Wrong To Stay the Injunction.

A. The Trial Court Deliberately Caused Mass Panic And Confusion, With Mere Days to Go Before the Election! Outrage!

Well, for one thing, we never did anything wrong in the first place, so there’s that. But furthermore and more immediately, the 5th Circuit was just doing what it’s seen the Supreme Court do in exactly this sort of circumstance.

The trial court hauled off and issued an off-the-cuff, “gotcha” order that mucked up election procedures on the very eve (the eve I tell you!) of an election, creating sheer chaos, and the 5th Circuit had to step in and put things to right. So really, all the 5th Circuit was doing was just what you would have done in their place.

I mean, we’re going to have to un-issue a bunch of forms. Like, at least eight forms. We already threw out the old ones, and nobody knows how to work our office copier.

It’s all just so unfair and disruptive, and the court didn’t even ask us if it would be hard to go back to the old way of doing things. Which, if they had asked, we would have said, “Yes. I’m paralyzed by the very thought of having to conduct elections without asking for photo i.d. I mean, how would that even work. A voter would come in, and I would say, “May I seeyourmm…thingie.” See? Impossible.

B. We are So Totally Going To be Vindicated

Plus, as I mentioned previously, as soon as real appellate judges take one look at this lawsuit, they are so going to totally vindicate the State of Texas. We’re the victims, here. Just minding our own business, enacting harmless, neutral election procedures, when suddenly these, these … groups. These partisan groups, with their filthy motives. They come in, and they make up a bunch of stuff. and then they call us the racists. Us! We’re colorblind! We don’t even ask people what race they are when they vote, and you know why – because we don’t see “race.” We see hardworking, easily distracted citizens who just want to show their picture I.D.s and do what’s right for democracy. We don’t even bother tracking them!

Plus, and more damning, all the so-called “injured parties” they paraded before the court weren’t even injured. All 17 of those minority voters managed to find the hustle and energy to get their picture I.D.s eventually – they can all vote! We didn’t harm anybody! Like I said. Totally innocent of all wrongdoing. You can bet we’re going to be thinking about sanctions. If we’re guilty of any crime, we’re guilty of the crime of caring too much. And if that’s a crime, then I don’t want to not be a criminal.

C. The Trial Court Acted Like Crawford isn’t even a Thing

As you’ll recall, the brilliant Justice Scalia noted in his incisive and illuminating concurrence to Crawford v. Marion Cty. Election Board, 553 U.S. 181, 198, (2008), going down to the DPS office to get a drivers license is as easy and painless as falling off a log. No one who jumps through bureaucratic hurdles to get a picture I.D. has anything to complain about – heck, they’ve got it too easy. Make ’em walk barefoot through broken glass and then they can come crying to me about how it’s “so hard” to vote.

And, as the 7th Circuit Court of Appeals has so recently observed in Frank v. Walker, voting is always a little bit of a hassle. So what? Get a bus schedule and figure it out. We’re not here to wipe the milk off your chin. You think this is a hardship? Wait’ll I show you a real hardship.

And one more thing – the trial court made a big deal about how there’s almost no in-person voting fraud. Well, there isn’t much bank robbery either, so I guess we should just dump all the cash out in the street and hope for the best. So what if nobody is actually stealing elections by impersonating voters? Now that we’ve given people the idea, we have to be vigilant. But I guess the trial court doesn’t care if people just go around committing crimes.

D. Nobody Ever Managed to Find A Real, Live Disenfranchised Minority

Groups like LULAC, MALC, NAACP, and the Department of Justice went all over the State trying to find people victimized by our voter I.D. law. And you know what, these groups (which, I’ll have you note, are associated with minorities) weren’t able to find any actual victims. All they found were a bunch of eggheads looking for an easy buck, testifying about “charts” and “demographics” and “math.” As if any of that is real.

Has any officer of the State personally gone into a polling place and pistol-whipped a minority voter? Not that I know of, and even if they have, I bet they haven’t been doing it systematically. Plus, we wouldn’t allow that sort of thing. So where’s the victim?

Just ask yourself that – if you can’t find the victim, then it follows (Q.E.D.) that nobody did anything wrong. Because that’s exactly right.

The State of Texas has bent over backwards trying to help poor people. We told them that if they’re over age 65, just vote by mail. We told them how to get picture I.D.s. We put helpful information on our website. We set up some folding tables and tried to help people get I.D.s, and nobody took us up on it. It was a waste of time.

Here’s the thing, Mostly, people can get drivers’ licenses. I mean, think about it. Who do you know who doesn’t have a driver’s license, besides some old people, who if they would just spend a little time organizing their lives could plan to go down to the post office and mail in their ballot like, whenever.

We don’t judge those who can’t get I.D.s – we don’t even know if those people are minorities or not. Maybe they’re just not at that place in their life where they want to get an I.D.

Or maybe they are the kind of people who shouldn’t get an I.D. I’m not saying that I know that for sure. I’m just throwing it out there. And we’re not going to force anyone to get a picture I.D. That’s presumptuous, and probably racist. And patronizing. Let people not get I.D.s if they don’t want to. It’s a free country.

Anyway, voter I.D. just isn’t that big a deal. Even the expert for the DOJ said back in 2009 that “voter I.D. doesn’t appear to present a significant barrier to voting.” That’s from Stephen Andsolabehere’s article in Vol. 42 of PS: Poli. Sci. and Pol., at page 129.

Yeah, I know, “Professor” Andsolabehere then qualified that statement by basically clarifying that he was referring to voter I.D. as an idea in the abstract, and not to the fiendishly punitive form of picture I.D. laws adopted by the State of Texas. So what?

E. Not to Beat A Dead Horse, But I’ve got Another 30 Pages To Fill

Look, let’s just get down to brass tacks. We all know how this is supposed to play out. I’m going to express about 5,000 more words of outrage. I’m confident that you guys are going to do the right thing. Because, c’mon. Why would minorities get so exercised about voting rights anyway? – they’re on the losing side.

See you on the back nine.