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Cameron County

SCOTx hearing on state redistricting lawsuits

The state lawsuits over the “county line rule” in Cameron County and the Eckhardt/Gutierrez “decennial redistricting only in a regular session” contention had a hearing before the State Supreme Court over whether these suits can be heard in state district court.

Attorneys representing a group of Democratic state lawmakers faced off Wednesday with the state attorney general’s office in the latest partisan battle over redrawn political maps passed by the Texas Legislature in 2021.

The arguments before the Texas Supreme Court were part of a case filed against Gov. Greg Abbott by the Mexican American Legislative Caucus, or MALC, that allege Texas Republicans violated the Texas Constitution when they redrew political boundaries after the 2020 U.S. Census.

Attorneys for MALC and what are collectively called the Gutierrez plaintiffs — state Sens. Roland Gutierrez and Sarah Eckhardt, House District 37 candidate Ruben Cortez, and the Tejano Democrats — alleged in state court that the Texas Legislature violated what is known as the “county line rule” when political maps were redrawn in 2021. That rule requires counties with sufficient populations to be kept whole during the process.

They argue the Legislature violated that rule when it passed House Bill 1, the lower chamber’s redistricting bill, because it split the Cameron County line twice when maps were redrawn. It did so by including districts that went in two different directions into two counties to create part of separate House districts, according to a court filing.

The arguments Wednesday centered on whether the courts are a proper venue for the debate, something the state argued against. In December, a three-judge panel denied a request by the attorney general’s office to dismiss the case based on that argument.

“This court has repeatedly recognized that redistricting is a uniquely legislative task,” said Lanora Pettit, an attorney with Texas Attorney General Ken Paxton’s office. Pettit said that a previous ruling by the court stated it could only intervene in “exigent circumstances” but the current lawsuit didn’t qualify.

“This is not such a circumstance,” she said. “Plaintiffs who lack standing seek an order that is a function of the [Texas] Constitution.”

Justice Jeff Boyd said the broad argument seemed “hard to swallow.”

“Challenging new maps on these grounds raises a very important constitutional issue and I hear the state arguing ‘Yeah. Well, so sorry. There is nobody that gets to raise that,” he said.

Later attorney Wallace Jefferson, a former Republican state supreme court chief justice, said that if the plaintiffs did not have standing to sue the state on the issue of redistricting, it would essentially mean that nobody could challenge perceived violations of the Texas Constitution.

“If these voters and these candidates lack standing, no one could ever sue to enforce mandatory provisions of the Texas Constitution,” he said.

See here and here for the background. I had thought at one point that these lawsuits might have affected the primaries this year, but that was not to be. If the plaintiffs prevail, the first election in which we’d see the effects would be 2024, or possibly later depending on how the appeals go. I am of course rooting for the plaintiffs here, but the state’s argument here really does seem very broad. Doesn’t mean they won’t win anyway, but it would be a significant matter if they did, at least on this point. I hope that SCOTx decides to let the issue play out in court before they have to step in, but you never know.

Here’s a Twitter thread from MALC, one of the plaintiffs, about the arguments. A brief interview with MALC attorney Joaquin Gonzalez is in the Texas Signal, and you can find relevant case documents at Democracy Docket. KVUE has more on this part of the case.

As for the Eckhardt/Gutierrez challenge, it’s a bit confusing.

Texas lawmakers are bound by state law to open a fresh round of redistricting in 2023, Texas Attorney General Ken Paxton’s office asserted Tuesday in a Texas Supreme Court hearing.

The assertion came from an appellate attorney with Paxton’s office during a hearing related to multiple lawsuits challenging district maps approved during a special session last year.

Lanora Pettit, Texas’ principal deputy solicitor general, argued that the lawsuits were moot, as plaintiffs including Democratic state Sens. Sarah Eckhardt and Roland Gutierrez as well as the Mexican American Legislative Caucus, are asking for the court to order the Legislature to take up redistricting next year.

“The state takes the position that the Legislature is required to redistrict again in January of 2023 and as a result, because (the plaintiffs) are not seeking to change the outcome — the map — for this election cycle, then whatever this court would be to order would not have an effect on a real world election,” Pettit said.

Democrats are also arguing that the Legislature needs to take up redistricting again in 2023, but believe that a court needs to order it or else Republicans, who led the effort and created a highly favorable map for their party, would not do it otherwise.

The main claims Democrats have in this case revolve around two provisions in state law.

The suit from Eckhardt and Gutierrez points to a provision in the Texas Constitution that requires redistricting to occur during the first regular session of the Legislature following the release of the once-a-decade census.

Because of COVID-19 delays, census redistricting numbers were not released until after 2021′s regular legislative session was adjourned. The process instead took place during a special session.

I guess it comes down to whether the Lege has to redistrict, which would presumably be on terms more favorable to at least some Democrats, or it gets to redistrict, in which case the Republicans get to choose. I’d rather not find out what that looks like. If the suits survive the effort to dismiss them, they will go back before that three-judge panel that first heard arguments in December.

Precinct analysis: Beto’s range in the 2022 primaries

When you get 91.34% of the vote in an election, as Beto did in the Democratic primary for Governor, there’s usually not a whole lot of interesting data beneath the surface. But you never know until you look, so I went and got the numbers for the Dem gubernatorial primary by county and sorted them by Beto’s percentage. Here are some highlights from that:


County      Diaz%  Cooper%   Beto%   Voters
===========================================
Maverick   16.40%   10.48%  60.71%    6,653
Frio        8.14%    6.87%  71.72%    2,518
Dimmit     10.41%    7.97%  71.98%    1,845
Duval       8.18%    6.73%  75.62%    1,858
Webb        8.55%    5.29%  77.02%   17,675
Jim Wells   8.23%    6.57%  78.71%    3,866
Cameron     6.99%    4.71%  81.46%   19,705
Hidalgo     6.44%    3.87%  81.68%   37,309
Jefferson   2.35%   12.72%  83.33%   12,637
El Paso     2.93%    2.14%  91.61%   37,017
Fort Bend   2.64%    3.69%  92.02%   39,613
Harris      2.10%    3.22%  92.83%  157,880
Nueces      2.63%    2.52%  93.17%   13,426
Dallas      1.98%    3.14%  93.53%  126,203
Tarrant     2.18%    3.03%  93.77%   73,413
Bexar       2.30%    1.38%  94.13%   94,334
Montgomery  2.25%    1.87%  94.13%   10,585
Travis      2.98%    0.85%  95.00%  108,831
Denton      1.85%    2.01%  95.09%   27,340
Collin      1.77%    1.36%  95.48%   36,368

I limited myself to counties where at least a thousand votes had been cast, though obviously I didn’t include all of them. Maverick was easily Joy Diaz’s best county, while Jefferson (where he’s from) was Michael Cooper’s best. I didn’t include the other two candidates in this table because they weren’t interesting, but Inno Barrientez had his best showing in Frio County, with 8.02% of the vote.

You might look at some of these places and think that this is a sign of weakness on Beto’s part, since the low-scoring places are mostly heavily Latino. I would invite you to consider how he did in these counties in 2018 before you arrive at such a conclusion.


County    Beto 18  Beto 22
==========================
Maverick   22.13%   61.71%
Frio       23.84%   71.72%
Dimmit     29.07%   71.98%
Duval      41.58%   75.62%
Webb       41.65%   77.02%
Jim Wells  40.24%   78.71%
Cameron    46.77%   81.46%
Hidalgo    50.50%   81.68%

Sema Hernandez got over 60% in Maverick, almost 60% in Frio, and over 50% in Dimmit. She won a plurality in Duval, Webb, and Jim Wells, and had over 40% in Cameron and Hidalgo. I largely pooh-poohed the “Beto underperformed in the Latino counties!” hot takes in March of 2018 and I stand by that, but however you felt about those numbers then, it’s very different now.

He really crushed it in the big counties, with Collin the winner as Most Beto-est County Of Them All. You could do this same sort of comparison with 2018 as well if you wanted – Beto got 65.5% in Collin in 2018, 57.7% in Dallas, and 59.1% in Harris – but all we’re really saying is he got a lot more votes from basically the same size electorate. However you slice it, that much remains.

Precinct analysis: Final 2022 primary vote totals from those counties of interest

At the end of early voting, I posted some totals from various counties around the state. I noted at the time it was an imprecise comparison since I included final 2018 turnout numbers as the comparison point for 2022 and said I’d update that table when voting was over. Well, voting is over, so let’s return to that table and see what we can see.


County       2018 Dem   2018 GOP  2022 Dem  2022 GOP
====================================================
Bell            7,282     18,149     9,089    20,912
Bexar          81,408     67,977    94,334    87,277
Brazoria       10,085     24,376    11,331    30,541
Brazos          5,131     12,365     4,611    16,430
Cameron        14,123      4,003    19,705    10,504
Collin         34,669     66,078    36,368    79,431
Comal           4,150     17,662     4,847    23,874
Dallas        123,671     80,583   126,203    86,551
Denton         27,025     49,474    27,340    68,104
El Paso        54,184     12,096    37,017    18,240
Ellis           4,243     15,906     5,376    18,536
Fort Bend      29,322     34,707    39,613    45,582
Hays           11,397     11,881    12,972    15,475
Hidalgo        37,739      7,050    37,309    15,042
Johnson         2,618     12,280     2,485    17,085
Lubbock         5,900     21,964     5,599    27,552
Maverick        6,300        111     6,653       623
Montgomery      9,701     48,921    10,585    71,451
Nueces         12,345     12,553    13,426    18,871
Smith           4,704     22,826     6,362    27,668
Starr           6,729         15     3,410     1,089
Tarrant        71,876    105,317    73,410   129,628
Travis        113,070     39,177   108,831    46,416
Webb           21,137      1,426    17,675     2,963
Williamson     25,681     35,675    26,067    47,431

The first thing you might notice is that the final numbers for Starr and Maverick counties are less than the final EV totals I had. How can that be? I double-checked the final EV totals on the SOS webpage, and they are now as they were then, 6,895 for Maverick and 5,188 for Starr. I may not know much, but I know that election totals go up, not down. How do I explain this?

I went and looked at the Starr County Elections page to see what I could find. What I found is that the turnout numbers they presented for the Democratic and Republican primaries are indeed different than what the SOS reported for the gubernatorial races, by a fair amount. While there were 3,410 votes cast in the Governor’s race on the Democratic side in Starr, and 1,089 on the Republican side, total turnout for Democrats was given as 6,456, with 1,444 as the total for Republicans. You can see if you scroll through that some races, like the CD28 Dem primary, got a lot more votes than the gubernatorial primary. I figured maybe the action was a bit heavier downballot, and that seemed to be true on the Dem side in that there were a lot more votes cast in the eight Justice of the Peace races. There were still undervotes, which were easier to comprehend as they were a lot closer to the “total votes” figures for each race, but if you added up all the votes in those eight JP precincts, you get the 6,456 and 1,444 figures cited.

Make of that what you will. The transition from the “actual total turnout regardless of who voted in what race” to the “total that actually voted in this race” was jarring, in this case because the undervote rate was so low. I have no idea what it might have been in 2018, so I can’t draw any conclusions. As for Maverick County, I couldn’t find a report from their website, just what the SOS had. Insert shrug emoji here.

Anyway. I didn’t have an agenda for this post, just an intention to keep the promise made before. I’ve got some other posts about primary voting in the works and will run those in the coming days.

2022 primary early voting statewide

Turnout information for early voting for all counties is available on the Secretary of State website. They used to only have this for the 30 most populous counties, which skewed things in a Democratic direction, but a law passed in 2019 required the data to be made available for all counties. Now that early voting has been completed, let’s see what the totals looked like in other counties of interest around the state.

Unfortunately, we can’t make a direct comparison for some of the counties I was interested in because as noted the SOS only has EV data for thirty counties. So what I did instead was collect the final turnout information for the 2018 Senate primaries in both parties. What that means is that the data below is a bit skewed, since we’re comparing EV turnout to overall turnout. Even there, “overall turnout” is a bit misleading since there are always undervotes, and the data I’ve captured for 2018 doesn’t include that. The 2022 numbers includes everyone who showed up, the 2018 data only has the ones who voted in their Senate races. It’s the best I can do. Here’s what it looks like:


County       2018 Dem   2018 GOP  2022 Dem  2022 GOP
====================================================
Bell            7,282     18,149     4,550     9,574
Bexar          81,408     67,977    60,033    50,025
Brazoria       10,085     24,376     6,809    20,323
Brazos          5,131     12,365     2,241     7,902
Collin         34,669     66,078    20,784    43,779
Comal           4,150     17,662     3,040    13,530
Dallas        123,671     80,583    66,109    38,928
Denton         27,025     49,474    14,683    37,288
El Paso        54,184     12,096    20,320     9,199
Ellis           4,243     15,906     2,479     8,136
Fort Bend      29,322     34,707    25,646    28,275
Hays           11,397     11,881     7,316     8,210
Johnson         2,618     12,280     1,224     8,175
Lubbock         5,900     21,964     3,267    17,184
Montgomery      9,701     48,921     6,052    41,596
Nueces         12,345     12,553     6,682     9,962
Smith           4,704     22,826     3,933    15,481
Tarrant        71,876    105,317    38,674    70,021
Travis        113,070     39,177    58,329    23,357
Williamson     25,681     35,675    14,558    26,672

For the most part, nothing terribly exciting. Overall Democratic turnout is about 627K, about 62% of the 2018 Senate race total of 1.04 million. Republicans are at about 1.02 million, or about 66% of the way to the 1.55 million they had in their Senate primary. While I talked about the “premier races” driving turnout statewide in the last entry, conditions in an individual county can vary. High profile and/or expensive races for Congress, County Judge, or other local offices can have an effect. Different counties have different patterns for how much of the vote is cast early versus on Election Day. We also have to consider the effect of SB1 on mail ballots. So far this year there have been 49,888 Republican primary ballots cast by mail, compared to 71,329 for the Dems. We don’t know the total figures for 2018, but a look at the top 30 county numbers makes it clear that Republicans used mail ballots a lot more four years ago.

So overall I don’t see too much that stands out. The one place that is a bit remarkable is El Paso, where Democratic voting is down quite a bit from 2018. We know that Beto was a big draw overall in El Paso, more so in the general, but remember that in 2018 there was also the primary to succeed Beto in Congress, and it was a fairly expensive race that featured then-County Judge and now Rep. Veronica Escobar. I suspect that drove some people to the polls as well.

What about the South Texas/Rio Grande Valley counties that shifted red in 2020? Here’s the same sample I looked at before, updated for the 2022 numbers:


County       2018 Dem   2018 GOP  2022 Dem  2022 GOP
====================================================
Cameron        14,123      4,003    14,500     6,455
Hidalgo        37,739      7,050    31,924    10,398
Maverick        6,300        111     6,895       440
Starr           6,729         15     5,188       969
Webb           21,137      1,426    13,384     1,499

Definitely more participation on the Republican side, exceeding the final 2018 totals in all five counties, though overall those numbers are still quite low compared to the Dems. Democratic numbers in Cameron and Maverick have also topped their 2018 counterparts, and are not far behind in Hidalgo and Starr. I’m a little puzzled by Webb, since that’s the center of the CD28 primary battle, but maybe that’s a mostly-vote-on-Election-Day place. We’ll see tomorrow. Have you voted yet?

2022 primary early voting, Day Eight : Time for the upswing

I still think it’s a little weird to have a day off from voting in the middle of early voting. Either tack on an extra day at one end or the other or modify the calendar to avoid the holiday. Or, you know, since Presidents Day is hardly a day of universal indulgence, maybe have voting on it anyway? I suppose some places might not be available, but maybe enough would be? I’m just thinking out loud here.

Anyway. Here are your Day Eight early voting totals. The table for comparison:


Election    Mail   Early   Total
================================
2018 D    12,915  36,835  49,750
2018 R    15,512  33,140  48,652

2020 D    18,503  54,325  72,828
2020 R    19,410  47,271  66,681

2022 D    10,843  40,001  50,844
2022 R     6,955  49,786  56,741

As a reminder, 2018 final totals are here, and 2020 final totals are here.

Final turnout in 2018 was 167,982 for Dems and 156,387 for Republicans. I don’t see any reason why those totals won’t be eclipsed this year, though maybe not by that much on the Dem side. For what it’s worth, yesterday was the strongest mail ballot day for Dems so far, including Day One, with 2,717 ballots returned. If we are managing to fix the problems that had caused a bunch of ballots to be rejected initially, that would be a big deal. I would still very much like to know how the rejection numbers, both for applications and returned ballots, break down by party.

Derek Ryan put out another report on Monday. Of interest:

A lot has been made about South Texas and whether Republican growth was a temporary trend under President Trump. In Cameron County, turnout in the Republican Primary is 76% of the way to reaching turnout in the 2018 Republican Primary. In Hidalgo County, turnout is 65% of the way to reaching the 2018 totals. This is with five days early voters (today and the remainder of the work week) and Election Day voters left to increase those numbers. On the Democratic side, turnout in Cameron County is 59% of the way to reaching the turnout in the 2018 Democratic Primary and 47% of the way in Hidalgo County.

I expressed curiosity about that early on as well. It should be noted that there were 14K Dem primary votes in Cameron County in 2018 compared to 4K for the Republicans, and nearly 38K Dem votes in Hidalgo in 2018 compared to 7K for the GOP. In other words, still a lot more Dem votes being cast in each county. We’ll see where they all end up, but so far this doesn’t look like it’s going to rewrite anyone’s paradigms. Ask me again after the primary is over.

Three very early primary thoughts

1. After the exceedingly small number of mail ballots requested and cast in the District G special election, the primaries will be our next test of the SB1 effect on voting by mail. I will be interested to see if the number of mail ballots requested are down, and in particular if there’s a difference in the numbers for each party. For purposes of comparison, this is how many mail ballots were requested by voters in Harris County for each primary in 2020 and 2018.

2020

Dem – 38,667 requested
GOP – 31,162 requested

2018

Dem – 33,236 requested
GOP – 30,579 requested

That’s how many were requested, not all of which were returned. Switching to returned mail ballots, they made up the following percentages of total votes cast in each primary:

2020 Dem – 28,346 mail ballots out of 328,496 total = 8.6%
2020 GOP – 25,562 mail ballots out of 195,723 total = 13.1%

2018 Dem – 22,695 mail ballots out of 167,982 total = 13.5%
2018 GOP – 24,500 mail ballots out of 156,387 total = 15.7%

I will do a comparison with these totals after the votes are in. Still won’t be enough to draw conclusions, but it will be a significant data point.

2. Also of interest, given the huge amount of attention that the increase in Republican voting in various South Texas counties got in 2020, is how this may affect the turnout for the 2022 primaries. Dems have dominated these for years, so this will be a good test of the idea that the 2020 general election has changed voting patterns in this part of the state. Again, I would not draw any broad conclusions – primary turnout may be affected more by local races than the statewide or legislative contests, and primary voting may be a habit that dies more slowly than general election voting, if indeed there is a real change and not a one-election blip happening. I’m going to watch five counties – Cameron, Hidalgo, Maverick, Starr, and Webb. Here’s how they turned out in the 2018 primaries:


County      Dem votes  GOP votes
================================
Cameron        14,123      4,003
Hidalgo        37,739      7,050
Maverick        6,300        111
Starr           6,729         15
Webb           21,137      1,426

Those totals for Starr and Webb are not typos, I assure you. The Republican statewide primary races are much higher profile this year than they were in 2018, so that by itself might draw more people to that side of the ledger. As before, local races may pull people in the Democratic direction, in the way that numerous Democratic lawyers used to vote in the Republican primary in Harris County so they could affect the judicial races. I’m just looking for a data point.

3. I haven’t gotten any email from Erica Davis recently. That introductory video I noted in her email to Democratic precinct chairs from earlier in the month had 413 views and zero comments as of Friday afternoon. Her campaign Facebook page has 830 followers. She has five posts for January, with this one getting 24 likes and two comments. None of the others has as many as ten likes. By comparison, Judge Hidalgo has 47K followers, and most of her posts have hundreds of likes – this one has over 1,600 likes – and dozens of comments. To be sure, some of the comments are from people who oppose her, and of course she’s had a much longer time to build a following; this is very much an advantage of incumbency. All I’m saying is that whatever Erica Davis is doing, it’s not reaching a lot of people. And she still has not told us why we should vote to replace Judge Hidalgo on the ballot with herself.

Supreme Court to hear whether state redistricting lawsuit can proceed

Here’s the update I’ve been waiting for. Not what I was hoping for, but it is what it is.

The state’s bid to toss a legal challenge arguing last year’s GOP-led redistricting effort violated the Texas Constitution is headed to the state Supreme Court, which accepted the case Friday.

The all-Republican Supreme Court set oral arguments on March 23, well after the March 1 primary election.

The Legislature’s GOP mapmakers last fall approved new political lines that could cement Republicans’ grip on power for the next decade and blunt the voting strength of nonwhite voters who fueled Texas’ population surge.

As federal lawsuits over the new maps pile up, some Democrats are focusing on fights in state court. In two combined cases, a group of mostly Democratic, Latino lawmakers from both chambers challenged the constitutionality of when and how Republicans drew the boundaries.

After two days of oral arguments in December, a three-judge state district court ruled against temporarily blocking the new legislative maps, but set a trial for January. Texas then appealed the court’s denial of its motions to dismiss the case, putting the trial on hold.

The lawmakers’ attorneys said they don’t seek to overturn the maps for the 2022 election cycle but argued for expedited resolution of the appeal “to allow sufficient time for the parties to litigate the merits before the 2023 legislative session.”

“For decades, MALC has defended the freedom to vote and equal access to the ballot box. We are not surprised that (Texas Attorney General) Ken Paxton would attempt to undermine our members and the millions of Texas voices they represent,” said state Rep. Rafael Anchia, chair of the Mexican American Legislative Caucus, one of the challengers against the maps.

[…]

The consolidated case was assigned to a special three-judge panel of Democrat Karin Crump and Republicans Emily Miskel and Ken Wise. If the state Supreme Court affirms the lower court’s decision, “the parties need sufficient time to return to the special three-judge district court, obtain a final judgment, and complete any appeal from that judgment,” the challengers said in a filing.

See here for the previous update. I’ve been scouring the news for the past two weeks because I knew that proposed trial date was coming up. I had not seen an item about the state’s appeal, so the lack of news about the trial was confusing to me – was this really not being covered, or was there a delay of some kind. Turns out it was the latter. Maybe if I’d spent more time on Twitter I might have seen something to that effect, but too much time on Twitter is its own hazard. Point is, this litigation will not derail the March primaries. Like the litigation over Harris County Commissioners Court redistricting, it may eventually end with a ruling that will force a change to the new maps, but it cannot and will not affect this election.

Anyway, so SCOTx will decide whether to toss the two combined lawsuits or to allow the trial to proceed. Hopefully they will do this in a timely manner, so that we might have a resolution in time for the 2023 legislature to address any remaining questions. Which, let’s be clear, could be a double-edged sword, though at least on the county line question it’s more likely to be good for Democrats if the plaintiffs win and the districts in Cameron County need to be redrawn. And speaking of timing, SCOTx accepted this appeal on the same day that they also accepted the SB8 litigation from the Fifth Circuit. Thanks, I hate it.

One more thing, on a side note:

That’s the Sen. Powell lawsuit. So there is still one thing that could throw a kink into the March primaries. I’ll keep an eye on that.

Supreme Court rejects mandamus over Commissioners Court redistricting

The primary will proceed as scheduled, but the issue could be revisited sometime after the 2022 election.

The Texas Supreme Court rejected an effort by Republican commissioners and voters to block Harris County’s recent redistricting plan on Friday, suggesting another challenge still in the works will meet a similar fate.

In their challenge, the petitioners argued that the new maps amounted to illegal Democratic gerrymandering. The new precincts approved by Harris County leaders last year resulted in dramatic shifts that the challengers argued would disenfranchise voters in the upcoming primaries.

But in a narrow ruling, the justices found that they likely couldn’t provide any relief to the challengers because the wheels of the election were already in motion.

“(N)o amount of expedited briefing or judicial expediency at this point can change the fact that the primary election for 2022 is already in its early stages,” their opinion read. “This Court and other Texas courts are duty-bound to respond quickly to urgent cases that warrant expedited proceedings, but even with utmost judicial speed, any relief that we theoretically could provide here would necessarily disrupt the ongoing election process.”

The result is that the new precinct maps will be allowed to stand. The Democratic majority on commissioners court adopted the maps on a 3-2 party line vote in October.

See here and here for the background, and here for a copy of the opinion, which is also embedded in the story. It’s fairly brief and pretty straightforward, so let me summarize:

– The current map violates federal law because of population differences among the four precincts. It was not an option for the court to order that the current map be used while the appeals played out.

– The court ruled that their role in redistricting is limited, and that they did not have nearly enough facts to go on, as many of the plaintiffs’ claims remain in dispute. The burden required to make them step in and halt or change the election, which is already underway, was far too high for them to take action on such a short notice.

– Regarding the (ridiculous) claim about people being disenfranchised because they would have to wait until 2024 to vote when they had been expecting to vote in 2022, the court noted that some number of people will always be in that position when redistricting occurs. The Constitution requires the State Senate (which like Commissioners Court has staggered four-year terms) to have everyone run after redistricting, but there’s no such requirement for Commissioners Courts, which moved to four-year terms by an amendment in 1954. Ordering all four precincts to be on the ballot in 2022 was rejected because of the limited time for anyone who might run in the other precincts to get going. The court also noted that any short-term remedy for Harris County might cause problems with other counties, if people could make similar claims about being disenfranchised.

– Given all that, the court said it had no choice but to reject the writ of mandamus and allow the 2022 election to go forward as planned. The court did not make any claims or judgments about the merits of the plaintiffs’ arguments, and said that if the matter comes back to them after going through the lower courts, they can evaluate them at that time.

So there you have it. There is still the Radack lawsuit out there, but as the story notes it seems extremely unlikely that will succeed at affecting this election based on this ruling. The Cagle/Ramsey lawsuit was dismissed in Harris County district court, so I presume the next step would be for the dismissal, which was made on the grounds that the plaintiffs lacked jurisdiction (this is what the story said, perhaps this should be standing), to be appealed. Success for the plaintiffs would mean sending the case back to a district court, hopefully (for them) to get a hearing and ruling on the merits, which would naturally be appealed by whoever lost. My guess is that this whole process would take a few years if everything proceeds at its normal pace. While the Supreme Court allowed for the possibility of an all-precinct election (under another new map) in 2024, or even a special election presumably before then, I wouldn’t hold my breath on it. Same thing for the Radack lawsuit, which as far as I know has not had an initial hearing yet.

Finally, while this story does not mention it, I wonder if this may also signal the death knell for the two state court redistricting challenges, on the same grounds of not having enough time to do something before people begin voting. That last update suggested the possibility of a trial this week, but I am not aware of any news to that effect. The cases are in Travis County district court, if anyone wants to try to figure that out.

The state of the state redistricting lawsuits

A good update, and a reminder that not all of the action is in federal court.

In two cases heard [December 14 and 15], a group of mostly Democratic, Hispanic lawmakers from both chambers challenged the legality of when and how Republicans drew the boundaries.

“All we’re asking is for Republicans, who claim to be constitutionalists, to start acting like it, and follow the plain meaning and reading of the Constitution,” said Roland Gutierrez, one of two Democratic state senators who are suing Texas.

Focusing on the timing are Gutierrez and Sen. Sarah Eckhardt, who sued to block the Legislature from redistricting in a special session this year. Also at issue are rules for keeping counties intact when drawing Texas House districts.

Similar to a suit they filed in federal court before redrawing began, the senators’ attorneys argued the Texas Constitution requires that redistricting be done in a regular session that won’t happen until 2023.

That makes the newly drawn state House and state Senate plans invalid, argued the legal team for Gutierrez and Eckhardt, of San Antonio and Austin, respectively.

The senators’ lawyers pointed to a provision in the state Constitution that requires the redistricting process to start in the first regular session after the decennial Census has been published, asking the court to block the new plans from being used.

State lawyers argued the provision does not prohibit apportionment at other times, and warned that blocking the map will disrupt the 2022 election process that is already in motion.

“The Legislature … is perfectly free to redistrict whenever it wants,” Will Thompson, the attorney general’s deputy chief for special litigation, said at the Dec. 15 hearing in district court in Travis County.

[…]

The senators’ legal team also argued the new state House map violated the “county line rule” of the Texas Constitution, which requires that counties with sufficient population be kept intact in drawing Texas House districts.

The second challenge, mounted by the Mexican American Legislative Caucus in the Texas House, made a similar case that the rule was broken, arguing it was designed to ensure people have local representation.

As lawmakers this fall debated the new House lines late into the night, they narrowly adopted a major change in South Texas. House District 37 was redrawn from a seat President Joe Biden won by 17 percentage points, to a seat the president won by only two points over former President Donald Trump in the 2020 election.

That amendment, developed by Kingsville Republican Rep. J.M. Lozano, was denounced by some Valley lawmakers. State Rep. Eddie Lucio III, D-Brownsville, called the change a “disingenuous, last-minute attempt to do a grab.”

The plaintiffs’ legal team argued the county line rule requires that two districts be wholly contained within Cameron County. Yet Lozano’s tweaks give Cameron County just one wholly contained district, with two that connect to adjoining counties.

The state’s lawyers argued the new boundaries do not dilute votes in Cameron County, and that Cameron got the number of districts it was constitutionally entitled to. The plaintiffs’ attorney rejected that interpretation of the rules.

“There is no doubt that to whatever extent Cameron County voters are a cohesive group … they get to elect the candidates of their choice,” said Thompson, one of the state’s lawyers.

District 37 Democratic candidate Ruben Cortez Jr. joined the senators’ suit, along with political organization Tejano Democrats. The new version of the district was joined with adjacent Willacy County.

“This Republican redistricting scheme is robbing the voice of Cameron County voters,” Cortez, also a member of the Texas State Board of Education, said in a news release.

The caucus’ complaint asked the court to block the Texas House map from being used in upcoming elections and allow for the creation of alternative boundaries.

Both sides discussed a full trial beginning Jan. 10.

It’s unclear, if the judges rule in favor of the plaintiffs on the county line rule, whether they would delay Texas House primary elections just for South Texas, or the entire state. The plaintiffs’ legal team asked the court to delay the primary to May 24.

Thompson, the state lawyer, said he expects the 2023 Legislature to have to revisit the maps.

The Gutierrez/Eckhardt lawsuit was originally filed in federal court, but at a hearing in October it was agreed that the plaintiffs would first pursue the matter in state court. The state lawsuit was filed on November 22, judging from the stamp on the document. The lawsuit over HD37 and Cameron County was one of two lawsuits filed by MALC, with the other being a broader federal lawsuit. I was not aware until this story that they had been combined, as the federal lawsuits (with the exception of the federal version of the Gutierrez/Eckhardt lawsuit) have been.

The cases are being heard by an interesting three-judge panel: Karin Crump, a Democrat and district court judge in Travis County, who is presiding; Ken Wise, a Republican was was re-elected to the 14th Court of Appeals in 2020; and Emily Miskel, a Republican district court judge from Collin County who is running for the 5th Court of Appeals in 2022. I assume this is the work of the Texas Multidistrict Litigation Panel, though that name is not mentioned in the story. Funny how once you become aware of something new you begin to see it everywhere.

As for the cases, with the standard I Am Not A Lawyer proviso, both of them seem pretty straightforward. Either the Lege is only allowed to embark on the decennial redistricting process in a regular session that follows the Census or it’s not, and either the county line rule means that a county with sufficient population to have more than one State House district in it has only one partial district in it, with the other(s) being fully within that county. Looking at the district viewer, I don’t see any other example of a county that has one complete district and more than one partial districts in it. There are no such examples in the current map, either – Cameron has all of HDs 37 and 38 and part of 35. It seems likely to me that previous legislatures didn’t think this was something they could do. And as for whether Cameron County voters get to elect the candidate of their choice, that’s nice and all but it’s not the question that was asked, nor is it relevant to the county line rule.

As for the claim that the Lege is free to redistrict whenever it wants, then it could in theory redraw new lines after every election. (The 2003 DeLay re-redistricting was only for Congress, which is outside the scope of the Gutierrez/Eckhardt lawsuit. That same claim was made about “mid-decade” Congressional redistricting, and I don’t believe there was ever a federal ruling on that question.) Surely there are some limits on what the majority party can do.

The weakness of the state’s arguments suggests to me the possibility the plaintiffs could prevail, but we are getting way ahead of ourselves. I do think the state can reasonably claim it wasn’t their fault that the Census data was late, and that it’s less disruptive to redistrict in a special session so new maps can be in place for the intended election than to wait an entire cycle. The counter to that would be that this is what the Legislative Redistricting Board is for, though here I would say it’s not clear to me that the outcome would be any more favorable to the plaintiffs unless the LRB is restricted to just tweaking districts to equalize population. In other words, can the LRB draw whole new maps, in which case I’d expect them to come up with something exactly like what was adopted by the Lege, or must they use the existing maps and make only the minimal changes necessary to fix population imbalances? The Gutierrez/Eckhardt plaintiffs might “win” but not achieve anything, depending on how the court views that question. Someone with real legal experience should probably step in at this point and stop me from digging this hole any deeper.

Anyway. We might at least get an initial answer to these questions before voting begins, which would be nice. We might also get a split primary for at least part of the state, which is more than a little chaotic. Isn’t this fun?

The botched “non-citizen” voter purge continues

At some point we need to recognize the fact that our Secretary of State’s office is completely, and maybe maliciously, inept at doing this.

Still the only voter ID anyone should need

Texas’ last attempt to scour its voting rolls for noncitizens two years ago quickly devolved into a calamity.

The state flagged nearly 100,000 voters for citizenship checks and set them up for possible criminal investigation based on flawed data that didn’t account for immigrants who gained citizenship. After it became clear it was jeopardizing legitimate voter registrations, it was pulled into three federal lawsuits challenging its process. Former Secretary of State David Whitley lost his job amid the fallout. And the court battle ultimately forced the state to abandon the effort and rethink its approach to ensure naturalized citizens weren’t targeted.

This fall, the state began rolling out a new, scaled-down approach. But again, the county officials responsible for carrying it out are encountering what appear to be faults in the system.

Scores of citizens are still being marked for review — and possible removal from the rolls. Registrars in some of the state’s largest counties have found that a sizable number of voters labeled possible noncitizens actually filled out their voter registration cards at their naturalization ceremonies. In at least a few cases, the state flagged voters who were born in the U.S.

The secretary of state’s office says it is following the settlement agreement it entered in 2019 — an arrangement that limited its screening of voters to those who registered to vote and later indicated to the Texas Department of Public Safety that they are not citizens. Flagged voters can provide documentation of their citizenship in order to keep their registrations, officials have pointed out.

But the issues tied to the new effort are significant enough that they’ve renewed worries among the civil rights groups that forced the state to change its practices. They are questioning Texas’ compliance with the legal settlement that halted the last review. And for some attorneys, the persisting problems underscore their concerns that the state is needlessly putting the registrations of eligible voters at risk.

“We’re trying to get a grasp of the scale, but obviously there’s still a problem, which I think we always said would be the case,” said Joaquin Gonzalez, an attorney with the Texas Civil Rights Project, which was involved in the 2019 litigation. “It’s definitely something we were concerned would happen if they tried to restart this process.”

[…]

Texas’ voter citizenship review has persisted through the tenure of multiple secretaries of state and has been backed by state Republican leaders who have touted the broader review effort as a way to ensure the integrity of the voter rolls, though there is no evidence that large numbers of noncitizens are registered to vote.

The current iteration was formally initiated in early September before the appointment of the state’s new secretary of state, John Scott, who helped former President Donald Trump challenge the 2020 presidential election results in Pennsylvania.

That’s when the state sent counties 11,737 records of registered voters who were deemed “possible non-U.S. citizens.” It was a much smaller list than the one it produced in 2019, when it did not account for people who became naturalized citizens in between renewing driver’s licenses or ID cards they initially obtained as noncitizens.

But when Bexar County received its list of 641 flagged voters, county workers quickly determined that 109 of them — 17% of the total — had actually registered at naturalization ceremonies. The county is able to track the origin of those applications because of an internal labeling system it made up years ago when staff began attending the ceremonies, said Jacque Callanen, the county’s administrator.

Election officials in Travis County said they were similarly able to identify that applications for 60 voters on the county’s list of 408 flagged voters — roughly 15% of the total — had been filled out at naturalization ceremonies.

The American Civil Liberties Union of Texas, another group that sued the state in 2019, is still assessing the extent to which the state’s new attempt to review the rolls may be defective. But those figures alone should give everyone pause, ACLU staff attorney Thomas Buser-Clancy said after The Texas Tribune provided him those tallies.

“What we do know is that every time the secretary of state tries to do something like this it fails and that these efforts, which inevitably ensnare eligible voters, should not be happening,” Buser-Clancy said.

In an advisory announcing the revised process, the secretary of state’s office told counties that they should first attempt to “investigate” a voter’s eligibility. If they are unable to verify citizenship, the county must then send out “notices of examination” that start a 30-day clock for the voter to submit proof of citizenship to retain their registration. Voters who don’t respond with proof within 30 days are removed from the rolls — though they can be reinstated if they later prove their citizenship, including at a polling place.

Beyond the figures from Bexar and Travis counties, local election officials in other counties, including Cameron and Williamson, confirmed they’ve heard back from flagged voters who are naturalized citizens. After mailing 2,796 notices, officials in Harris County said 167 voters had provided them with documentation proving their citizenship. In Fort Bend, officials received proof of citizenship from at least 87 voters on their list of 515 “possible noncitizens.” Last week, Texas Monthly reported on two cases of citizens in Cameron County who were flagged as possible noncitizens.

See here, here, and here for not nearly enough background on this. The simple fact is that if the SOS process is generating such high error rates, especially for things that should be easily checked and thus avoided, the process itself is clearly and fatally flawed. Some of this is because, as anyone who works with databases can tell you, data is hard and messy and it’s easy to make mistakes when trying to figure out if two different text values are actually the same thing. And some of it is clearly because the SOS and the Republicans pushing this don’t care at all if there’s some collateral damage. That’s a feature and not a bug to them. If it’s not time to go back to the courts and get another stick to whack them with, it will be soon. Reform Austin has more.

Redistricting litigation update

Reform Austin shows that the state’s legal defense strategy against the various redistricting lawsuits is “You can’t sue us!”

Because of the clear racial gerrymandering, multiple groups are launching legal challenges under the Voting Rights Act. The state has now responded to the one being brought by the League of United Latin American Citizens (LULAC), Mi Familia Vota, the Mexican American Bar Association, and others, asking for a dismissal. Among many other claims, the state alleges that private citizens do not have standing to sue under Section 2 of the Voting Rights Act.

“The Supreme Court has never decided whether Section 2 contains an implied private cause of action,” reads the filing.

Section 2 of the Voting Rights Act makes it illegal to gerrymander a district for the purpose of suppressing voting power based on race. Strictly political gerrymandering was deemed acceptable in a 2019 Supreme Court case, but the two intentions are often intermingled. The majority of minorities tend to vote Democrat, making any political gerrymandering also racial almost by definition.

The filing by the state does admit that some legal opinions have implied that Section 2 does give private citizens standing to sue but says that these implications are inconsistent with other Supreme Court decisions. The case specifically cited is Alexander vs. Sandoval, which found that regulations enacted under the Civil Rights Act of 1964 did not confer the right to legal action in a case of non-intentional discrimination. The filing also claims that the Voting Rights Act did not actually create a right to vote in spite of the discrimination, and therefor there is no right to be contested under its statute.

Not a whole lot to say here, as Texas has employed a variation on that strategy in a whole host of lawsuit defenses lately. I don’t know what the district and appeals courts will make of that, but I wouldn’t be surprised to see it get a warm welcome at SCOTUS. Hey, have I mentioned lately that a new and updated federal voting rights law would be a good idea? Just checking.

Reading that article made me go Google news hunting for anything else I could find on redistricting litigation, since not all developments make their way into the sources I read regularly. In doing so I found that all but one of the existing federal cases against the redistricting maps have been consolidated into one, the LULAC v Texas case, as it was the first one filed. You can see all of the filings related to this omnibus case here. When I read the order combining the cases, the motion for which had been partially opposed, I learned that there were two other lawsuits that I had missed the first time around. Let me sum up here. The cases that I knew about that are now under this banner: The LULAC/MALDEF suit, the Voto Latino suit, the federal MALC suit, the Senator Powell lawsuit over SD10, and the Fair Maps Texas Action Committee lawsuit.

The cases that I missed the first time around: The Lawyers’ Committee for Civil Rights Under Law, representing the Texas State Conference of the NAACP, and Damon James Wilson, formerly an inmate in Dallas County, representing himself as he was counted in one Congressional district while incarcerated but intends to return to his actual domicile in another CD when released, and says he should have been counted in that district.

The one federal case that remains separate from the others is the Gutierrez/Eckhardt suit, which the court rejected for consolidation on the grounds that about whether the Lege was allowed to draw maps at all, and not about the composition of the new maps.

So, for those of you keeping score at home, we now have two federal lawsuits challenging different aspects of Texas redistricting, and one state lawsuit that focuses on the county line rule and how it was allegedly violated in Cameron County in the drawing on HDs 35 and 37. You’ll be quizzed on this at a later date, so please make sure you take good notes.

A redistricting lawsuit twofer from MALC

One federal, one state.

The Mexican American Legislative Caucus in the Texas House has opened a second front in the legal war over the state’s new political maps.

The caucus on Wednesday turned to the state courts to challenge the constitutionality of the new state House map, arguing it violates state requirements for breaking county lines in drawing up the chamber’s 150 districts. The move comes on the heels of two lawsuits filed against the newly approved maps in federal court. The caucus on Wednesday simultaneously filed another federal lawsuit alleging the state’s new maps were drawn with discriminatory intent and violate the federal Voting Rights Act.

Texas redistricting fights have typically played out in federal courts, which decade after decade have found that lawmakers, often intentionally, flouted federal protections for voters of color in redistricting. Filed in Austin, MALC framed its federal lawsuit as an effort to “redress once again Texas’s sordid pattern of racial discrimination.”

However, the lawsuit filed in state district court in Travis County is tied to language in the state Constitution, which states that legislators drawing 150 districts for the Texas House are supposed to keep whole counties that have sufficient population to make up one House district.

MALC’s challenge centers on the reconfiguration of Cameron County in the Rio Grande Valley, which breaks the county line twice to create three different districts — only one of which is wholly contained within the county. The state’s “county line rule,” MALC argues, would require two districts to be drawn within Cameron with the remaining population connected to a single neighboring district, as was the case under the map the state used for the last decade.

The new lines in Cameron, drawn over the objections of lawmakers who represent the affected areas, would afford Republicans a newly competitive state House seat in an area currently dominated by Democrats. In its federal lawsuit, MALC alleges the lines would also “severely dilute” the ability of Latinos and the Spanish-speaking community in the area to elect their preferred candidates.

The swap and the objections to it are noted in this post. This is the first state court lawsuit against the redistricting effort, though the Gutierrez/Eckhardt suit will find its way there as well. The claim seems pretty straightforward. According to the population report for the State House map, HD37 has 164K voters in Cameron County and 20K in Willacy, while HD35 has 70K in Cameron and 123K in Hidalgo. All 186K voters in HD35 are in Cameron. The suit claims that according to the county rule in the state constitution, HD37 should be entirely within Cameron County, and those Willacy County voters would need to be swapped out, presumably to HD35 where about 20K of its voters would have to be in HD37. Here’s a quote from the lawsuit:

A key principle in both the plain language of the Texas Constitution itself and the Texas Supreme Court’s interpretation of the county line rule in light of Reynolds, is that for any county which has enough population for one or more representatives and also has a left-over surplus that cannot be wholly contained in the county, that surplus may only be joined in one single representative district with area from another contiguous county or counties.

Emphasis mine. I will note that HDs 35 (57-42 for Biden in 2020 and 38 (62-37 Biden) are reasonably Dem-friendly, while HD37 (51-48 Biden) is less so. Now, Willacy County was roughly 56-44 for Biden, so how Dem-friendly the HD35 portion of Cameron County is makes a difference here. I have to assume it’s better for Dems than the Willacy portion is, because otherwise the Republicans wouldn’t have bothered. Maybe they could still squeeze HD37 in a favorable way for themselves if it had to be entirely within Cameron, but in the end they didn’t. So this could be a difference maker, if the plaintiffs win.

On the federal side:

In its federal lawsuit, MALC challenges the new maps for Congress, the Texas House and the State Board of Education, saying they are intentionally discriminatory and mired in illegal racial gerrymanders. The caucus also raises specific claims on a litany of districts where they allege the Legislature packed and cracked communities of color to limit their electoral impact.

“The plans adopted by the State not only failed to increase Latino and minority opportunities for representation, they actually decreased them while increasing the number of districts in which Anglos form a majority of the eligible voter population,” the MALC complaint reads. “This turns the concept of representative democracy on its head.”

Echoing the two federal lawsuits already in the pipeline, MALC is also challenging the Legislature’s refusal to create additional districts in which Hispanic voters would control elections. Republicans, who had complete control over the redistricting process this year, declined to create those districts even as they reconfigured the congressional map to include the two additional U.S. House seats the state gained, the most of any state in this year’s reapportionment, because of its explosive growth.

See here and here for the other federal lawsuits. I don’t know what new MALC is bringing to the table, and as discussed I don’t have much faith in the federal courts on this matter, but I welcome all comers. The Statesman has more.

The mask rebellion

Sweet, sweet music to the ears.

The local mask rebellion, coupled with the fresh threat of legal action from President Joe Biden’s administration, poses the most serious challenge yet to [Gov. Greg] Abbott’s emergency powers, which he has wielded in unprecedented ways that have drawn intense criticism both from Democrats and from some conservatives.

[…]

Many school boards and superintendents are stuck between conflicting requirements from the governor and their local health departments, while others feel that masks are essential and that they have the authority to control their own schools, regardless of the governor’s wishes.

“I don’t think the governor has an MD next to his name,” said Conrado Garcia, superintendent of West Oso Independent School District in Corpus Christi. “We’re just trying to help our kids, and maybe what’s missing is some of that kind of thinking.”

West Oso is one of 58 school districts deemed “noncompliant” with Abbott’s order by Attorney General Ken Paxton, who is publishing a list of the rogue government entities.

At last count, the list also included three charter school groups, one city and eight counties — Bexar, Cameron, Dallas, Harris, Hays, Hidalgo, Nueces and Travis — for a total of 70 entities. Paxton, who is also suing to overturn some of the local mandates, encouraged the public to notify his office of any “violator” that was not included on the list.

Garcia said he hopes Abbott will come around on the local mask mandates.

“Our intention is not to fight the governor, our intentions are that he will realize that there’s so many parents, and the list is growing of the number of school districts that are passing more and more resolutions,” Garcia said. “So I think eventually, somewhere, somehow, common sense dictates to me that if you’re hearing from that many people, I hope that he will compromise and let us continue with our work.”

The cases pose a new legal test for Abbott, whose emergency orders withstood early challenges from the right, filed by conservative groups that argued against business closures and the governor’s own mask mandate.

The Texas Supreme Court decided last year that it didn’t have standing to take up those cases, though Justice John Devine nonetheless issued an opinion in which he critiqued a portion of state law that allows the governor to suspend certain laws and rules during emergencies.

“I find it difficult to square this statute, and the orders made under it, with the Texas Constitution,” Devine wrote, noting that only the Legislature — not the judiciary or executive branches — has constitutional power to suspend laws.

In the latest mask challenges, local officials are citing the same portion of state law, but with the opposite intent: to stop Abbott from blocking local action aimed at blunting the spread of COVID. In cases involving San Antonio’s and Dallas’ mask mandates, local officials have argued that Abbott may suspend only local orders that would “in any way prevent, hinder or delay necessary action in coping with a disaster.”

Ron Beal, an attorney and former administrative law professor at Baylor University, sided with the local officials in an amicus brief submitted to the state Supreme Court on Monday.

“It is wholly inconsistent with the legislative intent for the governor to consciously and knowingly not meet or prevent the dangers, but to enhance them,” Beal said. “There is simply no language in the statute that empowers the governor to give citizens permission to prolong the disaster. It is thereby void.”

[Dale Carpenter, a constitutional law professor at Southern Methodist University], said the case raises difficult constitutional questions for the conservative jurists on the court.

“That cuts a number of ways in this case, both for and against the governor, because he’s acting in a way that many conservatives believe is reinforcing individual rights to choice, choice about wearing masks specifically,” Carpenter said. “But I think the court certainly doesn’t want to issue an opinion that says the governor’s the commander-in-chief and he can do what he wants, and not qualify that opinion a lot.”

[…]

Paris ISD, in Northeast Texas, has taken a novel approach to its own mask mandate. While other districts have argued that health data or conflicting local requirements required them to ignore Abbott’s order, Paris ISD’s board simply amended its dress code to include a mask.

The lawyer for the district, Dennis Eichelbaum, argues that so long as the state’s education law remains in place, school districts have the exclusive right to govern themselves. Unless Abbott decides to use his emergency powers to suspend that law, Eichelbaum argues, school districts can institute mask mandates.

“We’ve always had dress codes. It’s very common in Texas. And this is no different, really, than saying we’re requiring our students to wear shoes,” he said. “I can’t explain why other law firms weren’t as creative, but it seems pretty simple to me.”

Eichelbaum argued that Abbott’s executive order is vague and inconsistently enforced, pointing to requirements that students wear face masks during welding class or that baseball catchers and football players wear face protection. Amending a dress code to include masks to protect against COVID is no different, Eichelbaum said.

Obviously, I am delighted by the resistance to Abbott’s shameful demagoguery on this issue. Abbott, who has made a career out of defying federal laws and directives he doesn’t like, deserves no sympathy for any of this. I don’t know what the Supreme Court will do, though their refusal to just call an end to all the litigation is moderately heartening, and I appreciate the legal analysis in this story. There’s at least a chance that common sense can prevail, and that’s more than we’ve had around here in awhile.

I will say, it’s been this kind of resistance to Abbott’s anti-mask mandate, which as noted has come from some red areas as well as the cities, that makes me give some credence to that Spectrum/Ipsos poll. Abbott may only care about the most fervid of Republican primary voters, but mayors and school boards have to answer to a broader electorate, and some of them will be facing that music this year. Maybe one of the HISD Trustee candidates, especially one in a district formerly held by a Republican, will base their campaign on an anti-mask platform, but if so I haven’t seen any evidence of it yet. If nothing else, this is a big campaign issue for next year, when we finally get a candidate for Governor out there.

Precinct analysis: State House district changes by demography

Introduction
Congressional districts
State Rep districts
Commissioners Court/JP precincts
Comparing 2012 and 2016
Statewide judicial
Other jurisdictions
Appellate courts, Part 1
Appellate courts, Part 2
Judicial averages
Other cities
District Attorney
County Attorney
Sheriff
Tax Assessor
County Clerk
HCDE
Fort Bend, part 1
Fort Bend, part 2
Fort Bend, part 3
Brazoria County
Harris County State Senate comparisons
State Senate districts 2020
State Senate district comparisons
State House districts 2020, part 1
State House districts 2020, part 2
Median districts

I return once again to doing cycle-over-cycle comparisons in vote turnout, in this case for State House districts. There are a lot of them, and I’m not going to do them all but I am going to do enough of them that I will split this into two parts. Part One, this post, will group districts by demographic groups. Part Two, to come later, will be to group them by counties of interest.

First up, just to ease ourselves in, are the four big urban districts that are Anglo, wealthy, highly college-educated, and swung hard towards the Democrats since 2012:


Dist  12-16R  12-16D  16-20R  16-20D  12-20R  12-20D Dem net
============================================================
134  -10,943  15,312   6,540  17,771  -4,403  33,083  37,486
047   -2,005  14,218  13,145  27,678  11,140  41,896  30,756
108   -5,942  12,553   8,628  17,929   2,686  30,482  27,796
121   -4,020   6,534   6,059  15,078   2,039  21,612  19,573

As discussed before, the columns represent the difference in vote total for the given period and party, so “1216” means 2012 to 2016, “1620” means 2016 to 2020, and “1220” means 2012 to 2020. Each column has a D or an R in it, so “1216R” means the difference between 2016 Donald Trump and 2012 Mitt Romney for the Presidential table, and so forth. In each case, I subtract the earlier year’s total from the later year’s total, so the “-9,951” for SD114 in the “1216R” column means that Donald Trump got 9,951 fewer votes in 2016 in SD14 than Mitt Romney got, and the “56,887” for SD14 in the “1216D” column means that Hillary Clinton got 56,887 more votes than Barack Obama got. “Dem net” at the end just subtracts the “1220R” total from the “1220D” total, which is the total number of votes that Biden netted over Obama. Got it? Good.

Despite the large swings, only the top two are now Dem-held. HD108 managed to remain in the hands of Rep. Morgan Meyer despite being carried by statewide Dems all the way down the ballot, while HD121 still remains somewhat Republican-leaning. I don’t know what magic Republicans have in mind for redistricting, but their hold on these voters is slipping away rapidly. I can’t emphasize enough that Mitt Romney got 60% of the vote in HD134 in 2012, and look at where it is now.

I’ve written plenty about these districts, and I could have included more of them in this table. Most of those you will see later. There’s not much to add except to say that this particular demographic shift has been a huge driver in the overall blue-ing of Texas, and especially of its most populated areas. I don’t know what the future holds, but I don’t see that changing in the near term.

When I mentioned that this post was a look at the districts by demographic groups, I assume your first thought was that I’d take a closer look at Latino districts. Well, here you go:


Dist  12-16R  12-16D  16-20R  16-20D  12-20R  12-20D Dem net
============================================================
051      425  10,783   4,422  19,073   4,847  29,856  25,009
102   -4,430   5,333   2,511  10,832  -1,919  16,165  18,084
148   -1,481   8,555   5,598  10,113   4,117  18,668  14,551
107   -3,023   4,566     718   7,532  -2,305  12,098  14,403
103      -96   7,314   3,535  10,357   3,439  17,671  14,232
116     -583   6,014   3,546  10,281   2,963  16,295  13,332
117    4,532   8,828  14,927  22,921  19,459  31,749  12,290
105   -2,249   4,377   2,900   8,547     651  12,924  12,273
078   -1,129   6,723   6,731   9,618   5,602  16,341  10,739
124      330   5,077   5,877  11,756   6,207  16,833  10,626
125   -1,081   4,378   4,753   9,350   3,672  13,728  10,056
079     -453   7,038   4,976   6,495   4,523  13,533   9,010
075    1,734  11,011   9,747   8,599  11,481  19,610   8,129
104     -777   3,881   2,743   6,042   1,966   9,923   7,957
077   -1,530   5,080   3,539   3,936   2,009   9,016   7,007
119    1,062   3,428   6,041  10,507   7,103  13,935   6,832
145   -1,306   5,575   5,291   5,038   3,985  10,613   6,628
090     -180   2,391   3,170   5,496   2,990   7,887   4,897
118    1,391   3,719   6,633   7,790   8,024  11,509   3,485
076     -260   5,039   3,826   1,635   3,566   6,674   3,108
140     -733   4,433   4,140   1,810   3,407   6,243   2,836
144   -1,051   3,577   4,044   1,480   2,993   5,057   2,064
041    1,664   6,820   8,617   5,201  10,281  12,021   1,740
143   -1,038   3,244   4,483   1,446   3,445   4,690   1,245
022   -1,261  -2,280   1,510   2,254     249     -26    -275
034      620     799   6,012   3,759   6,632   4,558  -2,074
038    1,533   4,706   9,344   2,945  10,877   7,651  -3,226
040    2,384   3,753   8,981   3,433  11,365   7,186  -4,179
037      969   3,764   7,324      36   8,293   3,800  -4,493
036    1,482   5,527   9,847    -480  11,329   5,047  -6,282
039    2,071   3,256   8,411     836  10,482   4,092  -6,390
035    2,007   2,358   8,961   2,163  10,968   4,521  -6,447
042      882   2,195   7,908    -323   8,790   1,872  -6,918
043    2,532     162   8,001   1,059  10,533   1,221  -9,312
080    1,959   1,789   9,567     127  11,526   1,916  -9,610
074    1,127   2,708   9,454  -2,185  10,581     523 -10,058
031    3,017  -1,816  13,479    -412  16,496  -2,228 -18,724

A couple of notes here. Defining “Latino district” is subjective, and I make no claim that my way is optimal. What you see above is almost all of the districts that are represented by a Latino member, plus HD80, which despite being majority Latino is still represented by Democrat Tracy King. I skipped HDs 49 (Gina Hinojosa) and 50 (Celia Israel) because the’re much more Anglo than Latino. HDs 102, 105, and 107 were held by non-Latino Republicans before being flipped by Democrats in 2016 and 2018. HD43 is held by the one Latino Republican in the House, JM Lozano, who won originally as a Democrat in 2008 and then changed parties after the 2010 election. HDs 79 and 90 were held by Anglo Democrats in 2012; Lon Burnam was primaried out by Rep. Ramon Romero in 2014, and Joe Pickett resigned following the 2018 election due to health challenges.

There’s a lot of data here, and I’ll try to keep this manageable. All the districts that showed a net gain for Dems over both elections are in Bexar, Dallas, El Paso, Harris, Travis (HD51), and Tarrant (HD90), plus HD41 in Hidalgo County. In Bexar, Dallas, and Tarrant, there were net gains in each cycle. In El Paso, there were big gains in 2016 and more modest gains in 2020, with the exception of HD75, which had a slight gain for Republicans in 2020. HD75 is the easternmost and thus most rural of the El Paso districts. It also still voted 66.5% to 31.9% for Biden in 2020, just for some perspective.

In Harris, all five districts gained in 2016, but only HD148 also gained in 2020. HD145 came close to breaking even, while HDs 140, 143, and 144 all moved towards Republicans; we saw this when we looked at the Harris County Senate districts and talked about SD06. This is the first of several places where I will shrug my shoulders and say “we’ll see what happens in 2022”. Honestly, I don’t know what to expect. We’ve discussed this topic numerous times, and as there are forces moving urban and college-educated voters towards Democrats, the same forces are moving rural and non-college voters towards Republicans. The biggest of those forces is Donald Trump, whose presence on the ballot helped Republicans in 2016 and 2020 but whose absence hurt them in 2018. We just don’t know yet what 2022 will bring.

Of the districts that had net Republican gains, HD22 is in Jefferson County (basically, it’s Beaumont; Dade Phelan’s HD21 has the rest of JeffCo plus Orange County) and HD34 is in Nueces County. Jefferson County has been slowly losing population over time, and I think that was a big driver of what happened with HD22. It’s also much more Black than Latino, and thus maybe is a better fit with the next data set, but it has long been represented by Rep. Joe Deshtotel, and this is the decision I made. Nueces County also has the Republican-held HD32 in it, and it showed a net Democratic gain of 1,576 votes over the two cycles, with most of that in 2016 but still a small Dem net in 2020. Its Latino voting age population is about 46%, nearly identical to its Anglo VAP. HD34 was one of the tighter districts even before 2020, and I figure it’s on the target list for Republicans in redistricting.

Most of the other districts are in Cameron, Hidalgo, and Webb counties, and while 2020 was a better year for Republicans in all of them, I don’t think that will necessarily be the case in 2022, a belief driven in part by the incumbency theory and in part by my own wishfulness. That said, as noted before the shifts were more muted downballot, with Trump outperforming other Republicans in those districts. I had my doubts about the durability of Democratic gains in 2016 because of the disparity between the Hillary numbers and the rest of the numbers, and I think it’s fair to have those same doubts here. We do know how it went in 2018, but as before Trump is not on the ballot in 2022. Which force is stronger? Have the underlying conditions changed? I don’t know and neither does anyone else at this time.

HDs 31, 74, and 80 are all cobbled out of smaller counties, and I have much less hope for them, but who knows what the combined effects of the freeze and the Abbott Wall will have. The main thing I took away from analyzing this data is that there was already a Republican shift in 31 and 74 in 2016 with a near miss in 80, though they all rebounded in a Democratic direction in 2018. How much of this was caused by new voters, and how much by swapping allegiances, those are big questions to ponder.

Let’s move on. These are the predominantly Black districts:


Dist  12-16R  12-16D  16-20R  16-20D  12-20R  12-20D Dem net
============================================================
046     -331   7,462   4,363  20,080   4,032  27,542  23,510
027     -461   4,708   6,324  13,724   5,863  18,432  12,569
147   -1,282   3,575   4,571   9,831   3,289  13,406  10,117
109     -914    -500   1,853  11,161     939  10,661   9,722
111   -1,449  -1,155   1,627   8,981     178   7,826   7,648
120     -184     863   4,503  10,856   4,319  11,719   7,400
100     -840    -537   2,107   7,799   1,267   7,262   5,995
142      294   2,093   4,685   8,804   4,979  10,897   5,918
131     -642   2,681   4,289   6,642   3,647   9,323   5,676
146   -1,653    -923   2,438   6,798     785   5,875   5,090
139   -1,290   1,216   4,826   6,786   3,536   8,002   4,466
095     -613  -2,745   2,727   7,752   2,114   5,007   2,893
141      218    -721   2,594   4,405   2,812   3,684     872
110     -101  -3,010   1,820   3,362   1,719     352  -1,367

HD27 is in Fort Bend, HD46 is in Travis (it’s also much more Latino than Black but has long been represented by a Black legislator, with Dawnna Dukes preceding Sheryl Cole; it is the inverse of HD22 in that way), HD95 is in Tarrant, and HD120 is in Bexar. HD101 in Tarrant County has a higher Black percentage of its population than either HDs 46 or 120, but it’s held by the Anglo Dem Chris Turner, so I skipped it. All the rest are in Harris and Dallas. The range of outcomes here is fascinating. I think what we see in the 2016 results, at least in some of these districts, is a bit of a letdown in enthusiasm from Obama to Clinton, with perhaps a bit of the campaign to dampen turnout among Black Democrats finding some success. Some districts in Harris County like HD141 have had pretty modest growth in population and voter registration as well. I don’t know what the story may have been in HD110, but if one of my Dallas readers would like to offer a few words, I’d be interested in hearing them.

There was some evidence around the country of Trump making modest gains with Black voters, mostly Black men, in 2020. I do see a case for that here, because even as Dems had net gains in 2020 – significant gains, in some of these districts – their share of the total new turnout is smaller than you’d otherwise expect. For example, HD131 voted 80.6% to 18.5% for Biden, but only 60.8% of the extra voters in 2020 voted for Biden. HD131 had voted 84.1% to 13.3% for Hillary in 2016, meaning that Trump cut almost ten points off of his deficit from 2016. This is your reminder that a shift in vote share towards one party is not the same as a shift in total votes towards one party. We’ve had this conversation about Democrats making percentage point gains in some heavily Republican areas while still falling farther behind, and this is that same conversation from the other side.

Finally, here are the four districts represented by Asian American legislators:


Dist  12-16R  12-16D  16-20R  16-20D  12-20R  12-20D Dem net
============================================================
026   -4,573   9,082   7,327  13,556   2,754  22,638  19,884
112   -2,140   4,427   5,086  10,634   2,946  15,061  12,115
137     -848   2,147   2,435   4,099   1,587   6,246   4,659
149   -2,592   3,504   8,134   4,645   5,542   8,149   2,607

This grouping is even more tenuous than the Latino districts, mostly because there’s no such thing as a plurality Asian district. Indeed, only HDs 26 and 149, which are the two most Asian districts in the state, are in the top five; HDs 66, 28, and 67 are the next three in line. They will all be covered in the next post in this series. HD137 is mostly Latino and HD112 is mostly Anglo. Like I said, these are the decisions I made. HD26 is in Fort Bend and was won in 2020 by Republican Jacey Jetton, after years of being held by Rick Miller. It was carried by Biden in 2020 and as you can see it has moved pretty heavily Democratic, but it was still Republican enough to be held by them in an open seat race. HD112 is in Dallas and is held by Angie Chen Button, and like HD108 it was otherwise Democratic in 2020. Good luck with redistricting, that’s all I can say. The other two are in Harris County, with HD137 being held by Gene Wu since 2012. It was 63-34 for Obama in 2012 and 67-31 for Biden in 2020. The most curious case for me is HD149, which as you can see followed a pattern similar to the Latino districts in Harris County; I noted this before when I did the Harris County numbers way back when. I’m not quite sure what to make of those totals, but they don’t keep me awake at night. As with the rest, we’ll see what 2022 has in store for us.

Next time, a closer look at some counties of interest. Let me know what you think.

ACLU warns counties to stay away from the Abbott wall

From the inbox:

The American Civil Liberties Union of Texas sent letters today to 34 counties informing top officials that implementing Gov. Greg Abbott’s unlawful plan to engage in immigration enforcement would violate the U.S. Constitution.

The letters, sent to the counties targeted by Abbott, advise against local law enforcement participation in Abbott’s unilateral efforts to set federal immigration policy, arrest and detain immigrants, and deter people from seeking protection in the United States. Noncitizens in the U.S. have the legal right to seek asylum and other protections. Arresting and detaining immigrants due to their immigration status or as a result of enforcing or altering federal immigration law is unconstitutional.

“Gov. Abbott cannot seek to enforce his own version of immigration policy,” said Kate Huddleston, attorney at the ACLU of Texas. “County officials will be in violation of the law if they enforce the governor’s plan. The federal government, not states or local governments, sets immigration policy and enforces immigration law. Yet again, the governor is targeting immigrants and inciting fear and xenophobia in our state. These moves are a cruel distraction from the real problems facing the state, such as fixing the failing state electrical grid.”

The letters also request under the Texas Public Information Act information about guidance that local officials have received from the state, as well as local cooperation with state efforts to arrest immigrants to date, including any arrests or prosecutions by their locality.

In addition, the letters advise localities to train local law enforcement officers to ensure they do not violate the Constitution or federal law when interacting with immigrants. The ACLU of Texas is asking agencies to adopt policies that comply with constitutional policing and limitations on immigration enforcement, including training officers to refrain from making stops based on perceived immigration status, race, ethnicity, or language.

The 34 counties that received the letter are: Brewster, Brooks, Cameron, Crockett, Culberson, Dimmit, Duval, Edwards, El Paso, Goliad, Gonzales, Hidalgo, Hudspeth, Jeff Davis, Jim Hogg, Kenedy, Kinney, La Salle, Lavaca, Maverick, McMullen, Pecos, Presidio, Real, Reeves, Starr, Sutton, Terrell, Uvalde, Val Verde, Webb, Willacy, Zapata, and Zavala.

See here and here for the background. A copy of the letter is here. It seems clear that this is a precursor to a lawsuit, serving both as a warning to the counties that if they follow along with Abbott’s folly they will be named in the suit as well, plus an early effort to gather evidence. The Public Information Act request in this letter specifically asks for the following:

1. Any and all records regarding the May 31, 2021 disaster declaration and its implementation;

2. Any and all records regarding Operation Lone Star and its implementation;

3. Any and all records regarding your locality’s participation in or cooperation with Texas Department of Public Safety officials engaged in Operation Lone Star or any other immigration enforcement efforts; and

4. Any and all records regarding arrests and/or prosecutions pursuant to Operation Lone Star, the May 31 disaster declaration, or for immigration-related enforcement purposes by your locality from March 6, 2021, to the present, including but not limited to arrests and prosecutions for criminal trespass, smuggling, or human trafficking.

We’re unlikely to get any of that information from Greg Abbott, so no matter what else happens this should be valuable.

An alternate route to Medicaid expansion

I’m okay with this.

Texas Democrats have tried for years to convince Republican state leaders to increase access to Medicaid. Now they think they have found a way to do it with or without their help.

U.S. Rep. Lloyd Doggett and lawmakers from 11 other GOP-led states introduced a measure this week that would give money directly to local governments that want to provide coverage for hundreds of thousands of low-income Texans who currently fall into what is known as the “coverage gap.”

The Cover Outstanding Vulnerable Expansion-eligible Residents (COVER) Now Act would allow counties to apply for the money directly with the federal government, and it would prohibit state leaders from retaliating against them if they do.

Doggett said his aim is to avoid conflict with Republicans.

“You have your ideological objections to Medicaid expansion — I don’t agree, but I accept your position,” he said. “At least let those local leaders who want to take advantage of this and who recognize both the health and economic advantages of doing it, at least let them do that, and walk away and see how it works.”

[…]

Doggett estimated that if Houston, San Antonio and Dallas alone signed on to the proposal, half of the state’s eligible uninsured population would gain access. All three cities are led by Democrats and have pushed for Medicaid expansion.

Statewide, more than 1.2 million Texans would be eligible for Medicaid if state officials were to expand the program, according to a study by the The Bush School of Government and Public Service at Texas A&M University

More than two million people are thought to be in the coverage gap today, meaning they make too much to qualify for traditional Medicaid but not enough to qualify for subsidized insurance under the Affordable Care Act. Most are people of color, and the biggest group is in Texas, a state that has long had the highest uninsured rate in the country.

Anne Dunkelberg, a policy analyst for the left-leaning think tank Every Texan, said the new legislation would also increase funding to state health officials for any added administrative costs.

“Congressman Doggett’s bill really recognizes how entrenched the ultra conservative opposition to expansion is in Texas and the need to really connect the dots about what it’s going to take for us to get possibly a million and a half uninsured adults — the vast majority of them working — coverage,” she said.

I don’t know if the reconciliation process that Rep. Doggett envisions for this would be part of the infrastructure package or as a later budget bill, but either way there will be opportunities. I think the odds of it avoiding conflict with Republicans is basically zero, so the more important consideration is how well-defended it will be from Republican attempts to screw with it or obstruct it. We have seen too many examples in recent times of the state having control over federal money intended for local governments that have resulted in all kinds of bad outcomes, from the delays in appropriating COVID relief to the GLO’s screw job against Houston and Harris County. Cut the state completely out of it, and then hope it’s too difficult for a future Republican Congress or President to mess with it.

Assuming this does go through, I would expect quite a few more counties than those three cited would jump at this. Travis, El Paso, Fort Bend, Cameron, Webb, some other South Texas counties, probably Hays, would certainly take advantage. Nueces, Tarrant, and Williamson would be interesting to watch, and I bet this would add some spice to county races in Collin and Denton and maybe Brazoria. It’s possible that some Republican counties, especially ones with hospitals teetering on the brink of financial disaster, might decide to put aside politics and grab the money, as several Republican states have done. I could definitely see this making a huge dent in the uninsured population, and providing some fodder for the 2022 elections as well. It’s mostly a question of how durable it is, and that’s something that Rep. Doggett can work on. Here’s hoping.

Starbase, Texas

If you read that title and you thought that Elon Musk must somehow be involved, you would be correct.

Elon Musk is attempting to create a city in south Texas.

He wants to incorporate Boca Chica Village, where his company SpaceX is developing and launching prototypes of its Starship spacecraft, into a city.

It would be called Starbase, Texas, Musk announced via Twitter on Tuesday.

Boca Chica Village, not far from Brownsville, is a tiny unincorporated area of Cameron County. County Judge Eddie Treviño Jr. confirmed the news, saying Cameron County had been officially approached by SpaceX over the past few days.

“If SpaceX and Elon Musk would like to pursue down this path, they must abide by all state incorporation statutes,” Treviño said in a statement. “Cameron County will process any appropriate petitions in conformity with applicable law.”

There’s a process to creating a city. First, the area must have at least 201 inhabitants, said Kellen Zale, associate professor at the University of Houston Law Center who specializes in land use and local government law.

For areas with fewer than 2,000 inhabitants, the city cannot be larger than 2 square miles — that’s 1,280 acres.

“The steps for incorporation are pretty minimal,” she said. “It’s just that population requirement and the territorial requirement, and then you need to get a certain number of signatures and then hold an election.”

It’s interesting to get a peek at the process for incorporating a city in Texas. I have no idea how often that happens these days, but I’d guess it’s relatively rare. Musk and SpaceX have been in Boca Chica Village for a few years now, and it’s been a mixed bag for the locals. Maybe this will be better for them. Assuming it happens before Musk’s attention span runs out, anyway.

SCOTUS rejects TDP petition on vote by mail

Back to the lower court, I think.

The U.S. Supreme Court turned away a Democratic bid to force universal vote-by-mail in Texas, leaving intact a state law that lets people cast no-excuse absentee ballots only if they are 65 or older.

The Texas Democratic Party and its allies argued unsuccessfully that the law violates the Constitution’s 26th Amendment, which says the right to vote “shall not be denied or abridged by the United States or by any state on account of age.”

Voting by mail became a sharply partisan issue amid President Donald Trump’s unsupported contentions that the practice led to widespread fraud in the November election. Texas’s Republican governor and attorney general urged the Supreme Court to reject the Democratic appeal.

A divided federal appeals court in September rejected the 26th Amendment claim, saying the Texas law didn’t make it more difficult for anyone to vote. The panel left open the possibility the law could be challenged as a violation of the Constitution’s equal protection clause.

The Supreme Court also rejected Texas Democrats in June, when the justices refused to reinstate a trial judge’s order that would have let any voter request an absentee ballot to avoid the risk of contracting Covid-19. That order, which was blocked by the appeals court, was designed to govern the 2020 election and might have boosted Democrats’ prospects.

See here for the last update, which was a petition for review of the Fifth Circuit ruling that kept intact the existing law on vote by mail in Texas as the original lawsuit that claimed the existing law violated the 26th Amendment is litigated. If I understand this correctly, the original case needs to be re-argued, with guidance from that Fifth Circuit ruling, and then once there is a ruling on the merits, we’ll go through the appeals process again. Or maybe not, if Congress and President Biden can pass a new Voting Rights Act that would allow for this nationally. I don’t see that particular provision in there now, but that doesn’t mean it isn’t or wouldn’t be there. Anyway, it’s kind of a non-starter now, since the effort was to make that happen in 2020, but it’s never too late to make it easier to vote. Just don’t expect anything to happen in the short term, outside of what Congress may do. Reuters has more.

TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

More early data from State Rep districts

From Derek Ryan on Twitter:

Couple of things, as we wait for the rest of the data – I hope to get at least a draft canvass from Harris County soon, and may look at some other counties’ data as I can; the full state data will likely be published in March or so.

– I have covered some of this, all from Harris County. Ryan’s data is around the state.

– I previously noted that HDs 31 and 74 were pretty purple already; I would expect HD34 to join them when that data is available. I should note that despite those Trump numbers, the Dems in those districts did just fine – Rep. Ryan Guillen won HD31 with 58%, Rep. Abel Herrero took HD34 with over 59%, and Eddie Morales won the open HD74 with 54%. If we’re going to argue that Democrats were too ambitious in 2020 – I would not make that argument, but I have seen others at least suggest it – then one might also argue that Republicans were not ambitious enough.

– I have no doubt that Republicans will take these numbers under serious consideration, and I won’t be surprised if they try to draw another Republican-friendly district in the Valley, to accompany HD43.

– Which doesn’t mean they’ll succeed. Someone reminded me on Twitter that Cameron County voted for George W. Bush in 2004. He also got almost 45% in Hidalgo County, and almost 57% in Nueces County. Republican Presidents running for re-election have done well in South Texas before. Perhaps we all forgot about that. We know now that was not the start of a trend.

– That said, I believe that a county or district electing a candidate from one party while supporting Presidents and Senators from another party is an unstable situation, one that sooner or later topples over. See: all of the rural districts that used to elect Democrats to Congress and the Lege while voting 60-70% Republican otherwise, and Sarah Davis in HD134. If statewide Dems do well in these districts again in 2022 and 2024, we can go back to thinking of them as blue. If not, then we do indeed have a whole new ballgame.

(The same is true, of course, for the urban/suburban districts that Republicans won but Biden carried. In those at least we have more than one election’s worth of data to contemplate.)

– And again, we should remember that the Biden/Trump numbers are just one data point. As noted, it’s entirely possible in some of these districts that Trump’s numbers will be well above, or well below, the norm. We’ll need to consider the entire range.

– The implied question in all of this is, what does this data mean for 2022? The answer is, we just don’t know. We haven’t had two elections in a row that looked the same in this state. There are plausible scenarios that make 2022 potentially good for Dems, and that make 2022 bad for Dems. Hard to believe, I know, but we have to let the things happen that will affect those possible outcomes.

More to come as we get more data. Reform Austin is also on this.

So what happened in the Latino counties?

Let’s go to the data:


County       Trump  Clinton    Trump    Biden
=============================================
Bexar      240,333  319,550  303,871  440,823
Cameron     29,472   59,402   48,834   63,732
Dimmit         974    2,173    1,384    2,264
El Paso     55,512  147,843   81,235  168,801
Frio         1,856    2,444    2,812    2,421
Hidalgo     48,642  118,809   89,925  127,391
Jim Hogg       430    1,635      831    1,197
Jim Wells    5,420    6,694    7,077    5,094
Maverick     2,816   10,397    6,881    8,324
Nueces      50,766   49,198   64,467   60,749
Presidio       652    1,458      721    1,463
Starr        2,224    9,289    8,224    9,099
Webb        12,947   42,307   18,985   32,442
Willacy      1,547    3,422    2,437    3,097
Zapata       1,029    2,063    2,032    1,820
Zavala         694    2,636    1,490    2,864

Total      453,643  779,320  641,116  931,555

County      Trump% Clinton%   Trump%  Biden%
============================================
Bexar        42.9%    57.1%    40.8%   59.2%
Cameron      33.2%    66.8%    43.4%   56.6%
Dimmit       31.0%    69.0%    37.9%   62.1%
El Paso      27.3%    72.7%    32.5%   67.5%
Frio         43.2%    56.8%    53.7%   46.3%
Hidalgo      29.0%    71.0%    41.4%   58.6%
Jim Hogg     20.8%    79.2%    41.0%   59.0%
Jim Wells    44.7%    55.3%    58.1%   41.9%
Maverick     21.3%    78.7%    45.3%   54.7%
Nueces       50.8%    49.2%    51.5%   48.5%
Presidio     30.9%    69.1%    33.0%   67.0%
Starr        19.3%    81.7%    47.5%   52.5%
Webb         23.4%    76.6%    36.9%   63.1%
Willacy      31.1%    68.9%    44.0%   56.0%
Zapata       33.3%    66.7%    52.8%   47.2%
Zavala       20.8%    79.2%    34.2%   65.8%

Total        36.8%    63.2%    40.8%   59.2%

Webb County totals are early voting only – they have taken their sweet time getting those results. I have no prescriptions to offer, and even if I did, I’d be the wrong person to listen to for them. I’m just reporting what happened. As others have observed, in some counties Biden met or exceeded Hillary Clinton’s numbers from 2016, but Trump greatly increased his numbers from that election. You may recall that in the last NYT/Siena poll, Nate Cohn observed that higher turnout, at least beyond a certain point, didn’t actually benefit Biden, because sufficiently high Latino turnout wasn’t in his favor. Starr County was a particularly shocking example of that, but we see that in some larger counties like Hidalgo and Cameron, and to a lesser extent El Paso as well. In some counties – Maverick, Jim Hogg, Jim Wells, Willacy – it appears some Clinton voters may have switched to Trump, or not voted while non-participants from 2016 came in. Bexar County was the only clear improvement for Biden. If you had to pick only one county for that, Bexar would be the one, but there’s only so much it can do.

You can look at this two ways. Hillary Clinton netted 346K votes, while Biden netted 290K. That’s not all that much, but there’s the ground we could have gained given the higher turnout as well as the ground we lost. If Biden had performed at exactly the same level as Clinton, he’d have netted 415K votes. Adjust the final score to account for that, and Biden would have lost by four and a half points, instead of almost six. Wouldn’t have mattered in this case, but it wouldn’t have taken much. Plus, you know, better to make your task easier rather than harder.

Like I said, I have no solutions to offer. Plenty of smart people have plenty of ideas, and quite a few of them were raising issues before the election. Might be a good idea to listen to them. All I’m saying is that whatever happened here, it wasn’t what we wanted. If we want to avoid a repeat, we better get to work.

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

This is pretty much the end of the line, at least as far as the courts are concerned.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Thursday that Texas can keep its strict eligibility rules for voting by mail.

Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age.

The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.

“In sum, the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age,” the panel wrote. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”

The federal panel vacated a lower court’s sweeping ruling that found Texas voters would face irreparable harm if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. On Thursday, state Democrats indicated they would push forward with their challenge at the lower court, where the appellate court sent the case for further consideration of the party’s remaining arguments against the state’s restrictions.

[…]

“Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” the judges wrote.

The panel was made up by Judges Carolyn Dineen King, who was appointed to the bench by President Jimmy Carter; Carl Stewart, who was appointed by Bill Clinton; and Leslie H. Southwick, who was appointed by George W. Bush.

Dissenting in part to the majority opinion, Stewart wrote that the state’s eligibility rules fail to “treat members of the electorate equally with regard to mail-in voting.”

“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart wrote. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”

See here for the background, and here for a copy of the opinion. Michael Hurta has a good brief analysis of it. As to what happens next, Rick Hasen thinks the original trial judge will find for the plaintiffs again, which will trigger another appeal. As such, this isn’t really the end of the line as I’ve suggested above, but it seems very unlikely to me that there will be a ruling that favors the plaintiffs any time before the November election. Whatever ultimately happens with this will not happen until at least 2021. I don’t care for this ruling, and this was about as friendly a three-judge panel as we were gonna get. It’s hard for me to see how the outcome changes.

Which means, as I have been saying over and over again, the ultimate fix rests within the legislative process. Just add this to the ever-increasing list of things that a Democratic Legislature, in conjunction with a Democratic Governor, will need to fix. The Republicans have made their position crystal clear. There’s no bipartisan solution. The only way out is through, and that means electing a better government. The Chron has more.

Fifth Circuit hears arguments on vote by mail case

One more try before it’s too late to make a difference for this year.

The Texas Democratic Party’s lawyer argued today before a federal appeals court that the state is unlawfully discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mail-in ballot.

It’s one of several last-minute battles playing out in the months leading up to the 2020 election, which is expected to yield historic turnout despite the coronavirus pandemic.

[…]

The Democrats’ federal case is expected to make its way to the U.S. Supreme Court, but the clock is ticking. The deadline to request a mail-in ballot in Texas is October 23, leaving just about seven weeks for the appellate court and high court to rule on it.

At Monday’s hearing, Chad Dunn, representing the Texas Democratic Party, told the court that the Texas mail-in voting law violates the 26th Amendment, which says the right to vote can’t be “denied or abridged” on account of age.

Dunn said previous elections have shown that voters will likely be waiting in long lines in November.

“We’re asking voters — certain ones of them get excused from that endurance test and others, based purely on their age, are to suffer through it,” Dunn said. “The fact of the matter is that when individuals’ characteristics are used by the government to divvy up who gets to vote, those are prohibited” by the Constitution.

The state, represented by Texas Solicitor General Kyle Hawkins, argued that Supreme Court precedent exists to show that the Texas law does not violate the 26th Amendment.

“It does not deny or abridge the right to vote to make voting more available to some groups as opposed to others,” Hawkins said. “To abridge the right to vote does not mean giving other groups more options; it means taking away something from a certain group.”

See here for the previous update. As noted, the other vote by mail-related lawsuit recently survived a motion to dismiss. We should get a ruling of some kind in this lawsuit before the deadline to mail out overseas ballots, which is September 18. I have no idea if there’s time for any action on the other one.

This Statesman story from earlier in the day on Monday has some more background info on the case.

Monday’s arguments will focus on the U.S. Constitution’s 26th Amendment, which was ratified in 1971 to lower the voting age to 18, saying the right to vote cannot be denied or restricted “by any State on account of age” for those 18 and older.

Just as other constitutional amendments ensure that voters cannot be treated differently based on race or gender, the 26th Amendment uses identical language to extend voting protections based on age, said Chad Dunn, who will argue Monday on behalf of Democrats before the 5th U.S. Circuit Court of Appeals.

“I am confident that we will ultimately ensure that everybody, regardless of age, has the right to vote by mail,” Dunn told the American-Statesman.

[…]

The age question has drawn the interest of at least one influential observer: Supreme Court Justice Sonia Sotomayor.

When Texas Democrats raised the issue at the high court this summer, the nine justices declined to accept the case. Sotomayor was the only one to discuss the reason.

The Democrats’ challenge, she wrote in late June, “raised weighty but seemingly novel questions regarding the 26th Amendment.”

However, justices balked at addressing those questions for the first time at the high court, and Sotomayor urged the 5th Circuit Court to make a speedy decision in the matter.

Many others hope for a quick resolution as well. In Texas, voting for the November election begins in less than seven weeks.

[…]

The case before the 5th Circuit Court will determine the fate of a May order by U.S. District Judge Fred Biery, an appointee of President Bill Clinton who required mail-in ballots to be sent to any registered Texas voter who requested one while “pandemic circumstances” continue.

“One’s right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers,” Biery wrote.

Paxton appealed, and the 5th Circuit Court responded by blocking enforcement of Biery’s order until the appeal can be decided.

That ruling by a three-judge panel at the 5th Circuit was notable for its harsh criticism of Biery for wading into election decisions that belong to “politically accountable officials,” not judges.

“The spread of the virus has not given unelected federal judges a roving commission to rewrite state election codes,” wrote Judge Jerry Smith, who was appointed by President Ronald Reagan.

A different three-judge panel, however, will hear Monday’s oral arguments and decide whether the 26th Amendment bars Texas from denying mail-in voting to those under age 65. Two of the judges on the new panel were appointed by Democratic presidents — Carolyn Dineen King and Carl Stewart — while the panel’s third member, Leslie Southwick, was appointed by President George W. Bush.

A ruling won’t come Monday, but with the election looming, the appeals court has placed the matter on an expedited schedule.

The Texas Democratic Party’s challenge has drawn considerable interest, with additional legal briefs filed by liberal and conservative public interest groups, health professionals, advocates for the disabled, other states and local political parties.

Travis County Clerk Dana DeBeauvoir also submitted a brief with election officials from Harris, Cameron and Fort Bend counties that begged the 5th Circuit Court to accept the 26th Amendment arguments and expand mail-in voting.

“Unless access to vote by mail is increased significantly, providing a safe election will be impossible because of the expected high volume of in-person voters this presidential year,” their brief said.

On the one hand, almost 30 doctors and nurses, including epidemiologists and front-line health workers, told the court that it is essential to reduce the number of people gathering on Election Day to protect voters, poll workers and the community from COVID-19, while the Texas NAACP argued that the state’s Republican leaders adopted a needlessly restrictive interpretation of mail-in voting law to impose a severe and unacceptable burden on the right to vote.

On the other hand, a brief from conservative legal interest groups argued that Biery improperly interfered with the state’s authority to regulate the time, place and manner of elections in favor of widespread mail-in voting, which should be allowed in only limited circumstances because it is more vulnerable to fraud than traditional voting.

Originally, there were two lawsuits, one filed by the TDP that argued COVID vulnerability was sufficient to be considered a “disability” and allow anyone who claimed that to get a mail ballot, and one filed by other groups that argued the existing limit of vote by mail to those 65 and over (plus those who claim a disability, which as we know was not clearly defined and is being argued about in other venues) violates the 26th Amendment, which is the one that lowered the voting age to 18. Both were combined into this lawsuit, and as you can see the 26th Amendment claim is the main thrust from the plaintiffs. We’ll see what we get.

Fifth Circuit flips the switch

It’s what they do.

A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers if it will issue an injunction nullifying it during the entire appeals process.

Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.

[…]

In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail remained in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, Paxton argued that Biery’s injunction threatened “irreparable injury” to the state “by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections.”

The appeals court ordered the Democrats to file a response to the state’s request to block the ruling by Thursday afternoon.

See here for the background. I mean, this was to be expected, so let’s move on to the other thing that happened yesterday, also from this story.

In a virtual hearing Wednesday, the justices’ interrogations of Paxton’s lawyer and those representing the counties returned frequently to a gaping hole in Paxton’s request — when voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.

Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on their application that indicated they feared infection but were “otherwise healthy.”

Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.

“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.

Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require a voter to include information the nature of their disability in their applications — both of which would go beyond the Texas Election Code.

Still, the solicitor general asked the court to order election officials to abide by the state’s direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request a mail-in ballot on that basis.

Barbara Nichols, an attorney representing Dallas County, argued it was unnecessary for the Supreme Court to order anything of the county’s election administrator because she had not indicated she would go beyond existing laws for voting by mail.

“As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her,” Nichols said. “And the state cannot point to any such evidence in the record.”

See here for the previous update. Harris County was also a respondent in this hearing – I have a copy of their brief here. I mean, the law here is pretty clear, so much so that even the Solicitor General had to admit it. The question is, what will the Supreme Court do about it? I will note that this is a writ of mandamus, not an appellate action, so they could just swat it away and let the lower courts do their thing before they weigh in. Remember, the state lawsuit hasn’t even been heard yet, we’ve just had a ruling on the motion to allow people to apply for mail ballots while the litigation is in progress. Just take a pass, that’s all I’m saying. We’ll see what they say. The Chron and the Signal have more.

Supreme Court sticks its nose in

I suppose this was to be expected.

The Texas Supreme Court on Friday temporarily put on hold an expansion of voting by mail during the coronavirus pandemic.

Siding with Attorney General Ken Paxton, the Supreme Court blocked a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court’s order that would have allowed more people to qualify to vote by mail. The state’s Supreme Court has not weighed the merits of the case.

It’s the latest in an ongoing legal squabble that in the last three days has resulted in daily changes to who can qualify for a ballot they can fill out at home and mail in.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail as Democrats and voting rights groups ask courts to clarify whether lack of immunity to the coronavirus is a valid reason for people to request absentee ballots. A resolution to that question is gaining more urgency every day as the state approaches the July primary runoff elections.

[…]

The court also set oral arguments for May 20 on Paxton’s request for it to weigh in on whether the appeals court erred and abused its discretion when it allowed Sulak’s order to go into effect.

See here and here for the background. I just want to remind everyone, early voting for the July primary runoffs begins on June 29, and mail ballots are already being sent to voters who requested them. People are going to have to start making decisions about how they’re going to vote. And whatever the state courts ultimately say, there are those federal lawsuits out there as well. This is going to be a whirlwind of uncertainty for some time. The Chron has more.

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

A state appeals court upheld a temporary order Thursday from a state district judge that could greatly expand the number of voters who qualify for mail-in ballots during the coronavirus pandemic, rebuffing Attorney General Ken Paxton’s effort to have the ruling put on hold while he appeals it.

In a 2-1 split along party lines, a panel of the 14th Court of Appeals of Texas said it would let stand state District Judge Tim Sulak’s ruling from last month that susceptibility to the coronavirus counts as a disability under state election law and is a legally valid reason for voters to request absentee ballots. Paxton has been fighting that ruling and had argued that his pending appeal meant the lower court’s ruling was not in effect.

[…]

“Eligible voters can vote by mail during this pandemic,” Chad Dunn, the Texas Democratic Party’s general counsel, said in a statement Thursday. “It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

In response to the appeals court’s ruling, a spokesperson for Paxton said his office will “look forward to the Texas Supreme Court resolving this issue.”

See here, here, and here for the background. A copy of the court’s order is here, and of the dissent is here. If you believed that Paxton went to the Supreme Court even before the 14th Court ruled on this motion for the purpose of gaining political advantage, the 2-1 partisan split in this ruling is not going to dissuade you. The Supreme Court’s gonna do what the Supreme Court’s gonna do, but that seems to me to not be a great sign. Sorry to be a party pooper, but it’s hard to miss the symbolism of that. The Chron has more.

Speaking of the Supreme Court, they have requested a response from the counties named in Paxton’s writ of mandamus no later than 4 PM on Monday the 18th. I don’t think we’ll have to wait much longer to hear from them.

I should note that despite my pessimism in that first paragraph, there are some Republicans who are fine with pushing mail ballots to anyone who wants them. Like Kathaleen Wall, for example:

[Wall] has sent out mailers in recent weeks telling voters they have the “green light” to vote by mail and that the secretary of state has cleared them to do so if they are worried about contracting or spreading the virus by voting in person.

[…]

The controversy in the 22nd District has caught the attention of state officials. The secretary of state’s office says it “has been made aware of the mailings that have been sent out and have been in touch with representatives of the Wall campaign.”

“We have informed them that certain statements attributed to the Secretary of State’s office are categorically false, instructed them to update voters who have already been contacted, and to immediately cease further distribution,” a spokesman for the office, Stephen Chang, said in a statement.

Wall’s campaign says she is doing her best to keep voters up to date on the fast-changing developments around voting by mail, pointing to posts on her website and social media that have come in addition to the mailers. In a statement, the candidate defended sending out the vote-by-mail applications.

“I’ve distributed over 60,000 face masks to first responders and businesses in CD22 to make sure they have the tools they need to stay safe,” Wall said. “Sending out ballot by mail applications is the same thing. I’m making sure voters know they have options if they want to exercise it and meet the qualifications.”

However, Wall’s questionable vote-by-mail efforts go back to mid-April, when she sent out a mailer with the state seal telling the voters that they had received the “green light” to vote by mail and that their applications would be arriving soon. (Federal candidates are exempted from state law that prohibits the use of the state seal in political advertising.) The mailer also said, “Recently, the Texas Secretary of State ruled that voters’ concerns over contracting or spreading the COVID-19 virus and endangering their health by visiting a public polling place meet the election law requirements to be deemed eligible to vote absentee.”

Wall’s campaign used the same language in the subsequent mailer with the application, which featured the “Disability” box pre-checked.

As the story notes, that’s not exactly what the SOS said in that advisory, and indeed this is basically the Democratic plaintiffs’ position in the nine million current lawsuits that have been filed on the topic. Kathaleen Wall is an idiot who maybe doesn’t fully grasp the politics here. Or who knows, maybe this is a sincere statement of her beliefs, in which case all I can say is welcome aboard. I will admit, it’s still a little weird to me that this has become such a partisan issue, since one would think there are plenty of Republican voters who aren’t over 65 that might like to have this option as well. But here we are anyway, and now we have Kathaleen Wall on our side. Hooray?

Paxton tries a Supreme shortcut

They sure are keeping busy.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can’t, and Wednesday asked the state’s highest civil court to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.

[…]

The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in don’t have to provide any information beyond checking a box on the application form. Election officials can reject applications if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disability.

Paxton argued the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

This is of course in reference to the state lawsuit. As we know, Paxton had previously threatened county election officials who might be accommodating to people requesting mail ballots on the grounds that the original ruling only applied to Travis County and was stayed pending appeal. The TDP, the plaintiffs in the suit, filed a motion with the Third Court of Appeals opposing Paxton’s actions. I should note that this case has been transferred to the 14th Court of Appeals, which includes Harris County. The Trib story about the complaint filed against Paxton in Dallas County contains a reference to this. Here’s a copy of the briefing schedule for the 14th Court of Appeals, which looks to be set for a ruling in mid-June. Assuming the Supreme Court doesn’t take this out of their hands.

This is basically Paxton getting a second bite at the apple. It’s a writ of mandamus – you may remember, the thing that they acted on in 2015 when they ordered the city of Houston to allow the anti-HERO referendum to go forward – and not an appeal, since the appeals court hasn’t been heard from yet. They don’t have to do anything with this, they could just let the appellate court do its job. As the story notes, there’s no way for clerks to vet or verify anyone’s disability claim. I suppose either court could order clerks to shut up and not tell people that they have the right to ask for a mail ballot if they have a disability. I’m not exactly sure how that would work, but the law can be a funny thing. And of course, there are all those federal suits, over which the State Supreme Court has no jurisdiction. So who knows? I don’t know what else to say, we’ll just have to wait and see what they do. The Chron has more.

Primary precinct analysis: Who did what in the RRC race

The Railroad Commissioner primary was a bit like the Senate primary – multiple candidates (though not nearly as many), not a whole lot of money, but the candidate who did best in fundraising was also the leading votegetter. Here’s a look at the top 25 counties in terms of votes cast for the Railroad Commissioner’s race:


County    ALONZO   CASTAÑEDA    STONE   WATSON      Total
=========================================================
All        503,666   592,770  380,236  277,578  1,754,250
HARRIS      77,618    85,166   59,552   40,428    262,764
DALLAS      56,824    57,822   48,718   36,255    199,619
TRAVIS      30,199    97,284   37,641   20,290    185,414
BEXAR       50,228    62,708   22,880   16,583    152,399
TARRANT     35,318    36,767   28,238   25,021    125,344
COLLIN      15,227    22,793   18,487    9,250     65,757
EL PASO     25,353    21,426    6,750    7,065     60,594
FORT BEND   12,550    14,895   16,826   12,685     56,956
DENTON      10,804    21,541   14,966    6,851     54,162
WILLIAMSON  11,031    19,375   10,852    9,924     51,182
HIDALGO     24,057    15,382    6,617    3,699     49,755
CAMERON     11,849     9,267    3,691    3,558     28,365
WEBB        13,080     7,841    2,455    1,850     25,226
HAYS         5,161     6,451    6,152    4,059     21,823
MONTGOMERY   4,820     5,963    5,248    3,898     19,929
NUECES       7,364     5,914    3,146    2,424     18,848
BRAZORIA     4,643     4,659    4,961    4,502     18,765
GALVESTON    4,020     5,225    4,914    3,127     17,286
BELL         4,818     4,619    4,056    3,577     17,070
JEFFERSON    4,640     3,132    3,704    4,813     16,289
LUBBOCK      3,462     3,858    2,741    2,081     12,142
MCLENNAN     2,308     3,078    3,623    2,290     11,299
SMITH        2,536     2,512    2,466    2,985     10,499
BRAZOS       3,000     3,429    2,571    1,488     10,488
ELLIS        2,524     2,266    2,410    1,737      8,937

Chrysta Castañeda

Chrysta Castaneda, who led the pack with nearly 34% of the total vote, also led the way in 13 of these 25 counties, including the top six and eight of the top ten. That’s a pretty good recipe for success in the runoff as well. She led in Dallas County, which is the home of runnerup Roberto Alonzo, who represented a State House district in Dallas County for 26 years. Alonzo led in the five big predominantly Latino counties – El Paso, Hidalgo, Cameron, Webb, and Nueces – plus Bell and Ellis Counties. Castaneda leads Alonzo by five points going into the runoff, which is hardly insurmountable, and other than Travis County her lead over him in the biggest counties was small. I feel like Castaneda’s big lead in Travis County is a significant advantage for her for the runoff. It’s hard to project anything based on past primary runoffs because the data set is so small, but given that there will be a Senate runoff as well, and given that Travis County was also a strong performer for MJ Hegar, it could deliver a decent margin for Castaneda in May. If that happens, it may be hard for Alonzo to make up the ground elsewhere.

Of the other candidates, Kelly Stone led in Fort Bend, Brazoria, and McLennan Counties, while Mark Watson topped the field in Smith and Jefferson. There’s another similarity to the Senate race – everyone got to be a leader of the pack. I have no idea how their voters might go in the runoff – neither has made any endorsement, as far as I can tell, and in all honesty that likely would be just a marginal factor. Turnout always drops quite a bit in primary runoffs, and with the coronavirus situation happening now, who knows what effect that may have. I see Castaneda as the solid favorite in this race, but Alonzo can pull it off if he can get his own message out.

Primary precinct analysis: Everyone did something in the Senate primary

MJ Hegar

So while we wait for actual precinct data from the primary, I thought I’d take a look at some county-level data from the non-Presidential races, as they have the county-by-county breakdown on the SOS election night pages. The US Senate primary, with its twelve candidates overall and five topping ten percent seemed like a good spot to do a deeper dive. The main problem is just presenting that much data, as my usual style of doing a table of numbers isn’t going to work well – it’ll be much too crowded and will be hard to spot the interesting bits. So what I thought I’d try was to focus on the counties with the most voters, and to see who did the best in them. I put everything in a spreadsheet, and sorted by total number of voters for each county. I settled on the top thirty to report on, which gave me a good geographic spread and included some big counties that don’t have many Democrats and some smaller counties where nearly everyone voted Democratic. From there, I pulled out the five top performers in each county, to see what story that could tell me.

Rather than try to present that in some form of table here, which would have taken a lot of tedious text formatting on my part, I just put the result into its own spreadsheet, which you can see here. For each of these counties, I reported the top five candidates and gave their vote totals and vote percentage. The top five performers change from one county to the next, so the five selected are listed above each county’s numbers. I think it makes sense, but have a look and let me know if it’s confusing. I’m now going to summarize what I found from this exercise.

MJ Hegar finished first 15 times and second seven times. Only in Webb and Maverick counties did she not finish in the top five. She was especially strong in the Central Texas area as expected, but also finished first in places like Harris, Collin, Denton, Fort Bend, and Montgomery. To me, her performance versus everyone else’s is the difference between having a campaign that has sufficient funding to actually do advertising and other voter outreach, and not having it.

Sen. Royce West

Royce West finished first five times and second four times. He finished outside the top five ten times, including in such large counties as Bexar and El Paso. He won big in Dallas and won Tarrant, but he trailed Hegar in Collin and Denton and finished fifth in Travis. I’ll be honest, I’m not sure what his path to winning the runoff is.

Cristina Tzintzún Ramirez had five firsts (Bexar, El Paso, Cameron, Nueces, Brazos) and five seconds (Travis, Webb, Guadalupe, Maverick, Bastrop), but finished outside the top five ten times, including in places like Harris and Hidalgo where you’d think she’d have done better. She finished behind Sema Hernandez at least nine times, and behind Annie Garcia at least ten times. (I say “at least” because there were a few instances in which neither was in the top five, and I didn’t go back to see where they fell.) I thought Tzintzún Ramirez had the potential to be a force, and I still hope she runs for something in the future, but someone who can’t consistently top no-money, no-organization candidates like those two is not exactly encouraging. Tzintzún Ramirez was the Bernie candidate, and you have to ask what good that did her. Actually, if you’re a Bernie person, you really should ask why it is that the larger Bernie movement didn’t provide any noticeable fundraising support for her, and clearly didn’t give her much of a boost in the polls. If you want to see candidates like that actually win races, you really ought to think about those questions. She has endorsed Royce West in the runoff, but I’m not sure how much that will matter.

Did I mention that Annie Garcia, a candidate who had raised less than $22K as of February 12, finished fourth in this race, ahead of people who had run and won elections before like Chris Bell and Amanda Edwards? I have to think that being called “Annie ‘Mama’ Garcia” on the ballot probably helped her in places where people didn’t know that much about the slate. It also makes me wonder why she got to be “Mama” but Carole Keeton Strayhorn didn’t get to be “Grandma”. What exactly are the rules for that, anyway? Be that as it may, Garcia won Webb, Lubbock, and Maverick counties, while finishing second in El Paso, Williamson, Cameron, Hays, and Nueces. She finished in the money in 22 of the 30 counties, more than either West or Tzintzún Ramirez. If you had bet me that a month ago, you would have won my money.

Sema Hernandez won Hidalgo County and Chris Bell won Brazoria, so there are all your first place winners. Hernandez, for those few people who insisted her showing in 2018 made her a legitimate candidate this time around despite raising even less money than Garcia and failing to file any finance reports until Q3 this year, shows up in 18 of these 30 counties, but was mostly shut out of the top ten, finishing fifth in Harris, fifth in Bexar, and fourth in El Paso, failing to break ten percent in any of them. She did finish second in Brazoria County, while Bell was runnerup in Harris, Fort Bend, Galveston, and Lubbock. Amanda Edwards (Montgomery, Bell, Comal) and Michael Cooper (Jefferson) also had second place finishes. Edwards had ten third-place finishes, three fourths, and four fifths, while Cooper also finished fourth in Webb and Maverick, and fifth in Smith.

So that’s six candidates with at least one first place finish, and eight with at least one first or second place finish. Believe it or not, the other four candidates – go ahead, name them right now, I double dog dare you – also had at least one top five finish:

Victor Harris – Hidalgo County, third
Adrian Ocegueda – Cameron County, fifth
D.R. Hunter – Nueces County, fifth
Jack Daniel Foster – Maverick County, fifth

Let’s just say we’ll probably never have an election quite like this one again. I’ll have more of this analysis/trivia for you in the coming days. I’m still waiting for a canvass from Harris County.

From South Texas to the moon

That’s the plan, anyway.

SpaceX founder Elon Musk expects to one day launch people from South Texas to the moon, Mars or beyond — with an update late Saturday that confirmed the company’s long-term presence in a remote area outside of Brownsville where SpaceX this year started testing a prototype of its Starship vehicle.

Founder Elon Musk said SpaceX is planning to launch its latest prototype 12 miles into the sky within the next month or two. And, ultimately, the Starship vehicle would be paired with the Super Heavy Rocket to escape Earth’s gravity and help make humans a multi-planetary species, Musk said.

“This is the most inspiring thing that I’ve ever seen,” Musk said, standing by the 165-foot-tall Starship prototype that was just assembled Friday.

[…]

To better watch the tests and launches in Texas, Cameron County officials built a new amphitheater on the southernmost tip of South Padre Island. The venue, which will also host concerts and other events, was slated to have a ribbon-cutting ceremony Saturday, though that was delayed by the SpaceX event, said Cameron County Judge Eddie Treviño Jr.

The county thought SpaceX would bring tourism dollars as people came to watch its Falcon 9 and Falcon Heavy rocket launches. But now that SpaceX has switched its focus, Treviño is waiting to see what the economic impact could be for the region. He’s hopeful that SpaceX can attract other space companies and help develop a local aerospace workforce.

Musk on Saturday said he expects the area will be built up more by the time SpaceX is launching people into space. He would also like to see local propellant production.

“I grew up here,” Treviño said. “I don’t think anybody in their wildest dreams would have thought we’d have potential rocket launches taking place in our backyard. So the fact we’ve gotten to this point … it’s really a heck of an opportunity for us.”

See here for some background. This is a post I’d drafted some time ago, so please overlook the references to recent dates. The relationship between SpaceX and South Texas has been a bit strained at times, but perhaps now things are better. It’s always reasonable to be a bit skeptical of Elon Musk, but we’ll see how this goes. KUT has more.

Early voting Day 5: It’s been a long week (in a good way)

Did I mention it’s been busy?

Voters across the state have come out in massive numbers during the first five days of early voting, and soon, more Texans will have voted early in 2018 than in all of 2014’s early voting period, according to data from the secretary of state’s office.

The state’s five largest counties have all nearly doubled the turnout compared to the same point in 2014. By the time the polls closed Thursday, 13.2 percent of registered voters in Harris County, the state’s largest county, had voted, compared to 6.4 percent at the same time in 2014. That number comes close to the 16.4 percent voter turnout seen at the end of the fourth day of early voting in 2016, a presidential year.

The story is similar in Dallas County, which recorded a voter turnout of 16.9 percent at the end of Thursday, compared to 5.9 percent at the same point in 2014, and in Tarrant County, which recorded a voter turnout of 16 percent at the end of Thursday, compared to 7.3 percent at the same point in 2014.

In Travis County, where the Austin Fiesta Mart polling location is, Tax Assessor-Collector and Voter Registrar Bruce Elfant reported on Facebook that as of 4 p.m. Friday, 22 percent of registered voters had cast their vote. The number hovered around 7 percent at the same point back in 2014.

“After just five days of early voting, the 2018 voter turnout will likely have passed the entire Early Vote turnout for the 2010 and 2014 elections,” Elfant wrote.

Some counties — like El Paso, Williamson and Cameron — have already surpassed the overall voter turnout during the entire two-week early voting period in 2014. Overall, by the time the polls closed on Thursday, 16.3 percent of the 12.3 million registered voters in the 30 counties with the most registered voters had cast ballots.

“It’s pretty remarkable to double or triple voter turnout,” said Renée Cross, the associate director of the Hobby Center for Public Policy at the University of Houston.

[…]

Mark Jones, a fellow in political science at Rice University’s Baker Institute for Public Policy, said the long lines at polling places are “notable,” but he said that “almost any voter turnout should be above 2014.”

Jones also said it is too early to draw conclusions about whether strong early voting turnout will mean strong overall turnout. Early voting could be “cannibalizing Election Day turnout, ” he said.

“More and more people are voting early,” said Jones, who estimates that between 60 and 75 percent of registered voters will cast their vote before Election Day. “People have gotten used to it, and campaigns have been encouraging it.”

He noted that a greater proportion of voters this year will be under the age of 35.

“Beto O’Rourke has spent quite a bit of money and time targeting millennials and post-millennials with the correct belief that they support him more than any other age group,” Jones said.

I agree that some of the frenzied activity is people shifting behavior, but it’s quite a bit more than that. We’re on pace in Harris County to blow past not just the early voting totals from past years, but the final totals as well. Close to one million just in early voting remains on the table. Say it with me now: We’ve never seen anything like this before.

Here are the totals for Friday, and here are the daily totals from 2010, from 2014, and from 2016, as well as a spreadsheet with totals from 2004, 2008, 2012, and 2016. The running tallies:


Year    Mail    Early    Total
==============================
2010  29,702  134,488  164,190
2014  54,300  104,099  158,399
2018  65,232  315,034  380,266

2008  40,059  220,046  260,105
2012  53,131  260,274  313,405
2016  77,445  374,679  452,124

As I expected, after the slight dip on Thursday, in person voting ticked up and was, by about 900 votes, the busiest in person day so far. We have now officially exceeded the entire final early vote total from 2014, and we have seven days of early voting to go. We haven’t even gotten to the really heavy days yet.

Harris County Attorney files amicus brief in SB4 lawsuit

Good.

Last week, Harris County Commissioners Court opted not to join a lawsuit challenging the state’s controversial “sanctuary cities” law as unconstitutional.

Harris County Attorney Vince Ryan, however, has filed a brief asking a federal court to halt its implementation on Sept. 1.

“S.B. 4 will do irreparable damage to this State’s child welfare process, place county attorneys charged with representing DFPS in an irreconcilable conflict, and do further trauma to children who have been placed in the State’s care. Further, there is no legitimate state purpose in treating children who have an unauthorized immigrant parent or other potential care giver differently in child welfare cases,” states Ryan’s brief, which was filed this month in federal court.

[…]

Special Assistant County Attorney Terry O’Rourke said that come Sept 1., with no injunction stopping SB4’s implementation, the county attorney’s office does not know how it will handle certain child welfare cases.

“That’s an ethical hell that we do not want to experience, and that’s why Vince Ryan has asked the federal court for guidance,” O’ Rourke said.

You can see the specific objections in the story. This is not as good as if Commissioners Court had voted to join the litigation, but it’s something. In the meantime, Cameron County and the city of Laredo have joined the plaintiffs, and there are a couple of bills to repeal SB4 that have been filed for the special session, though of course neither of them will get anywhere. It’s still important to make the stand, and in the better-late-than-never department, business interests are weighing in as well. It’s hard to overstate how much damage the Republicans in charge have done to Texas’ reputation this year, and there’s still more to come. Stace has more.

Statewide review: 2016 was like 2008, but not in a good way

vote-button

There’s no point in beating around the bush, so I’ll just come out and say it: Despite the excitement about increases in voter registration and heavy early voting turnout. statewide Democratic candidates outside of Hillary Clinton generally did not do any better than their counterparts in 2008. Republican statewide candidates, on the other hand, were generally setting new high-water marks for vote totals. Every statewide Republican other than Wayne Christian topped Donald Trump’s 4,681,590 votes, with all of them but one besting it by at least 100,000. Meanwhile, only Dori Contreras Garza’s 3,598,852 votes exceeded President Obama’s 2008 tally. Overall turnout was up in Texas (in absolute numbers, though not in percentage), but while Dem turnout was better than 2012, it didn’t hit any new heights. I fear we may be at a plateau, as we have been in the off years since 2002.

Why am I not more encouraged by Hillary Clinton’s 3.8 million-plus total? Because I estimate at least 100,000 of her votes came from people who supported Republicans in other races, and because the dropoff from her total to downballot candidates was enough to show no visible growth. For these purposes, I’m using judicial races as my metric, as I believe it is a better proxy for partisan intent. I used as a baseline for comparison between 2012 and 2016 two Court of Criminal Appeals races – the 2012 Sharon Keller/Keith Hampton race, and the 2016 Mike Keasler/Robert Burns race. I believe these contests are low enough profile to draw a relatively small number of crossovers, and in this particular case they were the only such races each year to have just a Libertarian candidate in addition, thus allowing for a more apples-to-apples comparison. I put all the county totals into a spreadsheet and then calculated the difference between the two. From a Democratic perspective, there’s good news, so-so news, and bad news.

I’ll get to the news in a second. You can see the spreadsheet here. I’ve put a list of the 62 counties in which Democrats gained votes from 2012 to 2016 beneath the fold. Take a look and then come back, and we’ll talk about what I think this means.

Ready? Democrats really killed it in the big urban counties. Harris, Bexar, Travis, El Paso, and Dallas combined for nearly 240,000 more Democratic votes in 2016, compared to 83,000 for the Republicans, a net of over 150K. Dems took such a big step forward in Harris County that HD144 might not really be a swing district any more, while HDs 132, 135, and 138 are now in the picture as pickup opportunities, with HD126 a little farther out on the horizon. I’ll have more to say about Harris County beginning tomorrow, but I feel like maybe, just maybe, we’ve finally turned a corner. I know that the off-year turnout issue is a problem until we can demonstrate that it’s not, but I believe it’s getting hard to dispute the assertion that there are just more Democrats in Harris County than there are Republicans. I also believe that national conditions will be different in 2018 than they were in 2010 and 2014. Doesn’t mean they’ll necessarily be better, but they will be different, and when you’ve consistently been on the short end of the stick, having conditions change – even if you don’t know how they will change – is a risk you ought to be willing to take.

Democrats also showed a nice gain in the big Latino counties (Hidalgo, Cameron, and Webb), while netting over 9,000 votes in Fort Bend. I’ll be looking at Fort Bend data later as well, and while this wasn’t enough to push any non-Hillary Dems over the top there, it’s a step in the right direction.

The so-so news is that Dems more or less held steady in most of the big suburban counties, by which I mean they mostly lost a little ground but not that much. Other than Fort Bend, Dems posted a solid gain in Hays County and barely gained more votes in Brazoria County than the GOP did. They had modest net losses in counties like Tarrant, Collin, Denton, and Williamson, such that one might feel we are at or near an inflection point in those counties. In math terms, the second derivative is approaching zero. This is a genteel way of saying that we’re falling behind at a slower pace. Better than falling behind in huge chunks, but still not good news.

The bad news is that in several other suburban counties, and basically all the non-Latino rural ones, Democrats got crushed. Montgomery County continues to be a sucking chest wound, with 21,087 more Republican votes and 8,432 more Dems. Comal County is Montgomery’s little brother, with continued steady growth and a deep red tint that shows no signs of abating. And if you’re old enough to remember when Galveston County was reliably Democratic, well, the score here is 10,335 more votes for the GOP, and 1,521 more for the Dems. So, yeah.

It’s the rural counties where things really become dreary. I said the Dems gained votes over 2012 in 62 counties. That means they lost votes in 192 others. Now, most of these are small counties, and the losses themselves were small in most of them; the average loss was 323 votes. But Republicans gained an average of over 700 votes in each of those counties, and as they say after awhile it adds up. Plus, some of these counties are now more exurban than rural, and like the suburbs are seeing steady growth. Two examples for you are Johnson County, northwest of Travis and home of Cleburne, and Parker County, west of Tarrant where Weatherford is. Those counties saw a combined voter registration increase of about 20,000. Of that, 17,201 were Republican and 449 were Democratic. That right there is enough to negate the Democratic net gain in Dallas County.

The single most eye-catching item in here is Polk County, up US59 between Houston and Lufkin; Livingston is the county seat. Unlike Johnson and Parker, it has about the same number of voters as it did four years ago. The difference is that in 2012 fewer than half of registered voters bothered, while this year nearly everyone did. Turnout in the Presidential race in Polk County was an mind-boggling 89.48%, and nearly the entire increase came from Republicans. In this CCA comparison, Mike Keasler got 12,183 more votes than Sharon Keller did, while Robert Burns improved on Keith Hampton by only 1,845 votes. All this with only 38,530 total registered voters. OMG, to say the least.

So what should we be doing about this? Well, we should keep doing what we’re doing in the urban counties, because it definitely bore fruit this year. I’d like to think we’re starting to maybe get a little traction in the suburbs, at least some of them, but it’s going to take a lot more resources and an effort that doesn’t just gear up at campaign time to really get that going. Mostly, we need to have a way to make sure we’re being heard in these places, because I don’t think we are, not outside of the faithful who are there. If I were a fabulously wealthy person who wanted to move the needle outside the urban counties, I’d throw a bunch of money at the Texas Organizing Project and ask them to figure out (and execute) a way to do for these suburbs and exurbs what they’ve been doing in Pasadena. It’s slow and methodical and just one piece of the puzzle, but we have got to start somewhere.

Data on the counties where Dem turnout grew is beneath the fold. More to come over the next week or so.

(more…)

State settles birth certificate lawsuit

Good.

After undergoing mediation, the state of Texas has reached an agreement with undocumented families in a lawsuit over its denial to issue birth certificates to children born in the U.S. to undocumented immigrants.

The state will clarify and expand the types of secondary forms undocumented immigrants can use to prove their identity, according to attorneys representing the group of undocumented parents and their U.S-born children who filed a lawsuit against the Texas Department of State Health Services.

Previously, immigrants in Texas could request birth certificates for their children if they had two secondary forms of ID, including Mexican voter registration cards and foreign IDs with a photo.

In the agreement, the state said it would accept voter ID cards received by undocumented immigrants in Texas by mail under recent changes to Mexican law, the attorneys said. Until earlier this year, the Mexican voter registration cards could only be obtained in Mexico.

The state also agreed to accept certain documents Central American parents can obtain from their consulates in the U.S. as secondary forms of ID if they are signed and stamped by consular officials. Under the agreement, the list of acceptable secondary documents was also expanded to include other supporting documents, such as copies of utility bills, paycheck stubs and letters relating to public assistance benefits, according to the families’ lawyers.

“We feel confident that undocumented parents with children born here will be able to access their children’s birth certificates,” said Marinda van Dalen, a staff attorney with Texas Rio Grande Legal Aid.

See here and here for the background. The plaintiffs’ argument was that the state had no basis for changing its rules for what ID it would and would not accept, and the state’s defense to that argument didn’t resonate with the judge, so given all that a settlement seems like the best outcome all around. With the exception of the immigration executive order lawsuit, it hasn’t exactly been a great month in the courts for the state of Texas, has it? A statement from the Senate Hispanic Caucus is here, and the NYT and the Observer have more.