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July 25th, 2020:

CD03 poll: Taylor 43, Seikaly 37

I expect we’ll see a fair amount of Congressional district polling this cycle.

Lulu Seikaly

There is a single-digit race underway for Texas’ traditionally red 3rd Congressional District, according to a new poll from the new Democratic nominee’s campaign.

The nominee, Lulu Seikaly, starts the general election trailing incumbent Rep. Van Taylor, R-Plano, by 6 percentage points among likely voters, according to the survey. Forty-three percent of respondents said they’d vote for Taylor, 37% backed Seikaly and 5% supported Libertarian Christopher Claytor.

Furthermore, the poll found a tight presidential race in the district, with presumptive Democratic nominee Joe Biden leading President Donald Trump by 2 points. Trump carried the district by 14 points four years ago.

In a memo, the pollster said the data showed the district is “very much in play” this November, noting that Seikaly is “within striking distance” of Taylor despite being known to only 18% of voters. The memo highlighted how her Taylor’s lead shrinks to 2 points among voters who described themselves “very motivated” to turn out.

The district is not among the seven that the Democratic Congressional Campaign Committee has identified as pickup opportunities this fall in Texas. But Seikaly and some other Democrats see opportunity after Beto O’Rourke lost it by just 3 points in 2018

Taylor won the district by 10 points in 2018, ran unopposed in his March primary and remains far better-funded than Seikaly. The Plano attorney won her party’s primary runoff last week, getting 61% of the vote to 39% for Sean McCaffity.

See the aforementioned polling memo for more details. Here’s a good visual representation of how the district has shifted since 2016.

This is the second recent poll I’ve seen of a competitive Texas Congressional district. There was a poll in CD06 a little while ago, which also showed Joe Biden tied with Donald Trump, while the lesser-known Democratic Congressional challenger was a few points back. Both were internal polls, which require a higher level of skepticism, not because the poll is likely to be crap but because the candidate who commissioned the poll would not have released it if it had not been a result they wanted to tout. That said, keep two things in mind. One is that both sides can release internal polls, and there have been studies to show that a partisan difference in who releases internal Congressional polls is a correlated with that party doing well overall in that election. In other words, if we do wind up seeing a bunch of Democratic candidate polls, and few Republican internal polls, that does tell you something.

The other thing is something I discussed in 2018, when we saw numerous polls in hot districts like CD07 and CD32, which is that there is a correlation between how a top-of-ticket candidate (Beto in 2018, Biden in 2020) is doing in a particular district and how that candidate is doing statewide. In 2018, Beto was doing better in these Congressional polls than he was doing in statewide polls, for the most part. One of the points I made at the time was that it wasn’t possible for Beto to be (for example) tied in CD07 but trailing statewide by nine or ten points. What we have here – tentatively, with a very limited data set in this early going – is a bit of confirmation that Biden really is running close to, maybe even ahead of, Trump in Texas, because Biden winning Texas is correlated with Biden running even or ahead in a bunch of Congressional districts, including CDs 03 and 06.

Again, none of this is to say that either of these polls represent God’s honest truth. It is to say that you can’t have Biden running even with Trump in those districts without also having Biden running even with or ahead of Trump in Texas, and vice versa. Maybe those propositions turn out to be false, and we see that Biden is to fall short in both places. Even if Biden is in the position suggested by these polls, the challengers like Lulu Seikaly and Stephen Daniel may not be there with him – Beto ran ahead of nearly everybody wherever you looked, and candidates with weaker fundraising tended to lag several points behind him. Fundamentals still matter. The point is that right now, the data is telling us a consistent story. We should acknowledge that.

UPDATE: Another internal poll, from CD21, which shows Biden up three in the district (50-47) and challenger Wendy Davis trailing incumbent Chip Roy by one, 46-45. This too is consistent with the overall thesis.

A very early glimmer of some possibly good news

We may be finally bending the curve, thanks to people finally taking seriously the need to wear face masks in public.

Three weeks after Gov. Greg Abbott required Texans to wear masks, epidemiologists and disease modelers say they are cautiously optimistic that the mandate is helping the state turn a corner in its efforts to contain an outbreak that has killed more than 4,500 Texans.

Throughout the summer, Texas’ coronavirus outbreak became grimmer by the day and by almost every metric: case counts, hospitalizations, deaths. But in the past week or so, Abbott and some of the state’s public health officials began to see hope in the daily case counts as they appeared to stabilize.

A growing body of evidence points to widespread mask-wearing as an effective strategy for containing the virus, and one North Texas researcher’s statistical analysis published this week argued that local mask orders in the region reduced viral transmission enough to avoid a lockdown. The governor, who has faced blistering criticism for his handling of the pandemic from members of his own political party, immediately seized upon those findings in defense of his statewide order.

“A community lock down is not needed as long as masks & other distancing strategies are used,” Abbott wrote Monday on Twitter, citing the analysis by Rajesh Nandy, a professor of biostatistics and epidemiology at the University of North Texas Health Science Center.

But public health experts warn that more restrictive lockdowns may still be appropriate in the state’s hardest-hit regions, as the disease continues to infect about 10 times as many people each day compared with two months ago, ravaging some parts of the state more severely than others.

State data now appears to show new daily infections leveling off, albeit at nearly record highs. There were around 9,100 daily new cases of the virus on average over the past week. The state recorded its largest number of daily new cases July 15, at 10,791. On Thursday, that number was 9,507.

“The downside is even though we are approaching another plateau, we are at a much higher level than in May,” Nandy said.

Yes, it would be good news if the case rate stops going up. But it won’t truly be good news until the number of infections starts to go down, and then continues to go down. You know, like it has in New York and Europe and Asia and other places with generally functional governments. It’s when we get the virus down to levels at or below where we were when we first shut down back in March that we can truly contemplate things like safely sending kids back to school and reopening the economy. You’d think this would be something that would be better understood by the elected officials who have been so resistant to taking basic measures to fight COVID-19 – poll data consistently shows that the public understands this, even if they’re not always great about doing it in the absence of leadership – but clearly for some people, these things have to be learned the hard way. And as they are learning this, the hospitals are still at capacity, and could get overwhelmed at any time.

The irony there is that it may take another broad, mostly national shutdown to get to the point we want to get to. That won’t happen under this President, and if it’s still a necessary thing under the next one, then my god have we effed this up beyond all comprehension. In the meantime:

Now Starr County is at a dangerous “tipping point,” reporting an alarming number of new cases each day, data show. Starr County Memorial Hospital — the county’s only hospital — is overflowing with COVID-19 patients.

The county has been forced to form what is being compared to a so-called “death panel.” A county health board – which governs Starr Memorial – is set to authorize critical care guidelines Thursday that will help medical workers determine ways to allocate scarce medical resources on patients with the best chance to survive.

A committee will deem which COVID-19 patients are likely to die and send them home with family, Jose Vasquez, the county health authority, said during a news conference Tuesday.

“The situation is desperate,” Vasquez said. “We cannot continue functioning in the Starr County Memorial Hospital nor in our county in the way that things are going. The numbers are staggering.”

That’s the same Starr County that was once lauded for its low infection rate and ability to keep the virus under control. That was back when local officials had the authority to make and enforce shelter-in-place orders, before Greg Abbott took that authority away. Starr County now plans to issue a new shelter in place order, though of course they won’t be able to enforce it. Greg Abbott could let them enforce it, and he could let other local governments that want to take a step back in an effort to get their numbers down do so, but that’s not something he has any interest in doing. And so here we are.

Beer gardens get jerked around

First, we had this.

Saint Arnold Brewing announced Monday that it will temporarily close its beer garden and restaurant. The reason? Gov. Greg Abbott’s office ruled it is a bar, not a restaurant, and therefore should close according to the latest coronavirus shutdown guidelines.

As a response to the surge in virus cases in Texas, the governor backtracked on his reopening plan, ordering bars to close again on June 29. As most restaurants sell alcohol and most bars sell food, the state’s delineation between the two is a “51 percent rule”: if a venue’s alcohol sales make up 51 percent or more of its total revenue, it is considered a bar.

Brock Wagner, Saint Arnold’s founder and brewer, got a call from a local Texas Alcoholic Beverage Commission (TABC) agent on Friday, saying they had received a complaint that Saint Arnold had reopened in violation of the current pandemic orders. When calculating the brewery’s sales breakdown, the governor’s office took into account the beer Saint Arnold sells to its distributors. In addition to its on-premise operations, the Houston brewery has a solid retail presence across Texas and in Louisiana, producing about 70,000 barrels of beer last year.

“According to that, we are the world’s biggest bar,” said Wagner. He believes this ruling defies common sense, as it does not distinguish beer sold to distributors for retail purposes from a beer sold at the restaurant to a customer.

Wagner tried to appeal the decision and contact the governor’s team over the weekend, but was unsuccessful. The brewery announced the closure on Monday. (The governor’s office did not return a request for comment by press time.)

Saint Arnold is back to doing curbside and drive-through sales only; the shutdown of dine-in operations will result in lost jobs.

“They claim that they want to be opening Texas and keeping people at work,” said Wagner. “Instead there’s decisions like this, which are going to eliminate 75 jobs if we don’t get this reversed.”

That story was from July 13. We’re familiar with the plight of the bars that serve food but not enough food for them to be classified as restaurants. This is an arbitrary distinction, one that doesn’t make a lot of sense, and it’s having a bad effect on a lot of craft breweries. But then it looked like there was a breakthrough last week:

You still may not sit down in a bar for a drink, but you may be able to get served at a Texas brewery or other retail alcohol establishment and then sit down at an outdoor patio to enjoy your drink, provided social distancing is followed.

In a decision issued with little fanfare late last week, the Texas Alcoholic Beverage Commission began allowing retail and the manufacturers of alcohol beverages, like breweries, to reopen their outdoor patios to service again.

Community Impact Newspaper in Houston reported that TABC’s decision follows a direct appeal from St. Arnold’s Brewery, which had been forced to close its beer garden under Gov. Greg Abbott’s late June order that shut down all bars that generate more than 51% of their profits from alcohol sales.

TABC did not notify the news media of the change or make a public announcement about the new order. It has apparently also not been available to answer questions from owners who are confused about qualifying for change.

Still not a reprieve for the bars that had to close their dining rooms, but something. Unfortunately, it didn’t last.

Late Wednesday night, the Texas Alcohol Beverage Commission reversed a recent guideline change that would have let the state’s breweries reopen their patios for service.

The move is an abrupt about-face from last week, when the TABC signaled that brewers could pour product for patrons, so long as they quaffed their beers outside. Under that rule, breweries would have been clear to temporarily modify their licenses to exclude patios and beer gardens from their on-site premises, the Houston Chronicle reports.

However, in the latest turn, the TABC amended its guideline to say that modifying a business premises as unlicensed doesn’t exempt it from Gov. Greg Abbott’s June 26 executive order closing bars and other drinking establishments.

This is ridiculous. If we’ve decided that it’s safe for restaurants to operate at limited capacity, then it surely makes sense for outdoor patio restaurants, which is what these beer gardens are, to do so. Making a certain amount of revenue from alcohol sales should not prevent a restaurant from being treated like any other restaurant. We’re so in thrall to these ridiculous ancient laws and the all-powerful lobbies that keep them on the books that we’ve lost the plot. It just makes no sense at all. Like many businesses in Texas right now, craft breweries are having a rough time. Let’s not go out of our way to make it rougher.

UPDATE: And the pendulum has swung back in favor of beer gardens, though there are still issues with the 51% rule and the overall ability of small brewers to do their business. But it’s at least something.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.