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Austin Justice Coalition

A trifecta of crap from the Fifth Circuit

Mar 18th, 2022
by Charles Kuffner.
1 comment

It’s what they do.

A federal appeals court has ruled for Texas in three lawsuits challenging the state’s voting laws, including mail-in ballot provisions and the elimination of straight-ticket voting.

In a series of 2-1 rulings Wednesday evening, a panel of the 5th U.S. Circuit Court of Appeals ruled that the lawsuits by civil rights groups, political organizations and voters targeted the wrong state agency — the Texas secretary of state’s office — when they sought to overturn a string of voting laws and practices.

Because the secretary of state is not in charge of enforcing the challenged laws, the agency is protected by sovereign immunity in all three lawsuits, said the opinions written by Judge Stuart Kyle Duncan and joined by Judge Don Willett.

Judge Patrick Higginbotham dissented in all three cases, writing that he believed the majority was splitting hairs by narrowly interpreting which state officers enforce election laws.

The secretary of state is the chief election officer of Texas who is charged by law with protecting the voting rights of Texans “from abuse by the authorities administering the state’s electoral processes,” Higginbotham wrote.

“The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our … inquiry,” he said.

Reporter Chuck Lindell first posted about this on Twitter, so if for some reason the Statesman link doesn’t work or gets paywalled, you can see the basics there. Let’s break down the three cases:

A challenge by the Texas Alliance for Retired Americans and two national Democratic organizations sought to overturn a 2017 law that ended straight-ticket voting, also known as one-punch voting because it lets voters select all candidates of a particular political party in one step.

A state district judge barred enforcement of the law, ruling in September 2020 that the change unconstitutionally burdened the right to vote.

See here and here for the background. This one confused me at first, because there had been a basically identical challenge filed earlier in the same court by a different set of plaintiffs that was later dismissed by that judge. I don’t know why the subsequent challenge, which fell under the Democracy Docket umbrella, was more successful, but there you have it. You may recall I was skeptical of this one, and of the three it’s the one I’m the least upset about. The Fifth Circuit’s ruling is here.

A lawsuit by the NAACP and Texas Alliance for Retired Americans sought to block mail-in ballot regulations that require voters to pay for postage and mandate that ballots be postmarked by 7 p.m. on Election Day and received by 5 p.m. on the next day.

The lawsuit also challenged signature-matching requirements and a law that makes it a crime to possess another voter’s mail ballot.

See here and here for the background. I thought this was an interesting suit that made a reasoned case and that in a fair world would have gotten a more thoughtful review by the Fifth Circuit, but that ain’t the world we live in. I don’t know if this subject was addressed in one of the many voting rights bills that Joe Manchin and Kyrsten Sinema personally strangled (with the help of all 50 Republicans, of course), but if there’s ever another opportunity to address voting rights at a federal level, this should be an item on the to do list. The Fifth Circuit opinion is here.

A lawsuit by groups including the League of Women Voters of Texas and the Coalition of Texans with Disabilities challenged the process of verifying mail-in ballots by ensuring that the voter’s signature on the outside envelope matches the signature on the vote-by-mail application.

A trial judge granted a detailed injunction limiting the practice in September 2020, but again the 5th Circuit Court stepped in to halt the injunction until the appeal was decided. Wednesday’s ruling vacated the injunction.

See here, here, and here for the background. Remember when signature matching was our biggest concern about mail ballots? Boy, those were the days. Anyway, even though this suit was filed in 2019, that injunction was halted by a different Fifth Circuit panel because it was too close to the election. There’s always, always an excuse. The opinion for this one is here.

The first and third cases were reversed and remanded to the district court “for further proceedings consistent with this opinion”, while the second was reversed and remanded with instructions to dismiss. I’m not quite sure what further proceedings there may be, and it may be that the bigger problems caused by SB1 may make the third case not particularly relevant at this time, I dunno. I assume that since the issue cited by the Fifth Circuit was that the SOS was not the proper defendant, the cases could be refiled with some number of county election administrators as defendants instead. I don’t know how practical that would be, and I also don’t know if this is just a prelude to the Fifth Circuit (or later SCOTUS) ruling that actually you can’t sue those people either, because the whole idea that you can pursue redress in a federal court is just an illusion anyway or whatever. We’ll see if anything does get refiled, but I would not feel particularly optimistic about any of it.

UPDATE: And when I checked Twitter on Thursday, I saw that Prof. Vladeck had addressed my questions.

Always expect the worst from the Fifth Circuit. You’ll almost never be wrong.

Austin aims for pot decriminalization

Jan 16th, 2022
by Charles Kuffner.
1 comment

We’ll see how this goes. I suspect the measure will pass, but I’m not sure it will be allowed to take effect.

As greater numbers of Texas voters sour on harsh punishment for marijuana offenses, Austin voters will likely decide in May whether to effectively decriminalize the drug.

The ballot measure, pushed by the group Ground Game Texas, would forbid Austin police officers in most cases from ticketing or arresting people on low-level pot charges like possessing small amounts of the drug or related paraphernalia — unless the offenses are tied to more severe crimes. The city also would not pay to test substances suspected to be marijuana — a key step in substantiating drug charges.

Both practices have already been informally adopted in Austin, but advocates want to solidify them at the May ballot box.

“The primary effect is that it would make the decriminalization that exists in Austin today actually long term and would put the force of law behind it,” said Chris Harris, policy director at Austin Justice Coalition.

[…]

But the measure faces one big obstacle: Although marijuana laws in Texas have loosened somewhat in recent years, the drug remains illegal at the state level.

Public support for harsh marijuana laws and prosecutors’ willingness to bring charges for minor offenses has waned in recent years.

The number of new charges for misdemeanor marijuana possession fell by 59% from 2016 to 2020, according to figures from the Texas Office of Court Administration, as prosecutors in the state’s major urban areas have increasingly deprioritized marijuana prosecutions.

Most Texas voters support decriminalizing marijuana in some form. Three-fifths of Texas voters say at least a small amount of marijuana should be legal, according to a University of Texas/Texas Tribune Poll last year.

That support cuts across partisan lines. Nearly three-fourths of Democrats and independents think marijuana should be legal. So do 43% of Republicans, a plurality of that group.

It’s against that backdrop that Ground Game Texas — a progressive group focused on issues of “workers, wages and weed” — plans to mount decriminalization campaigns in Killeen and Harker Heights.

As the story notes, there’s an effort by Ground Game Texas to put a similar measure on the ballot in San Marcos. The City Council in Denton recently voted down an ordinance to do the same there, a move that perhaps validates this approach. The Austin police union, which has been resistant to the earlier efforts to decriminalize pot, is staying out of this election, but who knows what they might do afterward.

So what happens if this passes, as I expect it will? One obvious possibility is legal action to require the enforcement of the state laws. I’m sure there’s someone who’d be willing to be the plaintiff in such a filing, and no one has to encourage Ken Paxton to swing a bat in Austin’s direction. Legislative action is also possible – again, there’s nothing a Republican likes more these days than filing a bill to stop a city from doing something that legislator doesn’t approve of. A complicating factor in all this is that Greg Abbott is mumbling a few words in favor of being less harsh about pot, likely in recognition of the polling on this issue and Beto’s stronger pro-pot stance. I don’t know how much that complicates things for the keep-pot-criminal crowd, but it’s another dimension. I don’t know which way this will go, but it all starts with the measure being passed, and I feel pretty confident about that.

Your handwriting should not jeopardize your vote

Oct 20th, 2020
by Charles Kuffner.
9 comments

Jesus Christ.

Texas election officials may continue rejecting mail-in ballots if they decide the signature on the ballot can’t be verified, without notifying voters until after the election that their ballot wasn’t counted, the U.S. Fifth Circuit Court of Appeals ruled on Monday.

The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts.

Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by U.S. Fifth Circuit Judge Jerry E. Smith.

“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith wrote.

Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification.

Voters must be notified within 10 days after the election that their ballot was rejected, but state election law does not require affording them an opportunity to challenge the rejection, the appeals court ruling noted.

[…]

Plaintiffs said they will now push counties to voluntarily give early notice to voters whose ballots are rejected for signature-match issues, allowing them a chance to rectify the situation and let their vote count.

“It will affect this 2020 election, so voters will not be notified in time, and so I think the main thing we’re trying to do now is notify counties that ballot boards are not required to give pre-election day notice, but they can,” said H. Drew Galloway, executive director of MOVE Texas, a plaintiff. “We encourage them to follow the original intent of the lower courts here so folks (whose ballots were rejected) can go vote in person, or contest that decision.”

See here for the background. That ruling had been stayed pending this appeal, so in that sense nothing has been lost. It’s another typical hatchet job from the country’s worst court. Let me bullet-point this, because I’m tired and this shit needs to stop.

– We all know that if this had a disproportionate effect on white voters, the concern about “safeguarding the integrity of its elections from voter fraud” would be a mere footnote. Some voters are more equal than others.

– On the very same day that this turd was handed down, a state court in North Carolina ruled that “voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day”. We need uniform national standards that prioritize and protect the rights and ability of all citizens to vote. That needs to be very high on the to do list of the next Congress.

– Can we please give some serious consideration to packing the Fifth Circuit? Quite a few Trump-appointed judges are there because vacancies were not allowed to be filled during Obama’s terms. This court is in serious need of reform.

– On a more practical note, Drew Galloway is correct: We need to be talking to local election officials to get them to agree to try to fix these problems in advance. The court didn’t say that they couldn’t do this, just that they didn’t have to. Well, if it’s a choice, then let’s make sure they make the right choice.

That’s all I’ve got. This effing court. The Chron has more.

A win for those with lousy signatures

Sep 10th, 2020
by Charles Kuffner.
1 comment

Some good news on the voting litigation front.

As Texas prepares for an expected deluge of mail-in votes in November, a federal judge has found that one facet of the state’s signature verification rules for those ballots is unconstitutional and must be reworked for the upcoming election.

U.S. District Judge Orlando Garcia ruled Tuesday that the state’s process for determining whether there is a mismatch between a voter’s signature on their ballot envelope and the signature the voter used on their application to vote by mail “plainly violates certain voters’ constitutional rights.”

In his order, Garcia ordered the Texas secretary of state to inform local election officials within 10 days that it is unconstitutional to reject a ballot based on a “perceived signature mismatch” without first notifying the voter about the mismatch and giving the voter a “meaningful opportunity” to correct the issue.

Additionally, to “protect voters’ rights” in the upcoming election, Garcia said the Texas secretary of state must either advise local election officials that mail-in ballots may not be rejected using the existing signature comparison process, or notify them that they are required to set up a rejection notification system that would allow voters to challenge a rejection.

[…]

Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

But because the state election code does not establish any standards for review, the plaintiffs argued that the law is applied unequally, with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

To correct course ahead of the November general election, Garcia ordered the Texas secretary of state to either halt all rejections based on a “perceived signature mismatch” or implement an “immediate remedial plan” that requires local election officials to notify a voter within one day of determining a perceived mismatch and allow the voter to challenge the rejection.

Under that plan, voters must be mailed notices of rejection within one day of a mismatch determination by the local review board. Those who provided phone numbers on their applications must be called at least once within one day of the decision.

See here for the background, and observe how adorably optimistic I was that this shouldn’t be a partisan issue since both parties use voting by mail. What can I say, it was 2019, you had to be there. I don’t have much to say now that I didn’t say then – this ruling makes total sense, the “standard” that was used was arbitrary and needlessly harsh, and it really is in everyone’s interests to make an effort to count these ballots. I assume Ken Paxton will appeal this because that’s what he does, but until then let’s be happy we got what we got. The Chron has more.