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My apologies for having not posted more frequently lately; I guess the impending collapse of Western Democracy has been leaving me feeling a bit unmotivated. (More about that in a later post). Here are a few quick links to catch up on some Texas election news:
I. TEXAS PRESIDENTIAL ELECTORS DO THEIR THING
I’ll unpack this story in a separate post because it deserves more scrutiny (what with democracy teetering on the brink and all), but essentially the Standard-Times story repeats the received experiential wisdom of many election experts — that nothing exciting or new is going to happen with the Electoral College, because nothing exciting or new ever happens with the Electoral College.
The story notes in passing that Republican state officials are now considering legislation to punish any future so-called “rogue electors” in response to the defections. The text of the proposed bill (H.B. 543, filed by Representative John Raney) is here, and as currently drafted, the bill imposes a $5,000 fine on electors who fail to vote the party line.
II. IS THE TOWN OF BROCK EVEN REALLY REAL?
From the Palestine Herald-Press, this story about a dispute between the newly incorporated village of Brock and the city of Weatherford, regarding a proposed May 2017 election in Brock to choose a mayor and city council. The problem here is that when Brock incorporated, it did its incorporation election “wrong” by failing to include an initial slate of city officials in the ballot. Oops.
So the Weatherford city attorney is taking the position that the proposed May 2017 municipal general election in Brock is illegal. Meanwhile, the attorney for the putative legal entity (the town of Brock) is arguing in effect, “well, what exactly are we supposed to do? We got a judge to order a make-up election to fix our mistake, and we have to have a city council at some point, right?”
At heart, I suspect this is really a fight driven by the zero-sum game of local property tax revenue — another taxing entity in the county means another governmental competitor for statutorily limited tax dollars (because of the tax rate ceiling cap on local tax assessments).
In effect, the City of Weatherford’s attorney is saying that the town of Brock never really incorporated, because the town’s incorporation election was such an error-strewn screwed-up mess. Those are technical legal terms, by the way.
III. WHAT IS GOING ON IN KAUFMAN COUNTY?
From InForney.com comes this story about a newly elected county commissioner submitting paperwork to decline the oath of office. Greg Starek campaigned actively for the post in the March 2016 Republican Party primary, and (as with most Republican candidates in Kaufman County) was unopposed in the general election. The story gives no indication as to why Mr. Starek is now declining the seat, which will need to be filled by appointment. The lack of details means my curiosity about the circumstances is unsatisfied.
IV. SCHOOL BOARD ELECTIONS IN THE VALLEY ARE ALWAYS EXCITING!
The losing candidates (who ran together on a slate referred to as the ‘U.S.S. Restore’ team) allege that the winning candidates (who ran together on a slate referred to as the ‘Kid’s Choice’ political team) relied on 200 forged or unsigned mail ballots to carry the election, and also that election workers improperly harassed voters who requested “assistance” from campaign workers in casting their ballots.
Like I said, this is depressingly familiar, even in the weird details of the election’s alleged “wrongness.” There’s the allegation of ballot farming and signature forgery. There’s the partisan factionalism, a feature of Valley politics that we don’t generally see in more settled and sleepy school board elections in other parts of the state. There’s the fight over the legitimacy of the commonplace but fundamentally icky practice of campaign workers “offering assistance” to voters in the polling place.
And the weirdest element of the story for someone not living in the Valley may be the intensity and scorched-earth rhetoric of the criminal allegations in an election where by law (per Section 11.061(d), Texas Education Code) the winners earn no salary or other emolument and have what in most communities is perceived as the largely invisible, dull, and thankless job of running a school district (as an illustrative example of this observation, note the summary descriptions of cancelled unopposed trustee elections and elections with unfilled seats in this October 2016 Waco Tribune story about independent school district elections in and around the Waco area).
As is so often the case, the story “behind the story” is left untold. Again, it’s about money, and not just whatever income the school district can derive from the admittedly limited local property tax base, but also the money redistributed to Rio Grande City CISD by the Texas Education Agency. In a community of limited resources, control of that money is a matter of intense, all-consuming importance, to the point where elections become epic no-holds battles.
‘Tis the beginning of October of an odd-numbered year, and as is traditional for this time of year, the Texas electorate is being asked to approve various schemes and notions that will be etched in the bloated, badly-written edifice that we call our state constitution.
As I note below, I have serious concerns about one of the pieces of enabling legislation that was passed in conjunction with Proposition One. Section 8 of S.B. 1 appears to violate the criminal law prohibition against bribery. The potential for abuse is serious, and I am frankly surprised that the provision survived the process of legal analysis prior to passage.
Setting that issue aside, let’s see what the Texas Legislature have cooked up for us this time. (For our raw material, I will draw from that excellent resource, the House Research Organization, which at least historically has tended to post more candid descriptions of proposed constitutional amendments than some other state government agencies. For the HRO’s summary of the November 2015 amendments, see: http://www.hro.house.state.tx.us/pdf/focus/amend84.pdf ). For the text of the actual resolutions, see the Texas Legislature Online (at http://www.capitol.state.tx.us/).
We’ve got seven propositions on the ballot this time, and with some exceptions the broad theme is the same as its been for many years – namely, reducing property tax revenue for school districts, some special-interest driven amendments, and fixing local problems with statewide constitutional language.
“So, Joe,” you say, “I’m a busy person on the go. Without a lot of legalistic mumbo-jumbo, can you just give me an objective and totally unbiased review of the seven proposed amendments to the Texas Constitution?”
To which I say, “Why, sure. Here’s a handy chart explaining each proposition:”
- Prop. 1 – Throttles back property tax revenue for school districts by adding another $10,000 to the homestead exemption.
- Prop. 2 – Exempts a handful of surviving spouses of disabled vets from homestead taxes
- Prop. 3 – Releases statewide elected officials from their historical requirement to reside in Austin, despite the fact that their jobs happen to be located in the capitol.
- Prop. 4 – Would authorize professional sports team charitable foundations to conduct charitable raffles.
- Prop. 5 – Would adjust the population cap that prohibits all but the tiniest of counties from using county road crews to build and maintain private roads, so as to ensure that slightly-less tiny counties will be able to use county road crews to build and maintain private roads.
- Prop. 6 – Would specify that Texans have a fundamental constitutional right to hunt, kill and harvest wildlife and fish, including by “traditional means.” Doesn’t define “traditional means,” but presumably that includes hitting things with rocks.
- Prop. 7 – Would redirect roughly 10% or more of the state’s annual tax revenue exclusively to transportation projects.
So that’s seven propositions.
But now I hear you ask, “Well, can you tell me just a little bit more about these propositions in detail?”
PROPOSITION 1 – SJR 1
This proposition sets out to accomplish a number of tweaks in order to improve the ad valorem tax exemptions for homesteads, while offering the promise of a legislative adjustment in tax revenue redistribution in order to spread the pain around among school districts. More specifically, the resolution proposes that:
- The current exempt part of a homestead property’s value described in Article 8, Section 1-b(c) of the Texas Constitution will be increased. Meaning the school property property taxes will go down. When calculating the property tax bill for school district taxes, the part of the property value that isn’t taxable would be increased from $15,000 to $25,000, meaning that the first $25,000 of a homestead’s value would be off the table when calculating the school tax bill for that homestead property.
- To sweeten existing and future exemptions offered to the elderly and the disabled, those homeowners would also have a proportionate amount of their homestead valuations taken off the table prior to applying additional tax breaks. (Another way to put this is that people who enjoy additional exemptions by virtue of their special exemption status will also be treated as if their homesteads were valued at $25,000 less than actual value, so as to further enhance their current and future special-case exemptions, such as tax freezes, abatements, refunds, etc).
- Local governments (specifically school districts, cities, and counties) would be prohibited from repealing any existing tax reductions;
- After January 1, 2016, state or local real estate transfer taxes would be illegal. Taxes could still be collected on mineral production or business activity (i.e., sales tax) and on title insurance. So as real estate appraisals increase, and as current owners cash out and reap the benefits of appreciations in the market value of real estate, the proceeds of such sales would be off limits for taxation, and both the state and local governments would be screwed out of capturing any of the market appreciation realized at the time of sale.
- The amendment applies retroactively to the 2015 tax year. Local appraisers must prepare their tax bills for 2015 on the assumption that this amendment will pass. If the amendment doesn’t pass, then the burden is on the local appraisers to make up any lost revenue by sending out new tax bills.
- The accompanying enabling legislation (S.B. 1) provides a mechanism whereby school districts would be entitled to some relief by applying for funds from the Foundation School Fund in order to make up lost maintenance and operations tax revenue, and to help service existing eligible debt (i.e., non-capital improvement debt or the sinking fund), but not to cover construction bonds or any new costs based on changes in enrollment, etc.
INDUCEMENTS IN THE FORM OF FINANCIAL INCENTIVES OFFERED TO VOTERS TO FAVOR PASSAGE OF SJR 1 – A SERIOUS LAPSE IN LEGISLATIVE DRAFTING OVERSIGHT
Senate Bill 1 is a particularly nasty piece of work, from a school district’s perspective, because it requires school districts to send out tax bills that serve as advertising to push voters to approve SJR 1. In effect, school districts have to put a note in the 2015 tax bill saying, “Dear voter. The Texas Legislature has cut your tax bill by this much: LOADS OF CASH (Calculated based on an exemption of $25,000 as opposed to your piddly little current exemption of $10,000). But we mustache-twirling villains at the school district will make you pay THIS ENORMOUS TAX WHICH IS TOTALLY UNFAIR if the law doesn’t change. To avoid paying more, make sure that everybody you know votes in favor of SJR 1 at the November 3, 2015 election. Thanks!
I’m exaggerating, but not by much. Here’s the actual text in what Section 8 of S.B. 1 adds to Section 31.01(d-2) of the Texas Tax Code:
- The tax bill or the separate statement must indicate that the bill is a provisional tax bill and include a statement in substantially the following form:
“If the amount of the exemption from ad valorem taxation by a school district of a residence homestead had not been increased by the Texas Legislature, your tax bill would have been $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill).
Because of action by the Texas Legislature increasing the amount of the residence homestead exemption, your tax bill has been lowered by $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000), resulting in a lower tax bill of $____ (insert amount equal to the sum of the amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000 and the total amount of taxes imposed by the other taxing units whose taxes are included in the bill), contingent on the approval by the voters at an election to be held November 3, 2015, of a constitutional amendment authorizing the residence homestead exemption increase.
If the constitutional amendment is not approved by the voters at the election, a supplemental school district tax bill in the amount of $____ (insert difference between amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $15,000 and amount calculated under Section 26.09(c-1) based on an exemption under Section 11.13(b) of $25,000) will be mailed to you.“
Section 8, S.B. 1, 84th Texas Legislature, Regular Session (May 25, 2015); (implementing SJR 1) (textual emphasis added).
So … why is this a problem?
Take a look at Section 36.02(a) of the Texas Penal Code:
A person commits an offense if he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:
(1) any benefit as consideration for the recipient’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter
“Oh,” but you say, “I thought there was an exception to the bribery statute in circumstances where the offer of a benefit is made by a government institution in the form of an official governmental act.”
No. You’re thinking of an exception to prosecution found under Section 36.03(c) of the Penal Code – that exception applies to the separate offense of “coercion” as applied to a public servant or voter. I’ll pass for now on the question whether this exception would even apply to bar prosecution of the author of S.B. 1 for “coercion,” because the potential that S.B. 1 constitutes bribery is a far more serious legal matter.
There is an exception to prosecution in the bribery statute that allows for campaign contributions, but again, that narrowly-drawn exception would not apply in this circumstance.
There’s a reason why you don’t see legislation like this – normally, concerns about targeting taxpayers with financial incentives to favor the passage of a constitutional amendment would be flagged by the Texas Legislative Council. That may well have happened in this case, but the bill shouldn’t even have been drafted like this, much less passed. To quote the character of “Senator Gil John Biggs” (as played by John Goodman) from the opening scene of the first episode of Amazon’s “Alpha House,” “Well, that’s just piss-poor staff work.”
School district attorneys should seriously consider consulting with their local prosecutors regarding the legal implementation of S.B. 1.
There’s more to the proposition, but basically the Legislative Budget Board review tells you everything you need to know about this proposed change – it guts public education funding by another $1.2 billion per legislative biennium, and further limits the options available to local governments to find alternatives to lost revenue.
PROPOSITION 2 – HJR 75
Back in 2009, voters approved a constitutional amendment that gave totally disabled vets a 100% exemption from property taxes. Then in 2011, voters approved an amendment extending that exemption to the surviving spouses of dead totally disabled vets. But whoops! The law didn’t retroactively grant the exemption to the 3,800 or so surviving spouses of dead disabled homeowners who had died before January 1, 2010. So as a corrective, this proposition would eliminate property taxes for those individuals who happened to have been married to all those totally disabled vets that made the mistake of dying before January 1, 2010.
Some political entities might see a hit to revenue, and so Section 25 of H.B. 7 provides that local governments that lose at least two percent of their expected property tax revenue as a consequence of this proposition (i.e., because for whatever reason a bunch of the 3,800 affected spouses of dead totally disabled veterans happen to live within their tax authority) can get relief from the Comptroller in the form of a payment equal to one percent of expected property tax revenue. In other words, the State will reimburse local governments to the tune of no more than 50 cents on the dollar of lost revenue in compensation for those local governments having lots of qualifying surviving spouses.
It’s not a big deal in the grand scheme of things – the number of affected people make this more like a private economic relief bill. But everybody loves vets, right? Except for the homeless ones that ask for spare change – nobody likes those guys.
PROPOSITION 3 – SJR 52
For 140 years, the Texas Constitution has provided that elected state officials (i.e., the Governor, the Lieutenant Governor, etc.) have to personally reside within Austin Texas. The problem is that none of the current elected leadership in the State actually wants to live in Austin – the city is expensive, and is just not the place to see and be seen if you want to get ahead in conservative bastions like Midland-Odessa or Beaumont. So what’s a state official to do?
Most elected officials simply ignore the requirement to “officially reside” in Austin, given that residence is pretty much a ridiculously amorphous legal status. But for those officials who simply can’t stomach the idea that anyone might think they actually willingly reside in Austin, there’s this proposition.
PROPOSITION 4 – HJR 73
Professional sports teams often have charitable functions – for instance, teams might occasionally hand T-shirts out at the local school, or host a sports camp. Given that professional sports teams are for-profit business ventures, this kind of charity never seemed particularly burdensome, nor worthy of much comment or concern.
But people realized that if the Dallas Cowboys Foundation or the San Antonio Spurs Foundation could hold a raffle, they could make a mint.
There was just one problem – state gambling laws restricting the conduct of charitable raffles don’t really have a loophole wide enough for a professional sports team to stride through (oh, excuse me, “a professional sports team foundation.“) Hence there was impetus for this amendment.
If professional sports foundations are allowed to conduct charitable raffles, they’ll be permitted to sell tickets for drawings for prizes. As with other charities, they’ll have to offer prizes worth at least 50 percent of the cash taken in with the raffle sales. In calculating this amount, the sports foundations can set aside up to ten percent of the raffle income to defray the administrative expenses associated with conducting the raffle.
So, the Cowboys, the Spurs, the Rangers, or the Texans could sell, say, $10 million in raffle tickets, bank $1 million to cover the expense of running the raffle, hand out half of the remaining $9 million in raffle income in prizes ($4.5 million in prizes) and then use the remaining $4.5 million to … you know … theoretically make the world a better place. T-shirts for everybody!
PROPOSITION 5 – SJR 17
Once upon a time, governments weren’t supposed to build private roads. It was considered unseemly and an affront to private industry for local governments to gift individuals and businesses with labor and equipment nominally dedicated to the construction, preservation, and maintenance of public roads.
But then in 1980, the voters were convinced to add a provision to the Texas Constitution granting around two-dozen tiny counties (defined as having 5,000 people or less) the right to redirect their resources towards the construction of private infrastructure. The thinking went something like this, “It’s wrong in the abstract for government resources to be used to benefit specific private commercial interests. But frankly, nobody cares who paves the driveways and parking lots in the dinkiest little counties.”
Over the years, some of the dinky counties have declined in population, but a few have grown. Not because anybody wants to live in those counties, but because rural places are great settings for privately managed prisons, whose restive, captive prisoner populations are included in the county census data. So today, 21 counties in Texas that used to have 5,000 or fewer residents now have 7,500 or fewer residents.
Who, pray tell, is going to pave those parking lots in the not-sufficiently-dinky counties that have more than 5,000 people in them?
This amendment would preserve the legal right of those marginally less dinky counties to continue to spread asphalt and fix potholes on privately-owned roads.
The amendment is an administrative adjustment to Article III, Section 52f of the Texas Constitution. If Proposition 5 passes, I’m guessing that sometime around the distant year 2051, voters will have to approve yet another amendment to up the population ceiling for this exception from 7,500 residents to 10,000 residents. And so on, through future generations ad infinitum.
PROPOSITION 6 – SJR 22
Oh, for heaven’s sake. This amendment ensures, enshrines, frames, and underlines the historical right of all red-blooded Texans everywhere to hunt, kill, maim, slaughter, round up, shoot, snare, poison, blow up, stab, bite, scratch, and strangle any creature of the land, sea, or air, in the exercise of dominion over all things that taste like chicken and that aren’t wearing reflective clothing. Subject to … you know … regulations.
Strangely, the companion proposition affirming our right to pee in the bushes did not get out of committee.
PROPOSITION 7 – SJR 5
Traffic in Texas is bad, and only likely to get worse as we descend into a post-apocalyptic Mad Max: Fury Road-style environment resulting from drought, extreme weather events, and a collapse of social order. And if we are going to slide into barbarism typified by reliance on roving gangs of spear-throwing bikers, tumor-ridden Warboys, and the occasional war-rig caravan run to the bullet farms and the guzzle-lene refineries, we’re going to need good roads.
And that’s where Proposition 7 comes in. First, for a period between 2018 and 2032, the amendment would “skim” up to $2.5 billion in state sales tax revenue off of all revenue in excess of $28 billion per fiscal year, and lock that money away to be used solely for highway development. Second, for a period between 2020 and 2029, the amendment would skim 35 percent of all motor vehicle sales, use, and rental tax in excess of $5 billion and similarly restrict that money to highway development.
There would be some built in safety valves allowing the Legislature to enact statutes to adjust the specific highway fund dedications down by one-half in specific fiscal years, on a two-thirds vote. The constitutional dedication of funds could be extended by majority vote for additional 10-year increments.
Here’s the thing – when a sovereign entity declares that it will only use a pile of money for one purpose, that money is suddenly unavailable for all other purposes, some of which might turn into emergencies.
To its credit, the Legislature learned that the phrase “toll road” is dirty, and that it would not be a good idea to dedicate state funds to building toll roads. But why specify that a certain pile of money can only be used to build roads? I sure hope you never need that money to, you know, build hospitals. Or schools. Or high-speed inter-urban commuter rail. Or provide health insurance for retired state employees. Or adequately fund your public pensions. Or whatever.
Assuming low voter turnout and almost zero visibility, all of these amendments probably will pass. Our schools will get a little poorer; our state revenue will be a little more strained; and the Dallas Cowboys Foundation will be able to have a raffle.
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.
May 9th, inconveniently placed just prior to Mother’s Day, is Election Day for thousands of political subdivisions across Texas. No, it’s not the Presidential Election. And no, it isn’t an election that draws a lot of media attention.
It’s just the election that determines a tremendous amount of your day-to-day interaction with government. Depending on where you are, there are likely to be school bond issues, city council elections, water district tax approvals, Emergency Services Districts creation elections, incorporation elections, civil service agreements, animal registration authorizations, city charter amendments, school board elections, irrigation district board of supervisor elections, community college annexations, property tax exemptions, county road district elections, local option liquor elections, library district elections, hospital district elections, navigation district elections, freshwater conservation district elections, annexations, deannexations, rate increases, rate decreases, airport management district elections, city referenda, and on, and on, and on.
Although the May election is diminished somewhat of late (because of recent changes in the law and in the management of elections that throttle back on democracy and limit what was once a much more visible and obvious civic event), this election will have a direct and immediate impact on your life. So yeah, it’s important.
Limiting Public Participation In Government
Chapter 41 of the Texas Election Code describes generally how and when elections happen in Texas, more or less. (See, e.g., Section 41.001 of the Election Code).
Except … there are specific, particular laws both within and outside the Election Code that explicitly limit how often elections can happen. County governments can no longer schedule elections in May of even-numbered years. The February and September election dates were eliminated almost a decade ago. School districts have to move their trustee election dates to conform to the election schedules of some other political entity (as a consequence of Section 11.581 of the Texas Education Code, one of the most diabolical and disruptive pieces of anti-school-district legislation of the past decade). To add to the limitations, county election administrators don’t have to help local entities conduct elections in May of even-numbered years, but in the era of electronic voting systems, county assistance is critical to the conduct of local elections.
If I’m going to throw out words like “diabolical” and disruptive” in reference to Section 11.581 of the Education Code, I suppose I owe it to my readers to explain myself.
In the general and special legislative sessions of 2005-2006, the Legislature was once again brought face to face with its functional incapacity to do anything about the abysmal state of public education funding. Finally, in the 3rd Called Session in 2006, the members managed to pass H.B. 1, a massively flawed and vindictive “screw you” public education finance bill that had as its primary intent the stripping away of local taxing authority for school districts.
At the last minute a rider was added to the bill – a floor amendment that drew almost no debate. It specified that school district trustee elections had to be conducted jointly with regular city council elections, notwithstanding (1) the fact that many cities now cancel their city council elections for lack of opposed races; (2) school districts don’t share the same territorial boundaries as cities, and often aren’t associated with incorporated city territories; and (3) imposing city control over school district trustee election schedules is a further limitation of school district autonomy.
The effect of the law was electric – it dramatically disrupted trustee election schedules, delayed elections in many districts, violated the state constitutional prohibition against terms of office being extended beyond four years, prompted years of political wrangling and waste, and accomplished exactly nothing positive. In short, it was a stupid, mean-spirited “fix” of a nonexistent school-related problem that our Legislature seems to excel at. Ostensibly, it was intended to promote “one-stop” voting in order to increase turn-out in school district trustee elections, but practically, it functioned to further limit voter input into the government of school districts.
Speaking of the Legislature, the 2015 general session is winding down towards what looks to be another interminable collection of special sessions. In my next post, I’ll take a look at the “accomplishments” of the House Elections Committee and the Senate State Affairs Committee with respect to election-related laws this session.
The City of Cuney, Texas was supposed to conduct a general election this May, but apparently didn’t. This little failure of democracy didn’t make much of a splash outside of Cherokee County, and was likely of only passing interest to most of the residents in Cherokee County, who may have presumed that the city council had successfully cancelled its election owing to a lack of contested races.
The philosophical and legal underpinnings of election law do not accommodate the notion that an election can be cancelled – the very idea that the fundamental civic exercise of government could be abrogated by an executive act is both profoundly disturbing and counter to centuries of accumulated tradition. But … there is no idea so bad that a legislator somewhere in Texas can’t be found to support it, and so in 1995, Sections 2.051-2.054 of the Texas Election Code were added to Chapter 2, allowing local entities to, well, not technically cancel elections, but to declare unopposed candidates elected without bothering to actually have those elections, assuming that open write-in candidacy wasn’t allowed. The law has been extended and altered somewhat over the years, and now provisions in both Subchapters B and C of Chapter 2 of the Election Code allow for the mooting, preemption, or cancellation of various elections, including (in some circumstances) measure elections.
Why is it a bad idea to allow the preemption of elections that nobody cares about anyway? I mean, if anybody cared about city council elections, or water district elections, or school board elections, they would motivate themselves to run for office. If there aren’t any contested races, why get excited over this non-controversy?
Why? Because without an election, there is no legal ratification of succession to office; there is no final approval by the voters. The voters’ franchise is the distillation of ultimate sovereignty – it cannot legally be delegated to any other entity, and it can’t be legally usurped by any other entity. More practically, without elections, or without at least some official act of formal approval by the voters, the opportunity for tremendous mischief and fraud is created. In the decades since the law changed so that unopposed candidates could be “declared” elected, the tempting opportunity offered to local officials to commit bad acts has been irresistible.
Don’t want an election? Play games with the candidate application forms or deadlines (as happened in Cuney, apparently). Close up the city office early. Call up the challenger and play hardball. Lose paperwork. Deny, obfuscate, obstruct. As if someone’s going to file an election contest and spend $20,000 on legal fees just for the chance to run for an unpaid office on the city council, or on the school board, or whatever. Why would anybody take out a second mortgage on their house just to get on the ballot?
I wanted to illustrate (in a general way) how self-interest, ego, and the general injustices we commit against each other can be magnified and extended by the political process and bad policy choices in the design of election law, and sadly, I have no shortage of examples drawn solely from local, non-partisan elections.
In small towns, things can get really ugly, as the voting process becomes a proxy for open warfare between people who may have known each other since birth. or who may have inherited the burden of continuing the feuds begun by their ancestors.
In that context of sometimes-vicious political warfare, we voters are ill-served by a state law that allows local governments to cancel elections.
The ongoing lawsuit over Texas picture I.D. requirements has generated a dispute between the State of Texas and the various plaintiffs over how to figure out how many people have been disenfranchised by the new voter I.D. law.
The Department of Justice envisions being able to say with some level of statistical confidence that the Texas law has caused ___________ (insert as precise a number as possible) qualified voters to be disenfranchised, and that of that number, ___________ (insert another precise number) are members of a protected class of minority voters, who otherwise would have been able to vote, but for the state’s legislative action.
This is an oversimplification, of course. With sufficiently accurate information, DOJ could do things like track precinct-by-precinct racial discrimination at the polls, identify specific households targeted for removal from the voter rolls and compare race, identify discrimination against voters with disabilities, create massive cross-referenced charts and enormous four-color maps, pie charts, bar graphs, histograms, computer animation, and so on, all with the aim of overwhelmingly and conclusively demonstrating that the Texas Legislature enacted a blatantly discriminatory law intending to and succeeding at denying the vote to people based on race, minority status, or disability.
The State of Texas, meanwhile, has briefed a number of legal defenses to the DOJ’s requests, including “legislative privilege” (for internal documents relating to the legislative policy-making process), the defense of “we don’t have that,” and the defense of “we can’t get that for you.”
As things currently stand, the judge has issued a series of discovery orders that reflect a perfect compromise, in that the orders leave all sides equally unhappy. DOJ didn’t get the trial delay (to 2015) that it needed to do sophisticated data gathering and technical analysis of the information it hopes to get, and didn’t get an order making Texas give up the data that Texas says it doesn’t have.
The defendant, on the other hand, has one day to turn over all the drivers license, concealed-carry handgun license, and personal i.d. license information to DOJ. The link to the agreement and background information is helpfully provided by the Texas Redistricting blog.
I speculate that DOJ and Texas are so far apart in their discussions of raw data in part because of differences in bureaucratic culture.
Assume for the sake of argument that members of the Texas Legislature collectively and intentionally planned to engage in the wholesale disenfranchisement of minority voters. In so doing, the lawmakers and their staff didn’t need any particular precision or careful data-based legal engineering. It was enough for them to intuit that any increase in the transaction costs associated with elections disproportionately affect the poor and minorities, as well as elderly and first-time voters. They didn’t actually need or want any data about the effect in detail, because the political purpose of the voter I.D. law isn’t to disenfranchise based on careful targeting. It’s to disenfranchise over the long haul.
It’s to put the thumb on the roulette wheel; to count cards at the blackjack table; to nudge the pinball machine without causing it to record a tilt. No subtlety or particular mathematical accuracy is needed or desirable (as any such accuracy would carry with it a discoverable paper trail, but more importantly, would actually cost money to create).
I don’t think the State of Texas is lying to hide its secret stash of high-level sociological evidence of voter disenfranchisement. It doesn’t have any secret stash of high-level sociological evidence of anything, because that would cost money.
Meanwhile, DOJ could argue to Texas with some despair, “you mean you passed a law without knowing what it would actually do?” To which the answer is “Yes. Of course. Have you actually been to our state lately?”