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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).
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.
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.
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.
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?
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.
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?
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?
- Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
- As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
- 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.
As reported on CNN and as analyzed by Rick Hasen’s Election Blog, the U.S. Department of Justice has asked for an extension in trial court briefing deadlines in the Texas voter ID lawsuit due to a change in the federal administration.
The common-sense interpretation of this procedural move (as expressed by Professor Hasen)?:
DOJ will switch sides and join the State of Texas in arguing in favor of more restrictive voting requirements. More to come.
Ari Berman & Others on Texas Voter Registration and Jim Crow: tl;dr: Racism, Recalcitrance, Restrictions
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.”
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
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.
Among other things, he encouraged the audience to solve existing social inequities through the application of modern technological innovations.
(1) electronic voter registration;
(2) the class and racial divides that cut off from the Internet a disproportionate percentage of racial minorities and people living in poverty; and
(3) low voter turnout in Texas. Related to turnout, the President dryly pointed out that the elected officials of the great State of Texas are not interested in encouraging voting. In Texas, he noted, we bear at least some of the responsibility for our poorly responsive state government.
To the extent that the President offered any prescriptions for the future, he said that we need the tech community to cooperate with government-funded expansion of high-speed Internet access to underserved areas.
Ah, Texas, sweet Texas. Badly-redistricted, voter-hostile Texas. Because the 2011 redistricting lawsuits still aren’t resolved, there is a general sense among election officials that one of two things will happen in the next two months:
- Either the Western District of Texas, San Antonio Division redistricting panel will be compelled to issue a new and more equitable redistricting plan for the State sometime prior to the candidate filing period, or
- Having failed to hold time in a bottle, the court will reluctantly apply the map used in the 2014 elections once again for 2016, notwithstanding the increasingly problematic and widening gap between that map and the actual state demographics.
The Republicans have a rather handy ace up their sleeve to shoot down the remedial application of any corrective court-ordered redistricting plan, and that ace is their faith in the misapplication of a little U.S. Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006). The position of both the 5th Circuit and the conservative majority on the U.S. Supreme Court appears to be that because Purcell called for caution in the application of last-minute court orders that might affect election schedules, it therefore follows that court orders protecting voting rights must not be enforced if an election is right around the corner. And an election is always, always just around the corner.
Of course, that’s just stupid, as Justice Ginsberg more than adequately explained in her dissent in Veasey v. Perry on the eve of the November 2014 election. When actual harm is being done to voters through actual violations of the law, the violator should not be able to say, “Oh well. Sorry about breaking the law, but it’s so close to the election. We just don’t have time not to break the law.”
If the judicial redistricting panel is going to fix Texas districts, it needs to do so by no later than November of this year – owing to increasingly early candidate filing deadlines to accommodate the Texas primary elections, district boundaries need to be known by no later than … well … now, if you want to be precise about it. The first day to file for party precinct chair elections is Tuesday, September 15th. Yes, as in September 15th, 2015. As in two weeks. The first day for candidates to file is one month later, on November 14th. The deadline to file is December 14th. Yes, as in this year.
The Texas Tribune has a nice background piece on the looming problem. (Election Managers Partying Like It’s 2012). If I were king, I wouldn’t care whether the parties got to have primaries or not – primaries are private elections conducted by social clubs (i.e., political parties). Primaries are beauty pageants for candidate nominations, and there are all sorts of alternatives in place for picking party candidates – caucuses, nominating committees, etc. Could a court order disrupt the primaries? Well, such are the wages of sin; nobody asked the Legislature to do an illegal job of redistricting back in 2011.
On a related note, Rick Hasen nicely excoriates our fair state in this recent analysis for Slate Magazine. (Texas Two-Steps All Over Voting Rights).