Someone is going to have to help me understand this, because I’m clearly missing something.
Best mugshot ever
Harris County failed to follow the Texas Election Code when it created an independent election administration office, rendering the office and the appointment of Isabel Longoria as administrator null and void, according to Attorney General Ken Paxton.
In a Nov. 25 letter to the county attorney’s office, Paxton said Harris County did not inform the secretary of state in a timely fashion, as required by law, when it created the new office in July and when an administrator was selected in October to run it.
“As a result, neither the Commissioners Court’s July 14, 2020 order nor the Election Commission’s October 30, 2020 appointment of (Isabel) Longoria to the position holds any legal weight,” Paxton wrote. “In short, the Harris County Office of Election Administrator does not exist.”
Longoria’s appointment should be rescinded, the attorney general said.
County Clerk Teneshia Hudspeth referred questions to County Judge Lina Hidalgo, who deferred to the County Attorney’s office. First Assistant County Attorney Robert Soard said all required documentation regarding the election administration office has been sent to the secretary of state.
“We feel confident that, after they review this, all misunderstandings will be cleared up,” Soard said.
Longoria said in a statement that the county attorney had advised her there were no procedural issues with the creation of her office; she will continue working.
[…]
The Election Code requires counties to inform the secretary of state within three days of creating an elections administration office. Within six days, it must inform the state of the appointment of an administrator.
Paxton said Harris County waited two weeks to inform the secretary of state it had created the elections administration office and three weeks to formally disclose the hiring of Longoria as administrator, a senior aide in the County Clerk’s Office.
Harris County must take “corrective action” within 14 days, the attorney general said, or the state may take the issue to court. Paxton did not respond to a question asking why his office did not address Harris County’s error in July.
County Attorney Vince Ryan placed an item on Tuesday’s Commissioners Court agenda to discuss the matter.
Here’s the relevant statutes relating to an Elections Administrator:
Sec. 31.031. CREATION OF POSITION. (a) The commissioners court by written order may create the position of county elections administrator for the county.
(b) The order must state the date the creation of the position of administrator is effective. The effective date may not be later than 12 months after the date the order is adopted.
(c) To facilitate the orderly transfer of duties on the effective date, the order may authorize the commissioners court to employ the administrator-designate not earlier than the 90th day before the effective date of the creation of the position, at a salary not to exceed that to be paid to the administrator.
(d) Not later than the third day after the date the order is adopted, the county clerk shall deliver a certified copy of the order to:
(1) the secretary of state; and
(2) each member of the county election commission.
Sec. 31.032. APPOINTMENT OF ADMINISTRATOR; COUNTY ELECTION COMMISSION. (a) The position of county elections administrator is filled by appointment of the county election commission, which consists of:
(1) the county judge, as chair;
(2) the county clerk, as vice chair;
(3) the county tax assessor-collector, as secretary; and
(4) the county chair of each political party that made nominations by primary election for the last general election for state and county officers preceding the date of the meeting at which the appointment is made.
(b) The affirmative vote of a majority of the commission’s membership is necessary for the appointment of an administrator.
(c) Each appointment must be evidenced by a written resolution or order signed by the number of commission members necessary to make the appointment. Not later than the third day after the date an administrator is appointed, the officer who presided at the meeting shall file a signed copy of the resolution or order with the county clerk. Not later than the third day after the date the copy is filed, the county clerk shall deliver a certified copy of the resolution or order to the secretary of state.
(d) The initial appointment may be made at any time after the adoption of the order creating the position.
The relevant sections relating to timing are highlighted in bold. As was noted in the comments to the Chron story, there’s nothing in the laws to say what happens if a county, for whatever the reason, fails to do the paperwork in a timely fashion. Saying that the appointment is null and void for being a few days late is to be the equivalent of saying that because there were a couple of precincts in Wayne County that didn’t exactly balance we need to throw out every vote in the county. I may not be a lawyer, but I can tell when the remedy doesn’t fit the alleged infraction. And if we’re going to be super-technical about it, then let Commissioners Court rescind and re-appoint Longoria today, and notify the Secretary of State later in the day via email, fax, Fed Ex, town crier, and unfurling a giant poster with Isabel Longoria’s picture on it outside the SOS office tomorrow morning. Will that suffice?
This part puzzles me even more:
Republican State Sen. Paul Bettencourt, R-Houston, a frequent critic of local Democrats, urged Commissioners Court to revoke Longoria’s appointment.
“Appointing an administrator of elections in the nation’s third largest county should have been made by following the prescribed legal process to the letter,” Bettencourt said in a statement. “The attorney general’s letter is specific that the duties of that office should be returned to the elected county clerk and tax assessor-collector.”
The dispute is the latest in a series of disagreements between Texas leaders and Harris County officials over how the state’s largest county runs its elections. Paxton and state Elections Director Keith Ingram see their actions as reigning in rogue local leaders; Hidalgo and county officials view them as unnecessary micromanagement.
I mean, we’re aware that all of the election innovation that made Ken Paxton and Paul Bettencourt SO MAD last month was done by the County Clerk, right? Not a non-partisan official whose bosses include the Chair of the Harris County GOP? I’m trying real hard here, but I fail to see what they think they’d be gaining by putting Teneshia Hudspeth in charge of running elections. Do they think she wouldn’t keep doing what she did while Chris Hollins and Diane Trautman were in charge? Have they forgotten that she’s an elected Democrat? Seriously, what is their angle here? I mean, other than being little pettifoggers with a grievance. Like I said up front, someone help me understand this one.
It doesn’t seem that complicated to me. If the EC requirement is to complete a process within x number of days and you take x + 1 day, one reading will be that your action is therefore null and void. An analogy could be made with the voter registration process, which is also governed by immutable timelines and dates in the Election Code by which actions must be accomplished. If a new voter misses the registration cutoff by one day and then is given a provisional ballot when they present to vote, they may get to vote but the subsequent investigation will determine that they were not qualified to vote and their ballot will be null and void. There is no penalty other than the nullification of the voter’s action of voting when not qualified to do so.
VW makes a good point.
Yet I do not see that the delay in notification to the SOS has any statute penalty that the elections administrator is then not allowed to have/do their job and get paid for it. So if Harris County needs to do a “do over” on notification then so be it.
Let me go see if I can find an lollipop to try and calm down Paxton and Betterncourt’s tantrum.
The “penalty” is the nullification of the action. If the action is nullified then the previous status prevails, just as with the hypothetical voter who missed the registration deadline . I’m not arguing that this is how it will work out in a legal challenge but it does seem like a legit angle of attack, which I would not characterize as a tantrum. If Commissioner’s gave them an opening, why would they not exploit it? Even if the solution is a simple “do over”, the actions taken by the EA during this period could be disputed, including their authority to conduct the District B run-off. This could get very very complicated.
Perhaps, but if he’s known about this since July, maybe Paxton could have said something sooner? He also could have just sent them a courtesy heads-up, instead of going public with his first response.
My point is, this was a minor paperwork screwup (at least, that’s what it looks like), if what Paxton claims is true. It could have been resolved in a much more cordial manner, if that had been the intent. It didn’t have to be exploited, it could have just been dealt with.
We’re in an environment where the reality of the Presidential election is under assault. Rationality and adherence to norms are out the window. As for waiting, he would achieve the maximum deleterious effect by waiting until the EA is conducting an election. Was that intentional or just serendipitous? Missing the registration deadline by one day could be characterized as a minor paperwork screwup by an outside observer. Nevertheless, it has the effect of nullifying a ballot cast before the voter’s effective date.
INDETERMINACY OF THE WRITTEN LAW AS MODIFIED BY COURTS AT WILL
What will have the effect of nullifying a ballot is a question of what the statute says (Election Code), and how it’s interpreted by the courts (i.e., here, ultimately if not in the first instance, a majority of 9 Judicial Republicans on the SCOTX or all of them even in unison.
OPEN QUESTION
Remember that the validity issue regarding cast ballots was recently litigated in Texas, and such matter is still pending in the SCOTUS for future elections in a slightly different presentation: whether executive branch officials and/or state courts can change deadlines without thereby invalidating the ballots that come in late (based on the statutory deadline), as later determined as a matter of federal constitutional law by a newly resurgent Trumpified federal judiciary.
See a critique of the emergent doctrine here:
Amar, Vikram D., Federal Court Review of State Court Interpretations of State Laws that Regulate Federal Elections: Debunking the ‘Independent State Legislature’ Notion Once and for all, and Keeping Federal Judges to Their Important but Limited Lanes (November 16, 2020). University of Illinois College of Law Legal Studies Research Paper No. 21-02, Available at SSRN: https://ssrn.com/abstract=3731755 or http://dx.doi.org/10.2139/ssrn.3731755
(IN)VALID BALLOTS VS. OTHER FORMS OF INVALIDITY/VOIDNESS
The legal consequences of irregularities/technical noncompliance cannot simply be analogized from one situation (or statutory provision) to another. Nor can you know for sure how courts will rule (although we may have a pretty good idea when the SCOTX gets to do the ruling, but they could also pass up an opportunity to do so as exemplified by the drive-thru voting vs. curbside voting issue that they left to the federal court system to play around with.)
In the Fifth Circuit, by contrast, you may still have some luck of the draw (and may end up with a panel of three Trump appointees or one with 2 members appointed by a Democratic president). So the outcome there, at least in the first round, may be less of a forgone conclusion.
Here, the AG’s current claim of Election Administrator invalidity also involves alleged noncompliance with the Texas Election Code, but that alone doesn’t mean that provisions governing eligibility to vote (registration deadline), or validity of a ballot based on the method by which it was cast, allows extrapolation to other actions taken under the election code or in less than slavish compliance with it.
GOT DOCTRINE?
The Texas Supreme Court’s previous statutory construction rulings are not only awful, but don’t lend themselves to easy inferences and re-application to a new legal issue (based on a recognized interpretative method used consistently). Their eclectic a-la-carte approach to statutory construction much rather supports the conclusion that the SCOTX operates in a de-facto alliance with the AG and will give him whatever relief he requests, and will devise a justification for the desired result accordingly.
That’s what judicially-crafted doctrines are for. And if no suitable judicial precedent can be found, one can surely be created to suit the occasion. There is no Justice Sotomayor around to pen a dissent and thereby spoil the pristine consensus. Or question the unspoken agreement on the desirability of emasculating the local officials and concentrating all powers in the hands of the GOP-controlled State.
And if they are committed to supporting the AG in his bid to throw monkey wrenches into the machinery of local election administration, they are not going to be inclined to use such concepts as substantial compliance, failure to show harm, or curability, to avoid disruptive effects.