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A Rare Judicial Ruling on Residence Issues in Weslaco Election Contest

Houston attorney Jerad Najvar has passed along a press release and a .pdf of his opening brief in Lopez v. Rivera, the election contest resulting from the hotly-contested November 2013 municipal election in the City of Weslaco. Central to the contestant Letty Lopez’s initial complaint was the assertion that a number of illegal votes had to be thrown out.

20141229 Lopez opening brf and appx FILED

That election has been in the news lately because the Secretary of State forwarded a criminal complaint to the Attorney General’s office with evidence of illegal voting in that election. Signatures on ballot applications and ballot envelopes were allegedly forged, and ballots were cast by voters who assert that they did not actually vote in the election.

Importantly, this lawsuit and criminal complaint highlight the profound difference between election fraud as it is actually practiced in Texas, and the purely hypothetical election fraud addressed by the state’s questionable voter I.D. law.

As actually practiced, election fraud (1) does not involve in-person voting, but rather voting by mail, and (2) is a coordinated subornation of an election conducted either by a candidate or by election consultants working on a candidate’s behalf.

In fact, the requirement to show picture I.D. in the polling place would not have in any way prevented the illegal voting that occurred in the 2013 municipal election in Weslaco.

Residence and Domicile Redux

Charles Kuffner has done a couple of nice articles about a now-completed lawsuit involving Houston Community College trustee Dave Wilson. (see http://offthekuff.com/wp/?p=61703, and see http://offthekuff.com/wp/?p=61692). Mr. Wilson was sued by the community college, which alleged that Mr. Wilson wasn’t a resident of the community college district, and therefore was not eligible to continue as a trustee. The jury disagreed, and so (unless an appeal is forthcoming) Dave Wilson has been conclusively determined to be a resident of the Houston Community College District.

Evidently Mr. Wilson is something of a locally notorious political gadfly in Houston, and has gotten a reputation for claiming residence wherever he needed to in order to run for various public offices. People were suspicious that he didn’t really, really, cross-your-heart-really live inside a warehouse while at the same time claiming a homestead tax exemption for another property where his wife resided.

But, to his credit, Mr. Wilson treated the warehouse like home and had his blood pressure medication mailed to that address, among  other things.

The saga of gaming residence for the sake of running for office – what a tangle of legal precedent it provides. Mr. Kuffner has used the occasion of the Wilson lawsuit to suggest some sort of legal reform to our statutory definition of residence, mindful of the weeds and quicksand. Mr. Kuffner’s suggestion is to treat an out-of-territory homestead exemption as a bar to holding office within a territory (assuming the jurisdiction in question has a residence requirement for holding office).

I. IS DOMICILE THAT IMPORTANT?

I guess another way to ask the question is to ask why a person’s domicile is important to office holding, voting, paying taxes, or what-have-you. The short answer is that domicile isn’t important, except when we want it to be important.

Historically, domicile hasn’t been that important as a criteria for being in power, but has been more important as a criteria for being subject to power. To oversimplify – the sovereign governs a territory by means of might, or divine right, or whatever, regardless of the sovereign’s domicile. Meanwhile, the peons, peasants, or rabble have to live where they’re told to live, and abide by the rule of whoever is in charge of the territory that they are compelled to call home.

Obviously, nobody challenged Genghis Khan on residency grounds – his qualifications for office were amply represented by the piles of skulls he tended to leave lying about. But even in modern postindustrial democratic territories, domicile is often not a primary determiner of one’s qualification to office.

In Great Britain, one may stand for parliamentary election by completing  nominating forms and submitting a fee of £500 to an election official – the relevant application form is available here (at http://www.electoralcommission.org.uk/__data/assets/electoral_commission_pdf_file/0009/83169/UKPGE-Nomination-Forms-Final.pdf) in case you’d like to give it a whirl.

Now, it’s not as though just anybody can run for office in Great Britain. Members of the House of Commons are subject to a number of qualifications, and do have to abide by laws that more-or-less modernize the candidate application and campaign fundraising process.

But candidates for parliament don’t have to live in the districts that they represent. They do appoint agents who are constituents of the district, and if elected, they have certain minimum obligations to their constituency in terms of accessibility and office hours. But the members of the national legislative body do not have to live anywhere in particular, and in fact, they may reside outside of the country altogether, as long as they are still subjects of the British Crown. For details, see the Representation of the People Act 1983, as amended (available at http://www.legislation.gov.uk/ukpga/1983/2). Residency is important, but only for determining the qualifications of the electors – not the candidates.

In the U.S., the drafters of the Constitution were slightly more inclined to require a geographic association for officeholders, but they tended not to extend any sort of domiciliary test to candidates. Members of Congress must be residents of the state from which they are elected, but do not have to be residents of any particular part of the state, and do not have to meet any sort of minimum durational residency test prior to taking office. Article I, Sections 2 and 3, U.S. Constitution. (available from many online sources, including: http://www.law.cornell.edu/constitution/articlei).

I bring all this up as a reminder that there’s no inherent necessity to link residence with office. If we do make a requirement that someone has to consider a district their “home” in order to represent that district, such a policy choice is just that – a choice. Supporters of such requirements would likely argue that members of … say for example … the Houston Community College District Board of Trustees … should be residents of the community college district so that they will be personally invested in the problems and conditions of the district, forced by geographic proximity to share the experience of living in the Houston Community College District. We certainly don’t want those outsiders and strangers who live across the street from the Community College District to come in and impose their seditious ideologies and strange ways, do we?

II. RESIDENCE REQUIREMENTS MIGHT BE A LITTLE ARBITRARY, BUT SO WHAT? GIVEN THAT SUCH REQUIREMENTS DO EXIST FOR MOST LOCAL ELECTIVE OFFICES, HOW DO WE DEFINE THOSE REQUIREMENTS FAIRLY?

Well, what is “fair?” I mean, any definition of domicile will involve some subjective standard for determining the sincerity of a person’s … hearth-cleaving. (Hearth-cleaving is my made-up term for domiciliary intent; it means, “emotional and physical ties to the one place in all the world that is home.”)

Legislatures, disgruntled losing candidates, judges, juries, voters, and angry political rivals have searched high and low for some universally applicable sure-fire objective test or standard for hearth-cleaving that would guarantee the exclusion of the carpetbagging outsider from office. But for every bright line test, there will come some sympathetic officeholder whose exclusion is unfair. Because there is really just one test underlying all these tests of domicile and residence. Is the candidate or officeholder one of us, or is the candidate or officeholder not one of us?

III. SO, TO SUM UP, RESIDENCE REQUIREMENTS ARE ARBITRARY, SUBJECTIVE, AND A SOURCE OF ENDLESS FACTUAL DISPUTE, AND THEY ALWAYS WILL BE, AND THAT’S JUST INHERENT IN THE IDEA OF HOME, COMMUNITY, AND BELONGING OR NOT BELONGING TO A PLACE?

Yup.

 

 

The Election’s Not Over Until the Litigation is Done

I saw that Rick Hasen’s Election Law Blog had a story from the McAllen, Texas Monitor about a successful election contest in Weslaco. It’s a good story in part because it illustrates the role of the judge as finder of fact (under Texas law, election contests are non-jury trials), and of the importance of circumstantial evidence of a voter’s residential intent, or lack of same.

Notice that while a large number of people claiming residence in one spot may look suspicious, neither that fact nor any other specific circumstance is legally conclusive of domiciliary intent. If 26 people all claim the same house as home, and all of them regard the house as their permanent residence (even while absent from the home), they may all validly call that place home.

 

Update – That 97-year-old voter could vote after all.

As is so often the case when someone describes an outrage, facts tend to transform the operatic injustice into something decidedly more banal. So is the case with the Dallas-area 97-year-old transplant from out-of-state, whose son contacted my mother to complain that DPS wasn’t issuing his mother a photo I.D., on the grounds that her certification of birth wasn’t the same thing as a birth certificate.

Well, DPS may still be balking on providing the photo I.D., (for reasons relating to proof of continuous residence in the state, I suspect), but the voter in question had already gotten her voter I.D. card some time ago. A post that consequently stirred up all sorts of excitement turned out not to be about a disenfranchisement after all.

For many years, the Texas Department of Public Safety has been in the official I.D. making business. Most commonly, these official I.D.s are drivers’ licenses of various types (commercial, motorcycle, non-commercial, with or without various endorsements or limitations, etc.) DPS also produces I.D.s that are not drivers’ licenses – these are “personal identification cards.” The various ins and outs of getting drivers’ licenses or personal identification cards are established within Chapter 521 of the Texas Transportation Code, wherein lies the sneaky Section 521.1426 that requires proof of a person’s duration of residence in the state.

Then there’s Section 521A.001, the sole section in Chapter 521A of the Transportation Code. That’s the law that governs issuance of “election identification certificates.” And while drivers’ licenses and personal identification cards work as acceptable forms of identification for purposes of voting, drivers’ licenses and personal identification cards are not “election identification certificates.”

To get an election identification certificate, DPS requires that an applicant “furnish to the department the information required by Section 521.142 [of the Transportation Code].” (Tex. Transp. Code Section 521A.001(f)).

Here’s the information required by Section 521.142 of the Transportation Code:

(a) An application for an original license must state the applicant’s full name and place and date of birth.  This information must be verified by presentation of proof of identity satisfactory to the department.  An applicant who is not a citizen of the United States must present to the department documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States before the applicant may be issued a driver’s license.  The department must accept as satisfactory proof of identity under this subsection an offender identification card or similar form of identification issued to an inmate by the Texas Department of Criminal Justice if the applicant also provides supplemental verifiable records or documents that aid in establishing identity.

(b)  The application must include:

(1)  the thumbprints of the applicant or, if thumbprints cannot be taken, the index fingerprints of the applicant;

(2)  a photograph of the applicant;

(3)  the signature of the applicant; and

(4)  a brief description of the applicant.

(c)  The application must state:

(1)  the sex of the applicant;
(2)  the residence address of the applicant, or if the applicant is a federal judge, a state judge, or the spouse of a federal or state judge using the procedure developed under Section 521.121(c), the street address of the courthouse in which the applicant or the applicant’s spouse serves as a federal judge or a state judge;
(3)  whether the applicant has been licensed to drive a motor vehicle before;
(4)  if previously licensed, when and by what state or country;
(5)  whether that license has been suspended or revoked or a license application denied;
(6)  the date and reason for the suspension, revocation, or denial;
(7)  whether the applicant is a citizen of the United States; and
(8)  the county of residence of the applicant.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1413 (S.B. 1317), Sec. 1, and further amended by Acts 2011, 82nd Leg. 1st C.S., Ch. 4 (S.B. 1) Sec. 72.06:

(e)  The application must include any other information the department requires to determine the applicant’s identity, residency, competency, and eligibility as required by the department or state law.

(emphasis not in original) (S.B.1 is one of those huge omnibus bills. To get to Section 72.06 of the bill, go to the end of the bill and work your way backwards).

If Section 521A.001 of the Transportation Code had said something like “information required by Sections 521.142(b)-(c),” there would be less controversy all around.

Luckily, DPS has not interpreted the law to require applicants for election identification cards to complete driver education courses. And luckily, DPS does not (as far as I know) implement the provisions of the amended Section 521.142(e) to require proof of residency for individuals applying for election identification certificates. But notice the above highlighted language? That was added by the 2011 amendment, raising understandable concerns that applicants for election identification would be required to show the duration of their residence in the state if DPS or the state asserted duration of residence as a requirement in the future.

The problems outlined in the prior post still stand for those who want a personal I.D. or a drivers’ license. But as of right now, the homeless and new transplants can still register to vote and get election identification without having to comply with the requirements in Section 521.1426 of the Texas Transportation Code.

A Perfidious Assault on Voting Rights

My mom called on behalf of a friend, who is caretaking her 97-year-old mother. Thanks to bureaucratic intransigence and general awfulness, the 97-year-old (who has moved down from Michigan and would like to vote in the upcoming November elections) cannot seem to convince the Texas Department of Public Safety that she actually qualifies for a voter I.D. card.

The problem is that the State of Michigan can only issue the woman a certified copy of a certification of birth, but the DPS license office insists that unless the document is titled “Birth Certificate,” it is unacceptable proof of identity. Such a restrictive interpretation of the statute defining the type of proof needed for a voter i.d. is untenable, and one hopes that wiser heads prevail – the woman has a state-issued document proving her birth in the U.S., notwithstanding that it is a certification of birth rather than a birth certificate.

But in the course of researching the issue, I encountered a truly insidious I.D. requirement that has been in state law for five years, but that for that last few months or so has served as a proxy for restricting the voting rights of a whole class of potential voters, namely the homeless and transient poor.

Texas has not traditionally imposed tests of durational presence as a prerequisite to voting – arguably, a person becomes a citizen of Texas and acquires the qualification to vote merely by domicile within the state. In other words, a person can move to Texas, identify a place as “home” and thereafter participate in the civic life of the community and the state so chosen. Tex. Elec. Code Section 11.001.

But in 2009 (coinciding with a then-abortive push by the Legislature to enforce stricter rules of domicile for voting purposes) the Texas Legislature passed a law specific to qualifying for drivers’ licenses and state-issued i.d. cards. (Section 521.1426, Texas Transportation Code) To get a driver’s license or state i.d., a person must provide two forms of documentary proof of continuous domicile within the state for at least 30 days prior to applying for the i.d. Alternatively, a person may submit affidavit testimony by third-party correspondents (who must themselves provide documentary proof of their own Texas domicile) affirming the applicant’s residence status.

DPS describes the process and provides a link to the affidavit here.

Notice that the documentation of domicile strongly favors those who own property or have income – acceptable documents include utility statements, tax receipts, mortgage documents, etc. It isn’t impossible to get the i.d. if one is homeless (the administrator of a homeless shelter or halfway house can act as the corroborating witness on the affidavit, for example), but it requires fairly sophisticated engagement with the mechanisms of formal institutionalization. If you happen to be living under a bridge, you have to hope that a social worker will be willing to vouch for you and claim that you regularly receive mail at a neighborhood shelter.

And true, a voter registration certificate is itself one of the acceptable documents to prove domicile. But a voter registration certificate is not sufficient in and of itself to establish residence.

So … let’s recap. By law, (see Section 11.001, Texas Election Code) you are citizen of Texas as soon as you permanently reside in Texas. As soon as you permanently reside in Texas, you qualify to vote and can apply for a voter registration certificate. But you can’t use a voter registration certificate by itself to vote. To vote, you need a picture I.D. issued by the Department of Public Safety. But to get a picture I.D., you need to prove that you’ve been domiciled in Texas for at least 30 days. (You’ll also need to prove your citizenship and identity, which, as I have described before, is another sort of fresh hell, but enough about that).

But to prove that you’ve been domiciled in Texas for at least 30 days, you’ll either have to present the documentary proof of your financial respectability (in the form of bank statements, utility bills, and paychecks), or you’ll have to fall back on the mercy of the modern poor house or work farm, getting someone else in a position of paternal responsibility to vouch for you as not being entirely transient and rootless.

The State of Texas (a state whose independence was precipitated by the actions of transient adventurers and freebooters) certainly seems to have put away the “welcome” mat once and for all.

Now, here’s a bit of insidious legal history.

Section 521.1426 of the Transportation Code got added to state law in 2009, but it didn’t really come up on the election law radar, because picture I.D. voting laws didn’t pass in 2009. So there were no implications under Section 5 of the Voting Rights Act for the new “proof you’ve lived here 30 days” requirements for state i.d.s, and (other than maybe a lingering bad feeling about the direction that the law was taking) no formal sense that the then-new law relating to drivers’ licenses needed to be vetted by the U.S. Department of Justice.

Then the war on voting rights began in earnest, and we were subjected to the perfidy and general foulness that is the hallmark of our new undemocratic age. And suddenly in late June of 2013 (while the ink on the decision in Shelby County v. Holder was still drying) the various torturous paths and obstacles to getting a state picture i.d. also magically became new  and wickedly torturous paths and obstacles to voting.

Citizenship in Texas now rings a little hollow, since permanent residence here is no longer enough to qualify you to vote in Texas elections, Section 11.001 of the Election Code be damned.