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September 24th, 2020:

Hotze and crew appeal to SCOTX to stop the extra week of early voting

Here we go again.

Republican Gov. Greg Abbott is facing a lawsuit over his extension of early voting for the November election from prominent members of his own party — including state party Chairman Allen West, Agriculture Commissioner Sid Miller and members of the Texas Legislature.

In July, Abbott added six days to the early voting period, moving the start date up to Oct. 13 from Oct. 19, citing the coronavirus pandemic. In the lawsuit, filed Wednesday with the state Supreme Court, Abbott’s intra-party critics say the move defied election law that requires early voting to start on the 17th day before the election.

It is the latest legal challenge to Abbott’s emergency powers, which he has wielded aggressively in dealing with the pandemic.

“Governor Abbott seems to have forgotten that the Texas Constitution is not a document that he consults at his convenience,” Jared Woodfill, a lawyer for the plaintiffs, said in a statement. “It is an uninterrupted charter of governmental structure that limits the Governor Abbott’s ability to act as a king.”

The plaintiffs argue Abbott needs to consult the Legislature before making such decisions and that “if ever a special session was justified, now is the time.”

One of the plaintiffs is Steve Hotze, the Houston conservative activist who has launched several lawsuits against Abbott’s coronavirus response that has seen minimal success so far. But in the latest lawsuit, he is joined by not only West and Miller, but also three state senators and four state representatives, as well as the chairman of the Harris County party, Keith Nielsen, and the Republican National Committeeman from Texas, Robin Armstrong.

West, who took over the state party this summer, has openly expressed disagreement with aspects of Abbott’s coronavirus handling, including his statewide mask mandate and the early voting extension. West seemed to telegraph the lawsuit Tuesday, saying in a statement that he would be partnering with Hotze to make election integrity a “top priority.” West said in the same statement that he opposes the “extension of early voting through the decree of a single executive instead of through the legislative process.”

[…]

In addition to making the early voting period longer for the November election, Abbott gave voters more time to turn in their mail-in ballots in person if they choose to do so. Usually those voters are permitted to submit their ballots to the early voting clerk’s office in person instead of mailing them in — but only while polls are open on Election Day. Abbott’s expanded that option to the entire early voting period.

The lawsuit filed Wednesday additionally seeks to stop the extended period for submitting mail ballots in person, also calling the move inconsistent with the election code.

Before we go on, I should note that what was filed was not a lawsuit but a writ of mandamus. Hotze and a smaller crew of jackals had already filed a lawsuit in Travis County district court about a month ago. I presume this writ was filed because they weren’t going to get a ruling in time, and everything is an emergency as far as Hotze is concerned.

The Chron adds some detail.

In the 40-page petition filed Wednesday, the Republicans wrote that the extension was unlawful because the Texas Election Code defines the early voting periods as “the 17th day before election day … through the fourth day before election day,” and the time for in-person submission of mail-in ballots as “only while the polls are open on election day.” The petition seeks to force Secretary of State Ruth Hughs to stick to the timelines in the law.

Hotze has filed a number of lawsuits aimed at Abbott’s COVID-19 emergency orders; in the early voting suit, he again alleges that Abbott does not have the authority, even during a disaster, to suspend laws through executive order. Instead, he says, Abbott should have convened the Legislature.

“If ever a special session was justified, now is the time,” the petition states. “Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections. As long as this Court allows it to occur, one person will continue to unilaterally make these decisions under the guise of an unconstitutional statute.”

The lawmakers involved in the suit are state Sens. Charles Perry, Donna Campbell and Pat Fallon and state Reps. Bill Zedler, Cecil Bell, Jr., Steve Toth and Dan Flynn. Additional relators include former state Reps. Matt Rinaldi, Rick Green and Molly White; Harris County Republican Party Chair Keith Nielson; and several other candidates and Republican group leaders.

This story notes the earlier lawsuit. Of interest is the larger group of legislators that have joined in, which distinguishes this action from earlier Hotze/Woodfill joints. Perhaps the election of Allen West, who is as bananas as Hotze, has lent an imprimatur of establishment approval to this kind of rogue action. That said, this is the Hotze clown car we’re talking about, so of course there’s some unintentional comedy involved:

Never stop never stopping, Stevie.

Anyway. You know my opinion on all this – there are some legitimate questions buried under the mountains of palaver, but they are being asked by the worst possible people. I think there’s a strong case to be made that the very nature of our biennial legislature, which is not paid as an occupation but as a temp gig, makes this claim about calling special sessions impossible. It’s just not something that the system is designed to accommodate. My guess is that SCOTX will give this the same reception as they’ve given all of Hotze’s other writs and motions during the COVID times, but you just never know. And I can’t wait to see how Ken Paxton responds to this.

On a side note, this comes as Steve Toth, yet another froth-at-the-mouth type, officially announced that he is unfriending Abbott, which by itself isn’t that interesting but lends some fuel to the speculation that Abbott is going to get a challenger from the far wingnut right in 2022. All I can say to that is that we damn well better have a good candidate ready and waiting for whoever survives that mud fight.

Let’s not overstate the no-straight-ticket effect

With all due respect, this is some ado about not very much.

With straight-ticket voting no longer an option in 2020, the Harris County Clerk estimates the average resident will spend a significantly longer time in the voting booth this fall, which could cause long lines at polling sites in the state’s most populous county.

In an effort to avoid voting delays, Harris County Clerk Christopher Hollins has nearly tripled the number of early voting sites to 120 and increased Election Day polling places by 8 percent, to 808. The $27.2 million plan, the most expensive election in county history, also includes extended voting hours and drive-through balloting.

Gov. Greg Abbott also has added an extra week of early voting.

With a projected record turnout of as many as 1.7 million voters, the clerk’s office hopes residents vote early or by mail, if eligible, said Benjamin Chou, Hollins’ director of innovation.

“No matter how much we do, I think at the end of the day there will be lines,” Chou said. “It’s just a matter of will we avoid a nightmare scenario by doing as much as we can, by stretching the limits of what we thought was possible even just a few months ago.”

The Legislature abolished straight-ticket voting, effective in 2020, in an effort to ensure residents make informed choices about candidates.

The elimination of that method, combined with a ballot with more than 80 races and limited access to mail ballots have made this year particularly difficult for elections administrators. A stopwatch test by Hollins’ office calculated that a straight-ticket ballot takes two minutes to cast, while selecting a candidate for each individual race in November would take 15 minutes.

Using those estimates and turnout data from 2018, when 76 percent of voters selected a straight ticket, a Houston Chronicle analysis found county voters would spend a combined 187,000 more hours in the voting booth if forced to vote each race individually.

A more likely outcome is that some voters, late for work or family obligations or simply overwhelmed by the length of the ballot, make choices in only the top races, said University of Houston political science Professor Elizabeth Simas.

“The fear would be they go to vote for president, maybe vote for senator, and then they walk out,” Simas said. “And we’re not going to get a large number of votes cast for the races that are much lower down the ballot.”

I will stipulate that going from clicking one button and being done to having to click a button fifty-something times will make your stay in the booth that much longer. (I have no idea where that “ballot with more than 80 races” item comes from. I just checked my own sample ballot, and I counted 54 total races, and that includes a handful of races with just an unopposed Democrat. The non-Presidential ballot is longer, as there are more statewide contests and more local judicial races, but we’re not in 2022 just yet.) There’s no question that it will take voters longer to vote the whole ballot, and if you are the kind of voter who deliberates over every race and carefully chooses a candidate in each, then yes, you could be there for 15 minutes or so.

But here’s the thing: That kind of voter wasn’t the person who had been clicking the straight-party button before now. And I can tell you, from my own personal experience, if your intent is to mostly or entirely vote for just the candidates of your preferred party, then it doesn’t actually take all that long to complete the ballot. I feel pretty confident saying I’ve been in and out of there in five minutes or less.

I don’t want to minimize the problem. It is going to take longer for many people to vote this year. There will very likely be some lines as a result. It’s clear that part if not all of the reason for eliminating straight ticket voting was the belief by Republicans that making it take longer to vote would benefit them. There have been so many stories this cycle in which a Republican candidate or consultant refers to this, as if it’s a key part of their strategy to win in an electorate that does not favor them. Putting aside the fact that I don’t believe “ballot fatigue” is a thing that significantly favors Republicans, I just don’t think the time factor will be that big, either. We have plenty of voting locations, we have six extra days plus a whole lot of hours to vote, and we have a lot more people voting by mail this year. I appreciate that Chris Hollins is thinking about this, but it is not something that will keep me awake at night.

Is the GOP punting CD07?

That’s one possible interpretation of this, though probably not the most likely.

Rep. Lizzie Fletcher

The National Republican Congressional Committee has canceled about $2 million worth of advertising it had reserved for campaigning in the Houston television market, according to several Democratic and Republican sources tracking Houston media advertising who were not authorized to discuss the issue on the record.

The Houston region is home to several contested congressional elections, including the 7th Congressional District, which is represented by U.S. Rep. Lizzie Pannill Fletcher, a Democrat. Fletcher unseated Republican John Culberson in 2018, and she is one of two Democratic incumbents who Republicans have been targeting in Texas this year.

The $2 million was intended to cover advertising in the last two weeks of the election, according to the sources.

One source, a national Republican operative, said the money has been moved to the San Antonio and Dallas-Fort Worth media markets. The San Antonio market includes parts of Congressional District 23, where Republicans are trying to hold on to a seat held by retiring U.S. Rep. Will Hurd, R-Helotes. The Dallas-Fort Worth market includes multiple districts that Democrats are trying to flip, and one district held by U.S. Rep. Colin Allred, D-Dallas, that Republicans are targeting.

[…]

There is other national GOP money coming to the region. A Republican leadership aligned group, the Congressional Leadership Fund, is expected to spend about $6.25 million in Houston between media advertising and a field operation. The group’s television ad campaign is set to begin on Sept. 23.

In the absence of any further evidence, it’s probably best to read this as the NRCC making a strategic decision, which was almost certainly affected by the knowledge that the CLF was still spending big bucks in the Houston area. I can imagine them pulling out of CD07 in favor of other districts, but not if that means that CD22 and CD02 and CD10 were also left on their own. I really don’t think there’s all that much to this story, at least based on what we know now, but if there are further pullbacks then we’ve got something. And it should be noted, that canceling an ad buy now doesn’t mean there can’t be a new ad buy made later, though the rates will likely be higher in that instance. We need more data, that’s the main takeaway here.

Texas blog roundup for the week of September 21

The Texas Progressive Alliance mourns the passing of Justice Ruth Bader Ginsburg as it brings you this week’s roundup.

(more…)

Bar owners still mad at Abbott

Can’t blame them, but the situation is complicated.

As Gov. Greg Abbott outlined his latest reopening plan this week, bar owner Greg Barrineau watched in disbelief. Abbott, who announced that Texas restaurants could expand dine-in service to 75% capacity, said bars must remain closed.

“Some bars and their associations have offered some very helpful ideas,” Abbott said of reopening, “and we will continue to work with them on that process.”

But Barrineau, who has laid off his 12 staff members and suffered hundreds of thousands of dollars in losses at Drink Texas, a bar with locations in San Antonio and Boerne, said that assertion of collaboration is “insanity — he doesn’t care about small businesses.”

Michael Klein, the head of Texas Bar and Nightclub Alliance, which represents thousands of bars, said that Abbott’s statement about working together was “incorrect,” carefully choosing his words. The TBNA laid out a six-point plan to reopen in August, but Klein said the governor, whom he referred to strictly as “anti-business Abbott,” has not responded to the plan.

“We’ve never heard back from them,” Klein said. “We believe that he is disingenuous.”

Abbott’s office did not respond to requests for comment.

While restaurant owners applauded Abbott’s move to allow them to increase operations, Klein said Thursday’s ruling was “completely unacceptable” for many bars and other facilities where alcohol sales make up more than half of the revenue. It could leave 30% of Texas bars and 39% of distilleries permanently closed within six months, industry leaders said.

[…]

Spread from conventional bars and nightclubs has been widely documented throughout the U.S., and infectious disease experts caution going inside establishments that don’t follow social distancing protocols.

Kristin Mondy, chief of the infectious disease division in the University of Texas at Austin’s medical school, said there is increased risk in spreading the virus if strangers mingle in a tight, closed space, especially as drinking could cause bar customers to loosen their inhibitions.

Klein said the industry’s plan would reduce those issues by complying with Centers for Disease Control and Prevention requirements.

Some of the requirements in TBNA’s plan include ensuring all patrons are seated at their own tables, barring dance floors and mingling among groups, requiring face masks for all servers and customers when not at their tables, and conducting temperature checks upon entry. Mondy said these procedures could help as long as mask-wearing and social distancing are enforced.

[…]

Cord Switzer, who has helped run Fredericksburg Winery for almost 25 years with his family, said he has been able to technically and legally become a food server — but no one that comes is actually eating the food. That’s not why they go to a winery, he said.

“It makes no sense to me,” Switzer said. “We have never been interested in being in the food service business. We have no intent of doing that in the future, but it was our only choice.”

Switzer started wine tastings on Saturday for the first time in two months and hopes to begin recouping his losses after making 30% of last year’s revenue. But he doesn’t understand the governor’s categorization, and industry advocates share Switzer’s confusion.

“Texas winery owners continue to be perplexed by Governor Abbott’s steadfast refusal to recognize that the lion’s share of Texas alcohol manufacturer’s tasting rooms have little, if anything, in common with bars and nightclubs,” said Patrick Whitehead, the president of the Texas Wine and Grape Growers Association, in an email. “Governor Abbott’s arbitrary, and frankly unfair, act of lumping our tasting rooms into the category of bars is like a surgeon operating with a chainsaw rather [than] a scalpel.”

Switzer’s money troubles are not unique; nearly half of distilleries surveyed by the Texas Whiskey Association have experienced revenue losses greater than 60%. Spence Whelan, the head of the association, which represents distilleries across Texas, said continued restrictions could be disastrous for the industry, which normally relies on a big fourth quarter in holiday sales to stay afloat. This fall, with little or no visitors, that could be wiped out. Under Texas law, whiskey distilleries cannot ship or deliver whiskey directly to customers, nor can they sell more than two bottles of whiskey per person.

At the very least, Whelan said, those rules should be relaxed. Many places don’t want to open yet anyway, and there are other ways to bring in money. He said the industry has sent more than 15,000 letters to the governor’s office asking to waive those restrictions and has received no response.

Let’s acknowledge that bars are a high-risk environment for COVID-19, and the reopening of bars in May was a significant contributor to the subsequent outbreaks that swept the state in June and July. We should also acknowledge that there’s evidence that the reopening of restaurants, even at lower capacities, is also a risk factor in spreading COVID-19. The bar owners’ complaint – and wineries’, and distilleries’, and craft breweries’ – is that Abbott has been particularly rigid about how these risks are categorized, and has been unresponsive to any input that would allow these entities to operate in a lower-risk fashion.

I have a lot of sympathy for these complaints. Some bars have been able to reopen by creative interpretation of the 51% rule, by incorporating to-go service, and by a recent rule change that lets them have food trucks on their premises. But this doesn’t work for every bar, it imposes extra costs on them, and it doesn’t change the fundamental nature of their business. The only good thing that may come out of it is the expanded allowance for to-go service, and maybe if we’re very lucky a broader rethinking of our antiquated regulatory scheme for alcohol. I don’t know how effective the risk-mitigation strategies that have been proposed by the various industry groups would be, but we could study them and try the ones that comply with known best practices. We could surely let the places that have ample outdoor space like wineries and craft breweries with beer gardens take advantage of those spaces (to some extent we already are permitting this), and we could make allowances for those that have large and well-ventilated indoor spaces where social distancing would work. And, you know, Abbott and Dan Patrick could put a little pressure on the two Republican Senators to support a relief bill in Congress that included funds for bars and other places that rely heavily on alcohol sales (such as music halls) that just can’t be allowed to reopen right now. Abbott has done none of this, and as noted in the story has been repeatedly unwilling to engage in any discussion about it.

So this is both a legitimate set of concerns by members of a significant sector of the Texas economy, and a real opportunity for Democrats going forward. Dems don’t need to pander or reverse course on their properly-held principles about minimizing COVID risk. They just need to be willing to consider the various risk-mitigation strategies that have been proposed, and to continue to push for a response from Congress that truly addresses the broad economic pain that much of the country is still experiencing. Good policy is so often good politics, and the opportunity to do both here is enormous.