Late in 2010, Dallas County, Texas, asked the U.S. Supreme Court to hear its appeal in Dallas County v Texas Democratic Party, 10-755. The issue involves the federal Voting Rights Act. The 3-judge U.S. District Court had ruled that Dallas County is required to pre-clear changes in the operation of its vote-counting machines. The Democratic Party had sued over the use of those machines, because the party feels that some voters are tricked into thinking they voted a straight-ticket vote, when actually they hadn’t.
The U.S. Supreme Court has now adjourned for the summer and won’t have a conference until September 26, 2011. However, the Court never disposed of the Dallas appeal. It had been on conference on January 21, March 18, and May 26, but each time the Court didn’t decide whether to hear it or not. In the meantime, the Justice Department has already pre-cleared the matter, so it is odd that the Court still hasn’t disposed of this case.
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How many seconds does each SCOTUS person deal with each appeal brief ??? — i.e. even a mini-summary of each case.
Pity the poor suffering clerks who allegedly look at every page of every brief — and write up something for the SCOTUS folks to look at.
They are (electronic) voting machines, not vote-counting machines. The use of the voting machines (as a replacement for punch card systems) had already been pre-cleared twice, once when they were deployed for early voting and again when they were deployed for precinct voting.
The issue is whether in the transition to voting machines there was a change in interpretation of voter actions. With the punch-card system there was no way to correct a misvote once the chad had been displaced. On the voting machines you can undo a vote by selecting it again (similar to clearing a check box in a computer interface).
On the voting machines, if you select a straight ticket, the candidates of the party are pre-selected. If you then click on the candidate, it clears the vote for him. This would be exactly the same thing that would happen if you had not voted a straight ticket, voted for a candidate, realized you had made a mistake and cleared the vote by selecting him again.
The voting machines could be programmed to work like a punch card where they simply record selections, but that would mean that overvotes could happen, undervotes would not be indicated, there would not be an indication of the effect of straight ticket voting, and there would be no review screen. If you made a mistake you would have to go to the election judge to reset the voting machine. To truly replicate the voter experience of a punch card, you would not be able to see any of your votes until you had completed voting and could examine a sequence of numbers indicating which items you had selected. Of course it would be tricky to replicate dimpled and hanging chads.
This of course would have been ridiculous, and the previous submissions to the DOJ had explained how the voting machines worked.
The Democratic Party had raised the same issues with another brand of voting machines in Travis County and had lost in federal court. The defense of Dallas County in the current case was largely to quote the earlier decision. And in the Dallas case, the federal court dismissed all the equal protection and due process claims of the Democratic party. That is, the voting machines did not trick voters, or did not confuse enough of them to raise constitutional concerns.
But the federal court ruled that Dallas should have not only have explained to the USDOJ that when you vote for a candidate a second time and the indication that you cast a vote for him is turned off, and it shows on the review screen; that it was a change in the baseline procedure where you could not see who you had voted for and there was no review screen, and no way to actively un-vote for a candidate after you punched a hole in a punch card.
The original decision was December 2009, and Dallas County asked for reconsideration by the court. Meanwhile, since they were under injunction to not use the voting machines, they filed for “preclearance” with the USDOJ which interposed no objections to their use. When the court rejected the appeal for reconsideration, they noted while the Democrats had not shown any evidence to support a claim of discriminatory effect, they had demonstrated a “potential” for discriminatory effect (since it occurred in a jurisdiction subject to Section 5 of the VRA.
One of the Democratic lawyers on the case was Clay Jenkins who was elected Dallas County Judge in November 2010. (County Judge is the head of the commissioner’s court, which is not a judicial body, but the administrative body for the county). One of the duties of the County Judge is to head a special 5-member panel that hires and fires the county election administrator. Traditionally in Texas, elections are conducted by the County Clerk, with voter registration overseen by the Tax Assessor-Collector. Both offices are elected partisan positions.
But a county may have an appointed Elections Administrator, with election duties removed from under the control of the County Clerk and Assessor-Collector. The Elections Administrator is hired and fired by a 5-member county elections commission that consists of the County Judge, County Clerk, Assessor-Collector, and the county chairmen of the parties that nominated by primary. The only function of this commission is to hire and fire the Elections Administrator. In Dallas County they had not met in over 24 years since the Elections Administrator had been hired. After the Elections Administrator had appealed the federal court ruling to the Supreme Court, the county judge (and Democratic lawyer on the case) called a meeting of the elections commission. The Elections Administrator found out about the meeting after one of the county chairs had called him asking what was up. The county judge later claimed that the meeting was only to conduct a job review. But it is rather odd to hold a job review and not inform the person whose performance is being reviewed.
After the meeting had been called, the elections administrator was talking to county commissioner John Wiley Price, who gave him a resignation letter. After the elections administrator had resigned, the county elections commission met and hired the assistant elections administrator. If you were concerned about the lack of a performance review for the old administrator, would you appoint a replacement who had been hired by the old administrator and without any sort of outside search.
During the 2010 Democratic Primary, there were claims that Clay Jenkins would be easily manipulated by Price, and that Jenkins had voted in 2006 had voted in Dallas County after buying a house there, in 2007 had voted in Ellis County where his law office was, and since then in Dallas County.
This last week, the FBI raided John Wiley Price’s home and office. And recently, the Dallas County Commissioner’s court approved a new districting plan for the 4 commissioner’s precincts that included a last-second renumbering that would change which districts were up for election in 2012 (commissioners terms are for 4-years, with two elected each general election. With clever numbering, you can in effect let some voters have elected two commissioners, and others none.