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In the shadow of our statewide election, the City of Martindale (a town of about 1,200 people in Caldwell County, not far from San Marcos) is having a November 3, 2015, mayoral election.
This election is taking place because of a disastrously error-filled May 9, 2015, mayoral election that had to be contested by the losing mayoral candidate. The Election Academy at the University of Minnesota shares the story, quoting extensively from an Austin-American Statesman story about the city’s election problems.
Briefly, Martindale’s election had the following problems:
- Owing to a misunderstanding about how ballots and voting work when uncontested races are on the ballot, none of the uncontested candidates for city council got any votes.
- The voter registration list combined all the city voters with the non-eligible county voters in the city’s extraterritorial jurisdiction, allowing non-city voters to vote in the contested mayoral election.
As unfortunate as these errors were (and as expensive as the correction proved to be, requiring that a losing candidate had to file a formal election challenge in state district court in order for a new election to be ordered), the lion’s share of the blame for the bad May 9, 2015, city election must be placed on our pitiful Texas Election Code, reflecting systemic flaws resulting from a combination of legislative initiatives to make local elections cheaper and less frequent, and from a lack of state and federal oversight of elections administration in general.
As is so often the case, the problem lies not with individuals, but with poorly engineered systems.
- CERTIFICATION OF UNOPPOSED CANDIDATES, AND WHY STATUTES THAT CANCEL ELECTIONS ARE A VERY BAD IDEA
In 1995, the Texas Legislature amended the Texas Election Code to provide that as long as there weren’t any contested races, a political subdivision could go ahead and cancel an election. Thus was sounded the death knell of the tradition of open write-in candidacy—a political subdivision couldn’t very well treat its races as uncontested if open write-in votes could be counted for any eligible candidate, and therefore entities would have to enforce candidate registration requirements in order to benefit from the cost savings that could be realized by canceling elections.
When the bill passed and was being submitted to the U.S. Department of Justice for preclearance review under the Voting Rights Act, staff at the Texas Secretary of State’s office noted in passing that one of the negative consequences of the law could be a loss of local institutional familiarity with the conduct of elections. In towns, school districts, and other political entities, the capacity to cancel sleepy unexciting elections meant that years or decades might pass in which said local entity wouldn’t conduct an election of any sort. Institutional experience and memory would fade, procedures would lie fallow, and the capacity for mistakes would expand.
So when (after decades of canceled elections) the City of Martindale found itself with two actual candidates sparring over the position of mayor, nobody knew that the other candidates (for uncontested city council seats) were supposed to be put on the ballot in such a way so that voters could actually vote for them.
Enthusiasm for the undemocratic cancellation of elections is such that now the Texas Election Code also provides a convoluted procedure whereby unopposed candidates for state or county office can be listed on the ballot as elected by fiat. Not surprisingly, this procedure (which doesn’t apply to local races) gets all bolloxed and confused with local election procedures, and leads to mistakes like a city listing its uncontested candidates for city council without also providing any mechanism for recording votes for those candidates.
In point of fact, allowing for the cancellation of elections is contrary to … oh … I don’t know … a tiny little thing like the whole weight of the entirety of English and American law, not to mention the history of Democracy. In other words, everything found in subchapters C and D of Chapter 2 of the Texas Election Code is a giant snarl of terrible ideas that should never have seen the light of day. The notion of “cost saving” is inimical to and incompatible with the necessary expense of maintaining the infrastructure of democracy. And yes, that truth means that small political subdivisions should be expected to conduct elections at fixed regular intervals even when nobody wants to run for office.
By allowing political subdivisions to cancel elections for the last two decades, we have incentivized discouraging people from running for office. (Admittedly, this incentive is counterbalanced to some extent by criminalizing the act of coercion against candidacy, but we’ve lost the ancient tradition of open write-in candidacy, which is dead and buried in Texas.)
- MISTAKES WITH VOTER REGISTRATION LISTS, AND WHY BOUNDARY LINES MATTER
To save money, the City of Martindale conducted its May 2015 mayoral election jointly with a Hays County–area school district, and both the city election and the school district election were administered by the Hays County elections administrator. But the City of Martindale is located in Caldwell County, meaning that the Hays County elections administrator had to cross a county line, setting up and deploying Hays County–owned voting equipment and workers in Caldwell County–sited polling locations, and using a hodgepodge of Hays County jurisdictional voting lists (for some of the school district voters) mixed in with Caldwell County jurisdictional voting lists (for the City of Martindale election, which included a ballot referendum for the approval of an extraterritorial-jurisdictional Martindale Development District that non-Martindale residents of the city’s extraterritorial jurisdiction were eligible to vote on).
I’m sorry. That’s … just wrong.
Who can blame the Hays County elections administrator for failing to distinguish the voting eligibility of two distinct groups of voters, defined by geographic boundaries the management of which are entirely outside the scope of the Hays County voter registrar’s office?
Not for nothing, but the November 3, 2015, do-over election will be conducted by the Caldwell County elections office.
This particular recipe for disaster should be laid squarely at the feet of our state election laws. In particular, the confusion over voting eligibility was exacerbated by a ugly, punitive anti-school-district law passed in 2006 (Section 11.0581 of the Texas Education Code) that specified that school districts were obligated to conduct their officer elections jointly with the general elections of a municipality.
On the face of it, that doesn’t seem like such a bad law, until you realize that school districts don’t actually have territorial boundaries wholly encompassed by, and coterminous with, city boundaries. The real purpose of the law was to strip school district local governance away and place control of school district elections with geographically separated city government elections.
So the San Marcos Consolidated Independent School District (SMCISD) had no say about whether their trustee election would be paired with the City of Martindale mayoral election—the school district was required by law to conduct its single-member district trustee election jointly with a city election.
In May 2015, the available city election on which the school district trustee election could piggyback was the general and special municipal election for the City of Martindale (which shares overlapping territory with the Single Member District 2 trustee position for SMCISD). And while some of SMCISD is located in Caldwell County, the bulk of the school district is in Hays County, leading the school district to naturally rely on the Hays County Elections office to take on the administrative burden of conducting “the election.”
And by “the election,” I mean in fact two elections—the school district trustee election for single-member District 2 of the SMCISD and the City of Martindale election for mayor.
But really, by “two elections,” I mean three distinct elections in three different territorial regions:
(1) the SMCISD school district trustee election,
(2) the general election for officers for the City of Martindale, and
(3) the referendum election in the City of Martindale ETJ (extraterritorial jurisdiction) to approve the creation of the Martindale Development District.
Is it any wonder that voters got the wrong ballots, with some Martindale ETJ voters voting in the City of Martindale mayoral election? The whole election was like the set-up for a bad sit-com joke about an administrative disaster resulting from impossible-to-follow instructions.
Now, Dimsdale, the conduct of this election is the very essence of simplicity. Why, even a toddler could do it.
When a voter comes into the polling place, simply consult this badly printed and faded mimeographed list, and then compare the voter’s residence address with this smudged and slightly wrinkled map of the boundary lines of the city, the county, the school district single-member districts, and the city extraterritorial jurisdiction. Oh, except that you’ll need to consult a separate map for the ETJ, but only for that portion of the ETJ that overlaps with the District. Not the whole district, but just District 2 of the District, except in the portion that isn’t being affected by the vote to approve the District (and by that District, I mean the Development District, not District 2 of the District. Or the District). Now, just cross-reference the block range and street name with this slightly out-of-date block list, and you’ll note the lowercase abbreviation codes for each of the jurisdictions, assuming that the person is within Hays County. But, if the voter has a Caldwell County address, you’ll need to consult this incompatible list that uses a completely different abbreviation code. Now, whatever you do, don’t fail to not provide Version B of the ballot (containing the SMCISD trustee election) to someone ineligible to vote in the city election, unless it is clear that you should be providing Version C of the ballot (when the city voter also happens to live inside the boundaries of SMCISD single-member district 2) except when you need to provide Version A, but only to those who live in Hays County. And obviously, apply those requirements to Versions B2, C2 and A2 in like measure for voters in Caldwell County. So, good luck, and remember, there’s no reason to not not call the voter registrar for Caldwell County, unless it’s for a voter in Hays County, and … oh dear, I seem to have spilled grape jelly on the map, which was printed using a shade of purple ink disturbingly similar in shade to the color of the spilled jelly. But no matter—I’m sure that despite this being the first election that you’ve ever volunteered for that you’ll have no difficulty whatsoever managing the long line of angry voters who are already gathering outside the locked doors of this tiny, un-air-conditioned polling site with inadequate parking and intermittent power outages. Oh, and voting booth number two has always been a bit wonky. Just give it a good shake from time to time, but be careful not to knock the battery pack loose.
Good luck, Dimsdale, I have every confidence in you.
- OKAY, I KID, BUT THIS KIND OF DISASTER IS BOTH PREDICTABLE AND PREVENTABLE
The City of Martindale doesn’t have a lot of money—it’s a modest town with a small tax base, and no appreciable industry. And yet, thanks to the need to re-do the election, the city must shell out thousands of dollars in precious city revenue in order to conduct a do-over election, all because of the “cost-savings” gained from being able to cancel elections in preceding years. The news coverage is embarrassing, and according to the Statesman story, has exacerbated the ill-will between the former mayor of Martindale and the person who won the May 2015 mayoral election.
But this was just one of those one-in-a-million flukes, right? I mean, these kinds of disasters don’t happen that often, right?
Sadly, no. This may have been the City of Martindale’s first brush with the awful and costly election contest process, but the same factors that led to this disaster repeat over and over again across the State of Texas with depressing regularity.
So, what should a city secretary do to ensure that this sort of thing doesn’t happen in future elections?
- Get the ballots printed and reviewed as early as possible.
- Make it a fixed and automatic routine to require outside review and analysis of the election’s administrative burdens by experienced election law experts.
- Confirm jurisdictional boundaries early, and specify exactly which jurisdictional territories can and can’t vote on each ballot issue.
- Assign final responsibility for each local election specifically to one person per jurisdiction, rather than relying on an extraterritorial “joint” early voting clerk or county voter registrar forced to act outside the scope of his or her job description.
- Remember that an election services contract with another entity is not a mechanism for abdicating responsibility for the local conduct of an election.
- Even when state law permits you to cancel an election, follow the formal procedural steps for ordering the election, defining the contractual responsibilities associated with that election, and documenting the cancellation or declaration of unopposed candidacy.
- Maintain a detailed permanent election register for all elections, whether cancelled or not.
Yes, it’s embarrassing, what happened in the City of Martindale. But don’t blame the city secretary. It wasn’t her fault that state law created a perfect storm of administrative confusion. An early call to the Elections Division (say, sometime in March of 2015) would (optimistically) have saved the city from this disaster, but in a larger sense the city’s woes are just a demonstration of how we need to reform state law regarding election cancellations.
As I was cleaning dog poop out of our recycling bin today, it reminded me that it is high time to review the election-related accomplishments of the Texas Legislature this session. In 2014 the voters decided to experiment by electing a singularly undistinguished cadre of politicians with zero legislative experience. Let’s see how they did.
84th Texas Legislature – Tale of the Tape
Bills Waiting For the Governor’s Pen
- S.B. 1072 gives a political party the capacity to remove a precinct or county chair who has failed to perform the duties of office. This one is waiting for the Governor’s signature. It’s always been a bone of contention for the state parties that they have no access to any sort of government-enforced mechanism to remove the more useless or troublesome members of their little private clubs. This law will give the parties a chance to cite state law while policing up the conduct of their primaries.
- As of right now, I’m only aware of one bill other than S.B. 1072 affecting election matters has passed both the House and Senate – that’s S.B. 1703, a clean-up bill that gamely attempts to fix all the screwed-up deadlines enumerated in the Election Code that were thrown out of whack by previous fiddling, mostly by extending lots of statutory deadlines by roughly another week. To give election workers more time to mail out military ballots, deadlines for candidate applications have generally been pushed back another week, some tweaking has been done to specify the distinction between “national” and “state” holidays, and holidays and weekends now toll the deadlines for the Early Voting Ballot Board (meaning that election workers no longer have to meet on the weekend in order to satisfy the deadline requirements for resolving provisional ballots).
In other words, it’s a housekeeping bill.
These are a mixed bag of clean-up bills, wonky election nuts-and-bolts bills, and the occasional bills that are just plain nuts. I’ll rank them roughly in order of evilness and likelihood of passage. Please note that the informal bill titles provided are my own, and are not the titles provided by the bill authors or the Texas Legislative Council.
1. Evil Bills That Have Committee Action Scheduled
- H.B. 1096 (i.e., the Defense of Democracy from Icky Homeless and Disabled People Bill) is an eminently unreasonable bill (and therefore has a public hearing scheduled in Senate State Affairs on May 18th) that further beats up voters by forcing them to prove that their residence address is documented on their drivers’ license, when challenged by other voters. This is the sort of anti-voting rights bill that certain … unsavory … elements of the Legislature seem to love. It exempts the voters that the Right approves of and doesn’t want to lump in with the unsavory transients (i.e., military voters, judges, and law enforcement), but otherwise requires people to really, really super prove that they really, really, live somewhere. This is the sort of thing that would never have passed muster back when we had an enforceable preclearance requirement under the Voting Rights Act.
- S.B. 1115 (the Further Pandering To Military Voters Empowerment Act) would establish a pilot program to transmit and receive electronic ballots from military voters. This one is waiting for a floor vote in the House.
2. Probably-not Evil Bills That Are On the Way to Enrollment, Possibly
- S.B. 1448 (the We Can’t Get Our Act Together To Do A Primary Bill) would authorize a state party to contract with county officials to conduct a party primary in those circumstances where the party can’t be arsed to organize itself sufficiently to conduct its own nominating election. This bill looks to sail through on the House Local and Consent calendar.
- S.B. 1779 specifies that the order of candidate names on an expedited run-off ballot will be the same as the order of names on the expedited special election. Dumb, but there you have it – this one is on the House Local and Consent calendar.
- S.B. 383 would give biggish counties a few more days to process their early votes that were cast by mail, in an effort to get all that business out of the way prior to Election Day and hopefully speed up the tabulation process. This one is on the House Local and Consent calendar.
- H.B. 2027 (the Anti-Rolling Polling Place Bill) would require the use of county polling locations for local May elections. This bill is favored by the county election administrators, and opposed by the cities and school districts.The intended practice that the bill would limit is the targeted use of neighborhood early voting locations intended to capture voters that favor a position sought by local government officials. For instance, if a school district has a big bond package to pass, there’s an incentive to schedule voting to take place from 6-8 p.m. at the football stadium on the night of the big high school football game. And so on. Voter cherry-picking happens, and is not well-appreciated by those who see the practice as a dirty trick. However, the opponents of the bill note that taking away the choice of polling places can have equally disastrous effects on turnout, given that the county may not even maintain a precinct polling location within reasonable driving distance of the local government entity. Having lost so much autonomy already, what little choice is left to local voters might be taken away by a bill that favors “uniformity” over convenience. This bill has already been through the Senate Committee and is waiting to go on the calendar for a floor vote.
- H.B. 2050 requires that county voter registrars report to the Secretary of State whether voters voted during early voting, by mail, or in person on election day. This kind of data is theoretically available, or should be, is hotly desired by candidates and campaign consultants, and is currently ineptly or incompletely reported by election officials. This is already on the Local and Consent calendar in the Senate.
- S.B. 142 would allow a county to use the volunteer deputy registrar guide on the Secretary of State’s website to satisfy the “training” requirement that was imposed on volunteer deputy registrars in 2011. Those in favor of less onerous training burdens like this bill (e.g., Bruce Elfant, MALDEF, and the League of Women Voters). This one’s on the Local and Consent Calendar for the House.
- S.B. 795 requires the Secretary of State to coordinate cross-checking voter registrations with the registrations in other states, subject to the National Voter Registration Act, to make sure that people aren’t simultaneously registering to vote in multiple states. Such cross-checking is perfectly reasonable, and happens in an ad-hoc and unsystematic way already. This is out of the House Elections Committee and ready for a floor vote.
- S.B. 733 would prohibit municipal utility districts from moving their election dates. A few MUDs have arguably tried to play a little fast-and-loose with their election schedules in order to artificially extend their tenure in office. S.B. 733 is now the subject of a joint conference committee to hammer out differences between the House and Senate versions of the bill.
- H.B. 2366 would clarify that the early voting clerk is supposed to deliver a list of people who voted early to the Election Day precinct judge not later than the day before Election Day. This bill has already been heard, and is waiting to be calendared.
3. Bills that Are Probably Dead
- H.B. 2644 would expand an existing notice requirement following county redistricting – all counties, regardless of population, would have to notify county party chairs of changes in county election precinct boundary lines following redistricting. (Currently, the party chairs only get formal notice when in counties with populations of a million or more). This bill has been referred to Senate State Affairs.
- H.B. 675 (The OMG Scary Technology Is Out of Control Bill) tries gamely to deal with the vagaries and desires of smart phone owners. On the one hand, we don’t want people taking pictures of stuff inside a polling place – they could be identifying ballot choices, getting a leg up on secret information about voting trends, etc. On the other hand, who doesn’t love their smart phones – what if you’re a voter who has just typed all your tentative choices into your online notes, but now you’re in the booth and you can’t remember who it was you wanted to vote for. And that mean election judge is threatening to destroy you for slipping your phone out of your pocket while voting. Ack! What to do? This bill specifies that you can still use your phone as long as you just use it for your own benefit in the voting booth, but not to spy on other voters. This is another “pending” bill in Senate State Affairs.
- H.B. 621 is an odd duck of a bill. It provides more specific grounds for getting rid of volunteer deputy registrars – allowing election administrators to “fire” volunteers who destroy or misdirect voter registration applications. The odd thing about the bill is the assortment of strange bedfellows that it has made; the bill is opposed by both the Texas Democratic Party and the Republican County Chairman’s Association, as well as the Harris County Republican Party Ballot Security Committee and Bruce Elfant (the aggressively progressive Travis County Tax Assessor-Collector). The bill is supported by the Bexar County Elections Administrator, the Texas Association of Election Administrators, and the notorious True the Vote organization.
I suspect that the bill’s support comes from groups expressing a largely apolitical administrative desire on the part of election administrators to have more say in who gets to act as a volunteer deputy registrar, plus the rabidly anti-voter registration True the Vote bunch. The bill’s opposition probably reflects the fears on the part of partisans that any further throttling of volunteer deputy registrars will leave the candidates without any effective means of getting out the vote – using volunteer deputy registrars as punching bags may satisfy some short-term desire for political payback, but the long-term effects are bad for candidates on both sides of the aisle. H.B. 621 is now pending in Senate State Affairs.
- H.B. 258 is an eminently reasonable (and therefore likely doomed) bill that requires a county voter registrar to explain why a person’s voter registration application was rejected – the bill has been sent to Senate State Affairs where it is expected to get a chilly reception, given that it’s much easier to reject voter registration applications when you don’t have to give the voter specific reasons why their application was insufficient. Support for this bill has shaken out along partisan lines, with the Democrats being for, and the Harris County Republicans being against.
- H.B. 2354 continues the ongoing saga of where to put the May election, a problem that has existed ever since the election calendar got screwed up when the Legislature moved the primaries to March. Currently the May elections take place the day before Mothers’ Day, which everybody hates. Unfortunately, everyone hates every other possible date available for the May election. Too late in May and it interferes with high school graduation. Too early, and it bumps up against the post-election management of the primaries in even-numbered years.
The May election date has bounced back and forth. It’s been on the third Saturday, the first Saturday, the second Saturday, the first Saturday, and the second Saturday. This bill would push it back to the first Saturday in May again.
My recommendation, as always, would be to move the primaries to June, and put the May election back in the month of April where God intended it to be in the first place. The Senate State Affairs Committee will hear testimony on this bill on May 18th.
- H.B. 3122 is intended to provide some mechanism for correcting the knee-jerk rejection of ballots by the early voting ballot board, by allowing the election administrator to seek a court injunction to overturn the ballot rejection. This one has gone to the Senate State Affairs Committee to die a quiet death.
- H.B. 2986 is a short bill intended to clarify that when a governing body canvasses an election, the information is supposed to be recorded in the minutes of the canvassing authority. Not a change in the law, but a reaction to the frustratingly mistake-riddled tendency by local governments not to maintain an actual election register as the law has always required. This one has been referred to Senate State Affairs.
- S.B. 1984 (the Crimethink Bill) contains the astonishingly stupid idea that the Attorney General should be the one who canvasses the gubernatorial and Lieutenant governor elections, and not the Legislature. Why should an elected executive officer canvass the elections of the other top two statewide elected officers? Um. Reasons. Because otherwise, old, grubby lame-duck legislators will get their dirty little mitts all over the canvassing. This bill is dependent on the voters approving a constitutional amendment to
upend the whole structure of state government. Or something.
- H.B. 3056 [CORRECTION – thanks to Sondra Haltom] would allow late-arriving ballot APPLICATIONS to be effective in subsequent run-off elections. Pending in Senate State Affairs.
- H.B. 1927 would permit one application for a ballot by mail to operate as a request for ballots for more than one election. This is schedules for a public hearing at Senate State Affairs on May 18th.
- S.B. 1034 is very similar to H.B. 1927, and would allow an application for a ballot by mail to be operational for multiple elections. Pending in the House Elections Committee.
- H.B. 1308 would permit a person to return a marked ballot by mail in person, rather than by mailing it. Um. Okay. Why exactly did you vote by mail? Anyway, this one is pending in Senate State Affairs.
- H.B. 2778 would allow the transmission of emailed ballot materials to military voters for local (non-federal) elections, in the same manner as provided for in federal elections. This will be discussed at Senate State Affairs on May 18th.
4. Bills that are Boring or Stupid
- H.B. 3902 authorizes the distribution of explanatory material to primary voters who don’t know what a party convention is, presumably to head off the problems caused by thousands of voters jamming up the party nominating process because they don’t know what they’re doing. This one is in Senate State Affairs.
- S.B. 1073 (the Why Can’t I Google Every Candidate? Bill) requires that all candidates, as a condition of applying for a place on the ballot, must provide their email, mailing address, and website for their campaign. This one was referred to House Elections.
- S.B. 19 (the No Druggies Running for Office Bill) is even more stupid, requiring that all candidates must submit to public drug testing as a condition of running for office. Okay. Not surprisingly, this bill died an ignominious death in committee.
- H.B. 484 adds a requirement that candidates must also be registered voters in order to run for office, except when the State or Federal Constitution specify the particular requirements for the office. Again, huh – this is another example of a solution in search of a problem. Plus, it’s probably an unconstitutional restraint on candidacy. Be that as it may, Senate State Affairs considered this at the May 14th public hearing.
- H.B. 1026 specifies that a tabulation supervisor must also be a registered voter in the county conducting the election. [Correction – the purpose of this bill is to expand the available pool of tabulation clerks, and is viewed by the county election officials as a clean-up bill].
- H.B. 2900 fixes a reference to the Election Assistance Commission. This one is on the Senate intent calendar.
- H.B. 3880 (The We’re Sick of Judicial Petition Signature Requirements Bill) would repeal the requirement that appellate judges collect signature petitions on top of the other requirements to run for office. This one hasn’t been assigned to a committee yet.
- H.B. 1532 would require quarterly finance reports from special-purpose political action committees. Okay. Scheduled for a public hearing on May 19th in Senate Business and Commerce.
- S.B. 1437 would authorize the filing of electronic finance reports. Scheduled for public hearing on May 21 in the House General Investigating and Ethics Committee.
- H.B. 1114 would require special PACs favoring or opposing school bonds to file ethics reports. Looks like the school voucher crazies may have killed this one.
Of course, the decision by the Legislature to punish gay people has upended the schedule for the end of the session, because the members of the moderate rump have all vowed to gum up the works and slow approval of around 200 bills. Most of the pending election bills aren’t particularly critical, and at least a few would benefit from dying (drug testing for candidates, disenfranchising people without drivers’ licenses). [Update – of course, as you know, the Democrats successfully ran the clock on the monumentally stupid “We Hate Gay People” bill, leading everyone to breath a sigh of relief].
But … what about all the good that could have been done this session? What about the broad bipartisan support for electronic online voter registration, an administrative godsend that would have saved the State money, gotten more people registered to vote, sped up and modernized election administration, and ushered Texas into the 20th Century? (Or at the very least, gotten us into the latter half of the 19th Century).
Alas, what I heard was that “broad bipartisan support” for online voter registration should have been read as “broad bipartisan support from people whose opinions don’t matter, but opposed by the tiny but powerful cadre of arch-conservatives who dread the idea of more people registering to vote.” Surprisingly, the Elections Division at the Secretary of State is rumored to have lobbied against online voter registration, which presages a disturbing partisanship in what should be a non-partisan office.
It’s a good time to be writing about Texas Elections, given that the 50th anniversary of the March from Selma to Montgomery was just two days ago, and given that we are still struggling to counter the corrosive effects of endemic institutional racism even now. There’s also quite a bit of action vis-a-vis public law generally in Texas, what with the Legislature’s latest experiments.
In the midst of all this election-related news, my wife had surgery recently. Everything went great, and we’re all doing fine, but the medical prelude and aftermath were distracting, to say the least, and now I feel like the kid who comes back to school after a long break and hopes that he can still remember the combination for his locker.
Also in the midst of all this, I finished a novel for middle-grade readers called “Sky Pirates of the Aetherosphere.” What does it have to do with Texas elections? Absolutely nothing whatsoever. As in, it is about as far removed from the law and elections as it can possibly get.
If the novel is in any way tied to my work as an attorney, it grows out of the rich loam of my extended hiatus from government employment. So thanks for that, State of Texas!
Very briefly, here’s a recap and highlights of some of the things I’ll be looking at this week:
I. Selma and the the future of voting rights
Everybody and their cousin have provided transcripts and links of varying quality to one of President Obama’s best speeches, namely the remarks he delivered on the 50th anniversary of the march from Selma to Montgomery. His speech was reprinted in full in a number of newspapers, including the Washington Post, the Wall Street Journal, and the New York Times, but what the heck, I’ll provide the link as well. It deserves as wide an audience as possible, and if you haven’t read it elsewhere, go check out the official transcript.
2. Calls for Electronic Voter Registration
Each time a legislator calls for Texas election law to enter the 21st Century, I admire the ambition, given that nobody’s managed to drag it into the 20th Century yet. But who knows? Hope springs eternal, etc. Anyway, there are a number of proposals for encouraging voter registration, including provisions for online registration. This seems like a no-brainer, which means we’ll probably get to see it happen sometime in the mid-2100s.
3. Election administrators exit Stage Left
Major elections impose a certain amount of wear and tear on election administrators, but 2014 seems (at least anecdotally) to have been worse than usual for causing turnover among county election officials.
4. Fixing the Texas Election Code
It’s my pet peeve – what can I say? The Texas Election Code isn’t just evil, it’s badly written. I mean, evil … well, that’s a policy choice – if you want your politics evil, you’ve come to the right state. But badly written? That’s just embarrassing.
I look forward to working through this daunting backlog of election-law-related stuff. One nice thing about writing on election issues is that there’s always something going on.
Earlier I had written in a very general sense about the “secret” Texas Election Code; or more to the point, I had highlighted the importance of not taking Texas election statutes at face value without knowing how the law is interpreted by those who administer it. And I had said that I would provide some examples. Well, here’s the first belated example.
When is a person old enough to vote?
At first glance, this seems like an easy question to answer. A person has to be 18 in order to vote, per Section 11.002 of the Texas Election Code.
But when is a person 18? Common sense would suggest that one turns 18 on the anniversary of one’s birth. What with the cake and the candles and the presents, that date seems pretty unassailable as being the important date.
And yet …, owing to a peculiarity of the common law, one generally achieves the age of majority on the day before one’s birthday; and it was this common-law calculation of the age of majority that was made explicit in the Election Code for many years. Section 1.016 of the Election Code (and don’t bother looking for it – it’s been repealed) stated that one “turned” a certain age on the day before the anniversary of one’s birth. In other words, a person could vote when the person was 17 years and 364 days old.
This doctrine (often referred to as the “coming of age rule” and originating, as far as anyone can tell, in a 1677 inheritance case in the Court of Common Pleas (Nichols v. Ramsel, 86 Eng. Rep. 1072 (C.P. 1677)) is an object of scorn and frustration among legal scholars (see, e.g., this entertaining and thorough discussion of the doctrine in a recent Maryland case).
The common-law rule may be stupid; many people are of the opinion that it is stupid. Nevertheless, it is presumptively how age is calculated in Texas law, except in those circumstances where the Legislature has acted to set it aside. (As for example when the Penal Code explicitly defines a person attaining a particular age on the anniversary of the person’s birth, per Section 1.06).
So … all of this would naturally leave one with the impression that in Texas, a person whose 18th birthday falls the day after an election could still legally vote.
True, Section 1.016 was repealed, which might be seen as a legislative repudiation of the “coming of age rule.” But it takes more than a repeal of a statute to clear away a common law presumption.
Nevertheless, a person whose eighteenth birthday falls on the day after the election cannot vote. Why? There’s no legal citation to give in support. The reason is entirely bound up in a software design … feature.
When the State of Texas contracted to create an authoritative electronic statewide voter registration database, various computer programmers were engaged to build the logic for the database. Unfortunately, computer programmers do not have an innate awareness of or appreciation for the poetic fever dream that is the common law. Therefore, when the database was created, voters’ ages were calculated by using their dates of birth.
So poor database design has the effect of disenfranchising roughly one 365th of the 18 year-olds in the State of Texas. And you wouldn’t know it just by reading the Election Code.