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Fifth Circuit extends block on vote by mail expansion

Not unexpected, unfortunately.

A three-judge panel of the U.S. 5th Circuit Court of Appeals extended its order Thursday blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

With early voting for the primary runoff elections starting later this month — and the Texas Supreme Court also blocking expanded voting by mail in a separate case —Thursday’s ruling effectively eliminates the possibility that Texas voters will be able to legally request mail-in ballots solely because they fear a lack of immunity to the new coronavirus will put them at risk if they vote in person.

The issue is likely headed to the U.S. Supreme Court.

U.S. District Judge Fred Biery issued a preliminary injunction in late May expanding mail-in voting, but the appellate panel almost immediately put it on administrative hold while awaiting legal briefings from both sides. Thursday’s ruling keeps Biery’s ruling on ice while Texas appeals it.

[…]

Siding with Paxton, the 5th Circuit panel in part found that requiring Texas officials to institute voting by mail for all against their will would present “significant, irreparable harm” to the state. The panel pointed to the U.S. Supreme Court’s standing that lower federal courts should “ordinarily not alter the election rules on the eve of an election.”

See here and here for the background. As noted in the State Supreme Court ruling, there’s still nothing to prevent someone from requesting and receiving a mail ballot if they claim a disability. It’s just the risk they take if someone like Ken Paxton or a GOP activist charges that their claim is illegal because it’s based on coronavirus concerns. It’s hard to assess that risk, but so far at least nearly all of the people who have requested a mail ballot so far in Harris County are people 65 years old and older.

Rick Hasen breaks down the ruling.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.

There are still the other two federal lawsuits in the works, one of which directly challenges the age restriction on 26th Amendment grounds. I don’t know where they are on the calendar and I’m not sure how to evaluate that bit in Judge Smith’s opinion that Hasen cites, but it’s probably irrelevant for these purposes anyway. We’re too close to the July election for the courts to allow a major change in procedure at this point. There may still be time for that for November, but every day that passes makes that schedule a little bit tighter. For now, proceed as you see fit. Mark Joseph Stern has more.

Let’s talk “meaningful reform”

Chief Acevedo brought it up, so let’s go there.

Houston Police Chief Art Acevedo’s voice cracked several times and his eyes welled as he railed against the death of George Floyd beneath a policeman’s knee and implored protesters to demonstrate peacefully with him.

“I will not allow anyone to tear down this city, because this is our city,” Acevedo shouted on Sunday to the group of mostly black Houstonians surrounding him at one of many protests in the wake of video showing Floyd’s fatal encounter with police in Minneapolis. “Pay close attention! Because these little white guys with their skateboards are the ones starting all the s–t.”

Video of Acevedo’s profanity-laced remarks went viral and, along with his other blunt statements this week, won the chief acclaim from those outraged by the death of Floyd, a former Third Ward resident.

It has also drawn anger from those who say Acevedo has failed to address the very things he’s condemning at home. His calls for police to be more transparent and enact “meaningful reform” have refocused attention on a series of fatal shootings by his own officers, and his refusal to release body camera video of the incidents.

“We’re looking at him say one thing on camera, but locally, we know different,” said Dav Lewis, a local activist who was friends with Adrian Medearis, one of the men who died in the spate of shootings. “We know different locally. We have not seen police accountability.”

The chief has also resisted calls to release the results of an audit of his narcotics division, rocked last year by one of its worst scandals in decades, and he has downplayed calls to bolster the city’s Independent Police Oversight Board, long criticized as a “toothless watchdog” group.

“While these are great photo ops, and maybe the chief has political aspirations, and this is all warm and fuzzy kind of stuff he’s doing, it’s time for some action,” said Mark Thiessen, president of the Harris County Criminal Lawyers Association.

[…]

Protesters intensified their calls on Tuesday for Acevedo to make the videos public. Mayor Sylvester Turner’s remarks at City Hall were punctuated by several people chanting “release the tapes,” and hours later Acevedo was directly confronted by a group of critical protesters at the downtown park Discovery Green.

Some lawmakers questioned Acevedo’s rationale for not releasing the body camera video.

“It is not law enforcement’s job to worry about prosecution,” said state Rep. Gene Wu, D-Houston. “It’s their job to be law enforcement.”

Wu, a former prosecutor who has called on Acevedo previously to release his audit, said Acevedo’s attitude “does more of a disservice to taint the public’s perception than anything else.”

“Right now you have the general public believing the police hide things,” Wu said. “When other cities during this crisis have shown they can release body cams immediately — that they can fire and discipline officers immediately — the fact we can’t get videos released months, sometimes even years later, is very telling.”

There’s more, and you should read the rest. On balance, I think Art Acevedo has been a pretty good Chief of Police. It’s not at all hard to imagine someone worse in his position – the current Chief of Police in Austin, for example. I also think that some of these reform ideas should be taken out of his discretion and mandated by the appropriate governing body. For releasing body camera footage and just generally being more transparent about it, that could be the Legislature or it could be City Council. Point being, the less room he or any Chief has to stall on releasing said footage, the less time we have to have this debate about transparency.

There are plenty of other things that can be done, at all levels of government, with the local stuff having the greatest potential for swift adoption. Tarsha Jackson, formerly with the Texas Organizing Project and now on hold in the City Council District B runoff, recommended several changes to the police union contract. CM Letitia Plummer, thankfully recovering from COVID-19, has proposed a budget amendment that would:

-Require officers exhaust all reasonable means before shooting
-Ban chokeholds and strangle holds
-Require de-escalation
-Require officers give verbal warning before shooting
-Notify Independent Police Oversight Board when death occurs
-Give IPOB subpoena power

It would also redirect funds currently allocated for a police cadet class as follows:

$2M, fund separate IPOB investigations
$1M, build online portal for residents to report misconduct
$3M, police training
$2M, permanent revolving fund for the Office of Business Opportunity, no-interest loans to minority-owned biz
$2M, enhance Health Dept’s Community Re-Entry Network Program
$500k, enhance Health Dept’s My Brother’s Keeper program
$1M, equipment and implementation of a “CAHOOTS” program (Crisis Assistance Helping Out On The Streets)

The point of that last item is to redirect a class of 911 calls that now go to law enforcement to this Crisis Assistance program, so the police can handle higher priority calls. Look at the photos she embedded in this Facebook post (specifically, this and this) to get a better feel for this. The city of Eugene, Oregon has used a program like this successfully since 1989. I strongly suspect most police officers would be happy to not have to respond to these kinds of calls for the most part going forward.

Stace adds recommendations from 8CantWait, which largely overlap the items noted by CM Plummer and Tarsha Jackson. Again, these are things that could be done now, if we wanted to. If there’s something you want to do in this direction, call Mayor Turner’s office and your district Council member along with the At Large members in support of these proposals. There are many ways to make noise.

There’s still more. Looking at the federal level, Sherrilyn Ifill and a triumvirate at The Atlantic have a list of action items for Congress, including an end (or at least a serious cutback) to qualified immunity, national data collection and tracking of police conduct and use of force, stronger enforcement of Title VI of the Civil Rights Act, and more. Ifill notes that “Currently, officers fired for misconduct and brutality against innocent civilians can be hired by other departments”. This will sound depressingly familiar to anyone who remembers the story of Tulia.

I personally would add: Decriminalization of marijuana and a complete shift of focus on other drug offenses from arrest and incarceration to treatment; Expanding Medicaid, which as I have said a gazillion times before will do so much to provide mental health services to countless Texans; Really attacking the homelessness problem by funding housing for the homeless and raising the minimum wage so that more people can afford housing in the first place; and repealing SB4, the odious “show me your papers” law. I believe these things will drastically reduce the interactions that ordinary people – overwhelmingly people of color – have with the police and the criminal justice system.

None of these things are panaceas, and none of them directly address systemic racism – I will defer on that to those who can speak more directly from their own experience – but I do believe all of them will have the effect of reducing harm to the black and brown people who have always received the brunt of the violence that comes from encounters with the police. Again, much of this is doable right now. Clearly, some other items will require winning more elections, in Texas and around the country, but we can still get started on what can be done now. If Chief Acevedo wants to come out in support of any or all of these things, that would be nice, too. Whether he does or he doesn’t, we can make them happen anyway.

The reopening metric we should be heeding

From Twitter:

Here’s that link:

Abstract

We report a time course of SARS-CoV-2 RNA concentrations in primary sewage sludge during the Spring COVID-19 outbreak in a northeastern U.S. metropolitan area. SARS-CoV-2 RNA was detected in all environmental samples and, when adjusted for the time lag, the virus RNA concentrations were highly correlated with the COVID-19 epidemiological curve (R2=0.99) and local hospital admissions (R2=0.99). SARS-CoV-2 RNA concentrations were a seven-day leading indicator ahead of compiled COVID-19 testing data and led local hospital admissions data by three days. Decisions to implement or relax public health measures and restrictions require timely information on outbreak dynamics in a community.

Introduction

The most common metric followed to track the progression of the COVID-19 epidemic within communities is derived from testing symptomatic cases and evaluating the number of positive tests over time.1 However, tracking positive tests is a lagging indicator for the epidemic progression.2, 3 Testing is largely prompted by symptoms, which may take up to five days to present4, and individuals can shed virus prior to exhibiting symptoms. There is a pressing need for additional methods for early sentinel surveillance and real-time estimations of community disease burden so that public health authorities may modulate and plan epidemic responses accordingly.

SARS-CoV-2 RNA is present in the stool of COVID-19 patients5-7 and has recently been documented in raw wastewater.8-10 Thus, monitoring raw wastewater (sewage) within a community’s collection system can potentially provide information on the prevalence and dynamics of infection for entire populations.11 When municipal raw wastewater discharges into treatment facilities, solids are settled and collected into a matrix called (primary) sewage sludge, which has been shown to contain a broad diversity of human viruses including commonly circulating coronavirus strains.12 Primary sludge provides a well-mixed and concentrated sample that may be advantageous for monitoring SARS-CoV-2. As viral shedding can occur before cases are detected, we hypothesize that the time course of SARS-CoV-2 RNA concentrations in primary sewage sludge is a leading indicator of outbreak dynamics within a community served by the treatment plant.

So in plain English, if you know what the level of SARS-CoV-2 is in your municipal wastewater, you will have a very accurate predictor of the new COVID-19 case rate in your community. And guess what? The city of Houston is tracking this very data. I don’t know if it’s being published anywhere, but it sure could shed some light on how things are really going around here. Other cities should be doing this as well – if they aren’t doing it already, they need to start – and that information should be collected and published at the state level as well. What are we waiting for?

MLS agrees on its restart, WNBA still considering options

More sports coming.

The MLS Players Association voted Wednesday to approve a revised collective bargaining agreement with the league. The new deal will run through 2025 and clears the way for Major League Soccer to resume its 2020 season via a single-site format in Orlando, Fla.

“I can’t give any further specifics on that Orlando concept,” MLS commissioner Don Garber said in a video conference with media. “That was a very, very big part of our discussions with our players. …We were fortunate to be able to finalize an agreement, as the union announced early this morning.”

Garber said details regarding the competition in Orlando, including format and dates, will be released later, but it is expected to be a tournament lasting no longer than 35 days. It will be conducted at ESPN’s Wide World of Sports Complex, which is where the NBA is planning to finish its season.

The commissioner also reiterated his commitment to finishing the season, even if that means pushing the MLS playoffs into 2021.

See here for the background. As noted, the NWSL is already set to return, on June 27. The NBA will be using the same ESPN facility, and I have yet to see how the logistics of that will be handled. I’m sure someone has a plan for it.

Meanwhile, the WNBA is still figuring things out.

The WNBA is considering playing its season at an MGM Resorts International property if it has a season this year, according to a report from The Associated Press.

The other location under consideration is IMG Academy in Bradenton, Florida.

The league announced the suspension of its season in April amid the coronavirus pandemic and has not decided on a start date. Operational details of a possible start are not clear, but the league would use a single site — much like the NBA.

WNBA commissioner Cathy Engelbert told the AP on Tuesday that the league has discussed a variety of options but did not confirm whether Las Vegas or IMG Academy were possible locations.

“We’re looking at the pros and cons of a number of different locations,” Engelbert told the AP.

The WNBA hadn’t actually started its season yet – like MLB, it was still in its preseason when it suspended activities. If the WNBA chooses to play its games in Las Vegas, they may have some company in the form of the National Hockey League, which is considering Vegas among a list of other cities to play its games; like the NBA, the NHL season was suspended just before playoffs were to begin. Again, I’m sure someone will figure out how to handle multiple leagues and all their people sharing the same facility. I’m just trying to stay on top of the news here.

Quinnipiac: Trump 44, Biden 43

Nice.

President Donald Trump and former Vice President Joe Biden are locked in a very tight race in Texas, with Trump receiving 44 percent of the vote and Biden receiving 43 percent in a general election matchup, according to a Quinnipiac University poll released today. Democrats go for Biden 90 – 5 percent, independents do the same 45 – 36 percent, and Republicans go for Trump 87 – 6 percent.

Voters say 54 – 40 percent that Trump would do a better job handling the economy, but say 49 – 43 percent that Biden would do a better job handling health care. Voters are split on who would do a better job handling the response to the coronavirus, as 47 percent say Biden and 45 percent say Trump.

“Too tight to tell in Texas. As the country confronts chaos and COVID-19, perhaps one of the most important states of all is a toss-up,” said Quinnipiac University Polling Analyst Tim Malloy.

FAVORABILITY AND JOB APPROVAL RATINGS

In terms of how voters view the candidates, they give both Trump and Biden negative favorability ratings. 38 percent of voters view Biden favorably, while 45 percent view him unfavorably. That compares to a February 2019 survey when 48 percent viewed him favorably and 38 percent viewed him unfavorably. 42 percent of voters view Trump favorably, and 50 percent view him unfavorably. That compares to a February 2019 survey when 47 percent viewed him favorably and 49 percent viewed him unfavorably.

President Trump receives a 45 – 50 percent job approval rating, unchanged from September of 2019.

Governor Greg Abbott receives a 56 – 32 percent job approval rating, compared to 56 – 27 percent in September of 2019.

Senator Ted Cruz receives a 45 – 42 percent job approval rating, compared to 49 – 40 percent in September of 2019.

Senator John Cornyn receives a split 37 – 36 percent job approval rating, compared to 41 – 34 percent in September of 2019.

MAIL-IN VOTING

About six in ten voters (59%) in Texas say voters in the state should be allowed to vote by mail due to the coronavirus pandemic, while four in ten (40%) say they should not. There are wide partisan gaps, as Democrats 91 – 9 percent and independents 61 – 39 percent say “yes” to voting by mail, while Republicans 68 – 31 percent say “no” to voting by mail.

“‘Mail it in,’ say a majority of virus wary Texans, with Democrats far more willing to let the Post Office deliver their vote,” added Malloy.

Looking ahead to the presidential election in November, 60 percent say they would feel comfortable voting in person, while 38 percent say they would feel uncomfortable. Republicans 84 – 14 percent and independents 60 – 38 percent say they would feel comfortable. Democrats 67 – 31 percent say they would feel uncomfortable.

Here’s a Chron story on the poll result. The disparity in comfort about voting in person is something we’ve seen before, and clearly correlates to the relative partisan positions about voting by mail. I don’t think it will matter that much in the end – let’s just say that people are highly motivated to vote against Donald Trump – but it’s worth keeping in mind. Democrats will need to give some thought about informing their voters about how they should vote to alleviate any anxieties.

There are crosstabs farther down in the linked article, and they don’t have any surprises. Biden actually led Trump 48-44 in a Q-poll from a year ago, which I thought was a tad bit optimistic at the time. Note that while Biden lost a few points from that sample, Trump remains at 44 percent. Add this to the previous four results and the poll average is 46.0 to 43.6 for Trump. If this isn’t a close race, I don’t know what is.

There won’t be furloughs after all

A slightly confusing bit of good news.

Mayor Sylvester Turner

Houston will not need to furlough roughly 3,000 city employees nor cancel its police cadet classes in the upcoming budget year, Mayor Pro Tem Dave Martin announced during a city council budget committee meeting Tuesday.

Instead, the city will use federal coronavirus relief funds to help bridge its projected $169 million shortfall in the fiscal year that begins July 1.

“No employee in the (City of Houston) will be furloughed,” Martin said.

The administration has updated Mayor Sylvester Turner’s initial budget proposal, eliminating many of the most dire consequences attributed to the revenue gap. The revised budget plan eliminates furloughs and adds back five cadet classes for police, Martin said.

It also adds another fire department cadet class, giving that department four classes. The new proposal also adds $15 million back into the city’s rainy day fund as hurricane season gets underway; Turner’s original spending plan would have exhausted that fund entirely.

The changes comes as the city has weighed how it can spend $404 million in federal funds it received through the CARES Act, part of a stimulus package approved by Congress.

The administration plans to use roughly $19 million of those funds to cover expenses for redeploying city employees from their normal duties to address the coronavirus pandemic, freeing some budgetary space. It is not clear if the city plans to use additional federal funds to cover the remaining costs of the budget revisions.

See here, here, and here for some background. I’ve said all along that the city could avoid all of the issues for this year if it could use that federal money for previously budgeted items. Apparently, they have decided that they can, or at least that there’s enough of the money available to fill other needs to make the math work. I can’t tell from this story what may have changed to go from apocalyptic warnings about layoffs and furloughs to this – maybe the city got clarity from the feds, maybe they came to this conclusion on their own, maybe there was enough wiggle room to allow for budget items to get moved around, who knows? This is the outcome that should have been from the beginning. Remember, a large part of budgeting is determined by the calendar – if these federal dollars had been allocated earlier, there wouldn’t have been so many “previously budgeted items” to worry about. I’m a little worried that someone is going to come along and try to stop the city from doing this, maybe by lawsuit or some other decree, but until then, I’m glad they worked this out. There are plenty of things to worry about going forward, like sales tax revenues, but buying a year’s time before that reckoning allows for another CARES Act or other positive development to occur. Sometimes kicking the can down the road is all you need to do.

NBA sets a plan, MLB still working it out

Happening today.

The NBA is finalizing details of a plan which is expected to be approved by the league’s Board of Governors on Thursday, paving the way for a return from the coronavirus shutdown.

The board is poised to give the green light to commissioner Adam Silver’s return of basketball which would begin July 31 with a 22-team format, and end in mid-October with a champion being crowned, ESPN reported.

The plan requires support from three quarters of the league’s 30 teams in order to be approved.

The NBA suspended its season on March 11 because of the global COVID-19 pandemic.

The Milwaukee Bucks, Toronto Raptors, Boston Celtics, Miami Heat, Indiana Pacers, Philadelphia 76ers, Nets and Orlando Magic currently hold the playoff spots in the Eastern Conference.

The Los Angeles Lakers, Los Angeles Clippers, Denver Nuggets, Utah Jazz, Oklahoma City Thunder, Houston Rockets, Dallas Mavericks and Memphis Grizzlies occupy the postseason positions in the Western Conference.

Under the plan, each of the 22 teams will play eight regular-season games for seeding purposes for the postseason.

The 16 teams currently in the playoff picture will be joined by the New Orleans Pelicans, Portland Trail Blazers, Phoenix Suns, Sacramento Kings and San Antonio Spurs in the Western Conference.

In the East, the Washington Wizards are also included.

[…]

All games are expected to be within the confines of Disney’s ESPN Wide World of Sports Complex in Orlando Florida, with all teams remaining on site to minimise risk of COVID-19 outbreaks.

See here for the background. ESPN adds a bit more:

Life in the NBA bubble will be governed by a set of safety protocols. While players and coaches will be allowed to golf or eat at outdoor restaurants, they will also need to maintain social distancing, sources told ESPN’s Ramona Shelburne.

The NBA is planning to have uniform, daily testing for the coronavirus within the Disney campus environment, sources told ESPN. ESPN is owned by The Walt Disney Company.

If a player tests positive for the virus, the league’s intent would be to remove that player from the team to quarantine and treat individually — and continue to test other team members as they play on, sources said.

Employees at the Disney resort will have to maintain similar protocols. For example, no staff will be allowed into players’ rooms, and hallways will be carefully managed to avoid crowding, sources told Shelburne.

Weird, but the NBA had played the bulk of its season anyway, and the playoffs are always a different thing entirely. I just hope those employees at the Disney resort had someone thinking about their welfare as this deal was being hammered out. The Chron has more.

And then there’s MLB:

Major League Baseball has rejected the players’ offer for a 114-game regular season with no additional salary cuts and told the union it did not plan to make a counterproposal, sources confirmed to ESPN.

Players made their proposal Sunday, up from an 82-game regular season in management’s offer last week. Opening Day would be June 30, and the regular season would end Oct. 31, nearly five weeks after the Sept. 27 conclusion that MLB’s proposal stuck to from the season’s original schedule.

MLB told the union it had no interest in extending the season into November, when it fears a second wave of the coronavirus could disrupt the postseason and jeopardize $787 million in broadcast revenue.

While management has suggested it could play a short regular season of about 50 games with no more salary reductions, it has not formally proposed that concept. Earlier this week, multiple players told ESPN that they would not abide a shorter schedule, with one saying, “We want to play more games, and they want to play less. We want more baseball.”

See here for the previous update. If this sounds dire to you, let me refer you again to Eugene Freedman, who’s been around this block a few times.

Basically, it looks like the sides have agreed to the March deal, and now need to work out the safety and testing details, plus what to do if a player wants to opt out. Maybe the NBA getting set to start at the end of July will inspire them to agree on some version of their July 4 Opening Day season. Fingers crossed. The Chron has more.

Texas blog roundup for the week of June 1

The Texas Progressive Alliance stands with those demanding justice for George Floyd as it brings you this week’s roundup.

(more…)

How low can sales tax collections go?

If we’re lucky, no lower than this.

Texas collected about $2.6 billion in state sales tax revenue in May, leading to the steepest year-over-year decline in over a decade, Comptroller Glenn Hegar announced Monday.

The amount is 13.2% less than the roughly $3 billion the state collected in the same month last year.

A majority of the revenue collected last month was from purchases made in April and reflect the state’s first full-month look at how the novel coronavirus impacted businesses. That is when Texans lived under a statewide stay-at-home order and Gov. Greg Abbott, like leaders across the globe, ordered businesses across several sectors to close to combat the spread of the virus.

“Significant declines in sales tax receipts were evident in all major economic sectors, with the exception of telecommunications services,” Hegar said in a news release. “The steepest decline was in collections from oil and gas mining, as energy companies cut well drilling and completion spending following the crash in oil prices.”

[…]

Monday’s numbers are also reflective of the lag in data as revenues are collected and then reported by the state. Last month, for example, Hegar announced that the sales tax revenue collections for purchases in March dropped roughly 9% — which at the time was the steepest decline since January 2010.

Other major tax collections were also down in May, Hegar said Monday. Motor fuel taxes, for example, were down 30% from May 2019, marking the steepest drop since 1989. And the hotel occupancy tax was down 86% from May 2019, marking the steepest drop on record in data since 1982.

See here for the background. The presentation here is a little confusing, so let me clarify by quoting from the Chron:

Though the revenue totals are for May, they mostly represent transactions in April, when a statewide lockdown was in place to slow the spread of the virus. March sales were down 9.3 percent, state records show.

OK, so basically retail and other activity that leads to sales tax collection was down 13.4% in April after being down 9.3% in March. March was when the shutdowns began, though people had already slowed their activity before the official orders started happening later in the month. Pretty much all of April was in lockdown, while May is when things have begun to reopen. The hope would be that while May will be down compared to last year, it will be a lesser drop from 2019 than April and March were. That’s the hope, anyway. Maybe motor fuel taxes will inch up somewhat, but I wouldn’t hold my breath on hotel occupancy taxes. Check back in a month and we’ll see.

Runoff reminder: Statewide

As I said in the interview posts for SD14, I’m going to revisit the runoff races of interest ahead of early voting. It’s been awhile since we’ve really paid attention to a lot of these folks, what limited news there has been for them has likely fallen under your radar, and it’s time to get back into thinking about who we want to vote for. So with that, I’ll kick things off with the two statewide runoffs and go from there. This will be a mostly freestyle kind of thing, with whatever I can find, on an as-I-can-do-it schedule. Enjoy!

Senate

MJ Hegar

The Senate runoff features MJ Hegar and State Sen. Royce West, who led the field of about a million candidates in March. The Texas Signal had a nice brief overview of what has been happening since then. Hegar has been the much stronger fundraiser of the two, though it will be interesting to see how everyone has been doing in Q2 given the pandemic and the economy. She has a lead in one runoff poll – polling overall has been scant in this race – though neither Hegar nor West has gained enough traction to differentiate themselves in head-to-head matchups with Big John Cornyn.

All of the top candidates that have endorsed in the runoff have endorsed West, citing policy differences and Hegar’s less reliable attendance at primary candidate forums. Hegar has a lot of national backing, from the DSCC and EMILY’s List to former Presidential candidate Sen. Elizabeth Warren. There is an online debate scheduled for this Saturday, June 6, in case you haven’t had the opportunity to hear from the candidates before now.

Sen. Royce West

The November race has been on the fringes of the national radar. Nationally, Democrats have four strong pickup opportunities, in Colorado, Nevada, Maine, and North Carolina, with a second tier that includes the two Georgia races and Iowa. (There’s also the Doug Jones-held seat in Alabama, which is widely considered a lost cause for Dems.) The Texas race is usually lumped in with longer-shot races like the ones in Kansas and South Carolina, though Presidential-level polling in Texas shows a fairly tight race. It’s not clear to me how Cornyn will run compared to Trump statewide, but the better Biden does the better either Hegar or West will do. If polling between Biden and Trump remains tight, that increases the odds that the eventual nominee will raise more money and get support from national groups. Assume this same dynamic will play out, with less money, in other statewide contests.

Railroad Commissioner

Chrysta Castañeda

There’s not much news out there about the Railroad Commissioner race. That’s just the nature of the beast here – the RRC is fairly low profile and little understood by normal people, and just doesn’t have the opportunity to make much news. I couldn’t find any recent stories featuring candidates Chrysta Castañeda or Roberto Alonzo, but I did find this Star-Telegram profile of the four primary candidates, for which Alonzo and Castañeda were the first two. Neither candidate had raised much money as of the January finance report, but perhaps that will change for the July and 30-day-runoff reports.

The one relevant news item I found in searching for these two candidates was this KVUE story about the RRC meeting to suspend some operating rules, which drew a critical response from Castañeda. Both candidates participated in an online debate hosted by 2020 Democratic Candidate Debates. I’m not aware of any other similar events at this time. I did an interview with Castañeda for the primary – I didn’t reach out to Alonzo because he didn’t have any campaign presence at the time I was doing interviews.

Roberto Alonzo

As with the Senate race, I see this one to be about as competitive as the Presidential race is. There are two points of interest to note here. One is that the Republican incumbent, Ryan Sitton, was ousted in the GOP primary by some dude who raised no money. Sitton himself had about $2 million cash on hand, which isn’t a huge amount for a statewide race but ain’t nothing, either. The other is that low-profile statewide races like the RRC tend to draw a higher third-part vote – the Libertarian and Green candidates in 2016 combined for over 8.5% of the vote, though that was a stranger than usual race, with Libertarian Mark Miller receiving some newspaper endorsements. Undervotes are also an issue – the RRC race in 2018 drew about 150K fewer votes than the Senate race, and in 2016 it drew 200K fewer votes than the Presidential race. My point here is that Dems may be leaving some votes on the table, which a strong candidate and/or a strong coordinated campaign may mitigate. Let’s not lose a winnable race because we didn’t vote all the way down.

I’ll have a look at Congressional runoffs next. Let me know what you think.

State ordered to pay plaintiffs’ fees in voter ID case

Pending appeal, of course.

Still the only voter ID anyone should need

Texas ultimately won the long-winding fight to keep its voter ID law on the books, but a federal judge has ruled the state is on the hook for nearly $6.8 million in legal fees and costs.

In a Wednesday order, federal District Judge Nelva Gonzales Ramos of Corpus Christi found the state must pay that sum to the collection of parties who sued over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls. A spokesperson for the Texas attorney general indicated the state will appeal the ruling.

The voter ID case ricocheted through the federal courts for nearly seven years and over several elections, with Ramos first ruling in 2014 that lawmakers discriminated against Hispanic and black voters when they crafted one of the nation’s strictest voter ID laws.

Lawmakers eventually revised the voter ID law in 2017 to match temporary rules Ramos had put in place for the 2016 election in an effort to ease the state’s requirements as the litigation moved forward. After the state faced multiple losses in the courts, the U.S. 5th Circuit Court of Appeals ultimately upheld Texas’ revised law.

But left intact were findings that the original law produced discriminatory results.

It is what it is, and the appeals process will take many more months. No one should be making detailed plans for the money, because even if it survives appeal it’s going to be awhile before any checks get cut. This is a consolation prize, and not that much of one, but it’s what we’ve got. Until we can take back the Lege and more and repeal this stupid law.

Chris Hollins sworn in

We have a County Clerk again.

Chris Hollins

Christopher Hollins on Monday became the third Harris County clerk in three years, appointed to the post after the incumbent, Diane Trautman, resigned after 17 months because of unspecified health concerns.

He has pledged to hold the job only in an interim role, avoiding the potential distraction of running a campaign this fall. Still, the 33-year-old lawyer faces a difficult task in running the July primary runoff and November general elections — the latter likely to be the highest-turnout contest in county history — during the novel coronavirus pandemic.

Hollins said he grasps the scope of the challenge and is up to the task. Though he has no experience in elections administration and has never run for office, he said his background in government consulting will serve him well in his new role.

“Elections already are a really large task under normal circumstances,” he said. “And you add to that the concerns and complications that come with a global pandemic, and we have this massive undertaking ahead of us to make sure all the residents of Harris County are able to vote safely, conveniently, and with the confidence their vote is going to be counted.”

See here and here for the background. I doubt he’ll make any major changes in the short time he’ll have in the position – he’s retained Trautman’s elections staffers, which is good to hear – but I’m sure he’ll have a few ideas to implement. He also has to deal with the vote by mail issue:

Hollins said he lacks expertise in Texas election law, and will defer to the county attorney on mail voting. Assistant County Attorney Douglas Ray said the county will let voters choose whether they qualify for a mail ballot.

“It’s up to the voter to decide,” Ray said Monday. “We’re not going to require any proof. We’re not going to require any explanation.”

This is consistent with the State Supreme Court ruling. The federal cases may change things, but for now this is where we are. If Chris Hollins can be a steady hand on the till for the next seven months, that will be plenty. I wish him all the best of luck.

The George Floyd March

Impressive.

Sixty thousand people joined the family of George Floyd as well as elected officials and religious leaders today in a peaceful Houston march from Discovery Green to City Hall organized by rappers and civic activists Trae tha Truth, Bun B, and Floyd’s nephew Brandon Williams.

Floyd, 46, a native Houstonian from the Third Ward, died in handcuffs last week after then-Minneapolis police officer Derek Chauvin knelt on his neck for nearly nine minutes. Chauvin, who was fired immediately after the incident was charged with third-degree murder and second-degree manslaughter four days later.

It was released Monday that both a private autopsy done by Dr. Michael Boden and Dr. Allecia Wilson hired by Floyd’s family as well as the Hennepin County Medical Examiner ruled Floyd’s death a homicide though both reports differed on cause of death. The medical examiner ruled it was heart failure, while the private autopsy ruled asphyxiation. Both reports agreed Floyd died on site, and not later in an ambulance.

The march began and ended with a prayer as well as Floyd’s family’s wishes that the day remain peaceful—and it did. It is reported that prior to the march the Houston Police Department removed bricks and artillery that had been stashed around downtown and a Houston Alert asked everyone to be on the lookout for suspicious activity.

A family member of Floyd spoke deliberately stating, “This is our home, we will find justice on the streets of Houston, we are going to march in peace and show the nation, show the world what George Floyd is all about.” She thanked Bun B and Trae tha Truth for helping to organize the event.

Although this was not a city-sponsored march, Houston Mayor Sylvester Turner turned out and addressed the crowd, once again applauding them for standing up for George Floyd and the need for change, but again warning that violent actions undermined their cause.

I assume the Chronicle will have a full story on this, but as of when I wrote this post, what they had was a liveblog of the event, which you have to read from the bottom up. The question that always accompanies mass protests is what actions should come of it? Tarsha Jackson, who is still awaiting a court ruling to allow the runoff in City Council District B to proceed, posted on Facebook nine specific items to address in the city’s collective bargaining agreement with the police union. Seems to me that if you believe the problem is mostly “a few bad apples”, then you should want to make it easier to pluck those apples out of the barrel, or at least make it so they have a harder time advancing in their career. These ideas have been out there since 2018. Do we have the will to fight for them?

Three other things. One, you can make a contribution to support bail funds around the country here. Two, William Barr needs to be arrested at the first opportunity. And three, our two US Senators really suck. You can do something about one of them this November.

RIP, Engage Texas

We hardly knew ye.

Still the only voter ID anyone should need

Engage Texas, the massive Republican super PAC focused on voter registration, is shutting down, citing challenges created by the coronavirus pandemic.

The group began last year with the support of some of the biggest Texas GOP donors and raised $12.7 million while building a staff in the hundreds. Yet the group says that the months-long pandemic has made clear that “person-to-person contact voter registration is going to be challenging for an indeterminate amount of time.”

“Leadership has determined that the highest and best use of supporter and donor energies at this point is to phase out person-to-person voter registration, close Engage Texas and encourage our supporters to engage with candidate and party activities ahead of the November election,” Engage Texas said in a statement to The Texas Tribune on Friday. “Engage Texas is proud of our highly successful voter registration efforts and believes that conservative voter registration will successfully continue through the Republican Party of Texas Volunteer Engagement Project.”

Engage Texas, which had $6 million cash on hand at the end of March, is in the process of redistributing its remaining funds to other GOP groups with similar goals. The reallocations are expected to be detailed on its next quarterly report to the Federal Election Commission, which is due July 15.

The shuttering of Engage Texas leaves the Texas GOP’s Volunteer Engagement Project as Republicans’ chief registration effort this election cycle at the state level. The project is aiming to register 100,000 likely Republicans by Oct. 5, the registration deadline for the November election. Party chairman James Dickey said Thursday the project has surpassed 85,000 registrations.

“Republicans are finally paying major attention again to voter registration,” Dickey said during a tele-town hall about the party’s 2020 convention. “It’s back in our DNA, and we are ceding no turf.”

Still, the shutdown of Engage Texas is a major blow to one of the lessons that state Republicans took from their setbacks in the 2018 election — that they needed to grow their pool of voters and hone in on registration after years of neglect.

[…]

In shutting down, Engage Texas pointed to data that it said showed that for the first time in a decade, “Republican registrations have outpaced Democrat registrations in Texas, and have done so for nine consecutive months.” As of today, the group said, Republicans have registered 18,677 more new voters this year in Texas than Democrats have.

I would not take their claims very seriously. I’m sure they registered some voters, but without knowing their exact metrics it’s hard to take any such claims, especially such specific claims, as anything more than self-aggrandizement. (How would they know how many voters Democratic-aligned organizations have registered, for example?) I would also note that if this mission was that critical, this would be a funny time to abandon it. I’m sure the rest of that money will go to only the most deserving consultants and operatives. See you on the other side, Engage Texas.

A bipartisan equality bill

I appreciate the effort, but we can’t expect too much to come of this.

Five Democratic and two Republican state legislators announced plans Wednesday to file a bill next legislative session that would bar discrimination against LGBTQ Texans in housing, employment and public spaces.

The bill, which has the early support of state Reps. Sarah Davis, R-West University Place, and Todd Hunter, R-Corpus Christi, would extend protections based on sexual orientation and gender identity. There are 21 states that already have enacted such policies.

“Quite frankly, we are already behind the curve on this issue,” Davis said. “Nondiscrimination is not just good for LGBTQ community, but it’s good for all Texans.”

Lawmakers rolled out the bill during a virtual news conference where they touted an economic study that found a statewide nondiscrimination policy would generate $738 million in state revenue and $531 million in local government revenue next biennium. It also would add 180,000 new jobs in technology and tourism by 2025, the study found. The benefits, the authors said, largely would come from Texas’ greater ability to attract talent and heightened opportunity for tourism and conventions.

“We should want to treat people fairly because it’s the right thing to do, whether it has economic effects or not,” said Ray Perryman, a Waco-based economist who led the study. “This shouldn’t be the reason to do it, but it is a very important aspect of it in today’s society, and there are very significant economic costs associated with discrimination.”

The legislation likely will face strong headwinds in the Republican-controlled Senate. Lt. Gov. Dan Patrick, who presides over the upper chamber, prominently opposed a similar measure that was rejected by Houston voters in 2015, and later backed the so-called bathroom bill opposed by LGBTQ advocates that would have required people to use facilities matching the gender identity on their birth certificates.

The lawmakers largely dismissed political concerns Wednesday, arguing instead that their early push for the bill — more than seven months before the session is slated to begin — heightens their odds of passing it.

“I think a lot of this is going to take talking to our colleagues and explaining the results of this study,” said Rep. Jessica González, D-Dallas, a member of the House LGBTQ Caucus and author of the bill. “It’s going to take a lot of groundwork.”

[…]

The bill faces good odds of passing the lower chamber, where Democrats have gained ground and some Republicans have moderated their positions, said Brandon Rottinghaus, a political science professor at the University of Houston. He was less bullish on the bill’s chances in the Senate.

“It’s a different animal on that side of the chamber,” Rottinghaus said. “You do all the political calculations and it’s a tall order to get it passed. But, in some ways it’s a marker: these members see the future of Texas as one where the economy needs to be put front and center, and if that theory can get some grip among the members, then there’s hope for it in the future. But as it is now, it’s a pretty tough sell.”

That’s really about all there is to it. This bill may pass the House, but if so then Dan Patrick will stick it in a shredder, have the shredder blown up by the bomb squad, and then have the debris shipped to Oklahoma. We ain’t getting a bill like this passed while he’s Lite Guv, and that’s even before we consider getting it signed and then having it reasonably enforced by the Attorney General. It’s nice that there are two House Republicans willing to sign on to this – no, really, that is important and could very well matter if we oust Patrick in 2022 but still have a Republican-controlled Senate – but it will take either more of them than that to get this passed, or fewer Republicans in the House overall. I don’t know who our next Speaker will be, but I like the odds of this passing with a Democrat appointing committee chairs than with pretty much any Republican that could inherit the gavel. Needless to say, one way of getting the requisite number of Dems in the House is to oust Sarah Davis, as her seat is high on the list of pickup possibilities. Todd Hunter’s HD32 is on that list as well, but farther down; if he loses in November, Dems have had a very, very good day.

Let’s be clear that lots of substantive bills take more than one session to get passed, so bringing this up now even without any assurance that it could get out of committee is the right call. Start talking about this now – the real benefits a true equality bill would bring, the ridiculous arguments that opponents will throw at it, and very importantly the potential legal pitfalls that the true wingnuts and their sympathetic judges will try to exploit – and we’ll be better positioned when the timing is better. I can’t say when that might be – elections have consequences, I’m told – but it’s best to be prepared.

MLB players make their counteroffer

Back to the owners.

The Major League Baseball Players Association delivered a return-to-play proposal to MLB on Sunday that includes a 114-game season, deferred salaries in the event of a canceled postseason and the option for all players to opt out of a potential 2020 season due to coronavirus concerns, sources familiar with the details told ESPN.

The proposal, which was the first from the union and came on the heels of an MLB plan that was loudly rejected by the players, comes at a seminal moment as baseball tries to become the first major American professional sport to return. Although the players expect the league to reject it, they hope it will serve as a bridge to a potential deal this week.

The 114-game season, which under the union’s proposal would run from June 30 to Oct. 31, is expected to be immediately dismissed by the league; MLB has proposed an 82-game season and suggested that the more games teams play this year, the more money they lose. The union remains steadfast that players should receive their full prorated salaries, while MLB’s plan included significant pay cuts that affected the highest-paid players the most but covered all levels.

The inclusion of potential deferrals in Sunday’s proposal was an acknowledgement by the players that amid the coronavirus pandemic and unrest around the country, cash-flow issues could prove problematic for owners. The deferrals would occur only if the playoffs were canceled, a concern the league has voiced, and would total $100 million. They would apply to players whose contracts call for $10 million-plus salaries and include interest to make them whole.

Deferrals could be part of any counter from the league, which had not officially responded to the union’s proposal Sunday. With the desire to start a season by the first week of July, both parties recognize that time is of the essence for a deal.

While MLB’s 67-page health-and-safety protocol draft included the ability for high-risk players — those with preexisting conditions or family members more susceptible to COVID-19 — to opt out of the season, the union’s proposal suggests that players can do so and receive salary. Players not deemed high risk would be able to opt out but would not receive salary.

See here for the background. I would recommend you read these Twitter threads about collective bargaining by Eugene Freedman for a better understanding of what the players are doing. As he describes there and in the latest Effectively Wild, the owners’ proposal to cut salaries and the players’ offer of a longer season are both basically non-starters unless the other side agrees to reopen the matter. Now that they have both asserted that they won’t open those matters, the real negotiations about health and safety can begin. At least, that’s the hope. If there’s going to be progress on this, it will probably happen this week, but you never know. Fangraphs has more.

UPDATE: Lookie here:

Now, maybe, we are getting somewhere.

Hurricanes and pandemics

Summertime in the Gulf Coast, y’all.

Dealing with multiple disaster threats at the same time is nothing new for Francisco Sanchez.

As a 15-year emergency management veteran for Harris County, Sanchez understands the anxiety tugging at local officials wary of preparing for possible hurricanes while also dealing with the everyday reality of the coronavirus pandemic.

Sanchez also appreciates the instinct that some emergency management officials have to be as detailed as possible in anticipating all sorts of disaster scenarios when social distancing may still be recommended. But as counterintuitive as it might seem, details, he said, can be the enemy of the good when it comes to hurricane preparation.

“Whether you’ve done one disaster or dozens, you know that no plan fully survives its encounter with reality,” said Sanchez, the deputy coordinator for the Harris County Office of Emergency Management. “Develop concepts of operations that allow you to be flexible and scalable. It will allow you to cover more ground at a time where time is scarce, planning resources are scarce and response resources are scarce.”

The 2020 hurricane season, which [started] Monday, is poised to be significantly different than prior years given how the coronavirus outbreak has altered everyday life, including basic disaster planning. The stay-at-home orders that were in place prior to May 1 as well as current social distancing guidelines have forced many emergency management officials to scale back and adjust their typical hurricane season outreach.

Cities and counties that held annual town-hall meetings dispensing advice on evacuation planning and hurricane kits are now planning to do so virtually. First response agencies are adapting rescue protocols to include personal protective equipment. Medical centers and hospitals have to grapple with the possibility of having to evacuate coronavirus patients from hospitals. And residents are being advised to put together hurricane kits now so as not to inundate retail stores with large crowds in the days ahead of a storm.

“Restock that hurricane kit — now is the time to do it when we can maintain that social distancing very easily,” said Jeff Lindner, a meteorologist with the Harris County Flood Control District.

As a reminder, NOAA is predicting a busy hurricane season. Indeed, there is already a tropical depression in the Gulf that could possibly develop into a big rainmaking event in our area. What we all know is that it only takes one storm to make it a bad year. Do restock your bottled water and batteries, and as always pay attention to what the folks who know what they’re talking about have to say. Unless of course that interferes with your god-given constitutional right of FREEDOM, in which case go right ahead and drive on into the storm and show us that you can’t be pushed around – well, not by anything less than 100 MPH winds, anyway. Hope that works out for you.

Interview with Sarah Eckhardt

Sarah Eckhardt

I have one more interview to present for the July 14 special election in SD14. As noted, there are six candidates running to succeed Kirk Watson, but really just two that merit your attention. Today I have a conversation with Sarah Eckhardt, who just stepped down as Travis County Judge to file for this race. Eckhardt has an LBJ School Master of Public Affairs and law degree from UT. She served six years as Travis County Judge, following two terms on Commissioners Court and eight years before that in the Travis County Attorney’s office. She has served on many boards and commissions, including the Capital Area Metropolitan Planning Organization, the Texas Conference of Urban Counties, the Clean Air Coalition, the Texas Freedom Networ, and the LBJ School Dean’s Advisory Council. Here’s what we talked about:

My interview with Rep. Eddie Rodriguez is here. I will be reviewing the primary runoffs of interest going forward.

Of course they have voted by mail

It should surprise no one that the three main opponents to an expansion of voting by mail have all voted by mail themselves in past elections.

Three of Texas’ top Republican leaders are vigorously fighting efforts to expand mail-in voting during the coronavirus pandemic, arguing it will lead to increased voter fraud, yet all three have themselves cast absentee ballots at least once in past elections.

Lt. Gov. Dan Patrick — then a state senator — voted by mail in 2007 for a May Houston municipal election and an ensuing runoff, though Harris County records show his first mail-in ballot was rejected because of a signature verification issue. Patrick is a regular voter in both local and state elections and favors casting his ballot during the early voting period. He’s been voting in Montgomery County since 2017.

Though he’s a regular in-person voter in Collin County, Texas Attorney General Ken Paxton used the voting by mail option to cast a ballot in a 2011 municipal election, according to county records. In recent elections, he’s opted for voting early.

Travis County election records show Gov. Greg Abbott cast a mail-in ballot in a 1997 special election when he was a justice on the Texas Supreme Court. Abbott consistently votes in local and state elections.

Abbott and Patrick and Paxton would no doubt assert that they were taking advantage of a perfectly legal opportunity to use an absentee ballot, and that all those other people are asking for something that the law does not allow. I would say that despite the recent Supreme Court ruling, the law as written is hardly clear and lower courts did not agree with that more narrow interpretation. I would also note that one can have a principled disagreement about what the law says without lying and fearmongering about voting by mail, which has the effect of suppressing turnout and delegitimizing the process. (To be fair, Patrick and Paxton have been far more egregious about this than Abbott has, though he’s hardly uttered a peep in dissent of their noxious views.) As with Donald Trump and his current spokesperson, the impression one gets is “it’s fine for me to do this, but lowlifes like you can’t be trusted with it”. None of this had to be this way.

Abbott issues disaster declaration following protests

Where we are now.

Gov. Greg Abbott announced Sunday afternoon that the entire state of Texas will be placed under a disaster declaration in response to demonstrators in several Texas cities protesting the death of George Floyd, a black man who was killed Monday in Minneapolis police custody.

The declaration allowed Abbott to designate federal law enforcement officers to perform the duties of peace officers in Texas.

Thousands of protesters marched in Texas cities on Friday and Saturday, outraged after Floyd was filmed crying out for help as a white police officer pinned him to the ground with a knee to his neck. The officer, Derek Chauvin, was later arrested and charged with third-degree murder and manslaughter.

“Every Texan and every American has the right to protest and I encourage all Texans to exercise their First Amendment rights,” Abbott said in a statement. “However, violence against others and the destruction of property is unacceptable and counterproductive.”

His announcement comes a day after he activated the Texas National Guard “in response to protest violence” across the state. In several of the state’s large metropolitan areas — including Houston, Austin, Dallas and San Antonio — protesters clashed with police who sometimes used rubber bullets and tear gas.

Abbott also sent state resources to Houston, Austin, Dallas and San Antonio on Saturday afternoon and said he’s spoken to the mayors of all four cities, as well as law enforcement officials. He said Sunday that he also increased those resources for cities throughout Texas and that the Federal Bureau of Investigation has deployed tactical teams to assist state and local law enforcement.

[…]

Prior to Abbott’s announcement, several Texas cities took measures into their own hands. On Saturday evening, the mayor of San Antonio imposed a curfew as a result of escalating tensions due to the protests.

In Dallas, where officials defended the use of tear gas at protests for Floyd, Dallas Police Chief Reneé Hall said Sunday afternoon that a 7 p.m. curfew will go into effect Sunday and end at 6 a.m. “for the next several days,” The Dallas Morning News reported. In Austin, meanwhile, organizers canceled a protest planned for Sunday afternoon out of fear that “white agitators and other agitators of color” would co-opt the event and put black Texans in harm’s way.

The single best thing that can happen right now is for law enforcement agencies around the country to stand down and stop being violent themselves. After that we’ll see, but people have been pushing for moderate and incremental police reforms for a long time now with little success. What are people supposed to do now?

Weekend link dump for May 31

“Prince Andrew has not had a good six months. But can it get worse? In Andrew’s case, the answer is: Always.”

“There have also been hints, inferences from different countries’ mitigation strategies and some initial studies suggesting that mask wearing is not only effective but possibly more effective than even some advocates of their use anticipated.”

“Contact tracing is a technique public health researchers use to gain a deeper understanding of the way a virus infects people so they can help slow its spread. There are now more than 66,000 contact tracers in 44 states, according to a survey by NPR. Their goal: to identify all of the people an infected person came into contact with during the 48 hours before they started showing symptoms of COVID-19, and help them quarantine for two weeks.”

Eels have a more complex backstory than you might expect.

“Here’s a short list of things we do and don’t yet know about #COVID19.”

“There is no such thing as safe. All we can do is mitigate or reduce risk.”

“There certainly isn’t a rugged, death-defying, God-fearing working class straining against the complacency of prissy white-collar overlords. Imagining that’s the case, however, is less challenging than talking about what actually will help workers: hazard pay, paycheck protections, paid medical leave, proper safety equipment, and robust testing. It’s grievance-mongering all the way down.”

“Since Mount St. Helens’s collapse, life in the vicinity has bounced back. Though not yet visible from space, flowering plants like the prairie lupine have been seen on the Pumice Plain, a distinctive stretch of hostile volcanic sediment on the northern slope, the area that saw the worst devastation.” My family and I had the opportunity to visit Mount St. Helens a few years ago. Definitely worth the time.

“Tesla and SpaceX chief Elon Musk and singer Grimes have tweaked their baby’s famed name after California officials noted it didn’t comply with state health codes.”

So maybe the Libertarian Party Presidential ticket won’t do quite as well this year as they did in 2016.

“In the public imagination, vaccines are often seen effectively as cure-alls, like inoculations against measles. Rather than those vaccines, however, the Covid-19 vaccines in development may be more like those that protect against influenza — reducing the risk of contracting the disease, and of experiencing severe symptoms should infection occur.”

Murder hornets, meet cannibal rats. 2020 is lit, y’all.

This guy has succeeded at making us all look like slackers.

“If you want to understand how the religious right rose as a backlash reaction to the Civil Rights Movement, read Randall Balmer. If you want to see what that looks like, in practice, read that David French column.”

“My Wealthiest Clients Are Begging for Plastic Surgery in Quarantine”.

“Amazon is developing a series centered on Lisbeth Salander, the character created by Stieg Larsson for the so-called Millenium books. The project […] will not be a sequel or continuation of the story from the books or the films into which they were adapted. It will instead take Salander and place her in today’s world with a wholly new setting, new characters, and a new story.”

“Over half of the 221 organizations identified by the Southern Poverty Law Center (SPLC) and the Anti-Defamation League (ADL) as hate groups have a continuing and active presence on Facebook, with even previously banned outfits managing to worm their way back onto the platform.”

Just another story about Bolivian musicians stranded for more than two months at a 600-year-old German castle, surrounded by multiple wolf packs, because of COVID-19. Did I mention that the castle is haunted?

Go read these Twitter threads about collective bargaining and the current MLB standoff.

RIP, Cleverley Stone, media personality and founder of the Houston Restaurant Week fundraiser for the Houston Food Bank.

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.

In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.

Abbott’s office did not immediately respond to a request for comment.

Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.

“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.

Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”

[…]

Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.

“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”

It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.

All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.

RNC sues to halt California mail ballot expansion

Put a pin in this.

The Republican National Committee and other Republican groups have filed a lawsuit against California to stop the state from mailing absentee ballots to all voters ahead of the 2020 general election, a move that was made in response to the coronavirus pandemic.

The suit comes after California Gov. Gavin Newsom, a Democrat, announced this month that the state would move to encourage all voters to cast their ballots by mail in November — the most widespread expansion of vote-by-mail that has been announced as a result of the pandemic and in the nation’s most populous state.

The RNC’s lawsuit challenges that step, marking a significant escalation in the legal battles between Republicans and Democrats that are currently being waged in more than a dozen states.

[…]

Sunday’s suit — filed on behalf of the RNC, the National Republican Congressional Committee and the California Republican Party — seeks to halt Newsom’s order, arguing that it “violates eligible citizens’ right to vote.”

The groups argue that Newsom’s order will lead to fraud because the state plans to mail ballots to inactive voters automatically, which “invites fraud, coercion, theft, and otherwise illegitimate voting.”

Studies have found no evidence of widespread voter fraud as a result of in-person or mail-in voting.

Rick Hasen has a copy of the complaint here. Part of it is specific to California law and whether or not Governor Newsom has the authority to issue this executive order, and part of it is the claim that mailing a ballot to all eligible voters will result in an unconstitutional “dilution” of the vote because of the likelihood that more “fraudulent” votes will be cast. I can’t speak to the former, but the latter is a claim that bears watching. It’s ridiculous on its face, especially given the utter lack of evidence to bolster any claim about significant “vote fraud”, but that doesn’t mean that SCOTUS couldn’t eventually find a way to justify a limit to voting rights down the line.

None of this directly impacts Texas – we’re in a different judicial district, and there’s not a chance on earth that we would mail a ballot to every registered voter, no matter the outcome of the various federal lawsuits. But we need to keep an eye on this because it could eventually have an effect here.

Please wear a mask

Don’t be that person. Seriously.

Kara McIntyre remembers the day she likely contracted COVID-19 — she wasn’t wearing a face mask.

She was at Target and began to feel dizzy. Later she checked her temperature and had a fever. So she got tested for the novel coronavirus, and a few days later her results came back positive.

The 39-year-old radio deejay did not wear a face mask before she was infected in March, something she said she feels guilty about now.

“I know I came in contact with a person who tested positive for it,” McIntyre said. “I wasn’t going out much, but I put gas in my car, went to the grocery store. Knowing I went through that and may have gotten other people sick, that’s terrifying.”

As the state reopens restaurants, shopping malls, gyms and salons, whether or not to wear a mask has become a hot-button issue. To some, it’s a way to signal one has their neighbor’s health and well-being in mind. To others, it’s an inconvenience or an attack on American freedoms.

[…]

The Centers for Disease Control and Prevention recommends everyone wear a face mask in public, in addition to practicing social distancing and frequent hand washing. But the president and vice president are often photographed without them.

Face masks have become a divisive issue even in Houston, where residents are known for coming together during times of crisis like Hurricane Harvey, said Cathy Power, 51.

“What I gather is that there is a narrative out there that masks are for the weak. This is wrong — masks are worn to protect others; they are not for protecting yourself,” said Power, who lives in the East End, and suffers chronic health issues. “They reduce the risk by keeping droplets from traveling as far as they would if you were not wearing a mask. It works best if we all wear them.”

People wear masks to protect others around them as studies have shown it has little to do with our own ability to not be infected, said Dr. David Persse, Houston’s health authority.

“Take a mirror, breathe on it and see the mist that forms. If you’re ill, the mist is full of virus,” Persse said. “Do the same thing with the mask in front of you; you’ll see far less of any mist on that mirror at all. That’s how it works.”

This is the sort of assumption that drives post-reopening models that predict a large increase in COVID-19 infections. If people are literally and figuratively letting their guard down, we’re going to be right back where we were in early March before all the shutdowns. We don’t want that, right?

So that leaves two viable options. One is to continue to stay home as much as possible and be relentless about social distancing and avoiding crowds. If you’re doing that, then for the most part you don’t need to wear a mask. But when you are out in public, in places where you are interacting with or just in close contact with other people, then you really do need to wear one. Grocery shopping? Wear a mask. Getting your hair cut? Wear a mask. They do make a difference.

More to the point, if we all agree that the cost of keeping the economy on ice is very high, the key to reopening is to find ways to reduce risk while out in public. Wearing a mask is a low-cost method of risk mitigation. The more we do it, the more free we can be with our movements and interactions.

That’s really all there is to it. If we do this together, we can get that curve down to zero, which is the best-case scenario short of a vaccine. (Which an astonishingly large percentage of people say they won’t take, but that’s a rant for a different day.) Remember, lots of people have no choice about this – health care workers and people in all kids of retail and service jobs have been wearing masks all day every day for a long time now. It’s not that often that you can do a fairly small thing and make a big difference. This is one of those times. Wear your mask. Thank you.

Justice for George Floyd

I stand with the people who are rightfully demanding justice for George Floyd and the many many (far too many) other black men and women like George Lloyd who have been killed by police officers. I join those in being shocked and disappointed (though sadly not surprised) at how different the police response to these protests were to the armed idiots that stormed and terrorized the Michigan legislature a couple of weeks ago because they couldn’t get a haircut or go to the mall. I fear the next wave of armed idiots who are now showing up at protests to wreak havoc, destroy property, and in their wildest dreams incite racial violence. I am thankful that our police chief recognizes this. I will do everything I can to elect a President – and a Senate, and a Congress, and a Legislature – whose first instinct in these times is to work to make things better, and not worse. I will listen to and follow the people who have been leading on this issue for years. I hope you will join me in this.

More people are requesting mail ballots

It’s a trickle and not a flood so far, but I suspect that will change as we get closer to Novemner.

The legal status of mail-in voting for virus-related reasons has gone back and forth — earlier this month, one court gave the green light only to be overturned by another court less than 24 hours later. Nevertheless, a considerable number of voters have turned in early requests for mail ballots, a Hearst Newspapers analysis shows.

In Harris County, the number of accepted mail-in ballot requests has risen from about 2.4 percent of registered voters in 2016, or 51,451 voters, to 3.2 percent of voters, or 76,267 voters, so far this year. Most were annual applications and were not limited to a single election.

Requests from Harris County voters age 65 or older, who are guaranteed a mail-in ballot in Texas, continue to represent the vast majority of applications — more than 90 percent. Requests for ballots on the basis of a disability totaled 1,429 — 0.06 percent of registered voters, compared to 0.04 percent in 2016.

Bexar County has similarly seen a slight increase in mail-in ballot requests compared with 2016. They’ve risen from about 1.6 percent to 2.2 percent of registered voters, or 24,477 total. Voters 65 or older accounted for most of the increase.

Texas’ primary runoff is scheduled for July 14. The deadline to apply to vote by mail is July 2, some five weeks away. (Applications must be received by that date, not simply postmarked.)

Bob Stein, a Rice University political science professor who studies elections, said the initial numbers point to a significant shift toward mail balloting.

“It’s historically high,” Stein said. “For the fall, the data tells me that if the conditions today remain unchanged or worsen … the consequence is that more people will try to vote by mail, try to avoid contracting the virus by voting in person early or they won’t vote at all.

“But there’s no doubt in my mind that the share of the vote cast by mail will go up, and it will go up dramatically.”

Depending on how the courts rule, Stein said the number of mail-in ballots cast in Texas could increase anywhere from 15 to 100 percent or more in the Nov. 3 general election.

Let’s add some clarity to the math in the second and third paragraphs. First, the numbers cited for early voting are for the primaries. There were 124K absentee ballots mailed for the November 2016 election, and 120K absentee ballots mailed for November 2018. There were something like 833 mail ballots requested due to disability for the 2016 primary – we don’t know what the comparable figure for November was – which is needless to say a tiny figure in the grand scheme of things. The 1,429 disability ballots requested so far – it would be super nice to know how many have been requested for the Dem primary runoff and how many for the Republican primary runoff by the way, since this is a thing we can know – is way less than ten percent of the total mail ballots, more like 1.8%. If we take Bob Stein’s high end estimate for November, we could be looking at 250K ballot requests, with maybe up to five thousand of them being from people claiming a disability. Sure seems like a little bitty thing for the Republicans to be freaking out so much about.

Of course, we don’t have any idea how this will go. Maybe a huge number of people will request mail ballots if the federal courts ultimately rule in favor of the plaintiffs. Maybe more people than you might think prefer to vote in person, or just don’t want to try something new in such a consequential election when it’s the first time it’s been done and the chances of human error causing havoc are higher than usual. Maybe people will feel safer voting in person in November, or maybe we’ll have had a second spike and people will be even more scared of doing anything outside the house than they are now. The point I would make at this time is yes, more people are requesting mail ballots, at least in the biggest counties. The vast overwhelming majority of those making that request are people 65 and older, who have always had that legal right. Even with this increase, the mail ballot universe represents a small fraction of all registered voters – we’re talking maybe ten percent of registered voters if we assume the Bob Stein maximal figure, which in turn may be something like 15-20% of total turnout for November. Not nothing, but not earth-shattering either. Ask me again in October and maybe my answer changes, but for now it’s significant but still small, and nothing the system shouldn’t be able to handle.

Reopening 3.0

Who wants to go to a water park?

Gov. Greg Abbott issued a proclamation Tuesday announcing additional services and activities that can resume under his second wave of reopenings, allowing food courts in shopping malls to reopen immediately and giving the green light for water parks to begin operations with limited capacity starting Friday.

Recreational sports programs for adults can restart Sunday, though games and similar competitions may not recommence until June 15. Abbott also permitted driver education programs to resume operations immediately.

For food court dining areas that choose to reopen, Abbott is encouraging malls to designate one or more people who are responsible for enforcing social distancing and ensuring tables are cleaned and disinfected between uses.

[…]

While indoor and outdoor pools can operate at 25% occupancy, the governor’s previous directives have specifically said people should continue to avoid interactive amusement venues like water parks. Abbott was facing pressure, however, from a Houston-area water park that initially said last week that it would defy Abbott’s orders and reopen Saturday for Memorial Day weekend. Asked about that last week, Abbott told an Austin television station that his office was talking with operators to make sure they complied.

“They subject themselves to potential litigation as well as potential licensing-based issues if they fail to comply, and so it’s a potentially business-dangerous process for them to proceed forward knowing that they are subjecting themselves to litigation if they open up and anybody contracts COVID-19,” he said to KXAN.

The park ultimately decided not to open early, Community Impact Newspaper reported.

If you can maintain social distancing, swimming is fairly low risk. My experience at water parks is that you’d be fine on most of the rides, but the lines to get to the rides will be what puts you in jeopardy. I’m also not sure how financially viable a 25%-capacity water park is, but that’s their problem, and if Schlitterbahn thinks they can make it work, they’re in a better position than I am to judge. I don’t expect to be paying them a visit this year, that much I do know.

Also, too, outdoor sporting events are back on the menu.

In a new proclamation, Gov. Greg Abbott announced that fans will be allowed at outdoor professional sporting events in most Texas counties with limited occupancy, under a new expansion of his most recent wave of economic reopenings.

Starting Friday, all Texans counties — excluding Deaf Smith, El Paso, Moore, Potter and Randall counties — will be able to host in-person spectators for outdoor sports in venues as long as visitors are capped at 25% capacity. Leagues will first have to apply to — and receive approval from — the Texas Department of State Health Services.

Under the revised rule, fans are still banned from attending indoor sporting events in person. The rule does not address college or high school athletics.

[…]

The health agency’s protocols for adult recreational sports participants include a recommendation of wearing face masks during sporting events and practices, screening individuals for symptoms of COVID-19, and using and carrying hand sanitizers.

Spectators, meanwhile, are encouraged to avoid being in groups larger than 10, maintain a 6-foot distance from others when possible and wear cloth face coverings.

Regular COVID-19 testing is also recommended throughout the professional sports season.

I’d say the main effect of this is allowing recreational sports leagues to start up. High school and college sports are exempted, the NWSL will be playing only in Utah, and MLB is still a work in progress. I guess auto racing would be open to fans now as well. I will have a decision to make when the college football season starts, but I wasn’t expecting to see an Astros game any time soon except on TV. Do any of these new options appeal to you? Leave a comment and let us know.

Sharing is CARES-ing

I’m still trying to understand this.

The state of Texas and its 12 largest counties are in a tug-of-war over who is responsible for handing out federal coronavirus relief funding for some small cities.

The Coronavirus Aid, Relief, and Economic Security Act signed into law by President Donald Trump in late March sent $11.24 billion in aid to the state. Of that, six Texas cities and 12 counties with a population more than 500,000 received more than $3.2 billion.

The other 242 counties and cities within those counties were allowed to apply for per capita funding allocations from the state out of the remaining $1.85 billion earmarked for local governments.

With an apparent gray area in the legislation, the CARES Act did not specify which entity — the state or the dozen large counties — should cover the small cities within the dozen counties that received direct funding. State leaders including Gov. Greg Abbott want the counties to pay; the counties want the state to share more of its cut.

The skirmish has meant that months after the major relief package was passed, funding for some Texas cities is in limbo, including for Houston-area suburbs such as Pasadena that have been hit with major outbreaks.

[…]

Abbott — as well as Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and the state Senate Finance Committee and House Appropriations committee chairs and vice-chairs — in a May 11 letter placed the responsibility on the counties.

Two days later, the counties wrote to state leadership to ask for their reconsideration. While the counties account for about 69 percent of all COVID-19 cases, they received just about 29 percent of the relief funds, they wrote in a letter shared with Hearst Newspapers.

“We ask you to address this shortfall,” they wrote. “Counties are your frontline partners in fighting the COVID-19 pandemic. Help us help Texans stay in their homes, keep their jobs, and have food on their table.”

I guess I need to know more about what the priorities are here. It seems clear to me that the funds should be distributed based primarily on need, with any other considerations coming after that. By “need” I mean testing and support for frontline responders and hospitals, food and housing for those in financial distress, buying supplies like hand sanitizer and PPEs, that sort of thing. Whether that should come from the money allocated to the state or the money allocated to the larger counties, I don’t care. It should come from both, depending on their capacity. Maybe there is a good objective case for it to come from one source or the other – I can’t tell from this story – but even if that’s so, I’d want the state and counties to be working together to maximize the return on these federal dollars. That’s what really matters, doesn’t it?

NWSL will be the first American sports league to return to play

We’ll see how it goes.

The National Women’s Soccer League will become the first U.S. team sport to resume play June 27 with a month-long tournament in suburban Salt Lake City, and the rebuilding Houston Dash hope the unique format will give them a chance to succeed against more established rosters.

Wednesday’s announcement of the NWSL Challenge Cup gives teams four weeks to reconvene and resume training after the COVID-19 shutdown. Each of the nine teams will play four games, leading to quarterfinals, semifinals and a July 26 championship game at Rio Tinto Stadium in Sandy, Utah.

“It’s very exciting to be the first and really important that we showcase the league and the players to the highest levels,” Dash coach James Clarkson said. “The safety of everyone is the most important thing.”

While the league will be among the first pro team sports to resume play since the coronavirus pandemic stopped games in mid-March, it could be without some high-profile players from the U.S. Soccer’s women’s national team.

At least seven players on the 23-member national team roster have said they will not participate, the Washington Post reported. Others were said to be awaiting word on testing and safety issues before committing to the tournament.

[…]

Games in Utah will be played without fans present and will be streamed on the CBS All Access subscription service. The tournament opener June 27 at Zions Bank Stadium in Herriman, Utah, and the July 26 championship game will air on CBS Sports.

The host Utah Royals FC will provide housing, training and game site needs for all nine teams and will create what it described as an “NWSL Village” in an effort to assure players’ health and safety.

With only nine teams, the logistics for the NWSL are a little easier than for other leagues, just because there will be fewer people involved. This is a great opportunity for the NWSL, as they will have the sports landscape to themselves for a brief period, but it’s also obviously a risk, as they could easily be the first league to then have to deal with a new coronavirus outbreak among their active players. Like it or not, by virtue of being first up, they get to be a test case for everyone else. I wish them luck. ESPN and Deadline have more.

We will have more early voting time in November

That’s good.

Gov. Greg Abbott said Thursday he will extend the early voting period for an unspecified amount of time during the November election as concerns continue to persist around in-person voting during the coronavirus pandemic.

Abbott has already doubled the time period for the primary runoff election July 14, calling it necessary so that “election officials can implement appropriate social distancing and safe hygiene practices.”

In a TV interview Thursday afternoon, Abbott was asked if he believes Texas voters will be able to cast their ballots safely not only this summer but also in the fall.

“We do, and for this reason, and that is … Texas has always had early voting, and what I did for the July time period and what we will do again for the November time period is we will extend the early voting period,” Abbott said in the interview with KCBD in Lubbock. “And what that does — it allows more people to go vote early in settings that are not highly congregated. As a result, you can go vote without having to worry about a whole bunch of people being around you that you could contract COVID-19 from. That makes voting a lot safer [of a] setting than it would otherwise be with the shortened early voting time period.”

See here for the background. I had called on Abbott to do exactly this, though I did not expect that he would. He hasn’t said yet how much he’ll extend early voting – maybe we’ll get a third week, maybe a third and a fourth, who knows – but this is a Good Thing, and I’m glad to see it. Having the state pony up to help counties cover their extra expenses in this weird year, and not being fanatically opposed to letting people with a legitimate fear of COVID exposure vote by mail, would also be nice. But this is something, and credit where it’s due.

How about some antibody tests?

That would be good.

After months of emphasis on diagnostic screening, contact tracing and research into possible treatments, Houston is about to deploy a new tool in the effort to contain COVID-19: antibody testing.

Baylor College of Medicine researchers last week presented evidence to school leadership that the blood test it developed to detect whether an individual has been infected with the coronavirus is highly accurate and ready for use in studies assessing the virus’ reach in the area. Such studies would provide the answer that hasn’t been ascertainable because of the shortage of diagnostic testing.

“This will tell us the severity of the disease based on prevalence, the number of people who have had the virus but do not show up in case counts because they were asymptomatic and weren’t tested,” said Dr. Paul Klotman, president of Baylor. “That’s needed to better understand how infections impact different Houston communities, the variations in those communities and the numbers in certain high-risk environments, like prisons and nursing homes.”

Klotman said he anticipates Baylor will partner with local health departments to determine optimal resource allocation — such as where to focus testing and contact tracing — based on the prevalence the studies find in communities.

A Baylor prevalence study based on antibody testing would put the Houston region among a handful of U.S. communities to conduct such research, which has found that more than 20 percent of people in New York City but only 4 percent of those in Los Angeles County have been infected. Klotman said he thinks Houston’s rate will be closer to the California number.

Such antibody testing, repeated over time, also would show the area’s progress toward herd immunity, the protection from a contagious disease that occurs when a high percentage of the population has either had the infection or been vaccinated. Experts say that percentage — there is no vaccine for the coronavirus yet — needs to reach at least 60 to 70.

There’s more, and you should read the rest. As a reminder, viral tests are to see who has the virus now, and antibody tests are to see who has had it in the past. Do not mix the two if you want to know the current case count. I would note that the Texas Tribune case tracker showed 10,921 infections in Harris County as of May 25. If that four percent guess is accurate, then given a county population of 4.7 million, the actual number of cases would be more like 188,000. That’s consistent, even a bit under, the typical antibody test experience, which winds up estimating the real infection count at about ten times the “official” count. And note that we’d have to have more than ten times that number to get close to the minimum threshold for herd immunity.

Anyway. I look forward to seeing what this can tell us. In conjunction with the wastewater testing, maybe we can finally get a clear local picture of this pandemic.

A note about voter ID and vote by mail

See if you can detect the same theme I’m detecting.

From Houston Public Media:

Rice University recently surveyed Harris County voters. And nearly 70 percent of respondents preferred voting by mail if that’s an option.

“We found that a large number of voters – particularly Democrats, women, and persons over 65 – were reluctant to vote in person at a polling location on or before Election Day,” said Rice political scientist Bob Stein.

[…]

But the Rice survey shows Republicans are far less likely to want to vote by mail, let alone to support others doing so for fear of catching COVID-19. One reason: potential voter fraud.

Clay Mills of Humble has been a Republican poll judge for the past 10 years.

“In my opinion, based on all those years of experience, by far the easiest way to commit fraud is vote by mail,” Mills said. “I think we should always be concerned about health and do the best we can, but we also can’t destroy the purity of the vote based on health reasons.”

Such fraud is extremely rare, according to studies conducted by the Brennan Center for Justice at New York University School of Law.

Michael Palmquist is also a Republican poll judge and army veteran from Spring. As for concerns about voting in person during the pandemic? “None whatsoever.”

“I mean, if I can go to the grocery store, and I can go to Sam’s, and I can go to Walmart, there’s no reason I can’t stand in line and vote,” Palmquist said.

And Joanne Thomas, an Alabama native and a teacher from West Houston, is battling cancer. But she’s still determined to vote in person, not by mail.

“I will wear my gloves, I will wear my mask, and I will go in and vote,” Thomas said. “I have family members who have died for the right for me to vote.”

Like Mills, Thomas is concerned about potential vote fraud.

“I have heard the term ballot harvesting, and I totally disagree with it because you can’t prove who you are,” Thomas said, “I am a firm believer that you should carry some form of ID to have the privilege to vote in the United States of America. You should be an American citizen and pay taxes. If you don’t, you don’t have the right to have the say on who will govern us.”

See here for more on the poll in question, but that’s not what I want to focus on.

From the DMN:

Still the only voter ID anyone should need

Lewis Sessions, a Dallas lawyer who is not involved in the case, agrees with Paxton. Sessions, who has represented the county Republican Party in voter fraud cases, said he opposes expanded mail voting because the system can be exploited by fraudsters.

If mail voting is opened up to a larger portion of the population, he said, election officials will be unprepared to handle such an increase and unable to verify each ballot.

David Thomas, 72, of Oak Cliff said he was similarly concerned that officials would not be able to use the state’s voter identification law to verify ballots cast by mail.

“Somebody else can vote for you,” he said.

Sessions, 67, said the courts should stay out of the legal battle and let local officials determine the best way to hold elections during the pandemic.

“This can be done, it’s just a question of working through the logistics,” he said.

But not all Republicans are opposed to expanding mail voting. Kathaleen Wall, a GOP candidate in a runoff to replace Sugar Land Rep. Pete Olson, has urged her voters to vote by mail, saying in mailers that they have the “green light” if they are worried about contracting or spreading the virus.

John Pudner, executive director of Take Back Our Republic, a national conservative nonprofit that works on campaign finance reform, said he supports expanding mail voting during the pandemic — with some caveats.

Pudner, a longtime Republican consultant who worked for President George W. Bush’s campaign in 2000, said mail ballot applications should be sent to all voters as long as the process includes a form of verification, like a signature, a witness match or a thumbprint.

His group does not support sending ballots to all registered voters or conducting the elections entirely by mail, as Nevada has announced. Pudner said he also thinks the changes should be temporary and not extend beyond the pandemic.

Did you notice the reference to voter ID in each of the two stories? I’ve previously discussed this, but it seems this is the sort of thing that will need to be repeated over and over again. The reason that the odious voter ID law does not apply to mail ballots is because the Republicans that passed the voter ID law chose to exempt mail ballots from any voter ID requirement. The reason they chose to exempt mail ballots is because mail ballots, at least at the time that the voter ID law was passed, strongly favored Republicans, and Republican legislators did not want to make it harder for their voters to vote. (Also, too, voters over the age of 65 are disproportionately white, as noted by LULAC when they intervened in the first federal lawsuit over expanding vote by mail.)

Now, I am not calling for voter ID to be extended to include mail ballots. The voter ID law is trash and needs to be thrown out. My point is simply that if you are going to trot out the creaky old talking points about “vote fraud”, you should at least be made to reckon with the fact that the Republican legislators who passed the voter ID law in 2011 specifically and deliberately chose to exempt mail ballots from its requirement. It was convenient for them to claim that “vote fraud” was not an issue for mail ballots then, just as it is convenient for them to claim that it is an issue now. You might want to ask yourself why that is.

Constable Rosen tests positive for COVID-19

Best wishes for a speedy recovery.

Alan Rosen

Harris County Precinct 1 Constable Alan Rosen has tested positive for the novel coronavirus, his office confirmed Wednesday.

Rosen is the second local elected official known to have contracted COVID-19, the disease caused by the virus. Houston City Councilwoman Letitia Plummer tested positive May 11.

Rosen was confirmed positive on Saturday, five days after being tested while experiencing a mild fever, spokesman Kevin Quinn said.

The constable informed his command staff of his diagnosis but not the public because it was a personal medical matter, Quinn said. Rosen declined an interview request.

“I appreciate everyone being thoughtful and kind with their words of support,” he said in a statement. “In these times, it’s so important to wear a mask, wash your hands frequently and socially distance.”

Rosen has been working from home for 10 days, and any employee with whom he interacted before his diagnosis has been tested, Quinn said. Five Precinct 1 employees have tested positive since the outbreak began here in March.

As noted, CM Plummer tested positive earlier in the month. She hopes to be free of the virus soon, as does Constable Rosen. I wish them both the best.

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

When voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.