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Democracy in Crisis: Rick Hasen’s Editorial Is A Must-Read

“Don’t Let Our Democracy Collapse”

I’m reposting Professor Hasen’s editorial in today’s New York Times (linked through his election law blog) here for three reasons.

First, it’s a clear-eyed and thorough analysis of the present danger.

Second, it nicely coincides with a question my wife asked me this week (which I’ll paraphrase here as “So … what legal mechanisms may be employed to remove bad actors from elective public office?”)¹

And third, it’s a prompt for me to ask all of you for your thoughts.

There is cause for pessimism about voting rights in general (e.g., as the Texas House redistricting trial winds down, and in the face of institutionalized hostility towards the preservation of voting rights). But there is also cause for optimism (as civil rights advocacy groups renew their focus and energy in response to the urgency of this crisis, embedded in what I might dryly refer to as a target-rich environment for litigation).

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¹With respect to my wife’s question (which was specifically about removing executive and legislative officers from the federal government), here’s the short answer – per Article II, Section 4 of the Constitution, the President may be removed from office following a trial of impeachment in the Senate, based on articles of impeachment passed by the House, or he may be suspended from the duties of office based on the procedures outlined in Section 4 of the Twenty-Fifth Amendment. Members of Congress may be expelled from office upon a two-thirds vote by their peers, per the second clause of Article I, Section 5.

 

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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.

Three Little Words: I Was Right

My wife and I joke that the three most beautiful words in the English language are either “you were right,” or maybe, “I was wrong.”

Either way, here’s a link to the New York Times story on the latest court ruling relating to the current photo I.D. law in Texas. Here’s the gist: After a remand from the Fifth Circuit, the district court handling Veasey v. Perry has again struck down Texas’ 2011 photo i.d. law as intentionally racially discriminatory. Rick Hasen has more.

So … The Plaintiffs Won the Texas Redistricting Lawsuit, Right? Right?

I. TL;DR Q&A

(1) Ugh! This blog post looks like it’s really long.

So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?

ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …

(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.

ANSWER: Yes. The plaintiffs won.

(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?

ANSWER: Um.

The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).

However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.

I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.

(4) What?

ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.

(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?

ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.

(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?

ANSWER: Yes.

II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.

Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.

  • Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
  • The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
  • Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
  • On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
  • Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
  • The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
  • In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally)Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
  • The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
  • The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
  • Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
  • Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
  • Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
  • My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.

III. So now what? 

So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?

  1. Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
  2. As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
  3. Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.

 

Texas election news: Pasadena, Texas, required to seek preclearance for any changes in voting or election procedure

If you haven’t already read this excellent story from the New York Times about the City of Pasadena, Texas, check it out, as it’s necessary for context. Also, take a look at Professor Rick Hasen’s analysis of the initial court ruling and his comments on the subsequent order regarding enforcement of the initial ruling.

Other useful context: Texas has a long history of discriminatory voting laws.

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Why this matters: this is the first jurisdiction since the Shelby County v. Holder decision that has had preclearance requirements imposed on it by a federal court.

Briefly, and for those of you who are new to this story, here are the highlights:  In 2013, the U.S. Supreme Court issued the above-mentioned decision that cut the heart out of the Voting Rights Act, effectively eliminating the historical process whereby the U.S. Department of Justice reviewed changes in voting procedures adopted by certain jurisdictions.

Emboldened by this Supreme Court decision, the mayor of the City of Pasadena, Texas, then pushed a new city election strategy, allegedly (per the NYT story above) to limit the power of Hispanic voters in municipal elections.

Pasadena, Texas, has a large Hispanic population (about 62.2% of the roughly 154,000 people who live there), but its city government has been dominated by whites, and the city has historically been racially polarized.

By replacing single-member districts with at-large districts, the new city election plan diluted minority voting strength and reduced the likelihood that Hispanic voters could get proportionate representation on the city council.

The city was sued, and now, three years later, a federal court has ruled that the city-altered method for choosing its city council members was motivated by “racial animus,” the finding that (under Section 3(c) of the Voting Rights Act) justified court-ordered preclearance for local laws affecting elections .

As a consequence of the federal court’s finding that the City of Pasadena’s method for electing city council members was intended to limit the ability of Hispanic voters to influence city policy, the city’s racially motivated redistricting plan has been struck down.

Importantly, the city has been ordered to submit future changes in city redistricting and voting procedures to the Voting Section of the Civil Rights Division at the U.S. Department of Justice for review.

The story is particularly timely and relevant as the future of voting rights enforcement in our country hangs in the balance.

As noted in multiple news stories, Jeff Sessions—the current nominee for the position of U.S. Attorney General—has had what can best be described as a “chequered” (or “checkered,” for us Americans) past with respect to his opposition to civil rights generally, has been openly hostile towards the Voting Rights Act for his entire legal career, and is now poised to helm the U.S. Department of Justice.

In the case of Mr. Sessions’ pending appointment to the position as the highest attorney in the federal government, the clichéd phrase, “fox in the henhouse” doesn’t quite sum up the potential damage to civil rights enforcement.

Jeff Sessions as Attorney General is more, “Tyson Industries announces appointment of ravenous vulpine predator to be responsible for overseeing all domestic chicken production in U.S.”

Ari Berman & Others on Texas Voter Registration and Jim Crow: tl;dr: Racism, Recalcitrance, Restrictions

The Nation’s Ari Berman has posted a number of mustread stories over the last few weeks regarding the 2016 election cycle.

Although Mr. Berman’s recent election stories have been been national in scope (he’s examining violations of voting rights in North Carolina, Wisconsin, and Ohio, among other places) his cover story for this week’s issue specifically focuses on the State of Texas’s discriminatory voter I.D. law and our restrictive voter registration laws.

Berman’s coverage in The Nation‘s cover story, “Texas’s Voter-Registration Laws Are Straight Out of the Jim Crow Playbook” spotlights the restrictions on volunteer deputy voter registrars (or “VDRs”).

The story also looks at threats by some Texas officials to investigate voters who lack the narrow range of acceptable forms of photo I.D. required under the State’s 2011 voter I.D. law that was struck down in July of this year as racially discriminatory.

From the cover story in the October 31, 2016, issue of The Nation:

“VDRs [Volunteer Deputy Registrars] were established in 1985, but the restrictions on voter registration were significantly toughened by the Texas legislature in 2011 to require county trainings, ban non-Texans, and prohibit VDRs from being compensated based on the number of people they register. As a result, ‘Texas is the most restrictive state in the union when it comes to voter registration,’ according to the Texas Civil Rights Project.”

I’ve written about these matters here, here, here, here, and, most recently, here, so its good to see these problems getting wider national attention.

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A bit more on selected links included in this post:

Ari Berman’s Twitter feed is a good source of links not only to Mr. Berman’s own journalism, but also to other materials relating to civil rights and voting rights issues generally: https://twitter.com/AriBerman

The Nation—launched July 1865, so it’s covered a few elections in its time—has had excellent reporting and opinion pieces on the national elections: https://www.thenation.com.

My source for the text of provisions from Chapters 63 and 13 of the Texas Election Code (relating to voter I.D. and volunteer deputy voter registrar laws respectively) is the Texas Legislature Online: http://www.capitol.state.tx.us funded by us, the people of the great state of Texas.

State Law That Limited Interpreters at Polls Struck Down

As I’ve noted before, the Texas Election Code is a mess.

Our state election laws are a cruel jumble, much of it born of mean-spirited political expediency, sloth, torpor, and ignorance.

One particular piece of work within this ramshackle edifice of voter suppression and general discouragement of the democratic process is Section 61.033 of the Election Code, which states that in order to serve as an interpreter for a voter who requires language assistance, “a person must be a registered voter of the county in which the voter needing the interpreter resides.”

The law, such as it is, has a long pedigree stretching back to 1918, (Act of March 23, 1918, 35th Leg., 4th C.S. Ch. 30 (H.B. 104), although a requirement that election officials could only communicate via English in the polling place was added by the Act of March 13, 1919, 36th Leg. Ch. 55 (S.B. 244), 1919 Tex. Gen. Laws p. 94), The 1919 law reflected a longstanding nativist fear (pumped up by anti-German sentiment after World War One) that some language other than English might intrude into the polling place; that fear is still reflected in Section 61.031(a) of the Election Code, which more or less tracks the xenophobia of the old 1919 law.

After the passage of the Voting Rights Act, the state law was softened to permit language assistance at the same time that multilingual ballots were provided.

But … while Section 208 of the Voting Rights Act provides that voters should be able to make use of language assistance of their own choosing, the state law still exhibits a weird reluctance to help voters out by imposing that pesky have-to-be-registered-to-vote-in-the-same-county-as-the-voter requirement on interpreters.

That restriction found in the state law was never defensible (given that it directly contradicts federal law), but it’s interesting that it took so long for a group of plaintiffs to find a test case to knock it down.

But … better late than never. On August 12, a federal district court in the Austin division of the Western District of Texas granted a motion for summary judgment on behalf of a group of plaintiffs against the State of Texas, and enjoined the State against enforcement of Section 61.033 of the Texas Election Code. NBC News covers the story here: “Federal Judge Strikes Down Texas Law That Violates Voting Rights Act.” And the text of the August 12, 2016 opinion (OCA Houston v. State of Texas, 1:15 CV-00679, Western District of Texas, Austin Division) is here, linked to scribd.com within the NBC online story.

The facts of the case highlight why it was a bad idea for the State of Texas to specify that interpreters had to be registered voters in the same county as the person that they were helping. A voter with limited English proficiency went into a polling place in Williamson County with her son, intending that her son would help her read the ballot. If the voter’s had been deemed to merely be offering “assistance” (i.e., help in marking the ballot), he wouldn’t have been challenged. But he was “interpreting” (i.e., translating the ballot), and the election workers at the polls determined that he could not do so, because he was registered to vote in Travis County, not Williamson County.

That’s a weird, restricting, artificial reason to thwart voter intent.

The smart move on the State’s part would have been to settle and accept an agreed judgment the instant that the lawsuit hit the transom — there is absolutely no upside to fighting this. We’ll see if common sense prevails.