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Perils of Poverty In the Panhandle, a County Judge Asks Poor to Give Up Right to Vote BY ROBERT ELDER, JR. WHEN Mary Helen Vargas’s father died this past August, she didn’t have the minimum of $575 it takes to secure a spot in the local cemetery. Like dozens of other Gray County residents over the years, she asked the county judge to pay burial costs. And the Republican county judge, Carl Kennedy, had the same deal for Vargas that he made with the others: we’ll bury your father if you give up your right to vote. Right up until election day last month Kennedy had been using a pauper’s oath that seemed like a grim flashback from the Texas of 25 years ago, before the poll tax and other barriers to voting fell. Mary Helen Vargas says she didn’t know enough about her rights to question the “pauper’s oath” Kennedy put before her August 28, so she signed it. Paupers’ oaths are a standard tool, used mostly by people who can’t afford certain filing fees. They sign the oath, the fees are waived, and their legal proceeding can begin. But the Gray County version of the oath contains this line: “In making this declaration under oath . . ., I surrender my rights to vote as set forth in the Constitution of the State of Texas.” Dozens of other residents in the Panhandle county had signed the oath before Vargas roughly 40 in the past decade, according to Kennedy. County records show 11 persons have signed the oaths in the past two and a half years. In 1987 a woman signed an oath to obtain a burial for a ninemonth-old baby, identified only as “Baby Boy Calfy.” Some residents may have been knocked off the voter rolls by signing the oaths. Others, like Vargas, did not try to register because the county judge told them they cannot vote if they receive aid from the county. “My experience has been that most people asked to sign the oaths simply do not care if they vote,” Judge Kennedy said. “They aren’t even registered.” According to Kennedy the county applies the oath only to burial requests because “that’s the only [county] welfare program we have.” \(The oath, however, does not Robert Elder, Jr. , is a reporter in the Austin bureau of Texas Lawyer, a statewide legal newspaper, where a similar version of this story first appeared. On November 3, Kennedy said he would stop using the oaths after lawyers from the Texas attorney general’s and secretary of state’s offices told him to. Before stopping the practice Kennedy observed that it would “sure be nice to know” for sure if the oaths were illegal. Tom Harrison, the lawyer in charge of the secretary of state’s election division, gave Kennedy the specifics the judge apparently needed: The oath violated the U.S. Supreme Court’s decision in Harper v. Virginia State Board of Education, voter qualifications based on wealth. Other lawyers were amazed the judge needed to be prodded by a 22-year-old Supreme Court decision. “Anybody with the least amount of sense or idea about how American democracy works knows you don’t deprive people of their right to vote because they’re poor,” said James Harrington, legal director of the Texas Civil Liberties Union and author of a book on the Texas Bill of Rights. In applying the oaths, Kennedy was taking advantage of some outdated state constitutional language that has not been repealed and was ignoring the state’s election code, which contains more current definitions of qualified voters. Kennedy’s oath cites Article VI, Section 1 of the state constitution, which in part bars from voting “all paupers supported by any county.” Section 1, which has not been repealed, also contains outdated language that bans “idiots and lunatics” and persons under 21 years of age from voting. THE TCLU’S Harrington said it was not surprising that “a lot of nonsense” remains in the state’s un wieldy and often outdated Constitution. What is surprising, Harrington said, is that Kennedy believes this article gives him any power. “The county judge cannot say ‘We gave you some money and therefore you surrender your right to vote.’ ” Harrington said. “He doesn’t have the authority to set up this kind of tit for tat.” According to Harrington, this pauper provision originally applied to people who depend on the county for survival. “To stretch that to apply to someone who has a relative who ends up in a cemetery is incredible,” Harrington said. “It’s not their [the family’s] debt. They’re penalizing the family because somebody died.” Kennedy is not a lawyer, but because Gray County has no county courts-at-law, he hears criminal misdemeanor cases and probate matters. “What amazes me is that you have this judge who supposedly has some basic knowledge of the law, who can put people in jail and do probate . . . enforcing this kind of nonsense,” Harrington said. The “nonsense” continued longer than it should have because several state officials didn’t take it very seriously. Two state legislators first found out about the oaths last spring but did nothing to stop their use. Directors of two organizations that protect battered women protested the use of the oaths in letters to Rep. Foster Whaley a Democrat who represents Gray County and Rep. Juan Hinojosa, D-McAllen, last March. The directors feared the oaths were being used against women seeking protective orders against abusive husbands and boyfriends. Hinojosa, a lawyer and chairman of the House Criminal Jurisprudence Committee, said he asked a staff member to seek an attorney general’s opinion on the oaths, but that the employee stopped working for him before doing so. “It fell through the cracks,” Hinojosa said. Whaley, who spent part of the 1987 session urging castration of sex offenders, said he was “shocked and surprised” by the oaths, but “never followed through to see if it was illegal.” Indeed, the only official who acted on the oaths was the county’s voter registrar, Elaine Cooper. About two years ago, Cooper said, she stopped deleting names from the voter rolls after someone in the Texas secretary of state’s office she can’t remember who told her the oaths were illegal. The official from the secretary of state’s office didn’t bother to do anything about Cooper’s revelation of the oaths, either. Cooper started putting Kennedy’s oaths in a forgotten corner of her office. “In my opinion, just because you’re poor doesn’t mean you can’t vote,” she said. However, the oaths remained in use until early November. And Kennedy and Cooper acknowledge that unregistered persons who signed the oaths may have left the county courthouse believing they can never register. THE TEXAS OBSERVER 5