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September 1st, 2020:

Fifth Circuit hears arguments on vote by mail case

One more try before it’s too late to make a difference for this year.

The Texas Democratic Party’s lawyer argued today before a federal appeals court that the state is unlawfully discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mail-in ballot.

It’s one of several last-minute battles playing out in the months leading up to the 2020 election, which is expected to yield historic turnout despite the coronavirus pandemic.

[…]

The Democrats’ federal case is expected to make its way to the U.S. Supreme Court, but the clock is ticking. The deadline to request a mail-in ballot in Texas is October 23, leaving just about seven weeks for the appellate court and high court to rule on it.

At Monday’s hearing, Chad Dunn, representing the Texas Democratic Party, told the court that the Texas mail-in voting law violates the 26th Amendment, which says the right to vote can’t be “denied or abridged” on account of age.

Dunn said previous elections have shown that voters will likely be waiting in long lines in November.

“We’re asking voters — certain ones of them get excused from that endurance test and others, based purely on their age, are to suffer through it,” Dunn said. “The fact of the matter is that when individuals’ characteristics are used by the government to divvy up who gets to vote, those are prohibited” by the Constitution.

The state, represented by Texas Solicitor General Kyle Hawkins, argued that Supreme Court precedent exists to show that the Texas law does not violate the 26th Amendment.

“It does not deny or abridge the right to vote to make voting more available to some groups as opposed to others,” Hawkins said. “To abridge the right to vote does not mean giving other groups more options; it means taking away something from a certain group.”

See here for the previous update. As noted, the other vote by mail-related lawsuit recently survived a motion to dismiss. We should get a ruling of some kind in this lawsuit before the deadline to mail out overseas ballots, which is September 18. I have no idea if there’s time for any action on the other one.

This Statesman story from earlier in the day on Monday has some more background info on the case.

Monday’s arguments will focus on the U.S. Constitution’s 26th Amendment, which was ratified in 1971 to lower the voting age to 18, saying the right to vote cannot be denied or restricted “by any State on account of age” for those 18 and older.

Just as other constitutional amendments ensure that voters cannot be treated differently based on race or gender, the 26th Amendment uses identical language to extend voting protections based on age, said Chad Dunn, who will argue Monday on behalf of Democrats before the 5th U.S. Circuit Court of Appeals.

“I am confident that we will ultimately ensure that everybody, regardless of age, has the right to vote by mail,” Dunn told the American-Statesman.

[…]

The age question has drawn the interest of at least one influential observer: Supreme Court Justice Sonia Sotomayor.

When Texas Democrats raised the issue at the high court this summer, the nine justices declined to accept the case. Sotomayor was the only one to discuss the reason.

The Democrats’ challenge, she wrote in late June, “raised weighty but seemingly novel questions regarding the 26th Amendment.”

However, justices balked at addressing those questions for the first time at the high court, and Sotomayor urged the 5th Circuit Court to make a speedy decision in the matter.

Many others hope for a quick resolution as well. In Texas, voting for the November election begins in less than seven weeks.

[…]

The case before the 5th Circuit Court will determine the fate of a May order by U.S. District Judge Fred Biery, an appointee of President Bill Clinton who required mail-in ballots to be sent to any registered Texas voter who requested one while “pandemic circumstances” continue.

“One’s right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers,” Biery wrote.

Paxton appealed, and the 5th Circuit Court responded by blocking enforcement of Biery’s order until the appeal can be decided.

That ruling by a three-judge panel at the 5th Circuit was notable for its harsh criticism of Biery for wading into election decisions that belong to “politically accountable officials,” not judges.

“The spread of the virus has not given unelected federal judges a roving commission to rewrite state election codes,” wrote Judge Jerry Smith, who was appointed by President Ronald Reagan.

A different three-judge panel, however, will hear Monday’s oral arguments and decide whether the 26th Amendment bars Texas from denying mail-in voting to those under age 65. Two of the judges on the new panel were appointed by Democratic presidents — Carolyn Dineen King and Carl Stewart — while the panel’s third member, Leslie Southwick, was appointed by President George W. Bush.

A ruling won’t come Monday, but with the election looming, the appeals court has placed the matter on an expedited schedule.

The Texas Democratic Party’s challenge has drawn considerable interest, with additional legal briefs filed by liberal and conservative public interest groups, health professionals, advocates for the disabled, other states and local political parties.

Travis County Clerk Dana DeBeauvoir also submitted a brief with election officials from Harris, Cameron and Fort Bend counties that begged the 5th Circuit Court to accept the 26th Amendment arguments and expand mail-in voting.

“Unless access to vote by mail is increased significantly, providing a safe election will be impossible because of the expected high volume of in-person voters this presidential year,” their brief said.

On the one hand, almost 30 doctors and nurses, including epidemiologists and front-line health workers, told the court that it is essential to reduce the number of people gathering on Election Day to protect voters, poll workers and the community from COVID-19, while the Texas NAACP argued that the state’s Republican leaders adopted a needlessly restrictive interpretation of mail-in voting law to impose a severe and unacceptable burden on the right to vote.

On the other hand, a brief from conservative legal interest groups argued that Biery improperly interfered with the state’s authority to regulate the time, place and manner of elections in favor of widespread mail-in voting, which should be allowed in only limited circumstances because it is more vulnerable to fraud than traditional voting.

Originally, there were two lawsuits, one filed by the TDP that argued COVID vulnerability was sufficient to be considered a “disability” and allow anyone who claimed that to get a mail ballot, and one filed by other groups that argued the existing limit of vote by mail to those 65 and over (plus those who claim a disability, which as we know was not clearly defined and is being argued about in other venues) violates the 26th Amendment, which is the one that lowered the voting age to 18. Both were combined into this lawsuit, and as you can see the 26th Amendment claim is the main thrust from the plaintiffs. We’ll see what we get.

And now the state has sued to stop the Clerk’s mail ballot application program

Such a busy day in court.

Acting at the request of the secretary of state, the Texas attorney general on Monday sued Harris County after it refused to drop plans to send applications for mail-in ballots for the November general election to more than 2 million registered voters.

Attorney General Ken Paxton is asking a state district court to bar Harris County Clerk Chris Hollins from proactively providing the applications to every registered voter in the county, alleging Hollins does not have the authority under state law to carry out the plan.

[…]

There is no state law that specifically prohibits election officials from sending out mail-in ballot applications to all voters. Instead, Paxton argues that county clerks are only “expressly empowered” by the Texas Election Code to send out applications to voters who request them, “but there is no statute empowering County Clerks to send applications to vote by mail to voters who have not requested such an application.”

“And Hollins’s plan to send vote-by-mail applications to every registered voter, regardless of whether the application was requested or whether the recipient is qualified to vote a mail ballot, is not an exercise of power that is necessarily implied to perform his duties,” Paxton wrote.

The legal action was sought by the secretary of state’s office, which last week demanded the county retract its plan by Monday at noon. The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older — the only predetermined qualification for a mail-in ballot in Texas — to avoid confusion about eligibility.

The secretary of state’s office claimed that Harris County’s endeavor would amount to “abuse of voters’ rights,” raising the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

But Harris County refused to back down from its plan, with Hollins noting that the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail.” The county has also previously indicated it is planning to purchase more mail-sorting equipment and hire hundreds of temporary workers who will focuse on processing voting-by-mail applications and ballots.

“They have taken the position that somehow sending the form that would make it easier for someone to vote is somehow impeding a person’s ability to vote,” said Douglas Ray, a special assistant county attorney in Harris County. “The lack of logic in that assertion is beyond me.”

See here and here for the background. A copy of the AG’s filing is here. There are two main differences between this action and the Hotze filing. One is that this is a lawsuit filed in Harris County district court, for which the AG will seek a temporary restraining order, while the Hotze action is a writ of mandamus to the Supreme Court. The other is that this one seems to make a narrower claim about the law in question, which is that the Lege didn’t give the Clerk this power and so the Clerk does not have it. It’s not as problematic or nonsensical as the Hotze argument, but it still fails my “plain reading” test and still invites the question of why anyone else would be empowered to do this if the Clerk is forbidden. You can read the other post, I’m not going to repeat myself. I will also confess that I didn’t read the AG’s filing, mostly because it was later in the day when this story hit and I was tired. I expect it’s less ridiculous than the Hotze filing, but that is a very low bar to clear. As of this moment, I have no idea what the schedule for this may be, but for obvious reasons there should be some action quickly. The Chron and the Texas Signal have more.

Hotze and the Harris County GOP try to stop the Clerk from sending out mail ballot applications

It’s mandamus time! Again.

The Harris County Republican Party on Monday joined a lawsuit asking the Texas Supreme Court to halt the county clerk’s plan to send mail ballot applications to all 2.4 million registered voters.

The lawsuit accuses County Clerk Christopher Hollins of ignoring the court’s June ruling on mail ballots and misreading the Texas Election Code.

“Harris County has a rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County,” the suit states. The other plaintiffs in are conservative activist Dr. Steven Hotze, and Sharon Hemphill, a Republican running for judge in the 80th Judicial District Court.

[…]

The suit argues that the Election Code states residents must request a mail ballot application, and that absentee voting in Texas is reserved for a small group of voters. Since the code does not specifically permit a county clerk or elections administrator to send mail ballot applications to residents who do not request them, the suit claims this practice is illegal.

Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice, told the Houston Chronicle on Friday that nothing in the Texas Election Code prohibits Harris County from mailing applications to whomever the clerk chooses.

The plaintiffs also claim Hollins disregarded the Supreme Court’s June ruling, which held that lack of immunity to COVID-19 alone did not qualify voters for a “disability,” one of three conditions that permit a resident to vote by mail in Texas.

Hollins and the Harris County Attorney’s Office have interpreted the ruling to mean that fear of the virus can constitute one of several factors to meet the disability standard. Since the county clerk has no duty to challenge mail ballot applications, this effectively leaves voters to decide for themselves where they qualify.

See here and here for the background. This mandamus makes two arguments, both of which seem incredibly thin to me. One is a rehash of the state Supreme Court opinion in the earlier lawsuit by the TDP to expand vote by mail, in which SCOTX agreed with the state that “lack of immunity to COVID-19” did not qualify as a “disability” under the law that defined vote by mail eligibility. That opinion also concluded that it was up to the voter to determine whether or not they met the definition of “disability” under this law, and that local election administrators have “no responsibility to question or investigate a ballot application that is valid on its face”. Their claim is that this means that it’s illegal to send people who may not qualify for a mail ballot an application for a mail ballot, which sure looks to me like an enormous leap. I can certainly imagine SCOTX taking an opportunity to clarify their earlier ruling, but I would hope they’d prefer to do it after a case has been argued and facts established by a lower court.

The other argument is an even bigger head-scratcher. Allow me to quote:

III. State Law Requires Voters to Request an Application to Vote by Mail

The Texas Election Code § 84.012 states: CLERK TO MAIL APPLICATION FORM ON REQUEST. The early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.

Limitations on voting by mail and fraud related to the voting by mail process has been the subject of “intense political debate, in this State and throughout the country.” In re State, 602 S.W.3d 549, 550 (Tex. 2020). This Court has not taken “a side in that debate,” and has left the decisions regarding voting by mail “to legislators and others.” Id.

The issue before this Court is not whether the application process for voting by mail is a better policy or worse, but what the Legislature has enacted. It is purely a question of law. This Court’s “authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent.” Id.

Here’s the law in question. I Am Not A Lawyer, but I am capable of reading an English-language sentence and inferring its meaning. I say the plain meaning of this text is that the intent of the Legislature was to mandate that County Clerks send a mail ballot application to anyone who requests one. The purpose of this law is to remove any discretion from the Clerk’s procedure – in other words, to forbid a Clerk from deciding not to send someone a mail ballot application because the Clerk thinks that person is ineligible or whatever else. I’m hard-pressed to see how this could be interpreted any other way.

The law, as written, does not specify that the Clerk may not send an application to anyone who did not specifically ask for one. Nor does it say that they Clerk may only send an application to those who do. It just says that if a Clerk gets a request for a mail ballot application, the Clerk must send the mail ballot application. What else would it mean?

The relators elaborate on their argument a couple of paragraphs later, and it’s almost as if they’re trying to make my argument:

A. The plain language of Texas Election Code § 84.012 prohibits Respondent from sending applications to all registered voters.

Texas statutes are to be interpreted based on their plain language. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). The Court presumes the Legislature included each word for a purpose and that words not included were purposefully omitted. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). It also presumes the Legislature understood and followed the rules of English grammar. Tex. Gov’t Code § 311.011; See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (describing the presumption as “unshakeable”).

[…]

The plain language of the statute makes it clear that the clerk shall mail the appropriate official application form for early voting only to “applicant[s] requesting the clerk to send the application form.” Id. The Texas Election Code § 84.012 does not allow for the clerk to send applications to all registered voters.

The Legislature’s refusal to add such language is consistent with the Legislature’s desire to curtail fraud associated with voting by mail. If the Legislature had wanted to require the clerk to send the application to vote early to all registered voters, they could have done so. Additionally, if they wanted the clerk to have this option, they could have provided it in the language of the statute. Instead, the Legislature limited the mandate to provide the application only to those who request it.

Emphasis in the original. Note how the word “only” in the penultimate paragraph is not included in the quote from the law. That’s because that word was not included in the law. Like I said, it’s almost as if they agree with me.

I would also point out that if the Legislature really did intend to “limit the mandate to provide the application only to those who request it”, then campaigns and political parties have been violating this law with impunity for decades. I myself would have violated it in 2018 when I participated in HCDP phone banks to remind voters that the HCDP had already sent mail ballot applications to complete them and mail them in. Remember how the TDP recently boasted about sending out zillions of mail ballot applications to voters this year? Or for that matter how County Clerk Hollins sent mail ballot applications to all registered voters 65 and over for the primary runoffs? No one filed any mandamuses over those actions. That’s because the law does not forbid them. Capische?

Now again, the relators here are trying to wedge the door open to allow SCOTX to revisit its opinion from that earlier suit and clarify that no, actually, only people who are Legitimately Disabled (whatever that means) can get mail ballots. That would mean not only making up a new law on the spot but also defining how to enforce it, and while I would not put it past the Supreme Court to try and pull such a stunt, it would be a big goddamn mess if they did so. I don’t think they have it in them, but we’ll see.

One more thing: Do go and give this mandamus a scan – the link from above is to a Quorum Report post, and the mandamus filing is there as a downloadable PDF. Look at how much of the language in this filing is about buzzwords and slogans – fraud! rogue! more fraud! – and how little refers to actual law and precedent. Now compare it to the mandamus writ in the attempt to knock Libertarian candidates off the ballot, which whatever you may think of it is sober, to the point, and full of citations. Maybe it’s just me, but the former comes off as desperate, while the latter has some faith in its arguments. Campos has more.

Can downtown survive COVID-19?

So depressing to read.

When Understory opened last summer, the stylish food hall in downtown’s Bank of America Tower quickly became the go-to lunch spot for throngs of office workers who stood in line for poke bowls, gourmet burgers and fancy coffee drinks.

Across the street, a row of taxis idled in front of Chase Tower, waiting to shuttle well-dressed business travelers to their hotels or back to the airport.

At night, lights twinkled from inside Perbacco, the glass-walled Italian restaurant across from the city’s symphony hall that had become a pre-theater staple.

But that was all so 2019.

This corner of downtown Houston, once a thriving hub of commerce and culture, has become a shadow of its former self. The food hall crowds are gone. The taxis are nowhere to be found. And the restaurants that are still open are struggling to hang on. Aside from construction projects, which have continued to move forward during the coronavirus pandemic, the Central Business District is a ghost town.

It’s not just the private sector feeling the pain. With tourists and business travelers staying home, hotel occupancy tax collections, a significant source of revenue for the city, were off 28 percent through July compared with the same period in 2019.

“You’ve got to understand,” said Tilman Fertitta, who owns Vic & Anthony’s, the high-end steakhouse near Minute Maid Park, “downtown is dead. There’s nobody in the buildings. There’s no business traveler.”

While some white-collar workers have trickled back to their jobs, the office population has plunged to less than 10 percent of pre-pandemic levels, according to a survey by Central Houston, a downtown business group. Major conventions and virtually all business travel, the lifeblood of downtown hotels, have been canceled. The performing arts are on hiatus and professional sports are being played elsewhere or without fans in their seats.

The strides developers, business leaders and city officials have made in transforming the city center from a mostly commercial district into a more vibrant neighborhood with new housing, parks and schools are being threatened by the pandemic, whose economic and societal tolls may take years to undo.

I’ve lived in Houston long enough to remember when no one went downtown unless they worked there or had some limited one-off reason, like jury duty or to see a show. I’ve seen the various efforts to bring new life into downtown, from big ticket items like Minute Maid Park and the Toyota Center to Discovery Green and the resurgent restaurant scene. As a four-year downtown employee, I dodged a lot of construction and saw the culmination of many longer-term projects that made downtown a vital and thriving place. And now we see the devastation caused by COVID-19 and the lives and careers and businesses it has wrecked, and I wonder if I’ll live to see a downtown like the one I remember again. I’m hopeful by nature, but boy is this going to be rough.