Did the RUD Voters Break the Law?

This case was also covered by the same author in Woodlands-RUD-voter-fraud-conviction
For an overview of this case, watch Dirty Judge Reiter and the Long Knives

Did the RUD voters break the law? Let's take a look at the law on residency and how it has been interpreted by Texas courts when they have been asked to do so.

The Texas election code specifies the following requirements for eligibility to vote:
    Sec. 11.001. ELIGIBILITY TO VOTE. (a) Except as otherwise provided by law, to be eligible to vote in an election in this state,
    a person must:

(1) be a qualified voter as defined by Section 11.002 on the day the person offers to vote;
(2) be a resident of the territory covered by the election for the office or measure on which the person desires to vote; and
(3) satisfy all other requirements for voting prescribed by law for the particular election.

In Sec 11.002 it further defines a qualified voter as:
   Sec. 11.002. QUALIFIED VOTER. (a) In this code, "qualified voter" means a person who:

(1) is 18 years of age or older;
(2) is a United States citizen;
(3) is not mentally incompetent
(4) has not been finally convicted of a felony
(5) is a resident of this state; and
(6) is a registered voter.

No one disputes that Adrian met all the requirements to be a “qualified voter’ as it is statutorily defined. The dispute centers over the second requirement of Sec 11.001 – that of being a resident of the territory covered by the election. So let’s look more closely at the statutory definition of residency. Residency is defined as follows in the election code:
   Sec. 1.015. RESIDENCE. (a) In this code, "residence" means domicile, that is, one's home and fixed place of habitation to which
   one intends to return after any temporary absence.

(b) Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.
(c) A person does not lose the person's residence by leaving the person's home to go to another place for temporary purposes only.
(d) A person does not acquire a residence in a place to which the person has come for temporary purposes only and without the intention of making that place the person's home.
(e) A person who is an inmate in a penal institution or who is an involuntary inmate in a hospital or eleemosynary institution does not, while an inmate, acquire residence at the place where the institution is located.

To define “residence” as one’s home and fixed place of habitation to which one intends to return after any temporary absence sounds pretty straightforward – until one begins to think of all the possibilities that this definition must cover.

For example, what if I own two homes in the state and spend time in both of them? What if I rent two homes in different parts of the county and spend time in both of them? What if I rent one home and own another home in the same county and spend time in both of them with no intent to divest either? What about college students living in dorms during the school year but coming to their parent’s residence on weekends or holidays? What if someone doesn’t own or rent any home in the county (or anywhere else) but sleeps between the air conditioner and the building it conditions, as one man does where our church meets, and spends his days roaming downtown Conroe? What is his residence – where he sleeps or where he spends the day? Is the homeless man disenfranchised because he doesn’t own or rent any property? How does a resident determine between two or more homes which one is his residence for voting purposes? Is it the one at which he spends more time, on average? Is it the one at which he presently spends very little time, but to which he hopes to retire one day? Is it the house he recently bought right next to work and where he stays Monday through Thursday night or is it the one he has owned for a long time, where he spends Friday night through Sunday night, and to which he intends to live full time some time? Is it the one that is owned instead of rented? Is the college student’s residence the dorm or their parent’s house?

These sorts of questions are why the law goes on to provide further clarification on how one’s residence is to be determined. The second paragraph of the statutory definition of residence in Sec 1.015 states that “Residence shall be determined in accordance with the common-law rules, as enunciated by the courts of this state, except as otherwise provided by this code.”

Although most people quickly form opinions about what home should be the “residence” for voting purposes, the opinion of the “third party man on the street” is not a component of the statutory definition of residence. The meaning of residence is to be determined by the common law rules as enunciated by the courts of this state. What are the common law rules on residency as enunciated by this state?

One place to start is the formal legal opinion on this question issued by Gov. Abbot when he was Attorney General. He writes in Opinion No. GA-0141 issued February 4, 2004:

In the leading Texas Supreme Court case of Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964), the court declared that the meaning of the term “residence” for voting purposes “depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile. . . Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide at that moment the residence is fixed and determined.” There is no specific length of time for the bodily presence to continue.

The fact that, under Texas law, residence is determined by the coincidence of bodily presence and the voter’s intention seems absurd to most reasonably intelligent people. But that is how courts have consistently ruled when asked to define residence. Abbot summarizes this in his own words, saying:

Under current law, the determination regarding “residence” thus involves both physical presence and current intention of the applicant;
For example, let us assume that two students, Student A and Student B, live in the same college dormitory. Student A, who is living in the dormitory and is therefore physically present for purposes of voter registration yet intends his residence to remain the same as that of his parents, can permissibly register to vote in the county of his parent’s residence. … On the other hand, Student B, who is living in the same dormitory as Student A yet who intends that the dormitory be his residence for purposes of voter registration, can permissibly register to vote in the county where his dormitory is located.

Quoting from another court case , Abbot’s formal legal opinion goes on to acknowledge that while the Registrar of Voters does have statutory authority under the Election Code to make factual determinations of whether voter applicants are bona fide residents of the county, they were prohibited from determining applicants were not residents of the county for any of the following reasons:

A. That such person resides in a dormitory at Prairie View A&M University;
B. That such person owns no property in Waller County;
C. That such person is a student at Prairie View University;
D. That such applicant has no employment or promise of employment in Waller County;
E. That such applicant previously lived outside Waller County, or may live outside Waller County after his graduation;
F. That such person visits the home of his parents, or some other place during holidays and school vacations.

Gov. Abbot concludes his formal legal opinion with the statement that “The intention of the voter registration applicant is crucial to a proper determination of residence, and every person is strongly presumed to have ‘the right and privilege of fixing his residence according to his own desires.’”

Although the opinion of the “third party man on the street” is not a component of the statutory definition of residence, it does figure prominently in the jury box. As district attorneys like to remind us, they can indict a ham sandwich. They can do so by controlling the flow of information to the grand jury. In the same way, by preventing this information from effectively getting to the jury and depending on the natural inclination of the man-on-the-street to rely on their commonsense opinion of how “residence” is to be defined, prosecuting attorney Mr. Glickler, with the cooperation of the judge, was easily able to get a conviction.

A few weeks before the AG issued this legal opinion, the Texas Secretary of State had also delivered a legal opinion to the governor on this identical question (Election Law Opinion GSC –1, January 22, 2004). The Secretary of State (SOS) is authorized by statute to obtain and maintain uniformity in the application, operation, and interpretation of the election code. He is required to do this by preparing detailed and comprehensive written directives and instructions relating to this code. His written interpretation of election law carries statutory weight. Obviously he can’t contradict election law, but where there is ambiguity, his understanding is the operative understanding of the code and case law.

The question the SOS was asked by the governor was, “What is the proper interpretation and application of Section 1.015 of the Code in the context of voter registration by, and “residency” of college students, …” The SOS reached the same conclusion as the AG.

His short answer is, “The definition of residence for the purpose of voter registration is well settled in Texas.” He then goes on to provide the same answer as the AG gave, drawing from some of the same case laws and a number of additional ones. After noting that residency can’t be determined by any one factor, he states,

“The majority of Texas courts have consistently ruled that residency is a combination of intention and fact, and that the voter’s intention must be reviewed to make a final determination of residence.”

A couple of other relevant statements from that opinion are:

“…we caution other officials and those conducting voter registration drives against seeking to influence the voter’s choice of a residence address. The presumption is not in favor of the parents’ home or the college home; rather, the presumption is in favor of the voter’s own assessment of the facts and his or her intent.”
“In sum, when a student registers to vote and describes his or her permanent residence in Texas for voting purposes, the presumption is in favor of the voter’s factual statement on the face of the application.”
“We note that a common complaint about students and other voters who travel is the concern that these voters will not consider the residence location on the application to be their home in the future (e.g., five years from the application date). No applicant is required to assert such a future durational intention when registering to vote. … An applicant filling out a Texas voter registration form is not required to state that the residence will be his or her home forever, or for the next five years, or even the next year.”

According to both the SOS and the AG, it is well settled that there is no need for the voter to intend to remain at the residence for any specific duration into the future and there is no duration for which a prospective voter must have resided at the residence in the past in order for that residence to qualify as the voting residence. A residence becomes the voting residence once there is bodily presence coupled with an intent to return, if absent.

Mr. Glickler argued that these principles only applied to college students and RV'ers. But that is contrary to the explicit statements in the SOS’s legal opinion. The principles apply equally to all people. There isn’t a separate principle for determining residence for college students and RV'ers from any other prospective voter. In his formal opinion, the Texas Secretary of State wrote:

No more or less can be required of college students during the voter registration process than any other Texas voter. These principles apply equally to college students as well as other voters, and no more can be required of them in order for them to register and vote in the State of Texas.

But the evidence in support of Adrian doesn’t stop here.

Adrian had several discussions with Joseph Kulhavy, who at the time was the elections attorney for the SOS, about election law and the definition of voter residence. Adrian relied on what he learned in these conversation in acquiring a second residence inside the RUD and voting in the 2010 election. In a conversation a couple of years after the election and civil trial that overturned the election results because the voters who voted against the incumbents were “fraudulent voters”, Mr. Kulhavy characterized the whole affair as “Dirty judge, dirty developer, dirty everybody,…” In fuller context his comments were:

“The decision [i.e. P.K. Reiter decision in the civil case on the RUD election] was contrary to decades of court decisions about residency issues and was really an outlier.”

“The way I read it was, Developer is mad that their nose has been tweaked by some people who were protesting the profoundly undemocratic way that property taxes are imposed in Texas, and their embarrassment is such … that they call up their best buddy, someone who has close political ties to them and say, hey Judge, we need you to make an example of these people.”

“Utterly politically motivated, intellectually bankrupt decision that could not be reconciled with the way we generally view residence. What is it about you that they would say, “When he says that’s his residence he is just lying? Excuse me! To accuse someone of fraud goes beyond saying they just misunderstood or that there has been some confusion on the law. Most prosecutors won’t touch a residency dispute with a 10 foot pole because they know that they will lose.”

“So to go so far in a civil case …[in] throwing out the election, (and excuse me, isn’t there a presumption in favor of a valid election and upholding the election results)… there would need to be extraordinary facts…..”

“Voters [in the RUD] are presumptively not eligible unless they have been vetted by the developer, given the OK, the secret handshake. [That’s] the snotty arrogance of the decision that bothered me so much.”

“Dirty Judge, dirty developer, dirty everybody, If you’re that scared, if you create such a powerful incentive to run a dirty election, then you should ask why are you developing that land that way in the first place?”

So the RUD voters have Texas case law on their side, they have the then sitting election attorney for the Secretary of State at the time calling the civil ruling that found the voters were fraudulent “a politically driven, intellectually bankrupt ruling, that trampled decades of election case law” and calling the judge who made the ruling a “dirty judge,” and they have a number of upstanding citizens in the community (some 300 apparently) who signed a petition calling for his pardon and release.

But even if all these people are wrong, there is still one insurmountable fact of law in light of which Adrian should have been found not guilty. That fact is “mistake of law.”
Adrian believed he was a lawfully qualified voter in that 2010 RUD election because:

The Texas SOS attorney for elections thought he could do what he did.
The legal opinions of the AG and SOS assert he could do what he did.
The Woodlands developers did what he did - moved 3 people into the RUD to vote in the first RUD election in 1990.
Other developers routinely did and still do the same thing.
Dirk and Kate Laukien, the people who own the building in which the RUD board used to meet, did the exact same thing – changed their voting residence to a commercial building in the RUD (and it was not even built or intended to be used as a residence unlike the Residence Inn) to vote in the same RUD election.

I would submit that is more than enough evidence for someone to reasonably believe that what they are doing is lawful.
In reaching that opinion, Adrian relied on an interpretation of the law given by two agencies that are responsible for administering or enforcing the law and an attorney responsible for interpreting election law. That should qualify for a mistake of law defense by itself. But making the case even stronger is that knowledge of the law is an element of the crime itself. To commit the crime of illegal voting, the voter must vote in an election in which the voter knows he is not eligible to vote.

If Adrian sincerely believed he was eligible to vote in the election and had good basis for the belief he was eligible, e.g. such as seeking the advice of the Texas elections attorney, then even if he is wrong about his belief, he doesn’t meet the elements of the crime which requires knowingly voting in an election in which one is not entitled to vote. This is a significant element not present is many other common felonies. Felony theft does not require the thief to “know” that he committing burglary, he just has to intend to remove the property from the premises. That intent is proven by his action of removing the property from the premises.

In the interest of full disclosure, I don’t agree with this law and I don’t like this law. I think there should be a residency duration requirements to be eligible to vote and that one should have to own property in the district to be eligible to vote in that district. But that is not the law. The law says there is no duration of residency either before or after registration to be a qualified voter. I do believe in the rule of law. If the RUD board didn’t like the law, they should work to change it, not use the law to their own advantage and prosecute other people who use it to their (i.e. the RUD's) disadvantage.

Also in the interest of full disclosure, I know Adrian and some of the other 10 voters, two of whom were my sons. Further in the interest of full disclosure, the polical forces driving this prosecution should be noted. After the county district attorney declined to proseute on the grounds that no law had been broken, this case would never have been criminally prosecuted without Texas State Senator Tommy Williams' personal involvement advocating prosecution by the Texas Attorney General's office. As usual, just follow the money.