Constitutional Law

Judge’s Supporters Say the Texas Constitution Sucks

Texas state flagTexas state flag (image: M&R Glasgow via flickr)

Let us return to the saga of Bill McLeod, the Harris County judge who accidentally quit his job recently when he announced he was planning to run for a seat on the Texas Supreme Court. See Judge Accidentally Resigns” (Apr. 4, 2019). More accurately, the state constitution says such an announcement “shall constitute an automatic resignation of the office then held,” leaving it vacant. Well, this one isn’t vacant, because Bill McLeod is still in it. This is causing some consternation, not because (to my knowledge) anyone really wants to get rid of him—he did win the election just three months ago—but because they can’t figure out whether it’s actually legal for him to stay put.

Last week a couple dozen local attorneys sent the county commissioners a letter supporting McLeod. They have a couple of good arguments, I think. But I’m not sure “the Texas constitution sucks” is one of them.

Let’s be clear: the Texas constitution does suck. As the letter points out, it’s 87,000 words long, has been amended 491 times, and has been described by a well-respected judge as “ungainly,” “convoluted,” and “a top-to-bottom mess.” Is it the worst state constitution in America? Oh my God no, because nothing compares to the Alabama constitution, which is more than four times as long (about 380,000 words) and has 928 amendments (unless there have been more since I made fun of it last November) tacked onto its 287 sections. But “not as bad as Alabama” is hardly the same thing as “good.” And this one’s bad.

But a law that sucks is still a law, which is why we are stuck with the Electoral College (among many other examples), at least for now. For the most part, the attorneys were just arguing that McLeod’s mistake was reasonable, and that seems fair. Although, to be honest, it wasn’t all that compelling when McLeod told the Washington Post that his mistake was in not “scouring” an “archaic 180-page document that I did not know contained this particular provision.” Again, fair enough, but not entirely compelling when you are running for a Supreme Court seat and the “archaic 180-page document” is the constitution.

A better argument, though still not great, is the attorneys’ suggestion that “Judge McLeod’s words need not be construed as a resignation.” Well, the law says that if officials “announce their candidacy, or … in fact become … candidate[s],” that’s an automatic resignation. Their real argument is that McLeod never really got to the point of announcing or in fact becoming a candidate because he was just “exploring a possible campaign.” Maybe. But he had a website, posted “preliminary” content discussing a Supreme Court campaign on it, told some friends about it (just “previewing a future campaign,” they say), and filed a campaign-treasurer appointment. I would agree he never officially “became a candidate,” but it seems harder to argue he didn’t at least announce he was interested. Ergo, out of a job.

Better still is the argument that even if McLeod did auto-resign, nobody actually has to do anything about it. The attorneys cite Bianchi v. State, which I mentioned last time, in which a guy who admitted he was running for office was allowed to stay in his current job because the county commissioners didn’t appoint anyone else. That is, everybody just ignored the fact that this was blatantly unconstitutional. While that is weird, it’s probably acceptable here. The law is presumably intended to protect the voters someone was elected to serve by making sure that person doesn’t immediately start looking for another job. If those voters, through their elected representatives, say they don’t care—and if the person promises, as McLeod has, that he’s not going to run after all—then it’s hard to see why anyone else should.

Strictly speaking, seems like it should be put to the voters directly via a special election—if Texas counties have those—in which voters can decide whether they want to keep someone who they know is at least thinking about jumping ship. (The attorneys say only that it should be put on the 2020 election, but I don’t see how that solves the constitutional problem.) But that seems likely to be expensive and fairly pointless, so an endorsement (express or implied) by the commissioners seems to make more sense.

Texas could write up a new constitution, I guess, and it appears to be overdue anyway. But that’s not really a short-term solution.

[Update: The Houston Chronicle says the commissioners will meet today (Apr. 9) to decide what happens. Or possibly to not decide anything, which I think yields the same result.]