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April 16th, 2020:

TDP gets initial win in vote by mail lawsuit

It’s a good start, but we’ve got a long way to go.

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

[…]

During the hearing, those plaintiffs offered up two expert witnesses — a local doctor and an epidemiologist — who testified to the risks for transmitting the virus that would come with in-person voting. Meanwhile, the risks tied to mail ballots are “negligible,” said Catherine Troisi, an epidemiologist with the University of Texas Health Science Center at Houston School of Public Health.

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice” that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.

See here and here for the background; there is also a federal lawsuit over the same issues, for which I don’t know the status. The Chron adds some more detail.

State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton wrote in a letter on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, which voting rights advocates had claimed as a victory.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this when public health makes it dangerous to vote in person.”

But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess,” said Glen Maxey, the Texas Democratic Party’s primary director, who administers elections in dozens of counties, as he testified about the guidance during a court hearing on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

But Anna Mackin, an assistant attorney general, argued that the law clearly does not cover those afraid of COVID-19 and urged state District Judge Tim Sulak “not to allow this global crisis to be manipulated as a basis for rewriting a provision of the election code.”

Yes, Paxton’s “letter” does indeed seem to fly in the face of that SOS advisory. Is that a lack of communication between branches, or a real difference of opinion? Hard to say. Bear in mind, there’s nothing in state law that allows the Governor to order the cessation of abortions in the state. AG Ken Paxton interpreted the Abbott emergency order that initiated a shutdown of non-essential businesses and services to include abortion providers, which the exigent circumstances allowed. Here, however, he’s arguing that these same exigent circumstances do not allow for an interpretation of the state’s absentee ballot law that includes voting by mail for people who claim under that law that they are unable to vote in person. It’s not that these interpretations are indefensible, but the two of them together sure suggest a strictly partisan motive. (Add in the ruling that gun shops do count as “essential” for some extra zest.)

In a vacuum, I think people of good faith could reasonably differ on the interpretation of our vaguely-worded state law, and one could make a principled argument that it’s the role of the Legislature to make such a significant change in how it should be read and enforced. But Ken Paxton is not making a good faith argument, he’s simply doing what he always does, advancing his partisan interests over anything else. He certainly may win, in both venues. Let’s just be clear about what he’s doing. The TDP (a plaintiff in the case), the ACLU of Texas (an intervenor), and the Texas Signal have more.

UPDATE: More from Texas Lawyer:

The dispute—which asks whether all Texans should be able to vote by mail because of social distancing restrictions and the risk of contracting the coronavirus—was headed to a higher court. Acknowledging that, Judge Tim Sulak of the 353rd District Court ruled from the bench that he would grant a temporary injunction, and reject jurisdictional arguments by the state of Texas.
The judge will issue a written order once it’s prepared.

Sulak said that if voters didn’t get clarity on whether the Texas vote-by-mail law applied to them, they might face a choice of having to vote in person, and accept the risk of getting sick. Or they could try to apply for a mail-in ballot. However, if the government later found their mail-in ballot inappropriate, voters could face prosecution, or find that their ballot was not counted, the judge said.

Also, if Sulak didn’t grant relief, he said there was a risk of future conflicts involving candidates filing election contests to challenge the voting results.

“Some of that could lead to the unstable, unsettled, uncertain situation about: Who are our elected representatives,” Sulak said. “Especially now that we are in this disaster scenario, where we don’t have courts running as efficiently as they have previously, it could result in some very serious governance issues, very serious jurisprudential issues.”

[…]

The plaintiffs sought a temporary injunction, and eventually a permanent injunction, that would require the defendants to accept and tabulate mail-in ballots from voters who are practicing social distancing to stop the spread of the virus.

On the other hand, the state of Texas, which intervened as a defendant, argued that the court didn’t have jurisdiction. The state claimed that a voter wouldn’t qualify to vote by mail just from having a fear of contracting the coronavirus. Also, the claim wasn’t ripe, since no one knows if the contagion will still be present in July, when the primary runoff elections are scheduled.

However, during a hearing Wednesday on the application for a temporary restraining order, an infectious-disease epidemiologist who testified for the plaintiffs said that it’s highly likely that the coronavirus will continue to spread in Texas through the summer.

“Once social distancing guidelines are relaxed, in my expert opinion, it’s inevitable we will see a rise in cases,” said Cathy Troisi, a professor at the University of Texas School of Public Health in Houston.

Voters going to the polls will be at risk of infection because they’ll come into close contact with other people, and they’ll touch voting machines that many voters have touched, Troisi explained. Election workers would be at a higher risk, because they stay at polling locations all day and have contact with many more people, she added.

When asked if voting by mail carries a risk of infection, Troisi replied, ”Voting by mail does not, so yes, voting by mail would protect the public health and public safety of Texans.”

Sulak rejected the state’s jurisdictional arguments, which also included claims that the plaintiffs’ interpretation of the vote-by-mail law was significantly expanding the statute the Texas Legislature wrote.

“I respect the separation of powers. We’ve got a choice here between arguments from that perspective and arguments from something that has seminal, fundamental, individual constitutional rights: that is, free people making full choices and having full access to have choices about their government,” Sulak said.

The judge asked plaintiffs’ counsel to draft an temporary restraining order, and to submit a proposed order denying the state’s plea to the jurisdiction.

And now we wait for the appeal, and for a hearing in the federal case.

More on the potential delay of redistricting

Some further details from the Statesman.

On Monday, Commerce Secretary Wilbur Ross announced that, as a result of the coronavirus pandemic, all Census Bureau field operations would be canceled until June 1, and the agency would not be able to complete the count until Oct. 31.

Ross wants Congress to enact legislation delaying the deadline for delivering apportionment counts to President Donald Trump from Dec. 31 to April 30, 2021, and for delivering redistricting data to the states from March 31, 2021, to July 31, 2021. Ross said he couldn’t rule out further delays.

That would mean that Texas lawmakers would not have the numbers they need to redraw political districts in the upcoming 140-day regular session, which ends on May 31, 2021.

The Texas Constitution requires that the Legislature redraw state Senate and House maps “at its first regular session after the publication of each United States decennial census.”

But, with the delay, that would not be until 2023, too late for the 2022 elections.

“Texas will have to have a special session to do redistricting,” said Michael Li, the former Dallas attorney who is now senior counsel at the Brennan Center for Justice at New York University, where his work focuses on redistricting, voting rights and elections.

Depending on the census count, Texas is expected to add three seats to the 36 it already has in the U.S. House. Li said that, under federal election law, if new maps have not been drawn in time for the 2022 election, any new seats would be elected at-large.

“Or alternatively, a court might draw maps,” Li said.

The same likely would be true if the Legislature fails to draw state House and Senate districts in time for the 2022 election.

[…]

[If] the Legislature were able to take up redistricting in the 2021 session, Republicans would be well situated even if the House and Senate were unable to pass a state legislative redistricting plan that was signed by the governor, because responsibility for devising a plan would then fall on the Legislative Redistricting Board made up of the lieutenant governor, the speaker of the House, the Texas attorney general, the state comptroller and the land commissioner. Unless Democrats take control of the Texas House in 2020 and elect a Democratic speaker, all those officials are Republicans.

That Legislative Redistricting Board provision does not apply in a special session.

The provision in the Texas Constitution means that even if the Legislature, meeting in special session, drew new state legislative lines in 2021, it would have to repeat the process when it convenes in regular session in 2023, said Eric Opiela, an election lawyer and former executive director and associate general counsel to the Texas Republican Party, with long experience in redistricting.

That means that Democrats, who have made flipping the Texas House the centerpiece of their 2020 campaign, “might have two bites at the apple” — the 2020 and 2022 elections — to gain control of the House in time for the last word on redistricting, he said.

The 120-day delay makes redistricting in time for the March 2022 primary, “tough but still manageable, but if there are further delays, then you start bumping into the filing period for candidates and potentially the primary,” Li said.

“The extension is in everyone’s interest, however,” Li said. “Texas is behind in census responses, and it’s important from the standpoint of Texans that the bureau have the time to get the census as right as possible.”

See here for the background. The relevant Constitutional amendment is this one. The 2013 Legislature did indeed revisit the House and Senate maps following the 2011 special session that drew them, but that was also for the purpose of amending the maps to conform with the interim districts the federal court had already drawn for the 2012 election. There are two scenarios where Dems have real leverage. One is in 2021 with a Dem majority in the House. The Legislative Redistricting Board can draw most maps if there’s no agreement between the House and the Senate, but it can’t draw a new Congressional map. That would go to a three-judge panel if all else failed, and it’s not hard to imagine the Republicans not wanting to roll the dice on that. In that situation, there would be lots of room for some horse trading, with legislative maps and a Congressional map that all cater to incumbent protection over maximal partisan gain. I’m not saying this would happen, but it could.

Alternately, Democrats could win or maintain the House in 2022 and win enough statewide offices, including Governor, to force a redraw in 2023 or direct it if a redraw is mandated because the previous exercise had been done in a special session. It should be noted that the same opportunity exists for Republicans, who start out in a much stronger position to make it happen – they would just need to take back the House (this situation only applies if they didn’t have control of the House in 2021) and re-elect Greg Abbott. I definitely have some fear of this scenario playing out, as it is not at all far-fetched, and the 2003 experience shows that they have no shyness when it comes to a bit of mid-decade map-drawing.

All this is getting way ahead of ourselves. For now, the main point is that any delay in the Census has a big ripple effect in Texas, thanks to the legislative calendar and our early-in-the-year primaries. Such a delay is almost certainly necessary to get an accurate count, but it doesn’t happen in a vacuum, and we need to be aware of what would happen as a result. This is a subject we will come back to again and again between now and January.

Defining tyranny down

These people, I swear.

A group of conservatives, including an influential Texas activist, penned an open letter to President Donald Trump this week, asking him to restart the economy and “let Americans manage their own risks,” while decrying expanded government benefits as a step toward socialism.

“Sadly, many state and local governments are not following the personal responsibility approach you advocated,” they wrote. “They are using wrong and confusing data to strip Americans of basic liberties, and to advance tyranny at an alarming rate.”

The letter was written by Tim Dunn, the chair of the Tea Party-aligned activist group Empower Texans — whose political action committee has contributed hundreds of thousands of dollars to Texas conservatives — as well as the co-founders of the Urban Revitalization Coalition and the National Diversity Coalition for Trump, Darrell Scott and Kareem Lanier.

It comes as pressure on President Trump from members of the Republican Party to lift virus restrictions continues to build despite warnings from epidemiologists and public health officials who predict the number of Texans infected with COVID-19 will peak in late April or May.

There’s no point in arguing with sociopaths, so I’m just going to leave that here. The reason to even point this out is so it can serve as another reminder that when any of these idiots says the words “states’ rights”, it’s all a fraud and always has been. The only belief these guys have, their only value, is their own self-interest. Everything else is just background noise.

Texas blog roundup for the week of April 13

The Texas Progressive Alliance remains committed to flattening the curve as it brings you this week’s roundup.

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