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October 8th, 2020:

Win one, lose one at SCOTX

The win:

Early voting in Texas can begin Oct. 13, following the timeline the governor laid out months ago, the Texas Supreme Court ruled Wednesday, rejecting a request from several top Texas Republicans to limit the timeframe for voters to cast their ballots.

In July, Gov. Greg Abbott ordered that early voting for the general election in Texas begin nearly a week earlier than usual, a response to the coronavirus pandemic. But a number of prominent Republicans, including state party Chair Allen West, Agriculture Commissioner Sid Miller and several members of the Texas Legislature, challenged that timeframe in September, arguing that Abbott defied state election law, which dictates that early voting typically begins on the 17th day before an election — this year, Oct. 19.

Abbott added six days to the early voting period through an executive order, an exercise of the emergency powers he has leaned into during the virus crisis. The Republicans who sued him argued this was an overreach.

The state’s highest civil court, which is entirely held by Republicans, ruled that the GOP officials who sued challenging Abbott’s extension waited until the last minute to do so, when he had already extended early voting in the primary election and announced he would do the same for the general months ago. Chief Justice Nathan Hecht noted also that the election is already underway.

“To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion,” he wrote in the opinion.

See here and here for some background, and here for the opinion. After noting that Abbott has “issued a long series of proclamations invoking the Act as authority to address the impact of the COVID-19 pandemic on a wide range of activities in the State” since his disaster declaration in March, the Court notes that the relators (the fancy legal name for “plaintiffs” in this kind of case) took their sweet time complaining about it:

Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor’s authority under the Act for the many other actions he has taken over the past six months. Relators’ delay precludes the consideration their claims require.

The dissent argues that relators acted diligently because they filed their petition in this Court four days after they received an email confirming that the Harris County Clerk intended to comply with the Governor’s July 27 proclamation. But relators’ challenge is to the validity of the proclamation, not the Clerk’s compliance.16 Relators could have asserted their challenge at any time in the past ten weeks. The dissent also argues that the Court has granted relief after similar delays. But none of the cases the dissent cites bears out its argument.17

Moreover, the election is already underway. The Harris County Clerk has represented to the Court that his office would accept mailed-in ballots beginning September 24. To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.

[…]

Mandamus is an “extraordinary” remedy that is “available only in limited circumstances.”20 When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.21 The record here reflects no justification for relators’ lengthy delay.

The “dissent” refers to the dissenting opinion written by Justice John Devine, who was all along the biggest cheerleader for the vote suppressors. I have no particular quibble with this opinion, which seems correct and appropriate to me, but the grounds on which the mandamus is denied are awfully narrow, which gives me some concern. The Court may merely be recognizing the fact that there are several outstanding challenges to Abbott’s authority to use his executive powers in this fashion, relating to mask and shutdown orders as well as election issues, and they may simply want to leave that all undisturbed until the lower courts start to make their rulings. That too is fine and appropriate, but I can’t help but feel a little disquieted at the thought that maybe these guys could have succeeded if the timing (and their lawyering) had been better.

That ruling also settled the question of counties being able to accept mail ballots at dropoff locations during the early voting process – the relators had demanded that mail ballot dropoff be limited to Election Day only. None of this is related to the issue of how many dropoff locations there may be, which is being litigated in multiple other lawsuits, four now as of last report. We are still waiting on action from those cases.

On the negative side, SCOTX put the kibosh on County Clerk Chris Hollins’ plan to send out mail ballot applications to all registered voters in Harris County.

The state’s highest civil court ruled Wednesday that Hollins may not put the applications in the mail. The documents can be accessed online, and are often distributed by political campaigns, parties and other private organizations. But for a government official to proactively send them oversteps his authority, the court ruled.

“We conclude that the Election Code does not authorize the mailing proposed by the Harris County Clerk,” the court wrote in an unsigned per curiam opinion.

The Republican justices sent the case back to a lower court in Harris County to issue an injunction blocking Hollins from sending the mailers.

The county has already distributed the applications to voters who are at least 65, who automatically qualify for absentee ballots, and has also begun sending out the applications to other voters who requested them. An attorney for Hollins estimated last week that the county would send out about 1.7 million more applications if the court allowed.

See here and here for some background, here for a statement from Hollins, and here for the unanimous opinion, which is longer than the one in the first case. The Court goes into the many ways in which the Legislature has expressed its intent that most people should vote in person, and then sums up its view Clerks getting creative:

Hollins’ mass mailing of ballot applications would undercut the Secretary’s statutory duty to “maintain uniformity” in Texas’ elections, the Legislature’s “very deliberate[]” decision to authorize only discrete categories of Texans to vote by mail, and its intent that submission of an application be an action with legal gravity.43

Authority for Hollins’ proposed mass mailing can be implied from the Election Code only if it is necessarily part of an express grant—not simply convenient, but indispensable. Any reasonable doubt must be resolved against an implied grant of authority. Mass-mailing unsolicited ballot applications to voters ineligible to vote by mail cannot be said to be necessary or indispensable to the conduct of early voting. Even if it could be, doubt on the matter is certainly reasonable and must be resolved against recognizing implied authority. We hold that an early voting clerk lacks authority under the Election Code to mass-mail applications to vote by mail. The State has demonstrated success on the merits of its ultra vires claim.

I’ve discussed my views on this before, when the appeals court upheld the original order, and I don’t have anything to add to that. I agree with Michael Hurta that this case will be cited in future litigation that aims to limit what Texas localities can do to innovate, which is what Hollins was doing here. It’s basically another attack on local control, and as I replied to that tweet, it’s another item to the Democrats’ to do list when they are in a position to pass some laws.

I hate this ruling for a lot of reasons, but that right there is at the top of the list. The Court based its ruling in part on the fact that Hollins was doing something no one else had thought to try – “all election officials other than Hollins are discharging this duty in the way that they always have”, they say as part of their reasoning to slap Hollins down” – and while I can see the logic and reason in that, we’re in the middle of a fucking pandemic, and sometimes you have to step outside the box a bit to get things done in a manner that is safe and effective. I get where the Court is coming from, and I admit that allowing County Clerks to experiment and freelance has the potential to cause problems, but it sure would have been nice for the Court to at least recognize that Hollins’ actions, however unorthodox they may have been, did not come out of a vacuum. Clearly, the fact that the arguments in this case were heard via Zoom didn’t sink in with anyone.

On a practical level, I don’t know how many people would have voted via absentee ballot who would not have otherwise participated. Some number, to be sure, but I really don’t think it’s all that much. It’s the principle here, one part making it harder to vote and one part keeping the locals in line, that bothers me. As has been the case so many times, we’re going to have to win more elections and then change the laws if we want some progress. You know what to do. The Chron has more.

There’s so much more money in Texas races

Item one:

It’s the question that many, many people have raised — often as a joke — for years. But the combination of changing demographics, chaos among the state Republican ranks, and the ongoing struggles of President Donald Trump’s campaign have led some to re-examine this question. Among them are the Republicans behind the anti-Trump PAC The Lincoln Project, betting that this is the year — and they’re putting a $1 million chip on the table to start.

Tuesday, the Lincoln Project announced that they were launching a $1 million ad buy in the Lone Star State, chiefly targeting hundreds of thousands of suburban and rural Republican women and Hispanics, voters whom they believe can be persuaded to vote against Trump.

The current buy is digital only, geotargeted in areas around the state ranging from rural counties like Lubbock, urban neighborhoods in Austin, and the Dallas-Fort Worth suburbs.

“We can more easily and effectively target the specific group of individuals we are trying to target digitally than we can with TV,” Ryan Wiggins, the PAC’s senior adviser for communications, told Mediaite. Wiggins added that they were considering expanding to television and mail in the final weeks before the election, and this $1 million investment was just an initial buy, planned to cover a week’s worth of digital ad placements.

The ads will include some of the PAC’s previous videos, like the viral “Mourning in America,” as well as new Texas-specific content, including some that will be in Spanish.

Wiggins and others associated with the Lincoln Project were optimistic that not only would they be dropping more cash into Texas, but that they had a real chance to move the needle.

It’s a long story, so go give it a read. Whatever you think of the Lincoln Project, this looks like a good investment.

Item two:

Democratic presidential nominee Joe Biden’s campaign is set to spend millions of dollars on TV ads in Texas as polls continue to show a close race in the state.

The former vice president’s campaign announced earlier this year that it would make TV reservations this fall in Texas, and as of Tuesday, it had booked more than $6 million through Election Day, according to the media-tracking firm Advertising Analytics.

“This is historic. That shows you just how important Texas is to them and it shows that Texas is in play,” said Abhi Rahman, a spokesperson for the Texas Democratic Party. “It shows you their investment in Texas is real.” Rahman noted that Biden’s spending is the biggest investment from a Democratic presidential nominee in the last 25 years and is a drastic change from 2016, when then- nominee Hillary Clinton didn’t spend seriously in the state.

[…]

As speculation has swirled about the extent of Biden’s investment in the state, the Texas Democratic Party has been ramping up its advertising. On Tuesday, the party announced a digital, print and radio campaign aimed at Black voters in Dallas, Fort Worth, Houston and East Texas. The party described the size of the effort as “high six figure(s).”

We can certainly debate about the effectiveness of this approach versus others, the need to be engaged on a more consistent basis, and so forth. All I know is, we are not used to seeing this kind of investment.

Item three:

The Texas House Democratic Campaign Committee has raised over $3.6 million in just under three months, a massive cash infusion as the party pushes to take control of the lower chamber for the first time since 2002.

The $3.6 million haul, which came between July 1 and Sept. 24, is more than double the $1.6 million that the committee raised in the first six months of the year. That in itself was a committee record at the time, exceeding its total fundraising for the entire 2018 election cycle.

“Affordable healthcare, economic security, and a plan to deal with COVID-19 are on the ballot, and achieving those goals starts with flipping the Texas House,” the HDCC’s chairwoman, Rep. Celia Israel of Austin, said in an announcement of the committee’s latest fundraising that was first shared with The Texas Tribune. “That has been our mission from day one, and donors have responded in a big way.”

The HDCC said the $3.6 million came from 4,165 donors, 98% of whom donated online. Over three-quarters of contributions were less than $100, and roughly four out of five donations came from Texans.

[…]

Andrew Reagan, the committee’s executive director, said the money is going toward ensuring that battleground campaigns have “robustly funded paid communications,” including TV and digital ads, as well as direct mail. Some candidates are already running ads that are jointly funded by their campaigns and the HDCC.

The committee did not immediately disclose its cash-on-hand figure, but Reagan said it is “healthily in the seven figures.”

That’s in addition to some eye-popping numbers raised by various other candidates, including $13.5 million for MJ Hegar. The 30-day reports for state candidates is out now, I’ll be reviewing those in the coming days, and then of course I’ll have the Q3 Congressional reports. Remember when all this stuff was boring and perfunctory? Those days are gone.

And to be sure, some of that money is for the bad guys, as we see in Item four:

Outside money is flooding battleground Texas House races across the Houston area, helping Republican candidates erase fundraising advantages amassed by Democrats who are raking in money from individual donors outside Texas.

In all seven battleground districts around Houston, five of which are under GOP control, Democrats raised more cash than Republicans from early July through late September, the period covered by the latest round of campaign finance reports.

However, spending by political action committees and other groups favored Republicans by a more than 2-to-1 margin in those districts, helping three candidates — Republican Justin Ray, state Rep. Sarah Davis, R-Houston, and state Rep. Sam Harless, R-Spring — overcome their fundraising deficits.

[…]

During the 12-week period covered by the campaign finance reports filed earlier this week, the 14 candidates in Houston’s seven battleground House districts combined to raise nearly $4.7 million and spend almost $1.6 million. They collectively are heading into the stretch run of the 2020 election with about $2.4 million cash on hand, with millions more set to come from outside groups.

Two longtime political donor groups, Associated Republicans of Texas and tort reform advocacy group Texans for Lawsuit Reform, have particularly escalated their spending on House Republican candidates in 2020, combining to buy $276,000 worth of digital ads, direct mail, canvassing and other expenses to support Ray and another $272,000 on behalf of Davis.

Democrat Ann Johnson, an attorney who is challenging Davis, outpaced the incumbent in fundraising from individual donors. Committees and other groups spent about $525,000 backing Davis, however, helping her rack up more than $597,000 in contributions to Johnson’s roughly $481,000.

A similar dynamic played out last reporting period in the west Houston district where Ray, the former mayor of Jersey Village, is attempting to unseat state Rep. Jon Rosenthal, D-Houston. Though Rosenthal raised more cash than Ray, the challenger benefited from a massive lead in spending from committees and other groups, giving him a 2-to-1 edge in overall contributions.

And in northwest Harris County, groups including the Republican State Leadership Committee, a group focused on legislatures around the country, and Leading Texas Forward, a PAC run by House Republican lawmakers, helped Harless make up a fundraising deficit to Democrat Natali Hurtado.

Best way to deal with all that money is beat the candidates it was supporting, so that it was all wasted. Feels really satisfying, too.

More on the motion to dismiss the felony bail lawsuit

Should get a ruling soon.

The bulk of Harris County’s felony judges sought Monday to get the federal case against them dismissed, saying they should not be party to the challenge on how bail is determined for thousands of poor people accused of crime.

Lawyers for Gov. Greg Abbott, Attorney General Ken Paxton and 19 Democratic district judges argued at a packed online hearing that the judges are protected by immunity, the federal courts don’t have jurisdiction and the indigent arrestees behind the case no longer have standing to sue.

The 2019 civil rights case challenges the county’s policy of setting bond that results in the jailing of people who can’t afford cash bail. Nearly 80 percent of the current jail population are people awaiting trial, mostly on felonies.

Although the group of judges asked for the entire case to be dismissed, or alternatively, their removal as parties to the case, the bail challenge is likely proceed regardless of the court’s ruling, since the remaining defendants — the county, Sheriff Ed Gonzalez and four felony judges who hired their own lawyers — are not seeking dismissal.

[…]

The state Attorney General’s Office, arguing on behalf of the majority of the felony judges, said the bail process is constitutional because it adheres to ODonnell v. Harris County, the county’s landmark misdemeanor bond case that was resolved through a seven-year consent decree.

But the plaintiffs say the felony bail case, Russell v. Harris County, raises new constitutional issues that the court never had a chance to address in ODonnell.

See here and here for the most recent updates. I will reiterate what I said in that last link: I want this system to be reformed in a manner similar to the misdemeanor case, I want the Democratic judges to be part of the solution and not an obstacle to it, and I will remember who is who and who does what. We’ll see what happens next.

Texas blog roundup for the week of October 5

The Texas Progressive Alliance refuses to recognize illegitimate Justices as it brings you this week’s roundup.

(more…)

Endorsement watch: Well, he does have a big Twitter following

I’m honestly not surprised that the Chron endorsed Dan Crenshaw for re-election. I just wonder if the editorial board ever reads what they write when they come up with this stuff.

Sima Ladjevardian

U.S. Rep. Dan Crenshaw has 1 million Twitter followers. His fundraising power puts him within shouting distance of high-ranking members such as Steve Scalise, R-La., and House Speaker Nancy Pelosi. A former Navy SEAL, he has managed to appear both loyal and critical of President Trump, and was the only Texan elected official with a major speaking role at the Republican National Convention.

There’s no question of Crenshaw’s outsized national standing as a freshman congressman, but now his fate is in the hands of Houstonians in the 2nd Congressional District, which makes a wiggly westward arc from Kingwood to neighborhoods near Rice University.

Turn the stage lights off, though, and his race against Democrat Sima Ladjevardian, 54, looks rather conventional.

First, let’s consider what is unusual. Crenshaw, 36, has shown a penchant for standing up to party and president. He wrote a letter of support for the inclusion of Log Cabin Republicans, who represent LGBT conservatives, at the Republican Party of Texas’s state convention. He’s called for Republicans to take climate change seriously. When Trump criticized Sen. John McCain months after his death and when Trump told the liberal congresswomen in “the Squad” to “go back,” Crenshaw tweeted at the president to quit. When Trump withdrew troops from Syria, Crenshaw released a nearly 12-minute video that respectfully but emphatically rejects the president’s rationale.

We applaud Crenshaw for using his platform to take these stands. At other times, he has left us both troubled and disappointed. Like many others early in the pandemic, Crenshaw argued that masks weren’t effective against the coronavirus. While he changed his mind as evidence showed otherwise — even purchasing and then donating 50,000 masks — he continued to push misrepresentations, as he did in his more recent videos defending Trump’s coronavirus response. He was wrong to call Harris County Judge Lina Hidalgo’s mask order “draconian” and was wrong to remove his mask for long enough while at a crowded fundraising party to be photographed without it.

We’re also concerned that his positions on key issues for Houston, including how to confront climate change, aren’t far-seeing enough. He’s called renewable energy “silly” and has not embraced a carbon tax, something even many major oil companies are willing to accept. His positions on the border and on prescription drugs also disappoint.

[…]

And yet, it’s impossible to ignore Crenshaw’s star power and his potential to shape the future of the Republican Party around respect, ideas and principles.

In addition, if he retains his seat, Crenshaw is likely to wield the kind of power that matters on delivering funding for dredging, roads and floodgates. We believe voters should return him to Congress.

There are two obvious problems with this. One is that in every way that the Chron cites to support the notion that Crenshaw is some kind of independent-thinking maverick it’s all talk and no action on Crenshaw’s part. Can the Chron name one bill of significance where Crenshaw is teaming up with a Democrat, or one vote he has taken where he opposed the party line? To be fair, even tweeting a mild rebuke at Trump makes him stand apart from the Louie Gohmerts, but surely the bar can be set a little higher than that. To put this another way, what exactly has he done for the greater Houston area and its residents that a replacement level member of Congress couldn’t have done?

Which gets to the second point, the belief that Crenshaw will someday be a force for getting big things for Houston. Which, sure, could happen, but for at least the foreseeable future he’s going to be in the minority, where there’s much less power to be wielded. Compare Crenshaw’s record of accomplishment to Lizzie Fletcher’s to see what I mean. Yes, Congressional majorities are fleeting, and the whole idea of getting anything done is meaningless as long as the Republicans control the Senate, but this puts an awful lot of faith into a guy who’s so far been a total show horse. Remember when the Chron endorsed Ted Cruz in 2012 with the hope that some day he’d grow up to be like Kay Bailey Hutchison? This gives me a similar vibe.

I agree that Crenshaw is a rising star in the GOP, and that the exodus of experienced (mostly Republican) members of Congress from Texas has left the state with less clout than it once had. If one believes that Crenshaw is going places, then there’s reason to hitch a wagon to him and hope that he’ll eventually use his powers for good. Alternately, you could sign on with the candidate who actually agrees with the things you say you value. Maybe Sima Ladjevardian doesn’t quite have Crenshaw’s star power, but I’d put more money on her actually doing the work to get stuff done.

In other Congressional endorsements, the Chron also recommended Rep. Al Green, and Rep. Brian Babin. They also endorsed in the other two countywide races of note. For Tax Assessor, they went with Chrin Daniel, former District Clerk, over incumbent Ann Harris Bennett. I don’t have any issues with Chris Daniel. He was perfectly competent as District Clerk. I also think Ann Harris Bennett has been fine as Tax Assessor, and think she will continue to be fine. (I’ve had this overview story of the Tax Assessor’s race on one of my tabs for a couple of weeks now because I haven’t been able to think of anything more original than that to say.) But look, in the year 2020 if you are on the same ballot as Donald Trump as a Republican, that’s an indelible mark against you. There may come a time when that isn’t the case, but that time is not today. Also, until we get some Democratic power at the statewide level and in the Legislature, we really need a unified county government, because the Republicans who wield power in this state are coming for us, and we need everyone pulling in the same direction to protect our interests as a county. and an independent entity of government As someone once said, it is what it is.

Finally, they endorsed Teneshia Hudspeth for County Clerk.

Teneshia Hudspeth

Hudspeth, 39, is the Democratic candidate running against Republican Stan Stanart, who was the clerk until 2018, when he was unseated by Diane Trautman. With Trautman resigning over health concerns earlier this year, the winner will fulfill the remainder of her term.

Usually, Stanart’s experience would give him the edge, but Hudspeth is no stranger to the clerk’s office, having worked her way up over a 15-year career from an administrative assistant in public affairs to the chief deputy position. Her climb through the ranks has given her a ground-level view of many of the office’s responsibilities, she said, from voter outreach to records preservation and archiving.

That will come in handy as she continues the office’s modernization by upgrading technology and enhancing online services to reduce wait times and improve efficiency. She also wants to make some of the clerk’s services more widely available outside the office by partnering with community centers.

While the clerk will no longer be a direct elections administrator, the position comes with a seat on the county election commission, a role where Hudspeth’s experience will also be important.

“I will be able to sit on that commission and hold the elections administrator accountable,” she said.

While Stanart is as affable as ever, it was time for new blood in the clerk’s office when we endorsed his opponent in 2018 — his pledge to “stop socialist Democrats” didn’t boost our confidence in his judgment — and that need for change continues.

At least this time, they understood who the candidates were. Good call.