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May 12th, 2020:

Yet another lawsuit over voting by mail

Turns out there are a lot of obstacles to voting by mail in Texas, and so there are a lot of lawsuits being filed by various plaintiffs to rectify that.

A coalition of voters and civil rights groups opened a new front Monday in the legal wars over mail-in voting in Texas during the new coronavirus pandemic.

Several lawsuits already underway challenge state limits on who can vote by mail, but a lawsuit filed Monday dives into the mechanics of mail-in balloting, arguing that existing rules will deprive voters of their constitutional rights in the middle of a public health crisis. In the federal lawsuit filed in San Antonio, five Texas voters with medical conditions, Voto Latino, the NAACP Texas and the Texas Alliance for Retired Americans argue that four existing rules for absentee voting will place undue burdens on the right to vote, or risk disenfranchising Texans, during the pandemic.

First, they’re challenging a requirement that voters pay postage to return mail-in ballots, arguing that it amounts to a poll tax during a public health crisis. Second, they’re challenging a requirement that sets deadlines for when ballots must be postmarked and received, arguing that the window should be extended. Third, they object to a requirement for matching signatures on the flap of a ballot envelope and the signature used on an application to vote by mail, which they argue discriminates against voters with disabilities whose signatures may change. And fourth, they’re challenging restrictions on the assistance absentee voters can get to return a marked ballot.

Naming Texas Secretary of State Ruth Hughs as the defendant, they’re asking a federal judge to block the state from enforcing the provisions.

“Even if all registered voters are eligible to vote by mail in Texas in the November election, that would not be sufficient to prevent the serious risk of disenfranchisement and threats to public health that will occur if the Vote By Mail Restrictions remain in place in the pandemic,” the plaintiffs, who are backed by the National Redistricting Foundation, wrote in their complaint.

[…]

But the latest challenge brings in voters who already qualify to vote by mail based on their disabilities but who must navigate the provisions for absentee voting in question during the pandemic. Among the plaintiffs is George “Eddie” Morgan, a 63-year-old former nurse in Dallas who has a genetic lung disorder and has been in strict isolation during the coronavirus outbreak in his community.

Morgan receives $19 dollars a week in food stamps and relies on food banks. To obtain postage for a mail-in ballot online to remain in isolation, he would have to purchase an entire book of stamps for $11, according to the lawsuit.

“The Postage Tax’s burden on the right to vote is severe. At best, it requires Texans — millions of whom are vulnerable to severe complications from COVID-19 or have vulnerable loved ones — to pay to vote by mail so that they can avoid exposing themselves to the virus while exercising their right to vote,” the plaintiffs wrote. “At worst, it disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.”

To recap, we have the federal lawsuit filed by the TDP, which has its first hearing this Friday, which argues that the threat of coronavirus qualifies as a disability under the law for anyone who wants to request a mail ballot. We have the federal age discrimination lawsuit, which alleges that the 65-and-over provision for requesting a mail ballot violates the 26th Amendment. We have the state lawsuit, also filed by the TDP on the same grounds, for which a judge has issued an order allowing anyone to request a mail ballot for the July runoff, with a hearing set for later on the merits, which would allow the same for November and beyond. That order is being threatened by Ken Paxton, and the plaintiffs have filed a motion with the Third Court of Appeals to end those shenanigans. Oh, and now a couple of activists have filed a complaint in Dallas County alleging that Paxton’s communication to county election officials constitutes voter fraud on Paxton’s part. I believe that sums it all up.

This lawsuit goes in a slightly different direction. It argues that even if everyone were granted the ability to request a mail ballot today, there would still be problems. In a rational world, with a well-designed election system, of course mail ballots would be postage free for exactly the reasons cited by the plaintiffs, there would be no effort to criminalize helping someone who needs it to fill out their ballot, and signature matching would be done in a fair and efficient manner. We obviously do not live in that world, but maybe we can take a step towards it with this flurry of litigation. At the very least, I hope they’re all losing sleep in the Solicitor General’s office. The Chron has more.

Criminal complaint filed against AG Ken Paxton

I should say “another criminal complaint”, this one over his bullying tactics about vote by mail.

MOAR MUG SHOTS

Two voting rights advocates have filed a complaint with the Dallas County district attorney, alleging Attorney General Ken Paxton committed voter fraud in each of the state’s 254 counties by contradicting a judge’s order expanding the availability of mail-in voting during the pandemic.

“Attorney General Ken Paxton’s letter intentionally misled Texas elections officials about eligibility to vote by mail,” said Kendall Scudder, one of the complainants. “Mail-in ballots aren’t where the election fraud is happening, it’s happening in the office of our indicted attorney general.”

Travis County District Judge Tim Sulak on April 17 issued a temporary injunction stating that any voter concerned about exposure to the coronavirus can avoid in-person voting and request a mail-in ballot by claiming a disability.

Paxton, a Republican who has argued disability claims should be reserved only for those who currently fall under that category, wrote in a filing that same day that Sulak’s order was automatically stayed when he filed an appeal.

[…]

Two attorneys reached by Hearst Newspapers agreed with Paxton’s assessment that the April 17 order was stayed when Paxton appealed.

Any appeal of an order that grants a temporary injunction or denies a plea to the jurisdiction, both of which occurred in this case, places an immediate stay on that order, said Dallas appellate lawyer Chad Ruback. On top of that, the Attorney General’s office noted in its appeal that governmental entities are entitled to automatic stays in this situation, under Texas law.

In the Dallas County case, complainants Scudder and Woot Lervisit, who live and vote in the county, say that under the Texas election code, their complaint should trigger a criminal investigation of Paxton’s conduct.

See here and here for the background. You can see the press release relating to this action here, a copy of the complaint here, and a copy of the tweets submitted as supporting evidence here. This is another one of those times when I don’t feel qualified to evaluate the action, but if as the lawyers quoted in the story indicate, Paxton was correct to assert that the order was stayed, then I don’t know what the case is for action against him. I presume the Dallas County DA is better positioned to answer that question, and we’ll know his answer by the action he takes. In the meantime, it’s at least fun to note the irony of Ken Paxton being tripped up by a voter fraud charge. I don’t expect to get any more out of this than that, but we’ll see.

UPDATE: The DMN notes that Dallas County DA John Creuzot declined comment on the complaint. It also reports that Paxton has asked one of the Houston-area appeals courts to vacate the Sulak ruling. I don’t understand the jurisdiction there, given that the lawsuit originated in Travis County, but that’s all the story says.

CM Plummer tests positive for COVID-19

Get well soon.

CM Letitia Plummer

Houston City Councilmember Letitia Plummer has tested positive for COVID-19, becoming the first elected official in the city to have a confirmed infection of the disease caused by the new coronavirus.

Plummer, a first-term council member and dentist, has been quarantining at home since Thursday and received her results Monday, she said. She briefly went to the emergency room on Saturday to receive fluids, but otherwise has been at home.

Her staff members will be tested for the virus Tuesday, she said. Her dental office staff have all tested negative, as have her three sons.

Mayor Pro Tem Dave Martin said the administration is working to ensure any council member or staff member who wants to get tested can do so Tuesday at City Hall, though they are still are working through the details. Mayor Sylvester Turner is scheduled to unveil his proposed budget Tuesday.

“We have to be careful. This is a great wake-up call for a lot of people,” Martin said. “We think this is over? No. For us, it’s just beginning.”

[…]

The council has continued to meet in person at City Hall each week, though members generally are spread out around the dais and at the press tables in front of the audience seats. Most wear masks, but they frequently are in close proximity to one another.

First things first, I wish CM Plummer all the best for a speedy recovery, and I am glad that no one in her family or office appear to have been infected. I hope that’s true for all of her colleagues and other contacts as well. This is a shock, but it’s not really a surprise. Sooner or later, this was going to happen to someone in local elected office – as we have already discussed, it has happened elsewhere, in some cases with fatal results. We all hope and pray for a better outcome here.

But look, it’s not great that Council has continued to meet in person like this, even with masks. Go back and read this link I posted in th weekend roundup. Even sufficiently distanced, and even with masks, having people in an enclosed space for a long period of time is a high-risk scenario for coronavirus. City Council, and every other elected body, needs to give very serious thought to transitioning their meetings online, like now. If the Lege isn’t working on a contingency plan for this as well, even with their next meeting not scheduled until January, they’re needlessly risking the lives of their members, their staff, their security and other support personnel, and everyone else who crowds into the Capitol every two years. If SCOTUS can handle its business over the phone, these folks can do so as well. The alternative is an outbreak that prevents a quorum or upends the elected balance of power, and that’s without considering how many of these people are in high-risk categories. Let’s not be stupid about this. Hold the meetings online, and don’t delay. I don’t want to hear any excuses.

Here’s the MLB season-starter proposal

Make of it what you will.

Major League Baseball owners gave the go-ahead Monday to making a proposal to the players’ union that could lead to the coronavirus-delayed season starting around the Fourth of July weekend in ballparks without fans, a plan that envisioned expanding the designated hitter to the National League for 2020.

Spring training would start in early to mid-June, a person familiar with the decision told The Associated Press. The person spoke on condition of anonymity because details of the plan were not announced.

[…]

Teams will propose that players receive the percentage of their 2020 salaries based on a 50-50 split of revenues MLB receives during the regular-season and postseason, which likely will be among the most contentious aspects of the proposal during negotiations with the players’ association.

That proposal would take into account fans being able to return to ballparks at some point, perhaps with a small percentage of seats sold at first and then gradually increasing.

Rosters would be expanded from 26 to around 30. With minor leagues shuttered, there likely will be the addition of about 20 players per club akin to the NFL’s practice squad.

MLB officials are slated to make a presentation to the union on Tuesday.

Players and teams agreed to a deal on March 26 that called for each player to receive only a portion of salary, determined by what percentage of a 162-game schedule is played. As part of that deal, if no season is played each player would receive 2020 service time matching what the player earned in 2019.

But that deal is contingent there being no restrictions on mass gatherings at the federal, state, city and local level; no relevant travel restrictions in the U.S. and Canada; and Commissioner Rob Manfred after consulting the union and medical expects, determines there is no risk to playing in front of fans at regular-season ballparks.

Players and teams committed to “discuss in good faith the economic feasibility of playing games in the absence of spectators or at appropriate neutral sites.” Manfred has said about 40% of MLB revenue is tied to gate, including concessions, parking, ballpark advertising, luxury suites and programs.

Union officials and players have cited the March 26 agreement as setting economic terms and say they have no inclination for additional cuts.

See here for the background and some more details about the initial proposal. I’m going to hand this off to Fangraphs for some deeper analysis.

In a half-season scenario, if teams lost nearly all of their stadium revenue, and every other revenue and expense stream (including player payroll) were cut in half, there’s an argument that the owners might lose about $50 million per team this season. While that’s still about $2 billion shy of the profits they’ve made over the previous three seasons ($4 billion including BAMTech money), it’s a significant loss. Of course, the vast majority of those non-stadium revenues will not be cut in half. MLB is still in a very good position with its television partners, and even getting 75% of non-stadium revenue would allow the league to break even without renegotiating the deal it previously agreed to with the players. And that’s before we even get to teams taking lower annual local rights fees in exchange for ownership stakes in regional sports networks, which might send another half-billion dollars or more to teams annually. Those profits aren’t included in the revenue sharing among teams, and similar issues will make revenue sharing with players incredibly difficult to determine.

And even if we were to assume that by playing half a season without fans MLB is going to operate at a loss paying the players half their salaries, and then further decide that players should share a greater part of the burden of potential losses in the form of revenue sharing despite not having received any of the benefits of increasing profitability the last three years, what constitutes revenue in this scenario? Calculating revenues in a normal year is hard; calculating them this year will be near-impossible. We can talk about the under-market local TV deals of the Red Sox, Mets, Yankees, and Cubs, which siphon off baseball revenue in the form of network ownership, as a potential sticking point but even more difficult is determining revenue on national and local television deals and sponsorships.

If a team or the league agrees to take a discounted amount for a television deal or local sponsorship in order to make more money in future years, would such a deal require player approval? After all, the team or the league would be actively negotiating away money that might go to the players this year, but wouldn’t in future seasons when revenue sharing wasn’t in effect. The league and teams have longstanding relationships with their television partners and sponsors and they want to keep each other happy and provide each other with the biggest possible return on those relationships. The players are uniquely disadvantaged when trying to determine revenue due to these relationships and the potential for moving money around to the advantage of the parties already engaged in the deal. Involving the players will only lead to more acrimony and bigger headaches down the line.

So I dunno. I would dearly love to see baseball start again, if it is sufficiently safe, but I have no desire to see the players sacrifice their salaries for the owners’ benefit. I’m sure there’s room to make this work better, if the sides are willing to talk. We’ll see how the players react. ESPN has more.