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September 20th, 2020:

Weekend link dump for September 20

“Several elements of those historic failures exist today: political disunity, economic collapse, the possibility of a razor-thin electoral margin, and corrupt challenges to the results. But none of those other transitions incorporated all of that at once, and a deadly pandemic. And none of them featured someone like Donald Trump. Whether he wins, loses, or just decides that he’s won, the whole nation must prepare to navigate treacherous territory this winter.”

“According to documents obtained by Motherboard from state departments of agriculture, at least hundreds, perhaps thousands of Americans planted the [mystery seeds from China].”

“The American system of government has proven to be far more fragile and norms-dependent than most public policy professionals and politics nerds had thought possible. It may only take one more president of limited moral constraints to topple it entirely. And given that impeachment and removal have proven to be an empty threat, the only deterrent to a future Trumplike president and their enablers will be the fear of being held legally and financially accountable for wrongdoing after leaving office.”

“All startups seek to disrupt and disintermediate a smug status quo, or originate and dominate an entirely new niche. But what makes a brand a bland is duality: claiming simultaneously to be unique in product, groundbreaking in purpose, and singular in delivery, while slavishly obeying an identikit formula of business model, look and feel, and tone of voice.”

“Over the years, this page has commented on the scientific foibles of U.S. presidents. Inadequate action on climate change and environmental degradation during both Republican and Democratic administrations have been criticized frequently. Editorials have bemoaned endorsements by presidents on teaching intelligent design, creationism, and other antiscience in public schools. These matters are still important. But now, a U.S. president has deliberately lied about science in a way that was imminently dangerous to human health and directly led to widespread deaths of Americans. This may be the most shameful moment in the history of U.S. science policy.”

“Are you used to identifying, all the way down to your soul, with your Hogwarts house, but you also don’t want to support transphobia? Here are some alternate ideas for you!”

“High in the toxic atmosphere of the planet Venus, astronomers on Earth have discovered signs of what might be life.”

“In the libel, journalism and risk world there’s the pre-Gawker suit world and the post-Gawker suit world. Some of difference is actual changes in case law. But it’s not mostly that. It’s also the climate of uncertainty created by the outcome of the Gawker case – a major publication really was sued out of existence without even the ability to appeal the judgment or get a review on the law. The case was funded by a billionaire who wanted to retaliate for coverage he didn’t like. It is also because of novel legal strategies and the increased willingness of the extremely powerful to use the courts to get the press to heel.”

“But if there is a line Donald Trump could cross that would forfeit the loyalty of his core supporters—including, and in some respects especially, white evangelical Christians—I can’t imagine what it would be. And that is a rather depressing thing to admit.”

The epic rock battle between Dave Grohl and Nandi Bushell is the purest, most wholesome, and most life-affirming content on the Internet.

RIP, Ronald Bell, musician and co-founder of Kool and the Gang.

“I’m sure you know this by now, but the reason ABBA wore those wild costumes was because Swedish tax law would only let you write off costumes/clothes as business expenses on your taxes if you couldn’t possibly wear them on the street.”

“[Sarah] McBride overwhelmingly won a two-person Democratic primary for a state senate seat. And the makeup of her district, with its large base of registered Democratic voters, all but assures that McBride will win the seat in November, making her the nation’s first openly transgender state senator.”

“Are you better off today than you were four years ago?”

RIP, Rich Connelly, longtime local news reporter and columnist. His magnus opus was a long essay on surviving Tropical Storm Allison, called Wading for Godot, and you should read it even if you’ve never experienced a Houston flooding event.

“Hey, quit laughing! It’s not an ignominious end to a glorious legal career. Dersh is on top of his game, ready to take on the world, primed to hit the nude beaches for an impromptu lecture on presidential prerogatives. Look out, Martha’s Vineyard, here he comes!”

“It may be a nice idea for Congress to establish a commission to protect our elections, but the Republican Party is committed to the opposite which is why they’d never go along with Coats’s idea.”

“Dames don’t audition for you; you audition for them. We loved her, she was funny, she was bawdy, she was everything we wanted for that character.”

“Facebook is best understood as a fantastically profitable nuclear energy company whose profitability is based on dumping the waste on the side of the road and accepting frequent accidents and explosions as inherent to the enterprise.”

Happy 100th birthday, Roger Angell!

A matter of timing

That’s the stated reason why SCOTX overturned the earlier decision that booted three Green Party candidates off the ballot.

The Texas Supreme Court in a new opinion Friday explained its decision to reinstate to the November ballot Green Party candidates who did not pay their filing fees, saying lower courts denied them the chance to resolve the issue while there was still time under the law.

[…]

Justices acknowledged the strain that adding last-minute candidates may put on county elections officials, who were just days away from sending out their first rounds of ballots before the court’s order was announced on Tuesday. The high court did not publish its opinion in the matter until Friday.

“We recognize that changes to the ballot at this late point in the process will require extra time and resources to be expended by our local election officials,” the opinion read. “But a candidate’s access to the ballot is an important value to our democracy.”

[…]

In the unsigned opinion handed down Friday, justices said Democrats challenging the validity of Green Party candidates failed to prove that the election law requires party chairs to declare candidates ineligible when they don’t pay filing fees, and that the 2019 law doesn’t include a deadline for paying them.

Justices also say the Third Court of Appeals should have given Green Party candidates a chance to pay their fees before declaring ineligible and tossed from the ballot.

See here and here for the background. The opinion is here, and Michael Hurta continues his Twitter thread on this here, with some replies from me at the end. We’re going to need to delve into the opinion, because it’s more nuanced than what this story gives, and also clarifies something else that I hadn’t realized I was confused about.

First, in stating that RRC candidate Chrysta Castañeda “failed to prove the Election Code clearly spelled out the duty of the co-chairs to declare the Green Party candidates ineligible for their failure to pay the filing fee”, SCOTX clears up something from the legal challenge to the filing fees that I had missed.

The court explained that section 141.041 does not set a deadline for compliance but that the requirements apply only to the candidates actually nominated at a party’s nominating convention generally held in March or April of the election year. Id. at ___. Candidates who intend to seek a nomination at a convention must file a notarized application in December before the convention. Id. at ___ (citing TEX. ELEC. CODE §§ 141.031, 172.023(a), 181.031–.033). The advisory, by requiring payment of the filing fee before the nominating convention, expanded the requirements in 141.041 from all nominated candidates to all candidates seeking nomination. Id. at ___. The court ultimately held that payment of the filing fee under section 141.041 was still required, but the court affirmed the trial court’s order temporarily enjoining the Secretary of State from refusing to certify third-party nominees on the grounds that the nominees did not pay a filing fee at the time of filing. Id. at ___.

We agree with the Fourteenth Court of Appeals that under section 141.041 only a convention-nominated candidate is required to pay the filing fee. See TEX. ELEC. CODE §141.041(a) (“[A] candidate who is nominated by convention . . . must pay a filing fee . . . .”). Therefore, we also agree that the Secretary of State’s advisory requiring payment of the filing fee at the time of filing an application is not required by, and indeed conflicts with, the Election Code. See id. Section 141.041 does not include a deadline for compliance, but as we explained in In re Francis, when an Election Code provision does not provide explicit guidance, we apply a presumption against removing parties from the ballot. 186 S.W.3d at 542.

I had not understood the distinction between mandating that all candidates who compete for the nomination must pay the fee and just mandating that the candidates who actually receive the nomination must pay it. I’m fine with that. The key to the decision here is the question about deadlines, and how much time the Green Party and its candidates were supposed to have to fix their failure to pay these fees (which as we know they claim are unconstitutional).

Castañeda presented a public record to the co-chairs showing that as of August 17, the Green Party candidates had not paid the filing fee. As previously noted, section 141.041 requires the filing fee but contains no deadline for its payment, see TEX. ELEC. CODE § 141.041, and the only potential applicable deadline in the Secretary of State’s election advisory conflicts with that provision. Hughs, ___ S.W.3d at ___. Strictly construing these sections against ineligibility, we disagree that the public document demonstrating that the Green Party candidates had not paid the filing fee as of August 17 conclusively established that they were ineligible. To be “eligible to be placed on the ballot,” the Green Party Candidates were required to pay the filing fee or file signature petitions. TEX. ELEC. CODE § 141.041 (emphasis added). The co-chairs did not have a ministerial statutory duty to declare the candidates ineligible, as the law did not clearly spell out their duty on August 17 when the candidates had not yet paid the filing fee such that nothing was left to the exercise of their discretion. See In re Williams, 470 S.W.3d at 821.

The court of appeals ordered the co-chairs to declare the Green Party candidates ineligible and take necessary steps to ensure their names did not appear on the ballot. ___ S.W.3d at ___. But the court did not address a deadline for payment, nor did it otherwise allow for payment of the fee. And under In re Francis, an opportunity to cure should be provided when a candidate could still comply with Election Code requirements. 186 S.W.3d at 541–42 (noting that an opportunity to cure complies with the purposes of the Election Code and avoids potential constitutional problems that “might be implicated if access to the ballot was unnecessarily restricted”). “The public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default.” Id. at 542. In the absence of recognizing a deadline for paying the filing fee or giving the candidates an opportunity to comply, the court of appeals erred in ordering the Green Party candidates removed from the ballot on August 19.

Emphasis in the original. The opinion cited an earlier case of a candidate who had turned in petition signatures to be on a ballot but failed to correctly fill out all the petition pages with information about the office he sought, and was tossed from the ballot as a result. On appeal, he was restored on the grounds that he should have been given the chance to fix the error before having the axe fall on him. Much as I dislike this opinion, I agree with that principle, and I don’t have a problem with it being applied here, though of course we can argue about what a reasonable amount of time should be to allow for such a fix to be applied. SCOTX left that question open, so if the filing fees are still in place in 2022 and the Libertarians and Greens are still resisting it, look for some judges to have to determine what sort of schedule should be applied to non-fee-payers, in an attempt to follow this precedent.

As I said, I don’t like this decision, but I can accept it. It didn’t immediately make me want to crawl through the Internet and slap someone. But let’s be clear about something, if SCOTX is going to appeal to higher principles in cases like this, which just happen to also align with the desires of the Republican Party, then I’d like to see some evidence that they will err on the side of the voters in a case that doesn’t align with the GOP. Like, say, the Harris County mail ballot applications case. What are you going to do with that one, folks? And please note, the clock is ticking. A decision rendered for Chris Hollins in late October doesn’t exactly mean anything. Let’s see where the SCOTX justices really stand.

CD03 poll: Taylor 44, Seikaly 43

From Nate Cohn:

All we get is Twitter for this one, any other info about the poll is behind the National Journal paywall. It’s in line with an earlier poll that had Taylor leading 43-37 and Biden up by two in the district. Seikaly’s improved performance is likely due to greater name recognition at this stage of the campaign.

I can’t analyze the poll in any meaningful way, but I can add some context to Nate Cohn’s assertion that if Biden carries CD03 he’s likely to have won Texas. Here’s a review of recent elections:

In 2012, Mitt Romney carried CD03 by a 64.2-34.1 margin, as he won the state 57.2 to 41.2.

In 2016, Donald Trump carried CD03 by a 53.8 to 39.9 margin, as he won the state 52.2 to 43.2.

In 2018, Ted Cruz carried CD03 by a 51.3 to 47.9 margin, as he won the state 50.9 to 48.3.

As you can see, CD03 was more Republican than the state as a whole, though that margin had narrowed by 2018. But if the pattern of CD03 being more Republican than the state overall holds, then it’s trivial to see that a Democrat winning in CD03 would also win statewide.

That comes with a raft of assumptions, of course. Maybe CD03 will be less Republican than the state this year. It’s been trending in that direction, and as a heavily suburban and college-educated district, that trend should continue. Perhaps this year the lines will intersect, and a Dem running in CD03 will have to win it by a certain margin in order to be able to win the state. If Biden really is winning CD03 by three points, you’d think that would be enough slack for him.

There’s one more piece of objective evidence that both this district, and by implication the state as a whole, is perhaps doing better for the Democrats than people realize:

Those are the three districts most recently added by the DCCC to their target list. You might say, the DCCC is in the business of talking up opportunities, so why should we take this as anything more than hype? Mostly because the DCCC already had its hands full in Texas – those three districts came after seven others currently held by Republicans, plus the two where Dems are playing defense. The DCCC is going to prioritize the districts where it thinks it can win, both to maximize its resources and keep its donors (and members) happy. They’re not going to go off on flights of fancy. It may be on the optimistic end of their spectrum, but if they believe there’s action there, you can expect there is.

Voter registration during a pandemic is hard

Especially when online voter registration is not an option.

Still the only voter ID anyone should need

In the first seven months of 2020, new registrations in Texas were down nearly 24% compared with that same time frame in 2016, according to numbers from the nonprofit Center for Election Innovation and Research. In April alone, registrations dropped 70%. Numbers have climbed back up over the summer, but that rebound might not be enough to get the state back to where it could have been, said David Becker, the center’s director.

“We’re not seeing an increase in voter registration activity that compensates for the decrease that we’ve seen in previous months,” he said. “In Texas, there’s still a pretty big overall deficit for the year in terms of new voter registration activity.”

The effects are being felt by both parties. Democrats and Republicans told The Texas Tribune that they’re struggling with voter registration in the era of COVID-19.

On the Republican side, the super PAC Engage Texas is emblematic of the challenge. By February, a month before the pandemic hit Texas, it had raised nearly $12 million and had hired nearly 300 staff members with the goal of registering hundreds of thousands of new likely Republican voters before the 2020 elections. The political action committee had shut down by May, citing challenges created by the coronavirus.

“It’s more difficult to register voters face to face and by traditional voter registration methods like door-knocking during the pandemic,” said Luke Twombly, a spokesperson for the Republican Party of Texas who said the party was not allowed to coordinate with Engage Texas.

However, Twombly said, the party has found “multiple alternative methods that have proven to be very successful at registering voters during the pandemic.”

Democrats, meanwhile, have long contended that Texas isn’t a red state, but a nonvoting state — one they could flip if they registered and energized more voters. Party leaders entered the 2020 cycle determined to register large amounts of young people and people of color who are opposed to the Trump administration. Groups like Beto O’Rourke’s Powered by People were gearing up for a massive blitz, only to find they can’t go door to door. Now many are hosting virtual phone banks with the hopes of registering hundreds of thousands of voters.

Voting rights groups are experiencing similar challenges. Since its founding in 2012, Mi Familia Vota’s Texas chapter registered over 50,000 new voters, a number the group thought would have gone up in 2020. But the group is anticipating seeing a 20% decrease in its final voter registration numbers since 2018, said Angelica Razo, the Texas state director for the group.

Many of the potential missed registrants, Razo said, are in the state’s growing Latino population, which has been disproportionately hit by the pandemic, and lower-income residents who don’t own printers and are therefore unable to print off voter registration forms.

“Latinos have been disenfranchised, and there has not been a lot of investment in Latino electoral participation,” Razo said. “But the energy is there, and people are fired up. Our people don’t want to get stuck on the sidelines for this election. Mi Familia Vota is working to create systems and resources hubs that make this process as accessible as possible.”

Lately, there have been some signs of a possible, albeit small, rebound. Groups like the League of Women Voters of Texas and MOVE say they saw registration bumps over the summer; both groups attributed the change, at least in part, to Black Lives Matter protests after the killing of George Floyd in Minneapolis police custody.

Roughly 16,500 people registered to vote with MOVE between June and August, Bonner said; Grace Chimene, the president of the League of Women Voters of Texas, also reported gains since the spring, though she was unable to provide exact figures.

[…]

Still, many groups are working to reach potential voters online. Chimene pointed to Register2Vote.org, a website that has been accessible to people since March 2018, which walks people through filling out the voter registration application online and then sends it to them in the mail filled out with the person’s information and a stamped return envelope.

Jeremy Smith, the executive director of Register2Vote, said it registered 23,700 Texans from March to May and another 37,500 from June to July. Some experts say they think the latest online tools will likely have the biggest impact on college students and people younger than 25.

The Texas Democratic Party is doing something similar. In April, it launched registertexas.org, which also sends voters pre-filled voter cards with return envelopes. It also formed a “voter expansion team” in January with the goal of “expanding the electorate,” said Luke Warford, the director of voter expansion. On Sept. 7, the party said it reached out to 1.3 million unregistered Texans in the week prior, though it’s unclear how many followed through and registered.

I find it interesting that while the one Republican-backed group that was trying to register voters gave up in May, while all of the Democratic and non-partisan groups have chugged along and found innovative solutions like the pre-filled-in applications that just need to be signed and stuffed in the mail. You tell me what that means about the relative levels of dedication. I said before that it was useful to have a Republican-backed group bump up against the reality of voter registration in Texas, as maybe that might give a little push to the eventual passage of a bill to allow online voter registration, which the earlier judge’s ruling cracked a door open for. But let’s be real, as with every other worthwhile election reform, the main prerequisite is going to be a Democratic trifecta in our state government.

Meanwhile, in other election innovations:

Utilizing its platform, Snapchat, the popular social media app, is registering new voters ahead of the election on Nov. 3. As of this report, the app has registered 407,024 people, according to data reported within the app. A spokesperson confirmed with Axios that the tally seen in the app’s “Register to Vote” portal represents the number of users who registered to vote via the app.

Snapchat is commonly used by millennials and Gen Z, including a wide number of people who recently turned 18 years old and who will have the ability to vote for the first time this year. To guide individuals through the ballot process and help ease the process of registering to vote, Snap–the company that owns the app–has partnered with Democracy Works’ TurboVote. To streamline the process of the registering feature, Voter Registration “Mini” allows users to register within the app itself instead of visiting registration sites. The tool became available last week and has already registered nearly as many voters as the app did in 2018 with the same feature.

For the 2018 midterm elections, Snap registered at least 450,000 new voters. Most of those who registered were between the ages of 18 to 24 years old and did so in key states like Texas, Florida, and Georgia, a company spokesperson said. According to the company, 57% of users who registered to vote with Snapchat went out and cast ballots, Axios reported. In addition to the voter registration tool, Snapchat is promoting a voter guide that allows users to search for terms associated with voting and the election, as well as guide them on how the process of voting works. To ensure users are prepared for Election Day, the app’s tool, called BallotReady, walks users through how to vote-by-mail and cast a ballot, with COVID-19 precautions in mind.

Give people the chance to use new technology in ways not originally envisioned, and they will. That’s not always a good thing, but in this case it certainly is. It’s up to us to ensure this kind of innovation is widely available.

Matt Glazer: To see boon, clean energy needs Congress

(Note: The following is a guest post that was submitted to me. I occasionally solicit guest posts, and also occasionally accept them from people I trust.)

I’m a bit of an Austin-area expert when it comes to weird homes. So, when I bought my own home last year—going in a more traditional route—I was surprised when I was left no less transfixed. Our builder had prioritized solar panel installations and, in the weeks, after settling in, I made a routine of watching the monitor tick up as our 12 panels fed energy back into the grid. Truth is I’m not the only one mesmerized. Watching the green bar climb and doing what we can to be a net producer of clean, affordable energy is a fun little game. Luckily, clean energy has caught the attention of Texans just as easily as the panels on my roof catch rays.

For more than a century, Texas has asserted itself as a national and global energy leader. Much of this legacy is owed to our wells of oil, but more so it is owed to our ability to build an economy around those prospects. Clean energy can continue to expand them beyond the subterranean. We were the first state to codify an energy efficiency resource standard after all and already Texas is top five in the nation for solar, and first in the nation for wind capacity. If you have ever driven through Texas, you can see evidence of this across the horizon from the panhandle to the coast.

All told—from renewables to clean vehicles, energy efficiency, clean fuels, and grid and storage—nearly a quarter of a million jobs were held in Texas’ clean energy industry last year. COVID-19 has detracted from those numbers depressing the state’s clean energy workforce by 10%—at least temporarily. Despite the setback, a growing commitment to reduce carbon emissions means clean energy is no longer being considered an alternative and instead as a necessary and growing component of diversified portfolios.

This will assure its subsistence, but while consistent demand could pull the industry back bit-by-bit, a major federal investment just might sweep the Lone Star State into this millennia’s energy boon. What the country needs now is a post-pandemic economic plan that spurs energy innovation, builds out 21st century infrastructure and continues driving down carbon emissions while creating 21st century jobs.

Though we often consider clean energy at scale, like in the case of utility companies, small businesses have played a significant role in clean energy’s early trajectory. In 2019, nearly two out of every three clean energy workers—of which there were 3.3 million in 2019—were employed by a small business. But, with manufacturing advancements driving down costs, the popularity of reduced carbon emissions rising and a steady churn of state-of-the-art tech reaching the market, clean energy’s entrepreneurial scene is far from saturated. One can even still imagine the potential for a new generation of Texas energy titans eventually adding to an already storied energy tradition.

To get there, however, requires a commitment not just from dedicated contractors like my own or local officials or even from Fortune 100 corporations, but from national leadership representing us in Congress. This issue is not a partisan one but an economic one, given the country’s current straits, we cannot afford to let the clean energy wallow in its COVID depression.

To truly capitalize on the economic and environmental potential of the vast prairies, strong wind gusts and access to persistent sun that outfit Texas, not to mention an intrepid workforce, we need our representatives and senators to put into action plans that bolster clean energy development and job creation while continuing to build on America’s leadership driving down carbon emissions.

I am grateful to have low cost, high production solar cells on my home. I am grateful for the incentives that made it possible to do something good and lower my total costs. I look at the energy I am creating for my city and know that an install team, builder, designer, electrician, and manufacturing company all created jobs. Jobs with an eye towards the future of Texas. Congress has an opportunity to continue to foster this innovation so we can be leaders in this established clean energy economy.

Matt Glazer is the past Executive Director of Progress Texas and co-founder of Blue Sky Partners.