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December 3rd, 2022:

Candidate who lost by 15 points files election contest

Utterly ridiculous, and will hopefully be treated that way.

Rep. Jon Rosenthal

A losing Republican candidate for the Texas House of Representatives is challenging his defeat and asking the Legislature to void the results of the election.

Republican Mike May this week filed what’s known as an election contest with the Texas secretary of state’s office, citing reports of scattered paper ballot shortages at “numerous” polling places on Election Day. May lost to incumbent Democrat Jon Rosenthal by more than 6,000 votes in his bid to represent House District 135 in the Houston area.

The secretary of state’s office on Tuesday delivered May’s petition to House Speaker Dade Phelan, who can refer the contest to a committee for investigation and appoint another member of the House as a “master” to oversee discovery and evidence related to the contested election. If they side with May and void the results, another election would be required to decide the district’s representative. The House can also toss the contest by declaring it “frivolous.”

Election Day issues once again pushed Harris County’s election officials back under scrutiny, including from the state’s Republican leadership. Voting in Harris County was extended by court order for an extra hour after about a dozen polling places were delayed in opening. The county’s elections administrator Clifford Tatum has also acknowledged issues with insufficient paper ballots at some polling places, though he said election staff was dispatched to deliver additional ballots.

The fumbles prompted a lawsuit by the Harris County GOP, which alleged voters were disenfranchised by the paper shortages. The Harris County district attorney has since launched an investigation into allegations of “irregularities.” The Texas Election Code includes criminal penalties for various violations, including illegal voting, the unsolicited distribution of mail-in ballot applications by local election officials and the failure to distribute election supplies.

In his petition, May argued the results of the election were not the “true outcome” because election officials “prevented eligible voters from voting.” May did not immediately return a request for comment.

On Friday, Rosenthal’s camp framed May’s election contest as part of a national trend to “deny the outcome of an election when you lose.”

“This race demonstrated one of the largest percentage point differences in Harris County, it wasn’t even close,” Rosenthal’s campaign manager, Bailey Stober, said in a statement. “The opposition presented himself and his positions and was rejected by voters overwhelmingly. That is how democracy works.”

The statement came soon after Harris County Attorney Christian D. Menefee criticized the contest as an effort to “call into question the 2022 election in Harris County and lay the groundwork to force a redo.”

It’s unclear how Phelan will handle the contest. His office declined to comment Friday. But Menefee said he was hopeful that Phelan would throw out the challenge.

“And I trust that he will ensure a fair process before impartial legislators, without interference from the state leaders and other elected officials who have a history of making baseless claims against Harris County elections,” Menefee said.

The House took on a similar exercise in 2011 following a challenge by Travis County Republican Dan Neil, who, after a recount, lost to state Rep. Donna Howard, D-Austin, by 12 votes. The House eventually upheld Howard’s win. She remains in the Texas Legislature.

Up till then, the Legislature had seen 113 election contests since 1846, according to the Texas Legislative Council, an in-house legal and research arm of the Texas Legislature. The losing party, however, had not managed to turn the outcome of the election at least in the last 30 years. In the one case in which the House ordered a new election in 1981, the winner of the initial contest was again elected.

There was also an election contest following the 2004 win by Rep. Hubert Vo, then a challenger, over then-Rep. Talmadge Heflin. The contest examined a number of votes that Heflin claimed were illegal, including at least one vote cast by a non-citizen (a Norwegian national who stated that he voted straight ticket Republican), upheld most of them, and in the end Vo still won. In both cases, the number of votes separating the winner and the loser was miniscule. There’s no planet on which this challenge even remotely resembles those two.

The Chron adds some context.

Larry Veselka, a Houston lawyer who represented Democrat Hubert Vo when Vo’s 2004 election to the Texas House was challenged by his Republican opponent, said the legal standard for voiding an election result and ordering up a redo typically requires “clear and convincing” evidence that would be near-impossible for May to obtain.

“It’s too speculative,” said Veselka, who previously served as chair of the Harris County Democratic Party in the 1980s. “I mean, how do you say who walked away at this hour or at this one location where they were short of ballots? … Have they gone out and found people that can credibly swear, I left and didn’t vote somewhere else?”

May’s election challenge sparked outrage among Houston Democrats, including Rosenthal, who called it “more a political stunt than any type of serious complaint or concern.”

Harris County Democratic Party Chair Odus Evbagharu, who previously served as Rosenthal’s chief of staff, said the petition “reeks of Republican desperation.”

“The Republican candidate is attempting to alter a certified election with this baseless charge,” Evbagharu said. “Clearly, they’re running out of options in the election-attack playbook.”

Mark McCaig, a Houston attorney and conservative activist, also condemned the election contest in a tweet.

“There were HUGE problems with the election in Harris Co, but frivolous election contests like this are a gift to Dems (which is why Rosenthal is eating it up),” McCaig tweeted. “The focus needs to be on the very real problems that occurred.”

Jason Vaughn, former president of Houston Young Republicans, added: “I’m highly involved in Republican politics in Harris and didn’t even know this guy existed. The district was literally drawn to be a Democrat district.”

To put a few numbers on this, if you threw out every vote cast in the HD135 race on Election Day, Rosenthal still wins by 4,161 votes. Mike May collected 6,055 votes on Election Day. If you doubled that, if you somehow accept that the problems at a handful of voting locations prevented as many people who voted for him on all of Election Day from voting for him at all, without anyone who might have not voted selecting Rosenthal instead, he would still lose by 131 votes. This doesn’t come close to passing the sniff test. The only rational response by Speaker Phelan is to declare it frivolous. We’ll see. A statement from Rep. Rosenthal is here, and from County Attorney Menefee is here.

The people may have spoken, but who’s listening?

How much respect to city councils owe voter-approved referenda?

Voters in two Central Texas cities overwhelmingly passed propositions earlier this month that would stop citations and arrests for low-level marijuana offenses within city limits. But elected officials in Bell County are pushing back.

On Tuesday, Harker Heights City Council voted to repeal the measure, saying that decriminalizing small amounts of marijuana was inconsistent with state law, as marijuana possession remains illegal statewide and federally. The City Council in Killeen agreed to put its decriminalization measure on hold as elected officials there weigh whether to repeal, amend or green light the ordinance that passed on Election Day.

Neither ballot measure legalizes marijuana. Instead, they prevent people from being cited or arrested for having up to 4 ounces of the drug. The propositions also prohibit city police officers from stopping someone because they smelled marijuana.

David Bass, the founder of Texas Veterans for Medical Marijuana, told City Council on Tuesday that the people of Killeen have spoken. Regardless of the legality of marijuana, the ordinance was clear and he said the council should respect voters’ decision.

“What I know is that the people of Killeen voted overwhelmingly for our police to stop arresting people for small amounts of cannabis,” Bass said. “We should listen to the will of the people of Killeen.”

Shirley Fleming, a former Killeen city councilwoman, told the Harker Heights City Council that repealing the ordinance could make residents feel like their vote doesn’t matter.

“If you stomp on this, a lot of people will say, ‘My vote doesn’t count,’” Fleming said. “Let’s respect their vote.”

See here for some background. With all due respect to Ms. Fleming, and speaking as someone who supports these measures and would vote for a similar one if it were to be on my ballot someday, I don’t think it’s quite that simple. All of the city council members here were also elected by the people, and if they believe that the ordinances that were adopted without their input are bad policy, then it’s consistent with their mandate as elected officials to take action as they see fit. I wouldn’t have done it this way – some public hearings would have been a better way to begin – and if I were a dissenting council member I’d have approached it from the perspective of modification rather than repeal. But they can do this, and I don’t see it as necessarily ignoring the will of the people but as different mandates.

Look at it this way: A President gets elected, begins to implement a policy agenda, and then two years later the voters elect a Congressional majority from the opposing party. Both were duly elected with a valid mandate, it’s just that those mandates conflict with each other. This isn’t a perfect analogy – the opposition Congress and the incumbent President were surely campaigning directly against each other, and the new Congress or the existing President may well not reflect a true majority of voters for various reasons – but the idea is the same. The voters may now render a judgment on those city council members in the next election, and that may or may not provide clarity. That’s just the nature of our system.

To be clear, I think the city councils of Killeen and Harker Heights should have started from the position that the voters made a valid statement that they should engage with seriously. They do have the latitude to make changes, and if they want to put themselves on the line they can act in opposition. I can easily imagine scenarios where the voters might approve something unjust, where the moral imperative would be to undo the damage. I can also easily understand the frustration of any voter who worked to pass these referenda only to see their work bulldozed by the same government officials who had acted as the obstacle they sought to overcome. All I’m saying is that it’s more complex than “the voters have spoken”. I’ll try to remember that if it happens here.

Justice Department probing RealPage

Possibly good news for renters.

The Department of Justice’s Antitrust Division has opened an investigation into whether rent-setting software made by Richardson-based tech company RealPage is facilitating collusion among landlords, ProPublica reported.

The inquiry is being launched as questions have arisen about a 2017 merger between RealPage and its largest pricing competitor. A source with knowledge of the matter told ProPublica that some DOJ staff raised concerns about the merger but were overridden by political appointees of former President Donald Trump.

Congressional leaders have pushed for an investigation into RealPage in three letters to the DOJ and the Federal Trade Commission, which were sent after a ProPublica report on the software’s use in mid-October.

The letters raised concerns that RealPage’s pricing software could be pushing rents above competitive levels and allowing big landlords to coordinate their pricing in violation of federal antitrust laws.

“We are concerned that the use of this rate setting software essentially amounts to a cartel to artificially inflate rental rates in multifamily residential buildings,” three senators said in a letter in early November. They included Sen. Amy Klobuchar, the Minnesota Democrat who chairs the Senate Subcommittee on Competition Policy, Antitrust and Consumer Rights.

The Capital Forum first reported the existence of the investigation.

RealPage’s software works by collecting information from property managers who are the company’s clients, including what rents they are able to charge tenants. That information is fed into an algorithm that then recommends prices daily for each available apartment.

Though RealPage says the information is aggregated and anonymized, some experts have said using private data from competitors to set rents could run afoul of antitrust laws, allowing property managers to illegally coordinate their pricing.

[…]

The DOJ’s investigation represents the second time the federal law enforcement agency has looked into RealPage’s rent-setting software. In 2017, the DOJ flagged a proposed merger in which RealPage sought to buy its biggest competitor, a company called Rainmaker Group, which made rent-setting software known as LRO, or Lease Rent Options.

RealPage’s then-CEO Steve Winn said the $300 million purchase would allow RealPage to double the number of apartments it was pricing from 1.5 million to 3 million units. RealPage was sold in 2020 to private equity firm Thoma Bravo in a $10 billion deal.

After the acquisition was announced in early 2017, the DOJ requested additional information from the companies involved. Federal regulators scrutinize mergers above a certain size — right now, it is transactions valued at $101 million — and typically allow them to proceed after only a preliminary review.

But the government can request more information from companies and even seek to block the merger in court if it believes it could substantially harm competition.

A paralegal specialist who worked on the original DOJ probe into RealPage said it was narrowly focused on the impact on competitors who made software with a similar purpose. The paralegal said she was unaware of any complaints by those companies about the proposed merger.

See here for some background, and that linked Pro Publica story for more on this investigation. My earlier post is about a lawsuit filed by a group of renters over RealPage’s pricing algorithms. It’s not totally clear to me what the Justice Department could do at this time, but let’s see what they find now that they’re looking. I suspect any real action would have to be legislative, and for obvious reasons that won’t happen anytime soon. At least the issue is getting some publicity.