Nearly every week during the past three years, state Attorney General Jeff Landry has charged taxpayers for the commute from his home in New Iberia to his office in downtown Baton Rouge, in direct violation of the state’s guidelines on travel expenses and mileage reimbursements. We first reported on Landry’s misuse of taxpayer-funded travel in December of 2017.
Yet earlier this week, Landry implied he may take legal action against the Lafayette City-Parish government if it approved and implemented a proposal by Councilman Bruce Conque to waive fees for public transportation on Election Day (which, technically, spans over two days, Nov. 6th and Dec. 8th), claiming the plan amounted an unconstitutionally gratuitous donation.
All told, the initiative would have cost only $2,800.
As a result of Landry’s ultimatum, Conque pulled the proposed resolution from the council agenda, and the issue, at least for now, appears to be dead.
But even before Landry had chimed in, interim Secretary of State Kyle Ardoin also publicly opposed the proposal.
I’ll unpack exactly why Landry and Ardoin were so blatantly wrong about the law, but first, it’s important to understand why they are both motivated to oppose an initiative that could make it marginally easier for Louisiana citizens to exercise their right to vote.
Ardoin is currently in a tight battle for election against a crowded field, after being elevated to the position following the disgraceful departure of his former boss Sec. Tom Schedler.
Schedler resigned from office in the wake of a sexual harassment scandal involving a staffer. The terms of the mediation agreement require that no one involved in the dispute be allowed to communicate details with the media. But sources close to the Secretary of State’s office assert it is inconceivable that Ardoin, Schedler’s chief deputy, was not aware of the workplace harassment, which eventually cost taxpayers nearly $150,000. They allege Ardoin, once elevated to the position, demoted a different high-level female employee who he perceived to be disloyal. That employee immediately resigned, according to several people familiar with the matter.
Both Landry and Ardoin are far-right, conservative Republicans. Earlier this year, they were instrumental in convincing the state bond commission to prohibit two major banks from working as underwriters on a $600 million infrastructure investment package because the banks had enacted policies against financing the sales of guns to individuals under the age of 21 and stricter internal regulations on vendors who sell semi-automatic weapons. Financial experts believe the prohibition against the two banks will likely cost Louisiana millions of dollars in missed opportunity and guarantees the state will be at a competitive disadvantage.
As a candidate for Secretary of State, Ardoin has attempted to convince voters he has been in office for a long time; in actuality, he took over, in a temporary capacity, on May 9th of this year. In his debut campaign commercial, he presents himself as if he is an attorney with a lengthy record of success in the courtroom, at one point boasting that “when the Obama Justice Department sued Louisiana, I fought them and won.” The claim is brazenly and almost laughably inaccurate. Ardoin is not a lawyer and had previously worked as a lobbyist for the nursing home industry.
Landry, however, is a lawyer. As the head of the Louisiana Department of Justice, he has spent the bulk of his three years in office collaborating on national, divisive litigation with disgraced Texas Attorney General Ken Paxton, who is currently facing multiple felony indictments, and former EPA Administrator Scott Pruitt, who resigned in a torrent of controversy over claims that he had grossly abused his office.
The proposal in Lafayette was modeled after similar, successful, and completely legal initiatives in other states. It did not call for any change in bus routes; no one would be, literally, driven directly to their polling place. Moreover, the city-parish government had already done the same thing before: Waiving fees for bus riders on both Black Friday and, strangely enough, on Cyber Monday, the day shoppers are supposed to stay home and buy online.
Almost immediately after Councilman Conque proposed the resolution to waive bus fares on Election Day, Michael Lunsford, a notorious online troll and local conservative operative who lives outside of Lafayette Parish but is the self-anointed leader of a Lafayette anti-tax organization, proclaimed his opposition. Lunsford was perhaps best known in the area for his quixotic but successful campaign against a relatively banal millage renewal that funded local libraries, yet he struggled to find a legitimate legal argument to justify his position about waiving bus fares on Election Day. For years, he had been an anti-tax crusader, an agenda that appeals to almost no one who actually relies every day on public transportation.
At least initially, he asserted the plan would be unfair to people who live outside of the transit system’s coverage area, as if that somehow was discriminatory. Then, he refined his argument slightly, contending that such a program amounted to government-sanctioned electioneering. If more people who lived in urban areas were given an opportunity to vote, that’d somehow be unfair to people who live out in the country.
He eventually got ahold of the Lexis Nexis cover page of a 1996 Attorney General’s opinion from Richard Ieyoub concerning the Orleans Parish School Board providing their school buses on Election Day, a scheme that was unconstitutional and entirely different than the one proposed in Lafayette.
When Jeff Landry entered the fray, he mentioned the advisory opinion as if it was persuasive authority on the subject, even while admitting the facts weren’t the same at all.
There is nothing illegal or unconstitutional about the proposal by Councilman Conque, and even though he pulled the resolution, other officials in Louisiana should consider identical proposals with the understanding that this is a court battle worth having.
Article VII, Section 14 of the Louisiana State Constitution is at the center of Landry’s analysis, and it’s a part of state law that is likely familiar to any attorney who has ever worked for a state or local government agency. In plain language, the law prohibits the government from simply giving away something, and primarily, that means property– land, buildings, vehicles, supplies, and materials. The government cannot loan it or pledge it or donate it without a commensurate and fair return. There are exceptions, of course. Nonprofit organizations and neighborhood groups can typically use public facilities at no cost under a Cooperative Endeavor Agreement, for example, and there’s no issue when one city government decides to provide a surplus police cruiser to another city government.
Landry, however, is broadly interpreting Article VII, Section 14 in a way most attorneys would find unreasonable, and in order to do so, he is ignoring a key provision. Subsection (B)(1) plainly states, “Nothing in this Section shall prevent… the use of public funds for programs of social welfare for the aid and support of the needy.”
The pivotal issue in the 1996 opinion about school buses in Orleans Parish was the literal donation of property to another entity. The proposal in Lafayette Parish had nothing to do with providing property to anyone; it merely sought to temporarily waive a fare for service on a particular day.
The government does this routinely as a way of encouraging certain activities. For example, prior to the kickoff of hunting season, you used to be able to buy guns and ammunition, tax-free, until the state legislature accidentally discharged the holiday in a drafting error. School supplies are tax-free before the beginning of the new school year. There’s also a hurricane supplies weekend in Louisiana. These exemptions don’t necessarily affect state sales taxes, but they do affect local taxes.
And if encouraging people to buy guns, school supplies, and disaster prep equipment can be justified, then why not encouraging people to vote? State law already provides for it, under La. R.S. 18:1462(A):
The Legislature of Louisiana recognizes that the right to vote is a right that is essential to the effective operation of a democratic government. Due to a past, longstanding history of election problems, such as multiple voting, votes being recorded for persons who did not vote, votes being recorded for deceased persons, voting by non-residents, vote buying, and voter intimidation, the legislature finds that the state has a compelling interest in securing a person’s right to vote in an environment which is free from intimidation, harassment, confusion, obstruction, and undue influence. (emphasis added).
How could anyone be opposed to a simple initiative that would cost a negligible amount of money in order to advance the ability for citizens to exercise their fundamental right to vote?
“The intent is to increase voter turnout and the taxpayers are picking up the tab,” Michael Lunsford asserted on Facebook, as if that was a bad thing. Troublingly, Lunsford also told the media that his opinion had been shaped by a private conversation he allegedly had with an official at the Louisiana Secretary of State’s office, who bizarrely told him that efforts to increase voter turnout were illegal “electioneering.”
Jeff Landry went even further. “It opens the system up for fraud,” he said, without offering a scintilla of evidence.
Let’s dispense of the formalities and call the opposition from Ardoin, Landry, and Lunsford what it truly is: A flimsy excuse to justify any effort that would make it easier for minorities and poor people to vote. We’ve seen this play out all across the country in recent years, with Republican attorneys general and secretaries of state purging people from voter registration databases, enacting burdensome and often expensive identification requirements, and shuttering polling places in urban precincts.
Since 2012, the Secretary of State has overseen the closure of at least 103 different polling locations, predominately in urban and majority-minority precincts. The net effect and the intention, albeit unstated, is to suppress African American participation.
According to a report published in June by the United States Commission on Civil Rights, there is ample evidence that these closures in Louisiana have disproportionately affected African Americans.
“(The data) indicates that there are fewer polling locations per voter in a geographical area (in Louisiana) if that area has more black residents,” the report reveals. “This in turn implies that black residents face longer travel distances to reach a polling location.”
As a specific example, the report references the testimony of Kyle Ardoin, who, at the time, was serving as Schedler’s assistant. Ardoin had been asked about the closure of a specific poll location in New Orleans and told that because of the closure, residents had to walk a mile and a half to vote. Ardoin asserted that the story was fictional. No one had to walk that far in that particular neighborhood. Then, however, he was forced to admit to what his office had discovered.
“But we did find another instance similar (in New Orleans),” he said. “(A) precinct was moved two miles because the entity either didn’t want the polling location there anymore or the local governing authority felt like it was serving people best in that new location.”
The report’s authors weren’t persuaded by Ardoin’s attempt to blame the local government for the polling location’s closure; these decisions are ultimately made by the Secretary of State, the job Ardoin hopes that voters- well, some voters– will elect him to occupy for the next term.