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June 5th, 2020:

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.