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Today I got a call from a Houston-area radio journalist asking questions about how Texas makes it harder for homeless people to vote. On the one hand, the timing of the question was a little late (what with the registration deadline already having passed for the statewide and local November 3, 2015 elections here in Texas). On the other hand, the question was timely, given that a five-month lead-in to the early February deadline to register to vote for the March 2016 primary elections probably gives homeless voters the time they need to organize their identification paperwork and fight their legal and bureaucratic battles so that they’ll be able to cast a ballot next year.
If ever there was a class of voters that was easy to disenfranchise, it would have to be the homeless – even before we had voter I.D. laws, only an estimated 10% of the eligible voting-age homeless population participated in elections. (This statistic is widely cited, and consistent with statements made by Neil Donovan, the executive director of the National Coalition for the Homeless. See, e.g., http://www.pbs.org/newshour/rundown/forgotten-voters-dc-volunteers-work-to-register-the-homeless/.)
Why are the turnout numbers so small for the homeless? Let me turn that question around. Why wouldn’t we expect the number of homeless people successfully engaging in the political process to be a tiny minority of the homeless population? After all, our government has raised enormous barriers to discourage homeless participation in politics, with ballot limitation policies that often appear to be motivated more by petty cruelty or simple mean-spiritedness than by any legitimate administrative concerns; is it any wonder that homeless have gotten the message that they are not wanted at the polls?
That’s not to say that there aren’t organizations making an effort to counter this powerfully negative message of exclusion – there are regional groups like Homeless Not Powerless (which was active in early 2014 and centered around urban centers in Alabama and North Carolina), as well as national groups like the aforementioned National Coalition for the Homeless (who produced a .pdf brochure in 2012 urging the homeless to register to vote and go to the polls).
I would hope that homeless advocates would similarly work to encourage voting by the homeless in 2016, but nobody doubts that the Texas photo i.d. law makes that a lot harder.
DOESN’T EVERYBODY HAVE A DRIVER’S LICENSE ALREADY?
Uh … no. Could anybody still say this sort of thing with a straight face? Well, yes – at last weekend’s Texas Tribune Festival here in Austin, State Representative Jason Villalba (R) (Dallas) said that a photo I.D. requirement was “no big,” because everybody already has a license to do things like rent cars and book airline tickets.
Ah, the power of anecdotal experience. Ah, the failure of imagination. Since a Texas lawmaker has a driver’s license, everybody must have one. You know, except for the 600,000 eligible already-registered voters who lack such a thing.
Seriously, does Representative Villalba think that the whole development of evidence and discovery phase of a contested civil rights trial just takes place in an ’80s movie montage? Has it somehow escaped the understanding of our state lawmakers that when lawyers clash in a courtroom setting, spending huge sums of money on depositions, expert witnesses, and intensive documentary analysis and research, that the resulting mountains of evidence are somehow just … irrelevant to their own fantasies about how the other half lives? It isn’t some made-up statistic – the Texas Secretary of State’s own records confirm that around 600,000 registered voters lack sufficient i.d. to vote. A much larger number of non-registered voting-age citizens also lack the documentation required to cast a ballot.
OKAY, SO NOT EVERYONE HAS A DRIVER’S LICENSE. BUT … I MEAN, COULDN’T THEY ALL GET DRIVERS’ LICENSES?
With unlimited resources, time and money, problems like a lack of supporting documentation magically vanish for eligible voting-age Texans. Except … people don’t have unlimited resources, time and money. That’s sort-of the problem, isn’t it?
To be fair, the State of Texas makes it possible for people without drivers’ licenses to get specialized picture I.D.s to be used for the narrow purpose of voting. And these I.D.s are at least legally issued free of charge to anyone who can cough up sufficient documentary proof of their identity – such as a birth certificate or a passport.
Here’s the kicker (as I have mentioned before, more than once) – not everyone has a birth certificate or a passport. And getting a birth certificate or a passport isn’t a cost-free transaction.
A little digging uncovered some private charitable groups that help homeless people get I.D. forms, and subsidize the cost of those forms – there’s a coalition of Presbyterian churches in downtown Houston (Main Street Ministries) that offers a homeless I.D. workshop on Tuesdays and Thursdays from 9:00 to 11:30 a.m., excluding holidays. But … that service is limited in scope, and is only available to homeless people who have a valid referral letter from an approved referring agency.
To be fair, I’ll grant you that “some limited charitable resources for getting a picture I.D.” isn’t the same thing as “no resources for getting a picture I.D.” It would be inaccurate to say that there are no avenues by which an impoverished homeless person could get the materials necessary to register to vote and cast a ballot.
But some things are just inherently harder to do when you don’t have a fixed residence address. For instance, there’s the problem of providing a residence for purposes of identifying a voting precinct.
Here in Austin, a homeless person could successfully complete a voter registration application by filling out the form and listing a physical geographic location (“under the overpass at IH35 and 12th Street”) as the residence. For a mailing address (in order to get the voter registration certificate), a person could then list “General Delivery” along with the zip code for the main post office.
Problem solved, right? Except … a person must provide two forms of i.d. and a valid residence address in order to receive mail from the General Delivery window at a regional mail distribution center, per the USPS Domestic Mail Manual. Except … there’s an exception to this requirement in the discretion of the local postmaster if a transient person is “known to the postmaster” and sufficiently well-identified.
Subjective, mushy, exceptions to general rules create certain fairness problems. A nice local postmaster might go to great lengths to assist homeless mail clients with securing no-cost P.O. boxes and long-term General Delivery accounts. Or not – when Seattle homeless sued the Postal Service in the late 1990s for failing to provide mail delivery, they were more-or-less poured out of court with an appellate decision that upheld the Postal Service’s broad discretion to chose how much or how little it needed to do to in terms of providing mail services to the homeless.
So, yay to you, homeless person, if you happen to live in an area where you can get mail delivery. But if you live somewhere where you can’t get mail delivery (say, if transportation issues and a lack of i.d. make it impossible for you to sign up for General Delivery), the Postal Service isn’t obligated as a matter of law to help you out.
Homeless people get to experience annoying Catch-22s involving ignorant voter registrars who insist on the primacy of a street address, wherein the homeless person submits a voter registration application, but has the application rejected because it doesn’t list a place that the voter registrar believes is a “real residence.”
WELL, OKAY. MAYBE HOMELESS PEOPLE HAVE TO WORK A LITTLE HARDER TO REGISTER TO VOTE. BUT VOTING IS IMPORTANT – IF THEY REALLY WANT TO VOTE, TRANSIENTS SHOULD BE WILLING TO PUT UP WITH A LITTLE PAIN AND FRUSTRATION
Um … okay. This is the sort of absentminded cruelty that leads to civil rights violations, because it belies a popular and common attitude – that the homeless are morally inferior and undeserving of any particular care or consideration when it comes to voting.
If that’s how one feels, why not apply that philosophy to other groups as well. Why do we coddle people who are disabled on Election Day? Why have we had a law on the books for the last 110 years allowing people in the extremis of terrible illness the right to vote from their sick beds on Election Day? And why do we coddle people who have just had a death in the family and been called away by the need to bury a loved one?
For that matter, why bother accommodating the absentee voting of people who are actually under fire in a foreign war zone? Shouldn’t we expect soldiers to just tough it out? I mean, if voting is so important and all, why should we make it easier for anyone to vote? Why not just have the entire electorate crawl through broken glass to get to the polling place? I mean, if democracy is so precious and all, shouldn’t we all be willing to suffer indignities, costs, and hardships that are thrown up as roadblocks to our vote?
Well, no. obviously. First of all, most of us aren’t heartless psychopaths who take pleasure from the pain of other human beings. And secondly, most of us understand how the whole “fairness” thing works, because we occasionally benefit from the kindness of others, and can empathize with people who find themselves in need of kindness.
I mean, it would be one thing if we all faced exactly the same burdens on our ability to cast a ballot – then one could at least argue that the pain and cost of voting was distributed evenly among all voters. But that isn’t the case – some people have a significantly harder time casting a ballot than others. And to the extent that some people face greater hurdles to participation means that those people are disproportionately less likely to be able to participate as voters in an election.
We would only exclude those people from participation (and preserve the exclusionary barriers limiting participation in the organs of self-government) if we really didn’t want those people to participate. And that way lies the path to insurrection, rebellion, and death.
The homeless are entitled to participate in elections with the same ease and transparency of process as any of the rest of us, whether we are renters, homeowners, fabulously wealthy, desperately poor, or living under a bridge. And until the homeless are able to participate in elections with the same ease and lack of constant scrutiny and suspicion. we cannot say that we are free citizens of a democracy.
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?
[UPDATED] A Story About an Election, or, why Texas needs a new Constitution: Voter residency and the Woodlands Road Utility District No. 1
Some of you know why I’m no longer at the Elections Division of the Texas Secretary of State, but many of you do not. The circumstances behind my being fired are certainly of interest to me, but they are also potentially of interest to others, because they highlight a number of election law issues, and are intimately tied to the ways that we think about elections in general.
THE SHORT AND UNINTERESTING SUMMARY OF THIS STORY
The short story is that three years ago, in an unguarded moment during an hour-long phone conversation with a Texas voter, I expressed dissatisfaction with a judicial decision on the question of voter residence. My problem with the decision wasn’t the final ruling, but with the failure to “show the work.”
In retrospect, my dissatisfaction was pedantic. Whatever the failings of the trial court decision, those failings were resolved to my satisfaction by the appellate court decision, which does carefully “show the work” leading to the determination that a group of voters didn’t really reside in the place that they claimed as home (the text of the appellate decision is available online here. In particular, read the court’s analysis of the sufficiency of the evidence).
In any event, a surreptitiously taped and edited version of my three-year-old phone conversation emerged in the form of a YouTube video that was recently posted by one of the criminal defendants in a case of alleged illegal voting being prosecuted by the office of our politically ambitious state Attorney General. My then-employer saw the video, and had a viscerally powerful emotional and political reaction.
[UPDATE: Since this entry was first posted, I have been contacted by both the prosecutor and the defense attorney for one of the criminal cases that resulted from the 2010 election for officers for the Woodlands Road District No. 1.
These attorneys have been very helpful in providing additional information, and their generosity has once again powerfully reminded me of one of the central truths about litigation in general. If there is any such thing as an objective truth, it often lies between the two poles of the defendant’s position and the position of the State, and no amount of summarizing can ever possibly hope to capture the whole truth.
First, I learned the voters who were judged by the appellate court in the civil election contest to be the legitimate voters in this election really do own a house within the boundaries of the district, and if the photos of the house interior (part of the public record from the civil election contest lawsuit, and graciously provided by the prosecutor) accurately reflect the condition of that property at the time of the 2010 election, then the legitimate voters did not do something like claim residence in a vacant field or a mere pro forma simulacrum of a residence. I have amended portions of this post to clarify that point.
Second, the surreptitious recording of my phone conversation with one of the defendants, when listened to in its entirety (thanks to an unedited copy provided by the defendant and the defendant’s attorney) makes clear two things.
- My clear frustration with the trial court decision in the civil lawsuit wasn’t exaggerated by the defendant’s edit of the audio recording
- My statements and advice regarding voter residence issues were sober, measured, and careful—and based on my analysis of the statutes and the case law.
Whether or not my analysis of the civil election contest was justified, my criticism was frankly born out of frustration with what I still contend was an opaque trial court decision that doesn’t specify any findings of fact or conclusions of law, but that merely rules that the defendants weren’t residents of the district without bothering to explain why they weren’t residents of the district.
In addition, my opinion of the criminal prosecution of the alleged illegal voting has softened. What frustration I still have is mostly reserved for my former employer, and I am still undecided about the sum total of social good or injury done by the State and the defendant.
But there is some room for reasonable people to differ on whether there is reasonable doubt that the defendants actually knowingly committed election fraud by voting in this election; the defendants certainly suggest as much. But the State can also fairly claim that independent of any possible proper or improper bias on the part of the judge or juries hearing these cases, the criminal prosecution has not been particularly political, mean-spirited, or vindictive, and that mercy and forgiveness have not been taken off the table.
Both sides could benefit from moving a little closer together — the prosecution is motivated in part by desire to discourage any future contempt acts of the voting process, and the defense is motivated in part by a similar motive, as a matter of principle.]
As I said in the previous version, the long story is much more interesting.
THE LONG VERSION OF THIS STORY
So as I promised, here’s the long version. Some residents of the Woodlands decided to protest what they saw as an essentially undemocratic election in a special law district by voting in that election. See, e.g., http://www.yourhoustonnews.com/courier/news/road-to-where/article_e57eb34b-e959-5195-b213-de1aef3cdc13.html
These voters now stand accused of having voted illegally in a territory where they are not permanently domiciled, and one of their number has already been convicted and sentenced to three years in prison. My feelings about the criminal prosecution are complex, because on the one hand I tend to agree that the accused voters appear to have intentionally suborned an election that was both crazily unfair and completely legal, but on the other hand I think the resulting criminal prosecution is
a stupid, hypocritical, and vindictive waste of state and local resources
[UPDATE: On the one hand, I do believe the prosecutor is being sincere when he indicates that the State was not particularly hell-bent on incarceration, and that the jury reaction to the defendants is as much the result of the defendants’ presentation of their case as the evidence presented. On the other hand, I still think that the special law district administration (as the most visible victim of the crime) showed a lack of political savvy in demanding a criminal investigation, given that even the most successful outcome of the criminal prosecution just draws more attention to an election that was riddled with irregularities. Other special law district administrators might feel that way as well, since a victory in this criminal prosecution could lead to legislative tinkering with various special district laws].
SPECIAL LAW DISTRICTS AND THE CONSEQUENCES OF FORGETTING HISTORY—WHY MINIMUM POPULATION DENSITY SHOULD BE A PREREQUISITE OF SELF-GOVERNMENT
The story begins in an unincorporated suburb of Houston, Texas called the Woodlands, a sprawling real estate development of gated residential neighborhoods and commercial developments. The Woodlands (and indeed much of the urban landscape of Texas) is the product of legislative action, through government entities called “special law districts.”
Special law districts are political entities that are created by special or local legislative acts, often for the purpose of authorizing public debt instruments to fund commercial real estate development (as well as for other purposes, such as the allocation of water rights, or the construction of dams). Such entities exist in many states, but they are unusually prominent and numerous in Texas because of peculiar historical limitations in state statutory law and the Texas constitution that prohibit the lending of public money for private ends. But more about that later.
Within the Woodlands, there is a political entity called the Woodlands Road Utility District Number One. No one lives in this district anymore, as its governing body carefully and deliberately disgorged every residential property within its former boundaries, deannexing aggressively until the district territory is now nothing but a tenuous lace of road surfaces and commercial properties. Some of the details and consequences are described here: http://www.texaswatchdog.org/taxonomy/term/4551
(Strictly speaking, it isn’t true that “no one” lives in the district. Although the district administrators thought that there were no residential territories within the district boundaries, the land that the road district was built on had not been completely uninhabited prior to the creation of the district. All told, around two dozen people were found living inside the district just prior to the May 2010 election.)
Anyway, this legal capacity to hold binding legal elections without actually having voters is the centerpiece of the problem caused by reliance on special law districts. The Woodlands Road Utility District Number One didn’t violate any state law restrictions by so disgorging itself of all its voters, because unlike towns and cities, special law districts don’t have to have any residents.
In the common law, traditionally a collection of people could not accrue the power of local self government until they had accumulated a particular density and population. The specific requirements varied, but for the sake of our story, the current state of Texas codified requirements for a tiny village work pretty well: a village cannot incorporate until it contains a minimum of 201 people all living within a territory of two square miles or less. See Sections 5.901 and 8.001, Texas Local Government Code.
These restrictions illustrate a fact often forgotten. People of any prior era were just as smart as we are about ordering society. Sometimes they may have been smarter, or more likely, they may have had more intense collective memories of prior mistakes in social organization. When we forget those mistakes, we forget why our ancestors regulated things in the ways that they did.
SELF-GOVERNMENT REQUIRES A CRITICAL MASS OF PEOPLE.
Without that critical mass, self-government doesn’t operate—there are too many conflicts of interest, too few people to get the jobs done, too small a pool of collective interests to inspire caution before making stupid decisions.
It takes a village to make a village.
As has probably happened again and again over the course of human history, at some point roughly a century ago, someone asked, “But what should I do if I need a ‘village’ without the people, in order to make use of governmental power for what might be called pro forma reasons? Maybe I need to formally legitimize some action or put some sort of preemptive local government structure in place in order to get around some other legal restriction, but in an area where people don’t currently live. What should I do?”
The correct answer is obvious. Until a territory can govern itself, it should be governed in absentia by the sovereign exercising current legal dominion over that territory. But the correct answer is unsatisfying, because it doesn’t address a terrible policy mistake embedded in 1876 within the foundation of the current Texas Constitution. The sovereign that should technically exercise legal dominion over uninhabited territory in Texas—that is, the county—can’t lend credit or cash to the owner of the territory, except by relying on some exception to the general state law prohibition against public loans for private ends. As with so much else in life, money is the problem.
GOVERNMENT AND SELF-INTEREST
One of the essential, and I would say self-evident, functions of government is to give people money, in addition to, or as a natural consequence of, some of government’s core functions—such as public services, common defense, and mutual assistance. Those who claim otherwise are either misinformed, obtuse, or in the throes of some irrational passion that hasn’t worked itself out yet, and are unaware or in denial of the collective greed and selfish desires that give rise to the existence of government in the first place. We have government because we want stuff, or at least some of the comforts that come from the security of mutual government.
In fact, political science was often described by my college professors as the study of “the coercive allocation of limited resources among alternate uses,” in parallel with the professorial definition of economics as the study of “the allocation of limited resources among alternate uses.”
Unfortunately, the 1876 Texas Constitution was drafted by people who were in the throes of irrational passions, and given the incredible viscosity of the law (i.e., the law’s conservatism such that the law changes in response to social pressures as slowly as cold tar responds to sunlight), we still haven’t worked our way out of the 1876 population’s momentary loss of economic sanity and level-headedness.
In 1876, the state’s political zeitgeist was dominated by a number of intense emotions, mostly originating in the denouement of the Southern Rebellion (the only war in which the losers seem to have forgotten what the word “loser” means), and not incidentally from the economic depression that followed after the traitorous secessionists had been driven down to defeat.
First, the state’s white voters wanted a weak central government, with most of the real power being delegated to the county governments. Second (or maybe fifth, or seventeenth, but definitely in the top twenty), the voters wanted to avoid being ripped off again by con artists posing as railroad agents and promoters.
Intercontinental rail was the World Wide Web of the 19th century, and it inspired the same kind of feverish hype and criminal behavior that feed any financial bubble. “Rail” was the magic word that could unlock the most tightly guarded coin purses and city vaults, and the promise of rail access made people set aside their natural skepticism of promises seemingly too good to be true.
The rail bubble was perfect for the con artist. One merely needed to buy an expensive suit, shell out the money to an engraver to print some floridly illustrated common stock, and then head out into the depressed countryside with a promise of economic salvation via rail. Many, many Texas communities were the victims of such cons. City or county or state officials would enthusiastically hand over land, tax revenue, or hard cash to distinguished-looking gentlemen, who would make assurances that construction of the spur line was already underway, and then take their leave of the place in the dead of night.
These thefts were outrages against the guileless hopes and trust of desperate people, and the victims’ reaction to these crimes was intense and all-consuming, as expressed in Article III, Section 51 of the 1876 Constitution:
The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; provided that the provisions of this Section shall not be construed so as to prevent the grant of aid in cases of public calamity.
(see also Section 50 of the same article, wherein the Legislature is similarly prohibited from lending the state’s credit to private interests).
Well, organic law—that is, fundamental or foundational law, such as a state constitution—written in anger rarely turns out well. The rest of the Texas Constitution (and the sum of Texas legislative history) arguably consists of nothing but the numbing bureaucratic quest for exceptions, exclusions, and justifications in order to get around this article, or to get around the equally disastrous constitutional prohibitions against state deficit financing or the imposition of state income taxes, or the legal roadblocks set up against centralized government authority in general. As a result of this self-administered, self-denying, self-inconsistent, tail-eating, illogical madness, the Texas Constitution has hundreds of amendments and is one of the longest constitutions in the United States.
One of the “fixes” to the Texas constitution lies in the authorization of special districts that do not have minimum population requirements. Interestingly, this fix was enacted a scant thirty years after the drafting of the flawed constitution (see Article III, Section 52, Texas Constitution, added in 1904).
SPECIAL LAW DISTRICTS: PUBLIC MONEY FOR PRIVATE CONCERNS
As I mentioned before, the lending of public money for private ends is one of the essential functions of government (the proof of which is left as an exercise for the reader, but may be summarized by reference to the existence of self-interest, competition, natural monopolies, oligopolies, economies of scale in public investment, and oh, I don’t know, the entire intellectual bedrock on which political economic theory is built), and so almost from the moment that the voters imposed the restrictions on the use of public debt in the 1876 state constitution (this part of the constitution being an unthinking limbic reaction by the voters to the financial crimes of the robber barons, mixed into a document that is mostly a triumphant overturning of Reconstruction and a refutation of the military defeat in the Civil War), much of the business of the state legislature has been taken up with the tedious rhetorical circumvention of this blunt constitutional prohibition against the too obvious conflation of public and private commercial business.
There are a couple ways that a legislature can get around a prohibition against the expenditure of public funds on private interests. The easiest way is to redefine particular private interests as public interests, thereby eliminating rhetorical objections to the issuance of public debt. Another way is to redefine public funds as private funds, but that involves trickier mechanisms that are outside the scope of this discussion (for examples of the latter strategy, see, e.g., the assignment of public revenue through certificates of obligation, creative toll road construction financing, etc.)
One way to redefine private interests as public interests is to get the voters within the area subject to the debt to approve issuing the debt. After all, if the voters of a territory collectively approved the issuance of debt instruments in an election (and consequently agreed as a community to repay that public debt by paying taxes), it stands to reason that those voters must have regarded the money as satisfying a public need.
But when a territory is uninhabited, how does one go about getting voters for that territory’s elections?
HOME, HEARTH, AND DOMICILE, FREELY CHOSEN AND HEARTFELT
Texas codified the traditional common-law definition of domicile as the legal definition of “residence” for the purpose of voting and running for office. Per Section 1.015 of the Election Code, residence is “one’s home and fixed place of habitation, to which one returns after any temporary absence.” It isn’t lost through physical absence; it isn’t gained through physical presence. It is dependent on locus (i.e., contact with a geographic location) and intention (i.e., hearth-cleaving, or home sense).
This definition, hammered out over hundreds of years by court after court dealing with the frictional and conflict-filled lives and interests of residents who lived all their lives in one location, is eminently practical. “Home is where the heart is,” isn’t just a poetic ornament. It is a statement of black-letter law.
So if one is in possession of a territory without voters, all one needs to do is gather together a group of people who will honestly transfer their sense of home from wherever it currently might be to the uninhabited territory, and then register to vote there. The sincerity and intensity of these voters’ home sense is between the voters and their consciences.
When they register to vote, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they arrive at the polling place, they will swear (in fear of prosecution for perjury) that they really do reside in the territory. When they cast their votes, they will do so in fear of prosecution for illegal voting. With all these fearful oaths and affidavits floating around, we must legally presume that the voters’ statements and votes are valid and true.
But if one is in possession of a territory without voters—and here we are still talking in the abstract—why bother bringing in voters from outside the territory? There are no population minimums set for special law districts. Move one person into a tent in the middle of a field. Register to vote. Wait thirty days. Conduct the “election.” Count the vote. (Spoiler alert—the measure, slate, or issue on the ballot will pass with one vote for, and none against.) For most people, the reaction to such a story is incredulity.
How could a pretend-election with one voter be valid? It’s valid because it’s not a pretend-election.
Admittedly, an election in a jurisdiction with only one voter violates most of the provisions of the Texas Election Code, piling one irregularity on top of another. In an election with only one registered voter, the voter is also the election judge, the alternate election judge, and the clerk, as well as the presiding officer and the member of both the early voting ballot board and the ballot counting committee. As a consequence, the polling place is understaffed, provisional ballots are not prepared, the ballot is handled by the same person who voted the ballot, etc. But the election took place on a date certain, and during the hours that state law mandates the polls must be open. Despite all the irregularities, the election results are not void as a matter of law, but merely voidable.
Here’s a suggestion to any budding election activists who are outraged by these “pretend elections.” First, please don’t give a false residence address on your voter registration application just for the sake of proving a point. The safest course is to encourage your state lawmakers to make a simple amendment to the laws relating to special or local law districts—just specify that special districts require a minimum of 201 people in order to be created.
It isn’t unusual that disputed domicile must be resolved from time to time by a court of law, and that in so doing, a court must tackle such abstract concepts as hearth-cleaving and heart-home. But we call on courts to determine abstractions all the time, and to do more than that, to make abstractions concrete.
Courts place dollar amounts on the value of companionship, or on peace of mind. Courts assign severity to levels of criminal complicity. Courts regularly and explicitly identify the number, weight, and character of each angel dancing on the head of a pin, because we ask them to. We brook no evasion by a judge from defining these impossible-to-define quantities, from quantifying these impossible-to-quantify feelings and thoughts. We say, “You’re a judge. It’s your job.”
So how does a court decide how “real” someone’s sense of domicile is?
CIRCUMSTANCE AND SENSIBILITY: HOW IS TRUE DOMICILE DECIDED?
A court determines the mixed legal and factual question of a voter’s true permanent domicile by weighing all the evidence that may be circumstantial of the voter’s connection to a place, and the voter’s intent.
For some reason related to selective hearing, a disturbing number of voters and candidates would respond to this information by brightly chirping “so you’re saying I can vote wherever I want!” Perhaps the quality of civic education in this country is seriously lacking, as people can hear “voter’s intent” and assume that the phrase means “voter’s self-serving statement in the teeth of all other evidence.”
That cheerful self-assured justification for misrepresenting where one actually resides seems particularly relevant to the various criminal cases proceeding from the 2010 election in the Woodlands Road Utility District No. 1. The voters being prosecuted for illegal voting appear generally to have decided that establishing domiciliary intent in a hotel for the purpose of voting didn’t require them to actually inconvenience themselves with all the bothersome details that would at least have suggested sincerity. That is the impression given by the appellate court decision reviewing the related civil election contest (see McDuffee v. Miller).
But the defendants should probably point out that until they voted, no one in the road district’s administration much cared one way or another about the niceties of residence and voter registration. As described in McDuffee v. Miller, for the district, “residence” was just a pro forma requirement for a few known voters, who were set up on commercial properties as caretakers roughly 30 days before the election in order to conduct the election, cast the votes, and go back to their “real” houses.
[UPDATE: To be fair to the road district management, the “real” road district voters did at the time of the election have the advantage of actually owning a property that meets many of the common-sense requisites of a house—that is, a mailbox, a kitchen, and so on. As to whether this house was a home, one must accept that the prosecution and defense will not agree, and that ultimately, even if the defense is right, and the “real” voters weren’t legal residents of the district, two wrongs don’t make a right, and don’t justify anyone’s misrepresentation of residence status.]
So in one sense, the road district was merely reaping the bitter harvest of its own lax attitude towards election administration. The district in the 2010 election, having benefited from a definition of residence that was sufficiently flexible to include voters who weren’t likely to actually regard the district as home, had to contend with voters who hadn’t been anticipated by the road district administration, but who also took advantage of the flexible legal definition of residence.
THE HUMAN COST, AND THE MORAL OF THE STORY
For the defendants who didn’t accept a plea deal, the future is dark. One of the seven has already been sentenced to three years in prison, and there’s no particular reason for the other defendants to hope for better outcomes. I think that there is reasonable doubt, not with respect to the voters’ residence status, but with respect to their understanding of the legal significance of residence. In other words, the defendants might well argue that (1) while they didn’t really live in the district, (2) they also didn’t know that voters were required to really live in the district. In other words, they would argue that while their votes were invalid, they didn’t knowingly vote illegally.
Mr. Adrian Heath has subpoenaed me to testify in his defense, although I honestly don’t know that anything I say would be of any use to him—I might actually hurt his chances. What I would probably say is that the appellate review of the civil election contest got the facts right: neither Mr. Heath nor any of his buddies really regarded themselves as permanently residing in the road district, and so they voted under false pretenses, as allegedly did all of the other voters in the May 2010 election in the Woodlands Road District No. 1.
In my considered opinion, the moral of this long story is as follows:
1. The Texas Legislature should, at a minimum, include a boilerplate requirement as a prerequisite to the creation of special law districts that those districts must contain at least 201 inhabitants. When funding subdivision development in areas where no one lives, the Legislature should enact some other exception to the prohibition against grants of money or credit to private interests, and not continue fostering this habit of creating “in name only” political subdivisions.
2. The best way to protest what you perceive as a sham election isn’t to falsify what you report as your residence in order to vote in those elections. In this case, the protesters could simply have signed up to run for office for the road district board of supervisors (there was no residence requirement for the office-seekers in this particular road district), and then, after losing their elections to office, they could have contested the validity of the pretend election, partly on the grounds that the only people who did vote in the election didn’t live in the district. According to Mr. Heath’s defense attorney, the real estate mogul who is represented as the legitimate voter in this election claimed his office was his residence, and hung a sheet across part of his office to demarcate the boundary of his “home.” In other words, the defense implies that the “real” voters had just as weak (or just as strong) a claim to residence as the defendants.
[UPDATE: The prosecutor has provided photos that were entered into evidence in the civil election contest, showing that the house claimed as a residence by the so-described “legitimate”-residency voters does indeed have all the requisites of a place one would consider a house. The pictures, at least, suggest that this house was / is substantially more than just a sheet hung across an office partition.]
3. The people of Texas need a new, rational, modern state constitution. They almost got one in 1975, so it is doable. Any new constitution should include (a) mechanisms for deficit financing of state government, (b) a state income tax, and (c) simple mechanisms for state subsidies for economic development and water conservation. Oh, and (d) uniform statewide funding of primary and secondary education.