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June 8th, 2020:

Runoff reminder: Congress

Previously, we looked at the two statewide runoffs in the Democratic primary. Today we’re going to look at four Congressional primary runoffs. There are more than four total runoffs in Congressional primaries, but these are in the districts that are at least somewhat competitive, including a couple that are high on the national target list. As a reminder, here’s a look at the April campaign finance reports for Congress.

CD03

CD03 is held by freshman Rep. Van Taylor, who won by a 54-44 margin in 2018; Beto O’Rourke got 47.9% in the district. It’s not a first-tier opportunity, but the primary features two candidates who are way ahead of the 2018 fundraising pace, Sean McCaffity and Lulu Seikaly, who was a later entrant into the race. Seikaly has gotten more press that I could find of the two of them. Here’s a profile/interview with her on the Shondaland website. She recently picked up the endorsement of Rep. Marc Veasey after having been endorsed by the DMN for the primary. As for McCaffity, I found this profile of him from February. I don’t have a whole lot of insight to add to this race. Both candidates look good to me, either could break through and generate some national attention if they keep up the good fundraising or someone does a poll in the district. CD03 is entirely within Collin County, so if the suburbs do wind up abandoning Trump in a big way – in other words, even more than in 2018 – this race could be a sleeper.

CD10

CD10 of course has been on the radar all cycle, since Mike Siegel lost to longtime Rep. Mike McCaul by a bit more than four points, in a district that Beto carried by a hair. Siegel faces Dr. Pritesh Gandhi, who has been a strong fundraiser so far. As a working doctor who’s treating COVID-19 patients when he’s not on the campaign trail, Gandhi has also been featured in numerous new stories, getting both local and national coverage for his dual role. Siegel has made his way into some of that coverage, and was the subject of a nice recent profile. He also picked up a couple of endorsements, from Rep. Veronica Escobar and State Rep. Erin Zwiener.

CD24

This may be the spiciest runoff of the four, for a seat that Beto won with 51.5% of the vote in 2018. Precisely because this is such an clear-cut target – it’s been on the DCCC’s radar from day one – there’s been some fighting over who the DCCC should be backing in this race, Kim Olson and Candace Valenzuela. Olson is the 2018 nominee for Ag Commissioner (she got 46.4%, losing by five points) and is one of six Dem challengers so far to have raised over a million bucks as of April. Olson has a military background that’s a big part of her biography, but the circumstances surrounding her exit from the Air Force have some people worried that could be a drag on her campaign. Meanwhile, Valenzuela has also been a strong fundraiser and has picked up some notable endorsements including EMILY’s List, which is a fascinating decision on their part given that there were multiple pro-choice female candidates in the primary, including, you know, Kim Olson. Some of Valenzuela’s allies will be running ads against Olson over the issues with Olson’s military record. There’s a nice profile of Valenzuela here if you want to know more about her. As with these other races, I don’t have a strong preference. I feel like this race is there for the Dems to win, we just have to not screw it up.

CD31

Finally, there’s CD31, which started out the cycle high on the target list but has been slipping down since. While there have been a ton of candidates cycling through this race, none have caught fire the way MJ Hegar did in 2018, and none have distinguished themselves in fundraising. The two who survived the first round, Christine Eady Mann and Donna Imam, were the top fundraisers, but neither is close to the top tier among Dem challengers, and only Imam has a decent amount of cash on hand. Eady Mann, who lost in the 2018 primary runoff to Hegar, is also a medical doctor and has also been featured in some stories for her candidacy and career in a time of COVID. I couldn’t find any recent stories about Imam. I don’t see this race as being all that competitive anymore, but the trend in Williamson County will keep it reasonably close regardless. A surprise is still possible, but I’m going to want to see the winner of this runoff start to rake in some bucks before I’ll buy into it.

I’ll be looking at SBOE and State Senate next. Let me know what you think.

A legal analysis of age discrimination in voting

Here’s an interesting report by a group of lawyers about age restrictions and the 26th Amendment, with specific commentary about the federal age discrimination lawsuits over voting by mail in Texas. A brief excerpt:

In the immediate wake of the Amendment’s ratification, a few states persisted in making it much harder for younger voters, especially students and military voters, to vote than others. Plaintiffs challenged several such state and local laws, and courts applied strict scrutiny to those claims. In other words, the laws could survive only if states could demonstrate (1) a compelling state interest for the age discrimination, and (2) that the law was narrowly tailored to meet that interest. In many cases, courts struck down the laws. See Ownby v. Dies, 337 F. Supp. 38, 39 (E.D. Tex. 1971) (invalidating, under the Twenty-Sixth and Fourteenth Amendments, a state statute providing different criteria for determining voting residency for voters age 18–21 than for voters over the age of 21); cf. Dunn v. Blumstein, 405 U.S. 330 (1972) (applying strict scrutiny to Tennessee durational residency requirement for voter registration because the law forced voters to choose between the right to vote and the right to travel); Worden v. Mercer County Bd. Of Elections, 61 N.J. 325 (1972)(reviewing Twenty-Sixth Amendment legislative history and jurisprudence, applying strict scrutiny to invalidate a county policy of refusing voter registration to students domiciled on campus).18

The Supreme Court’s lone ruling on a case directly involving a Twenty-Sixth Amendment claim occurred in 1979, towards the end of the initial wave of post- ratification litigation. In that case, the Court summarily affirmed a three-judge district court’s decision to overturn voter registration restrictions in Waller County, Texas, because the registrar had been imposing unconstitutional burdens on students wishing to vote. Symm v. United States, 439 U.S. 1105 (1979) (reviewing the legislative history and bevy of litigation brought following ratification, finding consistency with the right to vote doctrine’s application of strict scrutiny), aff’g United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978). That summary affirmance has precedential weight.19

After Symm, however, few cases challenged laws that discriminate against voters based on age. Thus, Twenty-Sixth Amendment jurisprudence largely froze in the decade following its ratification. Meanwhile, courts have considered numerous voting rights cases invoking the Fourteenth Amendment’s due process and equal protection clauses.20 Recently, litigants have turned back to the Twenty-Sixth Amendment in cases where politicians are discriminating against young voters or student voters. Enforcing the Twenty-Sixth Amendment’s guarantee in the context of laws that allow only older voters to vote at home—especially during a pandemic when in-person voting is fraught with health concerns—is particularly appropriate.

For instance, one court recently noted that the Twenty-Sixth Amendment contributes “added protection to that already offered by the Fourteenth Amendment.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1221 (N.D. Fla. 2018). Given the Twenty-Sixth Amendment’s express identification of age as an impermissible axis of discrimination in voting, the more state-friendly balancing test that the Supreme Court uses under the Equal Protection Clause would be “unfitting” in a case alleging direct age discrimination in voting. Id. (citing One Wisconsin Inst., Inc. v. Thomsen, 198 F. Supp. 3d 896, 926 (W.D. Wis. 2016)). This heightened scrutiny is consistent with courts’ use of strict scrutiny in the decade following ratification of the Twenty-Sixth Amendment, as well as with the reality that courts should interpret the Twenty-Sixth Amendment as prohibiting states from discriminating against any otherwise-eligible voter on the basis of age.

There’s more, so go read the rest. These lawyers conclude that the plaintiffs have an excellent chance of winning, though as noted there’s not a lot of precedent to guide us. And of course, this was written before the Fifth Circuit ruling from last week, so who knows how or if that changes the calculus.

Ian Millhiser in Vox, writing a few days before this analysis was published, largely agrees with the conclusion about the plaintiffs’ chances, but offers this warning:

It is possible, however, that higher courts will never even reach the question of whether Texas is violating the 26th Amendment. Indeed, there is a very real risk that either the Fifth Circuit or the Supreme Court will effectively conclude that it is never possible to challenge Texas’s effort to prevent younger voters from voting during the pandemic.

The reason turns on two fairly obscure Supreme Court decisions, Railroad Commission of Texas v. Pullman (1941) and Purcell v. Gonzalez (2006).

Pullman sometimes requires federal courts to abstain from deciding a pending case — if the outcome of that case turns upon the proper way to read a state law, the meaning of which is currently being litigated in state court. Purcell, meanwhile, warned that “Court orders affecting elections can themselves result in voter confusion and consequent incentive to remain away from the polls” and that “as an election draws closer, that risk will increase.”

More recent Supreme Court decisions drawing on Purcell suggest that federal courts must avoid deciding many voting rights cases altogether as an election nears.

So it’s not hard to see how these two decisions could work together to thwart the plaintiffs in Abbott. Until the Texas Supreme Court decides DeBeauvoir, the Fifth Circuit and the US Supreme Court are likely to conclude that Pullman prevents them from weighing the constitutional claims in Abbott. Then, when the Texas Supreme Court does hand down its decision in DeBeauvoir, the Fifth Circuit and the US Supreme Court could just as easily conclude that it’s too close to Election Day — and Purcell prevents federal courts from weighing in.

It’s a trap that often arises in voting rights cases that reach the Roberts Court. Plaintiffs who file lawsuits early frequently lose because they filed too early to develop enough evidence to win their case, or because a doctrine like Pullman abstention prevents them from pursuing their case right away. But plaintiffs who take the time to develop their case frequently lose because Purcell does not allow them to bring a voting rights case too close to an election.

Doesn’t mean that’s how this will go, but be forewarned. And remember, the way to fix voting rights problems is to elect legislators and state executives who want to fix them. The Current has more.

Anti-vaxxers gonna anti-vaxx

Every step of the way, they are an obstacle to public health.

The Texas group that lobbies against vaccine mandates is now launching a campaign against COVID-19 contact tracing, the public health measure used for decades around the world to contain disease spread.

Texans for Vaccine Choice this week called on its members to contact Gov. Greg Abbott and let him know they “do not wish to be monitored or surveilled for any reason” in response to a new state program hiring and training workers to identify people who’ve come into close contact with those who recently tested positive for the coronavirus. Such people are then asked to quarantine until testing shows they don’t have the disease.

“The government should stop thinking its job is to keep everyone healthy and instead focus on protecting our rights,” says a post on the organization’s website. “We here at TFVC will remain vigilant as our government expands greatly and the threats to our members grow.”

The campaign drew an immediate rebuke from Dr. Peter Hotez, the Baylor College of Medicine infectious disease specialist who has led public health’s fight against the anti-vaccine movement, which he holds responsible for the resurgence of vaccine-preventable diseases such as measles and whooping cough.

Thanks to the movement’s efforts, some 60,000 Texas parents currently obtain non-medical exemptions for school vaccines, some 25 times higher than 2003, the first year such exemptions were allowed. A 2018 study by Hotez found Houston and three other Texas cities rank among the 15 metropolitan “Shotspots” of such exemptions.

“Awful to see the #antivax lobby in Texas now going the extra measure to halt #COVID-19 prevention,” Hotez tweeted Tuesday in reply to a Texans for Vaccine Choice tweet alerting people to the campaign. “In the name of fake ‘health freedoms’ slogans, they aspire to land thousands of Texans in our hospitals and ICUs.”

John Wittman, a spokesman for Abbott, noted that a contact tracing program was part of the guidelines laid out by President Donald Trump in order to reopen the state and has been used in Texas and the country for decades. He said the program is “completely voluntary” and that the state health department has “taken steps to ensure it protects individuals’ liberty and privacy.”

There are certainly questions to be raised about the state’s contact tracing plan, though those questions should mostly be about competence and cronyism. I can sort of see the rationale behind the anti-vaxx movement, if I squint and do some deep-breathing exercises. The point of contact tracing is to find and notify people who may have come into contact with a person who has tested positive for COVID-19. I’m really hard-pressed to see what the problem is with that, beyond the usual tinfoil-hat paranoia about RFID chips, UPC codes, and our precious bodily fluids. We already know we have a long fight ahead over an eventual coronavirus vaccine, which is now a partisan issue as well as another thing for these people to froth about. The rest of us need to recognize this for what it is, which is a direct threat to our health. What are you going to do about that, Governor?