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The State of Texas Is Legally Prohibited From Supplying Confidential Voter Information to Kris Kobach

As you may know, Kansas Secretary of State Kris Kobach has sent a letter to the state voter registrars in all 50 states, asking for a broad range of both public and private personal information about registered voters. The Brennan Center for Justice has the details here: https://www.brennancenter.org/press-release/brennan-center-states-examine-legal-obligations-providing-voters-personal-information

As the Brennan Center reports:

Kobach’s letter, reportedly sent to every Secretary of State in the country, asked for extensive details including: “the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.” His letter also stated that “any documents submitted to the full Commission will also be made available to the general public.”

(For more information about President Trump’s commission on “voter fraud” see this recent Slate story by Rick Hasen).

Secretary Kobach’s request is so broad, in fact, that in his position as the Secretary of State of Kansas, he can’t respond to the portion of the request asking for voters’ social security numbers (as noted here).

Similarly, under Texas law, certain information collected from voters as part of the voter registration process is confidential and cannot be disclosed. In failing to submit an affidavit relating to the purpose of the request, and in requesting social security numbers, Secretary Kobach’s request does not comply with Texas law.

I should also note that (per both the Texas Election Code and laws relating generally to public information requests) the State of Texas imposes a prerequisite reasonable fee for producing a copy of the statewide voter registration list. If Secretary Kobach amends and conforms his request to comply with Texas law, he will also need to pay for the list.

The following statutes are relevant:

Section 13.004(c), Texas Election Code:

The following information furnished on a registration application is confidential and does not constitute public information for purposes of Chapter 552, Government Code:

(1) a social security number;

(2) a Texas driver’s license number;

(3) a number of a personal identification card issued by the Department of Public Safety;

(4) an indication that an applicant is interested in working as an election judge; or

(5) the residence address of the applicant, if the applicant is a federal judge or state judge, as defined by Section 13.0021, the spouse of a federal judge or state judge, or an individual to whom Section 552.1175, Government Code, applies and the applicant:

Section 18.066, Texas Election Code:

(a) The secretary of state shall furnish information in the statewide computerized voter registration list to any person on request not later than the 15th day after the date the request is received.

(b) Information furnished under this section may not include:

(1) a voter’s social security number; or

(2) the residence address of a voter who is a federal judge or state judge, as defined by Section 13.0021, or the spouse of a federal judge or state judge, if the voter included an affidavit with the voter’s registration application under Section 13.0021 or the applicable registrar has received an affidavit submitted under Section 15.0215.

(c) The secretary shall furnish the information in the form and order in which it is stored or if practicable in any other form or order requested.

(d) To receive information under this section, a person must submit an affidavit to the secretary stating that the person will not use the information obtained in connection with advertising or promoting commercial products or services.

(e) The secretary may prescribe a schedule of fees for furnishing information under this section. A fee may not exceed the actual expense incurred in reproducing the information requested.

(f) The secretary shall use fees collected under this section to defray expenses incurred in the furnishing of the information.

(Emphasis added).

 

 

Implementing Photo I.D. Requirements In Texas Elections — An Oral History

Reporter Jessica Huseman of ProPublica spent the last six months working on a huge, complicated feature story, and the fruit of her efforts was posted Tuesday, May 2, on the Texas Tribune and ProPublica sites.

The lengthy story is excellent; it summarizes and clarifies the complicated motives and mechanisms by which lawmakers more-or-less knowingly painted themselves into the corner of having to pass the 2011 photo I.D. restrictions.

That is, in order to count coup against moderate Republicans and the Democratic party rump in the Texas Legislature, state officials pushed the adoption of a restriction on voting that was not only deliberately provocative, but also illegal.

Subsequently, the State lacked the capacity, desire, or ability to allocate resources to mitigate the damage caused by the ill-conceived new law, compounding its … uh … I guess you would say, “bad optics” when attempting to mount a legal defense of the voter I.D. law in federal court.

But read the story — it’s rich and telling, and deserves close study.

P. S. Disclosure: Ms. Huseman interviewed me for the story.

Resignations and Vacancies – An Endless Source of Confusion

The Odessa-American reported on July 14th that Ector County Judge Susan Redford is leaving office in mid-October to take a position with the Texas Association of Counties. In the course of reporting this, the paper noted that the judge didn’t want to refer to this as a resignation and couldn’t “do so formally because of how the law is written.” BZZZT. Wrong!

Sigh.

Once again, a misleadingly worded statute has left someone confused. In this case, the culprit is Section 201.023 of the Texas Election Code, which says that a vacancy occurs immediately when a governing body accepts an officer’s resignation, even if the resignation itself is for a future date. The Ector County commissioners were afraid that if their county judge tendered a prospective resignation, the county would be instantly without a judge, and Judge Redford would instantly be without a paycheck.

That’s not how it works, and that’s not the correct reading of the statute. If Judge Redford had resigned with an effective date of October 15th, say, the acceptance of the resignation would only be treated as a vacancy on July 14th (or whenever it might have been accepted) FOR THE PURPOSE OF FIGURING OUT WHEN TO SCHEDULE AN ELECTION, not for the purpose of actually leaving the position vacant.

This is a common error, and it’s unfortunate that in this case, the misunderstanding actually affected how a county judge worded her notice to her county commissioners’ court.

Section 201.021 of the Texas Election Code notes that the subsequent statutes relating to vacancies and vacancy-filling are just meant to provide a certain arbitrary date “for this title (i.e., for Title 12 of the Texas Election Code, relating to elections to fill vacancies)” to fix when a vacancy in office has occurred for the sole purpose of identifying filing deadlines and other ministerial administrative tasks.

So, no. County Judge Susan Redford would not have lost her elective office if she had tendered a resignation effective for mid-October. She would not have lost her job until such time as she actually left office.

If she had tendered a written resignation, the county commissioners could have asked, “Okay, given that county offices are filled by election only in November of even-numbered years, when can we appoint someone to temporarily fill the position of County Judge?”

That question isn’t answered by the Election Code – it’s answered by the common-law determination of actual physical vacancy from office. In other words, the commissioners would not have been authorized to act to fill the vacancy until mid-October.

And how exactly would they fill the vacancy? That question isn’t answered by the Election Code either. It’s answered by Section 87.041 of the Texas Local Government Code. If there’s a vacancy in the position of county judge, the remaining commissioners may appoint someone to serve until the next general election. The person they appoint will serve from mid-October of 2015 (or whenever) until the canvass of the November 2016 election, more than a year-and-half from now.

Happy Birthday, Texas Election Law Blog! – A Look Backward and Forward

I have a lot to write about, but first, I wanted to acknowledge the just-passed two-year anniversary of the Texas Election Law Blog.

Two Years Ago

On July 2, 2013, just days after the Supreme Court issued its decision in Shelby County, Alabama v. Holder, I was fired from my job as a staff attorney at the Elections Division of the Texas Secretary of State’s office. My employer’s stated reason for firing me was that I had made intemperate remarks about what I can now call a particularly egregious miscarriage of a special district election in Montgomery County, Texas.

That election is now back in the news, after the 14th Court of Appeals remanded the first criminal case for a new trial.

I started this blog the day after I was fired, because

  • My job — to provide unbiased explanation and advice about administering fair and legal elections in the state of Texas — still needs to be done, in part because
  • In my professional opinion, the Elections Division at the Texas Secretary of State is now falling down at its mission — not because of the hard-working staff, but because of changes under the previous governor.

Unpacking the details of my termination raises all sorts of questions, not just about my professional qualifications and my flaws or merits individually as an attorney specializing in election-related matters, but also about the role of the Texas Secretary of State as chief elections official for the State of Texas, the complex interactions of money, self-interest, and law in elections administration, the slow diminishment of a once-effective advisory agency over the course of former Governor Perry’s tenure as chief executive officer of the State, and the larger battles over the soul of American democracy that are being fought state-by-state across the United States.

At least initially, I saw this blog as a platform for providing hard-working citizens (including election administrators) with some very modest enhancements to the dissemination of election law information relevant to Texans. Although I’m not a information architect or user experience expert, I was frustrated for years that the Elections Division’s website, while good in many respects, had such a peculiarly structured design. Election law opinions were missing; forms were not not where you’d expect to find them, and so on.

Just putting all the forms in one list was a comparatively easy fix (though I’ve been remiss in keeping it updated; that’s one of my tasks looking forward), and at some level I hoped that my own modest and amateurish improvements would shame top agency decisionmakers into paying attention to the agency’s role as an advisor to local, county, and state officials in elections administration.

What’s Changed for Me

I had been scrupulously nonpartisan while employed at the Secretary of State’s office — party affiliations and policy preferences were outside the ambit of my purview. (I wouldn’t even let my wife put political signs in our yard or bumperstickers on our car.)

I was, and remain, sympathetic to the day-to-day management concerns faced by county clerks and tax assessors who likely would not see eye-to-eye with me on many political questions at a personal level.

While at the Elections Division, and now, party planks and philosophical disagreements never angered me. I’m slow to anger. What did get to me was willful maladministration at the county level. (Here my editor has redacted a few specific examples, noting this blog is not the venue for what is now — since years have passed — lukewarm political chatter.) All that said, however, with almost no exceptions, I liked everyone I talked to — even the people I was annoyed with.

I mean everyone …  even the possibly disturbed caller who floridly cursed me as “a maggot on Satan’s cracked hoof.”

All the callers I talked with, day in and day out, are gloriously, endlessly varied human beings, with rich contradictions and complicated feelings, and they were — and are — all trying to various degrees and with varying levels of success to conform their actions to some great social ideal as articulated in our state and federal election laws.

What got to me near the end of my tenure in the Elections Division was the Supreme Court’s decision to dismantle the regulatory framework of the Civil Rights era.

Moving Democracy Backward

Picture I.D. laws, restrictions on volunteer deputy registrars, and racially discriminatory redistricting, as well as Wild West campaign finance laws, stupid residency definitions, fear-driven race baiting, the disruption of polling places, candidate intimidation, and other acts of dirty political pool are all of a package with a more general philosophy adopted by members of the extreme Right — that political coups are preferable to elections, because the “wrong side” sometimes wins elections.

This political strategy is toxic to democracy and to our nation’s founding values. At what point will the extreme Right conclude that overt coups are preferable to elections (or subtle coups), because the “wrong side” sometimes wins elections?

As the mechanisms for free and fair elections are rendered less effective, the resentments of those shut out will grow. As our legislatures and leaders short-sightedly vandalize the instruments of suffrage, they turn the clock back to a time when our cities burned. Our cities are burning again, and will burn again and again until (some) policymakers learn that short-term political victory through anti-democratic means is self-defeating and costly.

A Way Forward

More to come. And your ideas welcome. This is important, folks!

Sub-Rosa Approval of Veterans Health Cards As Voter I.D. In Texas

A reader (Frank Provasek) has provided extremely valuable and eye-opening information in his comment on my post about Veasey v. Perry and the State’s selective, politically motivated treatment of veterans’ I.D.s. Without any public announcement or acknowledgment, the Secretary of State now accepts veteran’s health I.D. cards as voter I.D.s in the polling place, encouraging further cherry-picking, ad hoc after-the-fact administrative legislating, and pandering to specific conservative voters.

Although you may have seen Mr. Provasek’s comment already, I wanted to highlight it for those of you who may not regularly check subsequent developments on my posts. I’m reproducing Mr. Provasek’s comment in full:

Texas DPS defines military ID as a primary form of ID, and defines Veterans cards not as a primary or even secondary form of ID, but merely “a supporting document” like an electric bill with your name on it. . The Veterans cards are pictured in a PDF file here http://www.sos.state.tx.us/elections/forms/id/acceptable-forms-of-ID.pdf

The VA created a NEW card called Veterans HEALTH Identification Card (VHIC) to go alongside the Veterans Identificatiion Card (VIC) The new card rolled out in Summer of 2014, so even AFTER the regular Veterans ID cards were somehow added in 2013, an additional card was added in 2014, while the Veasey v Perry lawsuit was underway.

You wouldn’t know these veterans cards are accepted by a text search on the SOS website (or any state website). They are only shown as images in powerpoint or pdf files — and do not show up in a Google search. They are not mentioned in the law, the election code, nor on the state voter portal here http://votetexas.gov/register-to-vote/need-id/ or on the posters displayed at the polling places http://votetexas.gov/wp-content/uploads/2013/09/poster-8.5×14-aw.pdf

(Emphasis added).