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coronavirus

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.

In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.

Abbott’s office did not immediately respond to a request for comment.

Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.

“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.

Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”

[…]

Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.

“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”

It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.

All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.

RNC sues to halt California mail ballot expansion

Put a pin in this.

The Republican National Committee and other Republican groups have filed a lawsuit against California to stop the state from mailing absentee ballots to all voters ahead of the 2020 general election, a move that was made in response to the coronavirus pandemic.

The suit comes after California Gov. Gavin Newsom, a Democrat, announced this month that the state would move to encourage all voters to cast their ballots by mail in November — the most widespread expansion of vote-by-mail that has been announced as a result of the pandemic and in the nation’s most populous state.

The RNC’s lawsuit challenges that step, marking a significant escalation in the legal battles between Republicans and Democrats that are currently being waged in more than a dozen states.

[…]

Sunday’s suit — filed on behalf of the RNC, the National Republican Congressional Committee and the California Republican Party — seeks to halt Newsom’s order, arguing that it “violates eligible citizens’ right to vote.”

The groups argue that Newsom’s order will lead to fraud because the state plans to mail ballots to inactive voters automatically, which “invites fraud, coercion, theft, and otherwise illegitimate voting.”

Studies have found no evidence of widespread voter fraud as a result of in-person or mail-in voting.

Rick Hasen has a copy of the complaint here. Part of it is specific to California law and whether or not Governor Newsom has the authority to issue this executive order, and part of it is the claim that mailing a ballot to all eligible voters will result in an unconstitutional “dilution” of the vote because of the likelihood that more “fraudulent” votes will be cast. I can’t speak to the former, but the latter is a claim that bears watching. It’s ridiculous on its face, especially given the utter lack of evidence to bolster any claim about significant “vote fraud”, but that doesn’t mean that SCOTUS couldn’t eventually find a way to justify a limit to voting rights down the line.

None of this directly impacts Texas – we’re in a different judicial district, and there’s not a chance on earth that we would mail a ballot to every registered voter, no matter the outcome of the various federal lawsuits. But we need to keep an eye on this because it could eventually have an effect here.

Please wear a mask

Don’t be that person. Seriously.

Kara McIntyre remembers the day she likely contracted COVID-19 — she wasn’t wearing a face mask.

She was at Target and began to feel dizzy. Later she checked her temperature and had a fever. So she got tested for the novel coronavirus, and a few days later her results came back positive.

The 39-year-old radio deejay did not wear a face mask before she was infected in March, something she said she feels guilty about now.

“I know I came in contact with a person who tested positive for it,” McIntyre said. “I wasn’t going out much, but I put gas in my car, went to the grocery store. Knowing I went through that and may have gotten other people sick, that’s terrifying.”

As the state reopens restaurants, shopping malls, gyms and salons, whether or not to wear a mask has become a hot-button issue. To some, it’s a way to signal one has their neighbor’s health and well-being in mind. To others, it’s an inconvenience or an attack on American freedoms.

[…]

The Centers for Disease Control and Prevention recommends everyone wear a face mask in public, in addition to practicing social distancing and frequent hand washing. But the president and vice president are often photographed without them.

Face masks have become a divisive issue even in Houston, where residents are known for coming together during times of crisis like Hurricane Harvey, said Cathy Power, 51.

“What I gather is that there is a narrative out there that masks are for the weak. This is wrong — masks are worn to protect others; they are not for protecting yourself,” said Power, who lives in the East End, and suffers chronic health issues. “They reduce the risk by keeping droplets from traveling as far as they would if you were not wearing a mask. It works best if we all wear them.”

People wear masks to protect others around them as studies have shown it has little to do with our own ability to not be infected, said Dr. David Persse, Houston’s health authority.

“Take a mirror, breathe on it and see the mist that forms. If you’re ill, the mist is full of virus,” Persse said. “Do the same thing with the mask in front of you; you’ll see far less of any mist on that mirror at all. That’s how it works.”

This is the sort of assumption that drives post-reopening models that predict a large increase in COVID-19 infections. If people are literally and figuratively letting their guard down, we’re going to be right back where we were in early March before all the shutdowns. We don’t want that, right?

So that leaves two viable options. One is to continue to stay home as much as possible and be relentless about social distancing and avoiding crowds. If you’re doing that, then for the most part you don’t need to wear a mask. But when you are out in public, in places where you are interacting with or just in close contact with other people, then you really do need to wear one. Grocery shopping? Wear a mask. Getting your hair cut? Wear a mask. They do make a difference.

More to the point, if we all agree that the cost of keeping the economy on ice is very high, the key to reopening is to find ways to reduce risk while out in public. Wearing a mask is a low-cost method of risk mitigation. The more we do it, the more free we can be with our movements and interactions.

That’s really all there is to it. If we do this together, we can get that curve down to zero, which is the best-case scenario short of a vaccine. (Which an astonishingly large percentage of people say they won’t take, but that’s a rant for a different day.) Remember, lots of people have no choice about this – health care workers and people in all kids of retail and service jobs have been wearing masks all day every day for a long time now. It’s not that often that you can do a fairly small thing and make a big difference. This is one of those times. Wear your mask. Thank you.

Reopening 3.0

Who wants to go to a water park?

Gov. Greg Abbott issued a proclamation Tuesday announcing additional services and activities that can resume under his second wave of reopenings, allowing food courts in shopping malls to reopen immediately and giving the green light for water parks to begin operations with limited capacity starting Friday.

Recreational sports programs for adults can restart Sunday, though games and similar competitions may not recommence until June 15. Abbott also permitted driver education programs to resume operations immediately.

For food court dining areas that choose to reopen, Abbott is encouraging malls to designate one or more people who are responsible for enforcing social distancing and ensuring tables are cleaned and disinfected between uses.

[…]

While indoor and outdoor pools can operate at 25% occupancy, the governor’s previous directives have specifically said people should continue to avoid interactive amusement venues like water parks. Abbott was facing pressure, however, from a Houston-area water park that initially said last week that it would defy Abbott’s orders and reopen Saturday for Memorial Day weekend. Asked about that last week, Abbott told an Austin television station that his office was talking with operators to make sure they complied.

“They subject themselves to potential litigation as well as potential licensing-based issues if they fail to comply, and so it’s a potentially business-dangerous process for them to proceed forward knowing that they are subjecting themselves to litigation if they open up and anybody contracts COVID-19,” he said to KXAN.

The park ultimately decided not to open early, Community Impact Newspaper reported.

If you can maintain social distancing, swimming is fairly low risk. My experience at water parks is that you’d be fine on most of the rides, but the lines to get to the rides will be what puts you in jeopardy. I’m also not sure how financially viable a 25%-capacity water park is, but that’s their problem, and if Schlitterbahn thinks they can make it work, they’re in a better position than I am to judge. I don’t expect to be paying them a visit this year, that much I do know.

Also, too, outdoor sporting events are back on the menu.

In a new proclamation, Gov. Greg Abbott announced that fans will be allowed at outdoor professional sporting events in most Texas counties with limited occupancy, under a new expansion of his most recent wave of economic reopenings.

Starting Friday, all Texans counties — excluding Deaf Smith, El Paso, Moore, Potter and Randall counties — will be able to host in-person spectators for outdoor sports in venues as long as visitors are capped at 25% capacity. Leagues will first have to apply to — and receive approval from — the Texas Department of State Health Services.

Under the revised rule, fans are still banned from attending indoor sporting events in person. The rule does not address college or high school athletics.

[…]

The health agency’s protocols for adult recreational sports participants include a recommendation of wearing face masks during sporting events and practices, screening individuals for symptoms of COVID-19, and using and carrying hand sanitizers.

Spectators, meanwhile, are encouraged to avoid being in groups larger than 10, maintain a 6-foot distance from others when possible and wear cloth face coverings.

Regular COVID-19 testing is also recommended throughout the professional sports season.

I’d say the main effect of this is allowing recreational sports leagues to start up. High school and college sports are exempted, the NWSL will be playing only in Utah, and MLB is still a work in progress. I guess auto racing would be open to fans now as well. I will have a decision to make when the college football season starts, but I wasn’t expecting to see an Astros game any time soon except on TV. Do any of these new options appeal to you? Leave a comment and let us know.

Sharing is CARES-ing

I’m still trying to understand this.

The state of Texas and its 12 largest counties are in a tug-of-war over who is responsible for handing out federal coronavirus relief funding for some small cities.

The Coronavirus Aid, Relief, and Economic Security Act signed into law by President Donald Trump in late March sent $11.24 billion in aid to the state. Of that, six Texas cities and 12 counties with a population more than 500,000 received more than $3.2 billion.

The other 242 counties and cities within those counties were allowed to apply for per capita funding allocations from the state out of the remaining $1.85 billion earmarked for local governments.

With an apparent gray area in the legislation, the CARES Act did not specify which entity — the state or the dozen large counties — should cover the small cities within the dozen counties that received direct funding. State leaders including Gov. Greg Abbott want the counties to pay; the counties want the state to share more of its cut.

The skirmish has meant that months after the major relief package was passed, funding for some Texas cities is in limbo, including for Houston-area suburbs such as Pasadena that have been hit with major outbreaks.

[…]

Abbott — as well as Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and the state Senate Finance Committee and House Appropriations committee chairs and vice-chairs — in a May 11 letter placed the responsibility on the counties.

Two days later, the counties wrote to state leadership to ask for their reconsideration. While the counties account for about 69 percent of all COVID-19 cases, they received just about 29 percent of the relief funds, they wrote in a letter shared with Hearst Newspapers.

“We ask you to address this shortfall,” they wrote. “Counties are your frontline partners in fighting the COVID-19 pandemic. Help us help Texans stay in their homes, keep their jobs, and have food on their table.”

I guess I need to know more about what the priorities are here. It seems clear to me that the funds should be distributed based primarily on need, with any other considerations coming after that. By “need” I mean testing and support for frontline responders and hospitals, food and housing for those in financial distress, buying supplies like hand sanitizer and PPEs, that sort of thing. Whether that should come from the money allocated to the state or the money allocated to the larger counties, I don’t care. It should come from both, depending on their capacity. Maybe there is a good objective case for it to come from one source or the other – I can’t tell from this story – but even if that’s so, I’d want the state and counties to be working together to maximize the return on these federal dollars. That’s what really matters, doesn’t it?

NWSL will be the first American sports league to return to play

We’ll see how it goes.

The National Women’s Soccer League will become the first U.S. team sport to resume play June 27 with a month-long tournament in suburban Salt Lake City, and the rebuilding Houston Dash hope the unique format will give them a chance to succeed against more established rosters.

Wednesday’s announcement of the NWSL Challenge Cup gives teams four weeks to reconvene and resume training after the COVID-19 shutdown. Each of the nine teams will play four games, leading to quarterfinals, semifinals and a July 26 championship game at Rio Tinto Stadium in Sandy, Utah.

“It’s very exciting to be the first and really important that we showcase the league and the players to the highest levels,” Dash coach James Clarkson said. “The safety of everyone is the most important thing.”

While the league will be among the first pro team sports to resume play since the coronavirus pandemic stopped games in mid-March, it could be without some high-profile players from the U.S. Soccer’s women’s national team.

At least seven players on the 23-member national team roster have said they will not participate, the Washington Post reported. Others were said to be awaiting word on testing and safety issues before committing to the tournament.

[…]

Games in Utah will be played without fans present and will be streamed on the CBS All Access subscription service. The tournament opener June 27 at Zions Bank Stadium in Herriman, Utah, and the July 26 championship game will air on CBS Sports.

The host Utah Royals FC will provide housing, training and game site needs for all nine teams and will create what it described as an “NWSL Village” in an effort to assure players’ health and safety.

With only nine teams, the logistics for the NWSL are a little easier than for other leagues, just because there will be fewer people involved. This is a great opportunity for the NWSL, as they will have the sports landscape to themselves for a brief period, but it’s also obviously a risk, as they could easily be the first league to then have to deal with a new coronavirus outbreak among their active players. Like it or not, by virtue of being first up, they get to be a test case for everyone else. I wish them luck. ESPN and Deadline have more.

We will have more early voting time in November

That’s good.

Gov. Greg Abbott said Thursday he will extend the early voting period for an unspecified amount of time during the November election as concerns continue to persist around in-person voting during the coronavirus pandemic.

Abbott has already doubled the time period for the primary runoff election July 14, calling it necessary so that “election officials can implement appropriate social distancing and safe hygiene practices.”

In a TV interview Thursday afternoon, Abbott was asked if he believes Texas voters will be able to cast their ballots safely not only this summer but also in the fall.

“We do, and for this reason, and that is … Texas has always had early voting, and what I did for the July time period and what we will do again for the November time period is we will extend the early voting period,” Abbott said in the interview with KCBD in Lubbock. “And what that does — it allows more people to go vote early in settings that are not highly congregated. As a result, you can go vote without having to worry about a whole bunch of people being around you that you could contract COVID-19 from. That makes voting a lot safer [of a] setting than it would otherwise be with the shortened early voting time period.”

See here for the background. I had called on Abbott to do exactly this, though I did not expect that he would. He hasn’t said yet how much he’ll extend early voting – maybe we’ll get a third week, maybe a third and a fourth, who knows – but this is a Good Thing, and I’m glad to see it. Having the state pony up to help counties cover their extra expenses in this weird year, and not being fanatically opposed to letting people with a legitimate fear of COVID exposure vote by mail, would also be nice. But this is something, and credit where it’s due.

How about some antibody tests?

That would be good.

After months of emphasis on diagnostic screening, contact tracing and research into possible treatments, Houston is about to deploy a new tool in the effort to contain COVID-19: antibody testing.

Baylor College of Medicine researchers last week presented evidence to school leadership that the blood test it developed to detect whether an individual has been infected with the coronavirus is highly accurate and ready for use in studies assessing the virus’ reach in the area. Such studies would provide the answer that hasn’t been ascertainable because of the shortage of diagnostic testing.

“This will tell us the severity of the disease based on prevalence, the number of people who have had the virus but do not show up in case counts because they were asymptomatic and weren’t tested,” said Dr. Paul Klotman, president of Baylor. “That’s needed to better understand how infections impact different Houston communities, the variations in those communities and the numbers in certain high-risk environments, like prisons and nursing homes.”

Klotman said he anticipates Baylor will partner with local health departments to determine optimal resource allocation — such as where to focus testing and contact tracing — based on the prevalence the studies find in communities.

A Baylor prevalence study based on antibody testing would put the Houston region among a handful of U.S. communities to conduct such research, which has found that more than 20 percent of people in New York City but only 4 percent of those in Los Angeles County have been infected. Klotman said he thinks Houston’s rate will be closer to the California number.

Such antibody testing, repeated over time, also would show the area’s progress toward herd immunity, the protection from a contagious disease that occurs when a high percentage of the population has either had the infection or been vaccinated. Experts say that percentage — there is no vaccine for the coronavirus yet — needs to reach at least 60 to 70.

There’s more, and you should read the rest. As a reminder, viral tests are to see who has the virus now, and antibody tests are to see who has had it in the past. Do not mix the two if you want to know the current case count. I would note that the Texas Tribune case tracker showed 10,921 infections in Harris County as of May 25. If that four percent guess is accurate, then given a county population of 4.7 million, the actual number of cases would be more like 188,000. That’s consistent, even a bit under, the typical antibody test experience, which winds up estimating the real infection count at about ten times the “official” count. And note that we’d have to have more than ten times that number to get close to the minimum threshold for herd immunity.

Anyway. I look forward to seeing what this can tell us. In conjunction with the wastewater testing, maybe we can finally get a clear local picture of this pandemic.

A note about voter ID and vote by mail

See if you can detect the same theme I’m detecting.

From Houston Public Media:

Rice University recently surveyed Harris County voters. And nearly 70 percent of respondents preferred voting by mail if that’s an option.

“We found that a large number of voters – particularly Democrats, women, and persons over 65 – were reluctant to vote in person at a polling location on or before Election Day,” said Rice political scientist Bob Stein.

[…]

But the Rice survey shows Republicans are far less likely to want to vote by mail, let alone to support others doing so for fear of catching COVID-19. One reason: potential voter fraud.

Clay Mills of Humble has been a Republican poll judge for the past 10 years.

“In my opinion, based on all those years of experience, by far the easiest way to commit fraud is vote by mail,” Mills said. “I think we should always be concerned about health and do the best we can, but we also can’t destroy the purity of the vote based on health reasons.”

Such fraud is extremely rare, according to studies conducted by the Brennan Center for Justice at New York University School of Law.

Michael Palmquist is also a Republican poll judge and army veteran from Spring. As for concerns about voting in person during the pandemic? “None whatsoever.”

“I mean, if I can go to the grocery store, and I can go to Sam’s, and I can go to Walmart, there’s no reason I can’t stand in line and vote,” Palmquist said.

And Joanne Thomas, an Alabama native and a teacher from West Houston, is battling cancer. But she’s still determined to vote in person, not by mail.

“I will wear my gloves, I will wear my mask, and I will go in and vote,” Thomas said. “I have family members who have died for the right for me to vote.”

Like Mills, Thomas is concerned about potential vote fraud.

“I have heard the term ballot harvesting, and I totally disagree with it because you can’t prove who you are,” Thomas said, “I am a firm believer that you should carry some form of ID to have the privilege to vote in the United States of America. You should be an American citizen and pay taxes. If you don’t, you don’t have the right to have the say on who will govern us.”

See here for more on the poll in question, but that’s not what I want to focus on.

From the DMN:

Still the only voter ID anyone should need

Lewis Sessions, a Dallas lawyer who is not involved in the case, agrees with Paxton. Sessions, who has represented the county Republican Party in voter fraud cases, said he opposes expanded mail voting because the system can be exploited by fraudsters.

If mail voting is opened up to a larger portion of the population, he said, election officials will be unprepared to handle such an increase and unable to verify each ballot.

David Thomas, 72, of Oak Cliff said he was similarly concerned that officials would not be able to use the state’s voter identification law to verify ballots cast by mail.

“Somebody else can vote for you,” he said.

Sessions, 67, said the courts should stay out of the legal battle and let local officials determine the best way to hold elections during the pandemic.

“This can be done, it’s just a question of working through the logistics,” he said.

But not all Republicans are opposed to expanding mail voting. Kathaleen Wall, a GOP candidate in a runoff to replace Sugar Land Rep. Pete Olson, has urged her voters to vote by mail, saying in mailers that they have the “green light” if they are worried about contracting or spreading the virus.

John Pudner, executive director of Take Back Our Republic, a national conservative nonprofit that works on campaign finance reform, said he supports expanding mail voting during the pandemic — with some caveats.

Pudner, a longtime Republican consultant who worked for President George W. Bush’s campaign in 2000, said mail ballot applications should be sent to all voters as long as the process includes a form of verification, like a signature, a witness match or a thumbprint.

His group does not support sending ballots to all registered voters or conducting the elections entirely by mail, as Nevada has announced. Pudner said he also thinks the changes should be temporary and not extend beyond the pandemic.

Did you notice the reference to voter ID in each of the two stories? I’ve previously discussed this, but it seems this is the sort of thing that will need to be repeated over and over again. The reason that the odious voter ID law does not apply to mail ballots is because the Republicans that passed the voter ID law chose to exempt mail ballots from any voter ID requirement. The reason they chose to exempt mail ballots is because mail ballots, at least at the time that the voter ID law was passed, strongly favored Republicans, and Republican legislators did not want to make it harder for their voters to vote. (Also, too, voters over the age of 65 are disproportionately white, as noted by LULAC when they intervened in the first federal lawsuit over expanding vote by mail.)

Now, I am not calling for voter ID to be extended to include mail ballots. The voter ID law is trash and needs to be thrown out. My point is simply that if you are going to trot out the creaky old talking points about “vote fraud”, you should at least be made to reckon with the fact that the Republican legislators who passed the voter ID law in 2011 specifically and deliberately chose to exempt mail ballots from its requirement. It was convenient for them to claim that “vote fraud” was not an issue for mail ballots then, just as it is convenient for them to claim that it is an issue now. You might want to ask yourself why that is.

Constable Rosen tests positive for COVID-19

Best wishes for a speedy recovery.

Alan Rosen

Harris County Precinct 1 Constable Alan Rosen has tested positive for the novel coronavirus, his office confirmed Wednesday.

Rosen is the second local elected official known to have contracted COVID-19, the disease caused by the virus. Houston City Councilwoman Letitia Plummer tested positive May 11.

Rosen was confirmed positive on Saturday, five days after being tested while experiencing a mild fever, spokesman Kevin Quinn said.

The constable informed his command staff of his diagnosis but not the public because it was a personal medical matter, Quinn said. Rosen declined an interview request.

“I appreciate everyone being thoughtful and kind with their words of support,” he said in a statement. “In these times, it’s so important to wear a mask, wash your hands frequently and socially distance.”

Rosen has been working from home for 10 days, and any employee with whom he interacted before his diagnosis has been tested, Quinn said. Five Precinct 1 employees have tested positive since the outbreak began here in March.

As noted, CM Plummer tested positive earlier in the month. She hopes to be free of the virus soon, as does Constable Rosen. I wish them both the best.

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

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. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.

Our students need laptops

The pandemic has made this clear.

Houston ISD officials hope to provide every student with a district-issued laptop in 2020-21 and beyond, an ambitious target that would deliver much-needed technology to children but require voters to approve a bond package in the next several months.

Interim Superintendent Grenita Lathan said HISD officials are “working toward a goal” of buying computers throughout the upcoming school year for all 150,000-plus elementary and middle school students. HISD high school students already get computers under an initiative, known as PowerUp, started in 2014.

The laptops would assist families struggling with a lack of at-home technology amid the novel coronavirus pandemic, which pushed most instruction online for the last 10 weeks of this school year and likely will cause some classes to remain virtual into 2020-21.

Once the pandemic subsides, the laptops also would help bridge the so-called “digital divide,” providing more opportunities for students from lower-income families to access the internet and other educational programs.

“The goal is, as soon as we get them in is deploy them out,” Lathan said. “It will just take time to get the devices in. As we get them in, we’ll look to see if they’ll be given to middle school students first or elementary school students, or some at both levels.”

The initiative, however, would carry enormous costs that are not accounted for in HISD’s $2 billion spending plan for 2020-21.

District officials said they would have to spend $65 million on laptop hardware — not counting warranties, repairs, carts and replacement devices — to outfit HISD’s elementary and middle school students.

HISD leaders also would have to hire dozens or hundreds of staff members to maintain the laptops and eventually pay to replace older technology in the years to come.

District administrators still are calculating the price tag for supporting 150,000-plus additional students with laptops, but Chief Information Officer Scott Gilhousen told board members Thursday that early estimates put the bill at $90 million over five years for middle school students alone.

“The part we’re working on right now is the elementary schools and what it would take to outfit those students,” Gilhousen said.

In a statement Friday, HISD administrators acknowledged the district “would need to have a bond program” to pay for the laptops and recurring costs — a potentially tall task given multiple headwinds.

The HISD Board has been talking about a bond referendum for awhile, in the vicinity of $2 billion. That would mostly be for facilities. I don’t know if they might simply scrap that and substitute in a much smaller bond for the laptops and related equipment. A smaller bond would be easier to sell, but the facilities need would still be there. I’ll leave that to them to decide. I’ll just say, we all agree that this is a necessity now, right? Not just because of the current pandemic and any future ones we may face, but also because of weather-related disruptions and just the fact that a lot of the curriculum is done online now. However this proceeds, we need to support this initiative. It’s what the students need.

MLB’s latest startup proposal

The league still wants to stick it to the players.

Major League Baseball drew the ire of the players’ union Tuesday with an economic proposal that called for a significant cut in salaries that would affect all players and particularly the game’s highest paid, sources familiar with the proposal told ESPN.

The long-awaited plan, the first volley in an expected back-and-forth that will determine whether baseball returns in 2020, proposed a marginal salary structure in which the lowest-paid players would receive close to a full share of their prorated salary and the game’s stars receive far less than expected.

Players immediately bristled at the proposal, which includes an 82-game schedule that would begin in early July after a 21-day spring training, sources familiar with the plan said. Teams would play three exhibition games in the final week before starting a regular season that would finish Sept. 27.

The MLB Players Association is expected to reject the plan and counter in the coming days with a proposal that could include a longer season, according to sources.

The league’s proposal, which includes bonuses if postseason games are played, offers lower-salaried players a higher percentage of their expected wages and would give some of the game’s biggest stars a fractional cut of their salaries. The formula the league offered, for example, would take a player scheduled to make the league minimum ($563,500), give him a prorated number based on 82 games ($285,228) and take a 10% cut from that figure, leaving him with a $256,706 salary.

[…]

Although the proposal would keep a larger proportion of players close to their whole salaries — about 65% make $1 million or less and would receive more than 80% of their prorated salaries — players young and old objected to the plan, which they believe runs in contrast to a March agreement with the league that they believe legislated that players be paid full prorated salaries upon the return of baseball.

The league believes language in the deal calls for good-faith negotiations with the union about the economic feasibility of playing with no fans, which MLB expects to do upon a return. The league initially considered proposing a 50-50 revenue split with the players, citing massive losses due to the coronavirus pandemic. MLBPA executive director Tony Clark immediately rejected the idea, equating it to a salary cap.

See here for the background. Basically, this PR move by the owners is to stick to the highest-paid players, in an attempt to divide the union and make the players look as unsympathetic as possible to the public. I’ll outsource the analysis of this to Jay Jaffe, who sums it up as follows:

While this proposal does bear some resemblance to a progressive taxation scheme, the question that needs to be asked is why it’s the millionaires, whose careers have limited windows, bearing the brunt of the economic impact instead of the billionaire owners for whom annual profits — and for MLB, which has seen revenues grow for 17 straight years, there have been a whole lot of those — and losses pale in comparison to escalating franchise values. That’s without even considering the disproportionate risk the players are assuming by returning to play amid the pandemic. It’s not just their livelihoods that are at risk, it’s their lives. They can’t write those losses off.

Here’s a convenient timeline of the action so far, with some fact-checking as needed. By the way, while the owners as a whole are targeting the stars, one franchise is also sticking it to their minor leaguers, always a classy move. I’ll give a last word on this to Joe Sheehan:

More insidious, though, is the principle behind the plan. It’s asking Mike Trout to give money to Arte Moreno. Trout is rich; Moreno is wealthy. When Moreno had leverage, he paid Trout as little as he could. Now he’s asking Trout to give him back basically all the money Trout made in the first four years of his career.

Of course, any possibility of baseball or any other sport relaunching at this time is highly dependent on testing and keeping the players and coaches and umpires and staffers and everybody working at the stadiums COVID-free. Michael Baumann digs into what that means.

I asked Abdul El-Sayed, an epidemiologist and the former health commissioner for the city of Detroit, whether we know enough about COVID-19 to plan for games in October and November. “Yes, we do know enough about the virus,” El-Sayed says, “to know that we can’t make decisions five to six months in advance.”

One thing baseball has going for it compared to other major team sports—football, basketball, and so on—is that the actual gameplay isn’t particularly conducive to COVID-19 transmission. “An outdoor sport like baseball where [players are] not breathing heavily in each other’s faces seems like a good candidate for a sport that can return,” says Laura Albert, an associate professor of industrial and systems engineering at the University of Wisconsin whose research includes the optimization of emergency and public health systems.

While Albert isn’t worried as much about the in-game component of MLB’s plan to return in July, though, she has other concerns. Namely, even if the league prohibits sunflower seeds, tobacco, and spitting, there would still be plenty of scenarios during which a player with the virus could spread it to others. “There will be positive cases and there will be transmission between players,” she says. “And I anticipate it happening on airplanes and buses, in the locker rooms or bathrooms. It’s not totally clear how we can change those spaces to be safe if there’s a bunch of people using them.”

[…]

MLB’s return, whenever it happens, is already being heralded as a sign of things returning to normal. Indeed, as much as baseball fans miss the game itself, that touchstone to a more comfortable time is a huge reason why even a limited season is such an attractive proposition. But MLB has already accepted that if the league is going to have a prayer of making it to the World Series this year, the game won’t look, feel, or sound the same as it has in the past.

“Our lives are not going back,” Albert says. “They’re not returning to what they were like before, and there’s not one way we could really control the spread of COVID-19—there’s many things we have to do. And so it’s great that the leagues are embracing this. It’s not window dressing. I think it’s important for us to get used to these things.”

There’s a limit not only to what MLB and the MLBPA can do to ensure that the game is safe, but also to what they can know and predict. It will certainly be difficult for such a powerful industry to comprehend that idea, but it will be necessary for the baseball world to understand and embrace it. Given how COVID-19 works, the data on infection rate leaves investigators and public officials to work on a lag.

“We’re not dealing with linear dynamics here. That’s the hard part that I think is confounding so many of our best efforts to respond reasonably,” El-Sayed says. “You’re talking about exponential growth. Everything that we see today is information about the dynamics of the virus two weeks ago. And so all of a sudden you could be having exponential growth dynamics that only start showing up after it’s too late for you to act to stop them.”

As much as everyone is tired of having the course of the country and the economy determined on a fortnightly basis, [Thomas J. Duszynski, the epidemiology education director at the Richard M. Fairbanks School of Public Health at Indiana University–Purdue University Indianapolis] says that’s about as far ahead as we can responsibly plan right now. He’s open to the idea of MLB coming back—but only if the league is willing to stop the season if conditions change. “If they go down this road and start to play games, which personally I hope they do, and we see a shift in that science that says, ‘Hey, wait a minute, the disease is getting worse again,’ is MLB going to be able to pull this back?” he says. “Are they going to be able to shut it down and still survive?”

Both El-Sayed and Duszynski believe that it’s possible that a leaguewide infection could progress to the point where MLB simply can’t press on.

“God forbid a player dies because of this,” Dusynski says. “What kind of ripple effect would that have through Major League Baseball?”

I’m actually not that worried about a player dying. It could happen, but it would be unlikely. I’m much more worried about a coach, or an umpire, or a stadium staffer dying. Or a member of a player’s family, or a family member of one of these other groups. That could happen regardless – about 0.7% of players have already had COVID-19, per the MLB antibody study. Clearly, the risk is greater if the games are played. The players have the most leverage to assess and try to mitigate the risk to themselves and their families. I hope that’s sufficient for everyone else.

Voter, sanitize thyself

WTF?

With voting in the primary runoff election starting next month in the middle of the coronavirus pandemic, the Texas secretary of state on Tuesday issued “minimum recommended health protocols” for elections, including a suggestion that voters bring their own hand sanitizer to the polls and that they “may want to consider” voting curbside if they have symptoms of COVID-19.

In an eight-page document, Secretary of State Ruth Hughs laid out checklists for voters and election workers that range from self-screening for symptoms to increased sanitation of voting equipment — none of which are binding and many of which were already being considered by local election officials planning for the first statewide election during the coronavirus pandemic.

In its recommendations, the state said voters should consider wearing cloth face masks, bringing their own marking devices — like pencils with erasers or styluses — and using curbside voting if they have a cough, fever, shortness of breath or other symptoms associated with COVID-19, the disease caused by the new coronavirus. Voters in Texas have long had the option of having a ballot brought to them outside their polling place if “a voter is physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.”

The state instructed local election officials to place markings on the floor to facilitate social distancing and to keep at least 6 feet between voting stations. Election officials should also consider having all employees wear masks, the secretary of state said.

The recommendations are meant to serve as a baseline, and county officials can adopt additional protocols. Early voting for the July primary runoff starts June 29.

Man, this is weak. The main takeaway here is that the state of Texas really, really doesn’t want to do anything to make it safer or easier for anyone to vote. Let’s put aside the hotly-contested question about allowing more voting by mail and consider two fairly simple alternatives the state could do in this regard. One, the state could pay for the extra supplies that voters or county officials if they are willing and able are being encouraged to provide for themselves. A few million bucks from Greg Abbott’s discretionary fund would go a long way towards buying hand sanitizer, pencils, masks and gloves for poll workers, and so forth, not just for the July election but for November as well. Additionally, and speaking of November, Abbott could use his emergency powers – or call a special session if this would be too legally questionable – to extend the early voting period for November to four weeks. That would do a lot to address concerns about long lines and crowds of people crammed inside polling places waiting their turn. He extended the early voting period for July to address this, which I do appreciate. But no, we get this limp mixture of “you might wanna bring some Purell with you, and oh yeah, mark some spots on the floor”. Are you kidding me?

Republican voters should be unhappy about this inability to engage with the actual issue, too. This isn’t hard. And surely I’m not the only one looking at that recommendation to voters that they spend their own money to provide their own risk mitigation and thinking that telling voters there’s a cost to voting they have to pay amounts to a poll tax. If there isn’t a lawsuit filed over this, I’ll be quite surprised. I don’t know what it’s going to take to get the state to take this seriously.

The COVID models remain pessimistic about Texas

Make of this what you will.

The coronavirus may still be spreading at epidemic rates in 24 states, particularly in the South and Midwest, according to new research that highlights the risk of a second wave of infections in places that reopen too quickly or without sufficient precautions.

Researchers at Imperial College London created a model that incorporates cellphone data showing that people sharply reduced their movements after stay-at-home orders were broadly imposed in March. With restrictions now easing and mobility increasing with the approach of Memorial Day and the unofficial start of summer, the researchers developed an estimate of viral spread as of May 17.

It is a snapshot of a transitional moment in the pandemic and captures the patchwork nature across the country of covid-19, the disease caused by the virus. Some states have had little viral spread or “crushed the curve” to a great degree and have some wiggle room to reopen their economies without generating a new epidemic-level surge in cases. Others are nowhere near containing the virus.

The model, which has not been peer reviewed, shows that in the majority of states, a second wave looms if people abandon efforts to mitigate the viral spread.

“There’s evidence that the U.S. is not under control, as an entire country,” said Samir Bhatt, a senior lecturer in geostatistics at Imperial College.

[…]

The Imperial College researchers estimated the virus’s reproduction number, known as R0, or R naught. This is the average number of infections generated by each infected person in a vulnerable population. The researchers found the reproduction number has dropped below 1 in 26 states and the District. In those places, as of May 17, the epidemic was waning.

In 24 states, however, the model shows a reproduction number over 1. Texas tops the list, followed by Arizona, Illinois, Colorado, Ohio, Minnesota, Indiana, Iowa, Alabama and Wisconsin.

When the R naught is below 1, it means the virus is hitting a lot of dead ends as it infects people. Someone who is infected but who follows social distancing rules or stays quarantined until recovering has a good chance of not infecting anyone else. The challenge is finding a way to reopen the economy with sufficient care to prevent the reproduction number from going over 1.

[…]

In Texas, Dallas County Judge Clay Jenkins said he consults with doctors and experts from area hospitals, “and what they tell us is that we’re reopening too fast, and we’re reopening in the wrong order.”

Local jurisdictions in Texas do not have the authority to issue more stringent restrictions than the state, which began aggressively reopening this month. So Dallas has focused on messaging. The county has a daily “covid-19 risk level” that is currently red, for “stay home, stay safe.” Officials are working on seals that businesses can display to indicate they are meeting local public health guidelines, not just state mandates.

The Imperial College estimates for Texas are in line with internal modeling conducted by university experts advising state leaders.

Rebecca Fischer, an epidemiologist at Texas A&M University and part of a team partnering with the governor’s office, said the daily caseload was fluctuating, but “it looks like we’re not cresting a peak and coming down the other side.”

The embedded graphic shows the probability (according to the model) that R naught is less than one in the given state. For Texas, that probability is close to zero, which means that the virus is still spreading at an increasing rate. This is consistent with the PolicyLab study, which uses county-level data. You can see the Imperial College study here, and a brief analysis of it by Josh Marshall here. There’s still a lot we don’t know, and if loosening restrictions is going to have a bad effect on the pandemic it’ll still be a couple of weeks before we really begin to feel it. Staying at home, social distancing, and wearing masks are still your best bet, but I doubt I will convince you of that if you’re certain you know better.

School districts set to get financial relief for coronavirus

Good.

Texas will distribute the vast majority of a $1.29 billion federal stimulus package to school districts this summer, using it to deliver on a promise that schools will remain fully funded this school year despite statewide closures due to the coronavirus pandemic, Texas Education Commissioner Mike Morath told school officials on a call Thursday.

State officials told school districts in March there would be no financial penalties for attendance declines, as COVID-19 fears spread and school districts were required to close their buildings. Now, Texas has decided to use its share of the federal stimulus package to fund that promise, distributing 90% directly to districts based on their student poverty rates, aiming to forestall layoffs and budget cuts.

Texas school districts can see how much they can expect to receive on the Texas Education Agency’s website. Houston Independent School District, the state’s most populous, will receive the highest award of $81.7 million.

On top of that stimulus package, Gov. Greg Abbott and state lawmakers agreed to reimburse all school districts for up to 75% of their pandemic-related expenses to date, using money from a federal grant awarded to Gov. Greg Abbott’s office. School districts have spent a state total of about $392 million on COVID-19 expenses.

School districts in Texas are funded based on student attendance, meaning the statewide school closures could have been a major financial hit. “With school closed to in-person attendance for nearly a third of the school year, generating the remainder of that entitlement would be impossible without us stepping in and making some changes,” Morath said Thursday.

States are allowed to use the federal stimulus funding to offset budget holes. “Federal guidance explicitly authorizes it as a way for states to sustain their school finance system, as long as net state funding remains above prior years,” Morath said.

From the description in the story, I don’t have any specific concerns. It sounds like the districts are going to have their COVID expenses mostly covered, which is what should happen in times like these. Now we just need the same thing for cities and states.

Nothing but gray skies ahead

You want a small sign that things are returning to “normal”, here you go.

Houston’s air pollution is returning to normal levels, following a period of cleaner skies during the stay-at-home orders put in place to slow the spread the coronavirus.

As Gov. Greg Abbott moves to reopen Texas’ economy, vehicles are back on the roads and with them come emissions from the burning of gasoline and diesel.

Ozone levels have now surpassed legal limits five times since April 20 after staying unusually low for more than a month. Nitrogen oxide emissions — a key contributor to smog — are back near where they were before the coronavirus shutdowns began, said Daniel Cohan, an environmental engineering professor at Rice University.

“It looks like most of the reduction in nitrogen dioxide over Houston has now faded,” he said. “There appears to be a partial bounce back in travel.”

Hope you enjoyed the breathable air while it lasted.

Abbott expects there to be college football this fall

Pretty optimistic, if you ask me.

Gov. Greg Abbott said he believes college football will begin on schedule in Texas with some fans in the stands, he told KXAN during an interview Friday.

“My prediction is yes we’re going to have college football beginning as scheduled, on schedule, with at least some level of fans in the stands,” the governor said.

Abbott said what is unclear at the moment is what the capacity level would be.

“Would it be strategic and limited to ensure that we have safe distancing practices, there are factors we simply do not know at this time,” Abbott explained about the potential health risks of reopening UT football in the fall.

Abbott stated that the University of Texas at Austin’s athletic director needs a decision by early August. He said the state thinks it should be able to make a decision by then.

This isn’t out of the blue. In April, the chancellors of Texas A&M and Texas Tech said they expect there will be football when they reopen in the fall, though that story didn’t address the question of fans. ESPN quoted Abbott referring to the reopening plans of MLB and the NBA, though those sports and others like MLS are all talking about fan-free games, possibly at a single location. It’s one thing to imagine the games happening, especially if the campuses are open anyway. It’s another to imagine sixty thousand people or more packed into a stadium screaming their lungs out, especially if the pro sports leagues are still playing before nothing but empty seats. Texas A&M at least is thinking about what this might mean.

“We have not gone down the path of examining every section,” A&M athletic director Ross Bjork said of exactly how many fans Kyle Field will hold with mandated social distancing in place. “There are a lot of scenarios being discussed.”

Like that proverbial glass, Bjork prefers to envision a stadium as half full, not half empty, should restrictions be in place this season.

“We want a full experience, and we’re staying positive — that’s the approach we’re taking right now,” Bjork said. “We know we can pivot quickly if we have to, but we have not mapped that out.”

[…]

Texas Gov. Greg Abbott has gradually reopened the state in the past month, but he has held off on potentially crowded events such as county fairs. With that in mind, what exactly would Kyle Field look like at, say, 25 percent capacity?

Roughly 25,000 fans would be spread throughout the stadium, and which fans would be allowed in would be determined in a potentially convoluted process.

“You’ve got 102,733 seats,” Bjork said. “Last year we sold about 85,000 season tickets, including right around 35,000 student tickets. That leaves you about 18,000 empty seats. The great thing about Kyle Field is we have a lot of space. So you would start with your infrastructure and analyze it from there, but we would not (ideally) want to decrease our season ticket base. …

“We have a huge footprint, and we just haven’t had to go down that (downsizing) path yet.”

Should social distancing be required at Kyle Field this fall, not only would fans be spaced at least 6 feet apart throughout the stadium, but multiple measures would be in place to try to prevent the spread of the new coronavirus.

That might mean everyone but the players and those on the sideline would be required to wear masks (further muffling touchdown celebrations and the Aggies’ tradition of kissing after a score); an abundance of hand sanitizers spread throughout the stadium; and scheduled times for different sections to enter the stadium so there is no squeeze at the gates, where body temperatures might also be checked.

Bjork added that it might be helpful for fans to bring their own beverage containers to limit the number of hands on a cup, making last year’s new policy of selling alcohol throughout the stadium a bit trickier. A&M and its concessions cohort made more than $1 million off alcohol sales at Kyle Field in 2019, according to the university.

“One of the things that we’ve had to do with the alcohol policy is have (employees) pour the bottle or can of beer into a cup (for fans); that’s an SEC policy,” Bjork said. “Does that need to change so you limit as many contacts as possible? Those approaches are being studied right now.”

So are the possibilities of limiting the university-sanctioned tailgating scene around Kyle Field, and the myriad activities in the Aggie Fan Zone on the plaza north of the stadium that create a festival-like atmosphere in the hours before kickoff.

“There’s nothing you can really put in writing right now or have a ‘backup’ plan yet, because there’s too much uncertainty, and it’s way too early,” Bjork said of the Aggies’ plans for Kyle Field starting with the Sept. 5 opener against Abilene Christian.

Which fans would get to attend would also present a knotty question for them. I do expect there to be a lot of pressure for playing college football, for various financial and social reasons. How that manifests remains an open question, and that’s before we take into account the possibility of a resurgence, in which case all of this will seem extremely stupid.

This is an issue that has more than the usual amount of resonance for me. As you know if you’ve been reading this site for awhile or know me in Real Life, I’ve been a member of the Rice Marching Owl Band (MOB) for many years. I don’t know at this point what Rice plans to go regarding its sports teams, nor do I know at this point what the MOB plans to do. (They’ve been busy with the usual end-of-semester activities, saying goodbye to graduating seniors and installing the new drum major and drum minor, that sort of thing.) I really don’t know what I plan to do just yet if everyone is going ahead like normal. On the one hand, we’ll be outside and there will be a reasonable amount of space for us all in the stands. On the other hand, there’s only so much social distancing a band can do and still sound like a band, the deep breathing that playing a wind instrument requires is an extra risk factor for COVID transmission, and everything else about the stadium experience will involve a lot of closer-than-I’m-comfortable-with contact with other people. Maybe if we’ve really got infection rates under control, or there’s true universal testing, I’d be willing to trot out there for another season like it was the Before Times. I’m not feeling that right now. Ask me again in August and we’ll see. The Chron has more.

Dan Patrick gets all hysterical about voting by mail

Poor Dan. You know how emotional he gets. Could someone get him a nice cup of chamomile tea, to help him calm down a bit? Thanks.

Lt. Gov. Dan Patrick on Friday said that efforts to expand mail-in voting during the coronavirus amount to a “scam by Democrats to steal the election” and claimed that people under 65 are at more risk of dying in a car wreck on the way to vote than they are from dying from the coronavirus because they voted in person.

“There is no reason — capital N, capital O — no reason that anyone under 65 should be able to say I am afraid to go vote,” Patrick, a Republican, said in an interview with Fox News. “Have they been to a grocery store? Have they been to Walmart? Have they been to Lowe’s? Have they been to Home Depot? Have they been anywhere? Have they been afraid to go out of their house? This is a scam by the Democrats to steal the election.”

Texas has been locked in a legal fight over whether it has to expand who is eligible to vote by mail during the coronavirus pandemic. Multiple groups have sued the state, saying it’s dangerous to require people to wait in line and cast ballots on machines shared with other voters while the virus is spreading. GOP state officials have opposed the effort, however, saying that mail-in voting is vulnerable to fraud.

Patrick repeated those worries about fraud on Friday, while also dismissing any fears people might have about going to the polls if they aren’t eligible for a mail-in ballot. Patrick noted that the vast majority of people dying from the virus are older. Currently in Texas, anyone 65 or older or with a disability is eligible for a ballot.

“This idea that we want to give you a disability claim because I am afraid to go vote — if you are under 65 — is laughable,” Patrick said. “You have more chance of being in a serious auto accident if you are under 65 on the way to vote than you do from catching the virus and dying from it on the way to voting. This is the greatest scam ever.”

Texas does not have complete data for the ages of the 1,440 people who have died in the state from the virus. But the state has completed fatality investigations for 489 of those deaths, and about 29% of those were people confirmed to be under 65.

In addition, public health experts are encouraging people of all ages to limit their social interactions. While older people are generally at more risk of dying from the virus, young people can transmit it and endanger people of all ages.

You may recall, Dan Patrick said there were more important things than living and that senior citizens should be willing to die for the economy. So maybe he’s not the best judge of what one’s risk appetite should be.

It’s easy to mock Dan “Menace II Grandma” Patrick, and we all should do it on a regular basis because he is ridiculous. But we should also look at his words and try to understand what he’s really saying. Whether he meant to or not, there are three things that he made clear from this little outburst.

First, there’s no actual justification for the 65-and-over qualification. It’s completely arbitrary, and Patrick doesn’t even try to defend it. It’s there because that’s the number lawmakers picked when they wrote the law. If someone did press Patrick on this point, I’m sure he’d have little to offer beyond some form of “that’s just the way it is”. The federal age-discrimination lawsuit hasn’t had a response from the state yet, and I’ll be very interested to see what justification they come up with. My guess is they won’t bother to try to justify it, they’ll instead simply claim that having an age limit isn’t discriminatory. My point here is that Dan Patrick can’t defend this provision in the law, he can only hide behind it.

Second, there’s the “vote fraud” shibboleth. Forget for a minute that there’s a trivially small amount of actual vote fraud in the system, since statistics and logic mean nothing in this context. I’m old enough to remember when the voter ID bill was passed and the litigation was filed against it. One of the many points of contention over this odious law was the fact that it only applied to in person voting. Voting by mail, which was a smaller component of turnout than it is now and which was much more Republican than it is now (look at the absentee ballot totals for Harris County from 2008 and 2012, for example), was exempted in part because the Republicans who passed the law did not want to burden their own voters, but also because they professed no concerns at all vote vote by mail fraud, even as Democratic legislators and people who testified at the hearings pointed out that most of the handful of vote fraud examples we had centered on mail ballots. The only reason why Republicans are trotting out their “vote fraud!” wolf cries now is because Democrats have gotten better at using vote by mail. That’s what they’re actually afraid of.

And that brings us to point three. The Republicans know they are losing the argument. There was a time when Republicans didn’t care about who was showing up to vote, because they were confident they were going to win all of the elections they wanted to win. They had the lion’s share of the vote – George W. Bush won re-election as Governor in 1998 with 68% of the vote, and he got 62% of the vote as President in 2004 – and they knew it. They have no such assurance today, and they know that, too. All of the big urban counties (save for Tarrant, which is headed that way) are hopelessly Democratic, and now the big suburban counties are slipping away from them. They see their lack of popularity with younger voters and people of color. They’re not going to change what they stand for, so Plan B is to make it harder on all the people they don’t like to vote. This isn’t a revelation, and yes I know what Paul Weyrich was saying back in the 1980s. The difference now is that they really are saying it out loud. They don’t want to make it easier for people to vote, because they fear – with justification – they will lose too many elections if they do. They know people aren’t buying what they’re selling, so they’re trying to restrict the marketplace.

So yes, please do continue mocking Dan “Triggered By Sandra Bullock” Patrick. It’s fun, and he deserves it. But listen to what he’s saying, because he’s telling us what he’s afraid of. Let’s make sure we’re paying close attention to that.

That’s not how you test

Oops.

Texas health officials made a key change Thursday to how they report data about the coronavirus, distinguishing antibody tests from standard viral tests and prompting slight increases in the state’s oft-cited daily statistic known as the positivity rate.

The positivity rate is the ratio of the confirmed cases to total tests, presented by the state as a seven-day rolling average. The Texas Department State of Health Services disclosed for the first time Thursday that as of a day earlier, it had counted 49,313 antibody tests as as part of its “total tests” tally. That represents 6.4% of the 770,241 total tests that the state had reported through Wednesday.

Health experts have warned against conflating the tests because they are distinctly different. Antibody tests detect whether someone was previously infected, while standard viral tests determine whether someone currently has the virus.

Now that DSHS is reporting the number of antibody tests, it has recalculated its daily positivity rates starting Tuesday to exclude such tests. That led to a 0.41 percentage-point increase in Tuesday’s rate and a 0.55 point increase in Wednesday’s rate, according to DSHS calculations.

DSHS acknowledged last week that it was reporting an unknown quantity of antibody tests as part of the “total tests” figure. Despite that, Gov. Greg Abbott incorrectly claimed Monday that the state was not “commingling” the numbers while promising the state would soon break out the antibody test count.

[…]

When public health agencies combine antibody testing figures with viral testing figures, “I want to scream,” said Seema Yasmin, an epidemiologist and director of the Stanford Health Communications Initiative.

Viral tests, usually taken from nasal swabs, can detect an active coronavirus infection. If a person’s biological sample is found to have traces of the virus’s genetic material, public health workers can order them to self-isolate and track down any of their contacts who may have been exposed.

Antibody tests “are like looking in the rearview mirror,” Yasmin said, because they may show if a person has recovered from a coronavirus infection. That can be useful for public health surveillance, but it does not offer much insight about where the virus is currently spreading. Another issue is that many antibody tests have been shown to have high rates of inaccuracy, she said.

“As an epidemiologist, this level of messiness in the data makes your job so much more difficult, and it misleads the public about what’s really happening,” Yasmin said. “We’ve been talking about the capacity for testing increasing over the last few weeks, but now we might have to tell the public that might not be true.”

And dumping antibody testing data into the pool of viral testing data brings the overall positivity rate down, reflecting “a deceptive misuse of the data,” analysts for the COVID Tracking Project wrote last week. That’s because the numbers may make it seem like the state has grown its testing capacity even if a state’s viral testing capacity remains flat.

“This is crucial as we need increased capacity for viral testing before reopening to identify active infections even in the pre-symptomatic or asymptomatic stages,” the analysts wrote.

To be fair, Texas is not the only state to have done this. Florida and Georgia have been accused of manipulating their data in other ways as well. The bottom line here is that we’ll never get our arms around this pandemic if we don’t have good data. The data is messy enough as it is, we surely don’t need to be making it worse.

The NBA inches closer to a return

We’ll know more soon.

NBA teams are expecting the league office will issue guidelines around June 1 that will allow franchises to start recalling players who’ve left their markets as a first step toward a formal ramp-up for the season’s resumption, sources told ESPN.

Teams expect a similar timeline from the league on when they’ll be allowed to expand individual workouts already underway with in-market players to include more team personnel, sources said.

The NBA suspended the 2019-20 season on March 11 because of the coronavirus pandemic. The league is discussing a step-by-step plan for a resumption of the season that includes an initial two-week recall of players into team marketplaces for a period of quarantine, one to two weeks of individual workouts at team facilities, and a two- to three-week formal training camp, sources told ESPN.

Barring an unforeseen turn of events, many NBA owners, executives and National Basketball Players Association elders believe commissioner Adam Silver will green-light the return to play in June — with games expected to resume sometime before the end of July, sources said.

The NBA is still considering a two-site format for the return of the season, including Orlando’s Walt Disney World and Las Vegas, sources said.

See here for some background. That story was from Thursday. As of Saturday, things had progressed a bit further.

The NBA is going to Disneyworld. Or at least, it hopes to save its season and declare a champion in a single-site scenario outside of Orlando.

In the most public sign yet that the NBA is hopeful that it can resume its 2019-20 season amid the coronavirus pandemic, NBA spokesman Mike Bass said the league has begun exploratory talks with the Walt Disney Company about using its venue in central Florida to hold practices and games without fans present.

“The NBA, in conjunction with the National Basketball Players Association, is engaged in exploratory conversations with The Walt Disney Company about restarting the 2019-20 NBA season in late July at Disney’s ESPN Wide World of Sports Complex in Florida as a single site for an NBA campus for games, practices and housing,” Bass said in a statement.

“Our priority continues to be the health and safety of all involved, and we are working with public health experts and government officials on a comprehensive set of guidelines to ensure that appropriate medical protocols and protections are in place.”

The MLS is also looking at Orlando, at the ESPN Wide World of Sports facility. I don’t know how much that might complicate the logistics, but one presumes they will figure it out. The Chron had reported earlier in the week that the Toyota Center in Houston had been in the discussion as a potential venue, but that is apparently no longer in play. It’s possible the NBA will go straight into a playoff system, or it may play some more regular season games but eliminate the teams with the worst records to limit the number of people required to be there. I guess we’ll find out soon enough.

As you know, Major League Baseball has also been working on a season-starting proposal, though in typical fashion the owners are making up claims about financial losses in an attempt to back out of the previous agreement with the players and squeeze them on salaries. I suspect this will get resolved at some point, in which case we may suddenly have a lot of sports coming back to us. Assuming, of course, that there isn’t a big post-reopening spike in infections or other insurmountable obstacle. But if things go as the optimists hope, we could go from no sports to a fairly full slate in a hurry. We’ll see.

Hidalgo extends stay-at-home order

Well, sort of.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Thursday issued new guidelines urging residents to stay home when possible, even as Gov. Greg Abbott reopens most businesses.

The extended Stay Home, Work Safe order is in effect through June 10, though it bears little resemblance to the original directive in March that closed most businesses and ordered residents to remain at home.

San Antonio and Bexar County extended their own stay-home guidelines through June 4.

Abbott’s orders reopening Texas businesses override any rules from local officials. The governor also barred cities and counties from enforcing facemask requirements, as Hidalgo had attempted.

The county judge said her order reminds residents to keep practicing social distancing.

“I don’t want the community to get the message that we’re done,” Hidalgo said. “We may well be in the eye of the hurricane. There’s still no cure, no vaccine.”

[…]

Hidalgo on Thursday also unveiled a series of guidelines meant to protect employees returning to their jobs and help businesses create safe workplaces. They include staggering shifts to avoid congregating workers, taking employees’ temperatures, providing face coverings and never requiring anyone to come to work if they feel ill.

Retail firms should clean and disinfect shops before reopening and give employees a break every hour so they may wash their hands or take other safety precautions, she said. Employers also should keep attendance of all workers on-site each day, so contract tracing can easily occur in the event of an outbreak.

State Rep. Armando Walle, whom Hidalgo appointed the county’s coronavirus recovery czar, said it is hoped the worker guidelines will prevent outbreaks like those discovered at meatpacking plants in the Texas Panhandle.

You can see the amended order here. It heavily references the most recent gubernatorial executive order, and encourages everyone to continue social distancing. The fact of the matter is that while the daily new case average is holding steady, that means it isn’t decreasing. We’re not getting any closer to having no new cases. That means that another increase in the new case rate could still happen, because the disease hasn’t gone away. If we don’t want a spike to happen and we do want to reopen, we have to keep being careful and keep exercising caution. We’re not past this, we’re choosing to live with it. It’s up to us to make sure we don’t regret that choice.

Are we headed towards a coronavirus spike?

One set of researchers thinks we may be.

Houston is one of several cities in the South that could see spikes in COVID-19 cases over the next four weeks as restrictions are eased, according to new research that uses cellphone data to track how well people are social distancing.

The updated projection, from PolicyLab at Children’s Hospital of Philadelphia, found that traffic to non-essential businesses has jumped especially in Texas and Florida, which have moved aggressively to reopen.

In Harris County, the model predicts the outbreak will grow from about 200 new cases per day to more than 2,000 over the next month.

“Some areas—particularly in the south—that have moved more quickly to reopen are showing a higher risk for resurgence,” the researchers wrote in a blog post. “If people in Houston and Palm Beach, Fla., for example, aren’t being cautious with masking in indoor crowded locations and with hygiene and disinfection, local governments may need to intervene again should they lose control of the epidemic.”

[…]

The PolicyLab research is tracking 389 large counties across the country with active outbreaks. It found that projections are best in places that are relaxing restrictions selectively in areas with fewer cases and less transmission.

“Given these cautious actions by our governments, we have already seen that the predicted resurgence has not occurred in most places that are beginning to reopen—rather, daily cases are either plateauing or falling,” the researchers wrote. “But the picture our models are painting for Texas and Florida provide ample evidence to others who would choose to move too quickly. We see these concerns even as we adjust for additional testing capacity that might have inflated our forecasts.”

See here and here for more on the predictions, and here for an earlier press release about their model. As far as I can tell, their model depends on “social distancing measures, defined by travel to non-essential businesses”. They say their data comes from a variety of publicly-available sources, but that’s about as much detail as I can find. I’m not an expert in any way, so I’m in no position to critique this. Fortunately, Dr. Peter Hotez is an expert, and he shared some thoughts about this in Friday’s Chron.

I understand the importance of opening up the economy. The worry that I have is that we haven’t put in place a public health system — the testing, the contact tracing — that’s commensurate to sustain the economy.

Some models show fairly dire predictions for Houston. I’m referring to the Children’s Hospital of Philadelphia model that shows that by the summer, if we’re only at about 50% of the social distancing, we’re doing now, Harris County could see a steep surge in the number of patients coming into the hospitals and intensive care units.

It’s a model. It’s only as good as the assumptions that it’s based on, and we know the assumptions are not robust. But it gives me pause for concern that unless we have that health system in place, we could be looking at an epidemic that’s far greater than the one we’ve gone through.

Let’s say we’re opening up as as we are now. The way a surge works is, it’s not as if we’re going to see a gradual increase in cases. The models say things will look good for weeks. At first, it’s a flat curve, then it’s flat, it’s flat, and only after all that do you start seeing a steep, steep increase.

That’s what worries me. In those flat weeks we’ll get this sense of complacency, and then people are going to start going into the bars. Forget about one quarter occupancy in the bars. Poison Girl, on Westheimer, is going to be full. And so are all the other places all across Houston.

So: How do we fix that? I think it’s having a health system that’s larger and more extensive than what’s being proposed. We’re going to have to do extensive testing in the workplace so that you’d know if your colleagues have COVID-19 — especially asymptomatic COVID-19.

The number of contact tracers has to be far greater than the numbers that I’m seeing. Gov. Abbott says that Texas has around 2,000 and plans to hire 2,000 more. But consider that Gov. Cuomo in New York State is hiring 17,000 contact tracers. A state that’s quite a bit smaller is hiring a much larger number.

We also still don’t have that syndromic-monitoring system in place that you and I have talked about — an app that would allow Houstonians to report how they’re feeling, or that would track temperatures, like the Kinsa electronic thermometer app.

We should be bringing in our best engineering minds out of the oil and gas industry, out of NASA, out of the Texas Medical Center to put in place an app-based system — maybe make a hybrid between the kinds of things being put out there by Apple or Google or Kinsa, or the kinds of things they’re doing in Australia. We can design one that works for our culture, works for our system. But we’re not assembling the engineers to put that in place.

We don’t even have an epidemiological model for the city of Houston. There’s one for Dallas, put out by UT Southwestern and the University of Texas. Austin’s put out one. But I haven’t seen one for Houston.

So I’m worried that if people are going to start piling into bars and restaurants, and we don’t see the numbers going up, within a couple of weeks from now, it’ll be business as usual. Everybody will feel good, will be saying, “Hey, I’m not seeing the cases go up.”

And it’s going to really accelerate starting in the fall. This is not only true of Houston; it’s true of cities across the U.S. It would happen right before the 2020 election, so I worry about a lot of instability and how we mitigate that.

So there you have it. Keep it up with the social distancing and staying at home, avoid crowds, and wear a mask. We all have a role to play.

The 2020 Kinder Houston Area Survey

We were a pretty optimistic bunch earlier this year, in the Before Times.

Houstonians are expressing a deeper sense of mutual trust, compassion, and solidarity than ever before, with many also calling for policies that will reduce inequalities and improve public schools, according to a recent Rice survey. Houston Area Survey.

“We’re a different population. We see the world differently than we did five to 10 years ago,” said Stephen Klineberg, founding director of the Rice’s Kinder Institute for Urban Research and an emeritus professor of sociology.

The Kinder Area Survey, which was conducted between Jan. 28 and March 12, got responses from 1,001 Harris County residents, and results were released Monday during the Kinder Institute’s annual luncheon which was held virtually for the first time because of the COVID-19 pandemic.

Klineberg, who has conducted the survey for the past 39 years, said this year’s survey has been one of the most remarkable — coming just days before the novel coronavirus jolted the Houston community and the world, and showing that Houston residents were hopeful for their city, but ready for a change.

[…]

More Houstonians than ever are also calling for government programs to address inequality, according to the survey. Sixty-one percent said government should take action to reduce income differences, 72 percent favored federal health insurance for all Americans, and 79 percent said the government should ensure residents who want to work can find employment. The numbers have increased from a decade ago, when they stood at 45 percent on income differences, 60 percent on healthcare for all, and 64 percent on employment.

Klineberg said the responses indicated the growing inequalities when it comes to health care and economic opportunities, which disproportionately affect the city’s black and Hispanic communities.

Houstonians are also more trusting of those around them, less fearful of crime and have shifted their views on what constitutes a crime. Seventy percent rejected the suggestion that possession of small amounts of marijuana should be treated as a crime — up from 44 percent in 2003 and 34 percent in 1995.

You can see the 2020 Kinder Houston Area Survey data here. I have to wonder what the data would have looked like if the survey had been conducted a month or so later, but that’s not important now. This survey is a treasure, and even if the timing was a bit weird this year it’s still a wealth of knowledge about our region. We’re so lucky this has been a thing for so long. Check it out.

Another profile of Judge Hidalgo

It’s good, and she deserves the attention she’s getting, but there’s something about this that bugs me a little, and I’m trying to put my finger on it.

Judge Lina Hidalgo

On March 1, before Harris County reported its first confirmed case of the coronavirus but as the disease was already infiltrating America’s biggest cities, Harris County Judge Lina Hidalgo made a call to ground zero.

It was Dow Constantine, her counterpart in Washington state’s King County, who picked up. At the time, he was responding to what was believed to be the first coronavirus death in the United States.

Hidalgo believed Texas had the benefit of precious time, and she wanted Constantine’s advice to make sure she didn’t squander it. What did he wish he had known two weeks ago? How could Washington have been more prepared?

“I sat down with my team and said, ‘Guys, this is coming.’ It’s a bit like a hurricane in that we see it coming, but with this one we had more time,” Hidalgo said in an interview with The Texas Tribune. “There was no excuse to be caught flat-footed.” (Constantine told the Tribune that Hidalgo was the only county official who took the initiative to reach out for advice in the early days of the crisis.)

Harris County, the state’s largest, leads Texas in coronavirus cases and deaths, but the area has largely avoided the fates of the hardest-hit regions like Washington state, New York and Louisiana, where a surge of patients overwhelmed hospital systems. While the daily number of new cases reported in Texas continues to climb, the Houston area’s numbers have plateaued at a number far below their peak last month. The result is that Hidalgo, a first-term political figure, has been thrust into the spotlight.

Hidalgo, who took office in the aftermath of Hurricane Harvey, came into the job knowing she would have to prepare for disasters. “This is a huge county, and when you have landmass the size of Rhode Island and around 5 million people, things are bound to happen,” she said.

What she was not prepared for was the acrid backlash that would follow.

It goes from there, and it’s a good recap of what has happened so far and who (Republicans) has been vocally (and often insultingly) critical of Hidalgo, along with some biography that we should be reasonably familiar with by now. Like I said, there’s something about this that nags at me, and I have a hard time pinning it down. Part of me wishes that the main loudmouth critics in this story, like State Sen. Paul Bettencourt, would be made to answer just exactly what they would have done in her position. That can be satisfying to consider, but in reality they’d just come up with their own alternate history where everything they did turned out even better, and that accomplishes nothing. We can run a gazillion simulations of the pandemic based on whatever conditions we want to apply, but we only get to live it once, and we can never say for sure what might have been.

Perhaps another way to do this kind of story is to ignore the political critics and focus instead on the people who are front and center at dealing with the pandemic and its effects, and get their view on how various decisions and policies have helped or hindered them. The problem there is that people often don’t know or can’t isolate a particular action taken by one branch of government, and so what you get is a mix of their own interpretations and competing factors. How exactly do you distinguish between the feds, the state, and the locals have done if you’re a critical care doctor or nurse, or a grocery story employee? So I don’t know what that accomplishes, either.

So I don’t know that there’s a better way to tell this story than what we have here, which perhaps frustrates a close observer like myself but is more useful to someone who doesn’t spend as much time on this kind of minutia. I at least can always talk to my fellow nerds and get the unreported gossip, which is as much what I want as anything else. What do you want from stories like this?

Coronavirus and the State Supreme Court

Just a reminder, nearly half of the State Supreme Court is up for election this November. You know, in case you had opinions about their recent opinions.

Typically not top of mind for voters, the nine Republican justices of the Texas Supreme Court have come under the spotlight during the coronavirus pandemic with a slate of high-profile and controversy-generating moves.

Actions on bailevictions, debt collections, vote-by-mail and a Dallas salon owner named Shelley Luther have foregrounded the court in a year when four incumbent justices face reelection — making it easier, Democratic challengers say, to make the case against them.

Last week, the high court lifted its coronavirus ban on evictions and debt collections, put in place in March as the economy shut down and hundreds of thousands were added to the unemployment rolls. And the justices temporarily put on hold a lower court ruling that expanded vote-by-mail access during the pandemic. Both decisions have infuriated some voters and energized the Democratic Party.

This month, the court ordered the release of Luther, who was jailed for contempt of court after refusing to shutter her salon under coronavirus orders; earlier this spring, it sided with state officials in limiting how many inmates could be released from county jails, which have become hotspots for disease.

Democrats, who have not won a seat on the state’s highest civil court in more than two decades, have reclassified the typically sleepy races as a “top-tier priority,” a designation party officials said comes with digital ad spending. And some candidates have already begun to speak out publicly against high court decisions they say disenfranchise voters and risk their safety.

“I think people’s eyes are opening up,” said 3rd Court of Appeals Justice Gisela Triana, one of the four women running for Supreme Court on the Democratic ticket this year. “What has been the sleepy branch of government … has woken up.”

There’s more and you should read the rest. For obvious reasons, these races are largely going to be determined by the Presidential race – if Joe Biden can run even with or ahead of Donald Trump, one or more of the Democratic candidates can break through. It surely wouldn’t hurt for their to be some money spent on these races, in part just to make sure voters are aware of them and in part to highlight some of the decisions that are not exactly in line with public preferences, but there’s only so much the individual candidates can do about that. In case you’re wondering, I have one Q&A from a Democratic candidate for Supreme Court from the primaries, from Judge Amy Clark Meachum.

On a more sobering note:

Justice Debra Lehrmann

One day after presiding over a hearing on the state’s mail-in ballot controversy via videoconference, Texas Supreme Court Justice Debra Lehrmann says she and her husband have tested positive for COVID-19.

“We began to exhibit symptoms last week, despite diligently complying with stay-at-home rules,” Lehrmann wrote on Twitter on Thursday. “Thankfully, this has not interfered with #SCOTX work, as the Court is working remotely. We are grateful for your thoughts & prayers.”

Her diagnosis marks the first known coronavirus case of a top state official. The justice did not immediately respond to requests for an interview but told the Dallas Morning News that she and her husband Greg had fevers and body aches early last week before getting tested at an Austin drive-thru testing center.

She also told The News that their Houston lawyer son, Jonathan, his wife Sarah and their six-month-old son Jack, who had been visiting them every other week, stopped and are believed to also be infected.

Her tweet is here. I wish Justice Lehrmann and her husband all the best for a swift recovery. (She is not on the 2020 ballot, in case you were wondering.)

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.

And now a few words from our city transportation planner

Didn’t know we had one, did you? Well, we do, his name is David Fields, and he had a few things to say to Chron reporter Dug Begley in a recent Q&A:

As you look at upcoming plans and projects around the city, how is COVID-19 affecting them? Are there tangible things that are changing or are the changes more conceptual, in the sense we might not know what demand is going to look like 12-18-24 months out any longer?

Streets are funny things. Some people see them as having just two purposes: Movement and storage. That might be cars, bikes, transit, or walking, but for all of them, we often limit in our minds what this very physical and expensive infrastructure can do for us.

COVID-19 is reminding us that streets don’t need to do the same job, 24 hours per day, seven days per week, 365 days per year. If we limit streets to these two jobs, we’re not getting the full value out of our investment in our city. While our streets move people at some times of day, those same roads can be used as play spaces at other times. Businesses reminded us that space used for parking sometimes can be used for restaurant pick-up zones at other times.

Learning this lesson is a huge benefit for our city, because the more ways we can use our roads, the more value we provide to our community.

From a planning perspective, has the new coronavirus bought you a little time to sort things out? The challenge here historically has been projects rarely have kept up with traffic and often induced demand makes the shelf life of their benefits much shorter. So, is there a silver lining to a pause?

COVID-19 is a teaching moment. It’s time to take a hard look about what we thought could never change. One of those big topics is believing that everyone who commutes must commute five days every week, somewhere between 6 a.m. and 9 a.m. and 4 p.m. and 7 p.m. People are working from home more than ever, which means fewer people traveling to work each day. Businesses are learning to be flexible and technology is helping.

The takeaway is that traffic is not set in stone. If 10 percent of our workforce can work from home in the future, traffic becomes a very different conversation. The key for Houston and for our work is to find ways to encourage this behavior we’re learning now, so it’s a choice by our residents and businesses that ends up helping everyone. It’s also resulting in more people walking around close to home more on those days that they stay home to work.

The silver lining is the chance to remember that we control our transportation choices and nothing is set in stone.

There’s more, so go read it. The point of interest for me is the observation that if work from home becomes more widely adopted, it really changes traffic patterns, and potentially reduces the future need for road construction. This has always been a consideration for transportation wonks, but we’ve never seen it in action like this. I am certain that more people are going to resume commuting to work in the coming weeks – here we are hand-waving away the potential for further lockdowns – but I’m also certain that some number of people who have been working from home as a result of COVID-19 will continue to work from home going forward because they like it and it suits them. Who knows what our streets and highways will look like after that?

Again, this is not a revelation to transportation planners and their ilk. A steady increase in telework has always been factored into their calculations. The point is that this is likely to be a step increase in those numbers, which changes the shape of the curves in their models. Some plans are already in motion – the 59/610 interchange rebuild, for example – while others are not yet finalized – the ginormous I-45 project – but in either case what we once thought was true now may not be. What are we going to do about that?

On a somewhat random side note, another factor that transportation nerds have been eyeing has been the rise of autonomous vehicles. Autonomous vehicles that are shared by multiple riders are one option touted as a possible future mode for mass transit. I’ve been skeptical of stuff like this for a variety of reasons, but it’s not hard to imagine such a thing having more appeal in the future, at least as an alternative to buses, and assuming there’s a way to separate the passengers from each other. Also assuming that the ridesharing companies that would surely be among those providing this service survive the current economic environment, which, who knows. You’d think now would be the time for someone to be touting the benefits of this concept, but I at least haven’t seen such chatter.

Federal court issues order to allow voting by mail

Here we go again.

A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.

Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.

Biery’s ruling covers Texas voters “who seek to vote by mail to avoid transmission of the virus.”

In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”

“Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions,” Biery wrote.

“There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill,” he said.

[…]

The Democrats argued that the age limitation violates the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed. Biery also found the plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.

“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said.

In ruling against the state, Biery cast aside arguments made by Paxton’s office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.

During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.

The attorney general’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.

“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.

In his ruling, Biery said the state had cited “little or no evidence” of widespread fraud in states where voting by mail is more widely used.

“The Court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience,” Biery said. “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”

See here, here, and here for the background. A copy of the order is here, and I recommend you read it, because the judge is clearly not having it with the state’s arguments. Let me just say, the hypocrisy of the state’s case, in particular their pathetic wails of “voter fraud!”, is truly rich. I for one am old enough to remember when Texas passed its heavily restrictive and burdensome voter ID law, in which voting by mail – which at the time was primarily the purview of Republicans – was specifically exempted, a fact noted by the various plaintiffs in the lengthy litigation against that odious law. The Republican argument at the time was that voter ID was needed to combat “voter fraud”, yet those same Republicans saw no need to include any similar requirement for those who voted by mail, presumably because they had no concerns about “fraud” from those voters. And now they want to claim voting by mail is a threat to election integrity? I’m sorry, but that’s all kinds of bullshit and it deserves to be labeled as such.

Now, none of this means that Paxton’s handmaidens at the Fifth Circuit will care about that. As nice as this ruling is, I figure we have a day, maybe two, before that cesspool rubber stamps an emergency petition from the AG to put this ruling on hold. I will of course be delighted to be proven wrong, but I know better than to invest any faith in the Fifth Circuit. So enjoy this for now, but don’t go counting any chickens just yet. The Chron has more.

UPDATE: Rick Hasen provides more objective reasons why the Fifth Circuit will likely put a hold on this order.

We still don’t know what the upcoming school year will look like

Lots of possibilities, no clear answer yet.

Houston ISD officials are planning for the possibility that some — if not all — students will continue to take virtual classes at home to start the upcoming school year, Interim Superintendent Grenita Lathan said Friday.

Leaders of the state’s largest school district are preparing multiple contingency plans for August, many of which involve a continuation of online learning, amid uncertainty about their ability to safely re-open campuses as the novel coronavirus pandemic lingers.

District administrators remain weeks away from finalizing key decisions about the upcoming school year, but Lathan said during a wide-ranging press conference that she hopes to announce within the next month whether some form of in-person classes can resume by August.

Under one potential plan floated Friday by Lathan, some or all of the district’s 209,000 students would spend part of the school week on campus and the remainder of the week in online classes — a method aimed at increasing social distancing in crowded buildings. Numerous education leaders across the state and country have suggested similar structure in recent weeks.

“We’re also looking at some students being virtually online the entire first semester or, possibly, the entire school year,” Lathan said.

Superintendents across Texas are grappling with how to structure their school calendars and daily schedules to best accommodate students while balancing public health concerns. Although children suffer medical complications from COVID-19 at far lower rates than adults, public health officials remain concerned about their ability to spread the virus to school staff and family members at home.

[…]

Beyond this summer, superintendents and school boards are evaluating major changes for the 2020-21 school year given the ongoing threat of COVID-19 and the need to support students falling behind during the current shutdown.

In HISD, administrators are starting to discuss with staff and families whether to start the school year earlier and build in longer breaks that could be used as make-up days if in-person classes are canceled due to COVID-19. Texas Education Agency officials are pushing the benefits of this model across the state, though decisions about academic calendars rest with local school boards.

HISD officials also are evaluating whether to extend the school day by 30 minutes, giving teachers and staff more time to help students recover from the disruptions. Lathan said such a move would come with additional pay for employees and could involve structural changes to campus operations.

“We have to look at the emotional toll it’s taken on our teachers to prepare and keep students engaged,” Lathan said.

See here, here, and here for some background. There are just too many variables to say with any confidence what may happen, so just try to keep up with the possibilities so you can make plans. We’ll be fine no matter what – both of us can work from home as needed – but a lot of people will have it much harder. None of this is easy. The best we can hope for is a treatment regimen for COVID-19, and eventually a vaccine. If we’re really lucky, we’ll have a better President next year and can maybe finally get a halfway decent federal response to this mess. In the meantime, this is where we are.

More reopening

Onward we go, whether wise or not.

Gov. Greg Abbott on Monday announced his next wave of reopenings designed to restart the Texas economy during the coronavirus pandemic, saying child care facilities can reopen immediately, bars can open Friday with limited capacity and sporting events can return without fans at the end of the month.

Abbott also said he would permit restaurants to operate at 50% capacity starting Friday, up from 25% that’s allowed now.

At the same time, Abbott exempted two hotspot regions — Amarillo and El Paso — from his latest decisions, saying they would need to wait a week — until May 29 — while the state’s surge response teams work to contain outbreaks in each area.

Abbott’s news conference came 18 days after he began a phased reopening of the state, starting with letting restaurants, stores, movie theaters and malls open up at 25% capacity. He then allowed barbershops and salons to reopen May 8 under certain restrictions. Monday was the first day gyms were allowed to open up, also under restrictions.

Previously, child care was only available to workers deemed essential by the state. Abbott’s announcement Monday allows child care centers to reopen to help all workers returning to their jobs.

In addition to bars, Abbott is letting a host of other establishments reopen Friday, including bowling alleys, bingo halls, skating rinks, rodeos, zoos and aquariums. In the lead-up to Monday, however, the fate of bars had drawn the most attention, especially after Abbott began allowing restaurants to reopen May 1. All the businesses opening Friday will only be allowed to operate at 25% capacity.

For bars that reopen Friday, the state is recommending that customers remain seated at tables of no more than six people, among other restrictions. Dancing is discouraged.

Insert Baptist joke here. On the one hand, the daily case numbers keep rising, with no clear indication that we were approaching a peak even before we started loosening things up, and without achieving the Abbott-stated benchmark of 30,000 tests per day. It’s not that we’re reopening per se, it’s that Abbott himself laid out conditions and requirements and penalties for people who failed to comply, then dropped it all like a hot rock the minute some grifter hairstylist in Dallas threw a hissy fit. It just doesn’t inspire confidence that Abbott has any idea what he’s doing or any plan to retreat if things start to get worse. That said, the rate of growth in the state is fairly slow, hospital capacity is in good shape – both of these are no doubt helped by the solid results in Harris County, for which Abbott owes Lina Hidalgo a big thank you – and to his credit Abbott paid attention to the places that needed and asked to be excluded from this round of reopenings.

The next round of reopenings will come May 31, when Abbott allow permit summer youth camps to reopen — as well as let certain professional sports to resume without spectators. The sports include basketball, baseball, car racing, football, golf, softball and tennis. Leagues will first have to apply to — and receive approval from — the Texas Department of State Health Services.

[…]

Notably, Monday marked the first time that Abbott singled out specific regions as not ready to take part in the latest reopenings.

Amarillo has been a hotspot due to outbreaks at its meatpacking plants, and earlier this month, the state dispatched one of its Surge Response Teams to the city to try to get things under control. Of the 1,801 new cases that Texas reported Saturday, over 700 were linked to the Amarillo meatpacking plants, according to Abbott’s office.

In El Paso, the situation has deteriorated enough that the county judge, Ricardo Samaniego, and other local officials asked Abbott last week to exempt the county from the next reopenings until the county sees a two-week downward trend in the number of positive cases or positive test rate. Abbott said Monday that El Paso’s hospital capacity is “too close for comfort at this particular time.”

The one-week delay “will give those communities and our surge team response the time needed to slow the spread and maintain hospital capacity,” Abbott said. “It will ensure those communities safely move into phase 2.”

The counties subject to the delay are El Paso, Randall, Potter, Moore and Deaf Smith. The latter four are all in the Amarillo region.

I have my doubts that the Abbott Strike Force will make any difference in these places, unless they find the will to shut down the meatpacking plants that have been such hotspots, but at least he’s not ignoring reality, unlike some other state officials I could name. He’s still wishy-washy, and in the end if this works out reasonably well I’ll believe it’s because he was more lucky than smart, but it could be worse. In this state, that’s often the best you can hope for. The Chron, the Press, the Current, the Rivard Report, and the Dallas Observer have more.

We don’t know enough about what’s happening at nursing homes

We’ve talked before about two of the main coronavirus hotspot types in Texas, prisons and meat processing plants. Now we’re going to talk about that third type, nursing homes.

As the death toll grows at Texas nursing homes, so has the number of requests for information kept by state health officials that would reveal which long-term care facilities have suffered coronavirus outbreaks during the worst pandemic in generations.

But the Texas Health and Human Services Commission, which regulates nursing homes and assisted living facilities, is attempting to keep its records secret, despite calls for more transparency from open-government advocates, some Texas lawmakers and family members worried about vulnerable residents.

“The public is being left in the dark, and we’re losing control of our ability to oversee the operations of our government,” said Joe Larsen, a lawyer with the Freedom of Information Foundation of Texas, which published an open letter last month urging the health commission to release its records on nursing home infections.

In a May 4 letter to the Texas Attorney General’s Office, Carey Smith, a lawyer representing the health commission, said the agency has received more than two dozen public records requests for nursing home data about coronavirus infections, but that federal and state laws prohibit the release of the information because it might identify infected residents and violate their privacy.

However, Texas legislators who wrote one of the laws cited by Smith said it doesn’t prohibit officials from releasing statistical information about COVID-19 in nursing homes.

“The statute was not intended to create a blanket protection for all health-related information,” said former Sen. Kirk Watson, D-Austin, who authored the bill in the Texas Senate last year.

The sponsor of the bill in the Texas House, Rep. Giovanni Capriglione, R-Southlake, said releasing statistical data from nursing homes could benefit both consumers and government authorities. And, like Watson, he said the bill they passed doesn’t prevent state officials from releasing that information.

“So long as you can’t get personal identifying information I don’t see why the current rules and statutes that we have don’t already allow that information to be released,” Capriglione said.

[…]

After facing criticism from families and advocates of nursing home residents, Texas began releasing statewide statistics that show the total number of coronavirus deaths at nursing homes, which provide round-the-clock care, and assisted living facilities, which are less intensive.

As of [May 1], 478 COVID-19 deaths — nearly half of the 1,042 reported in Texas — were at nursing homes or assisted living centers, records show.

But state health officials haven’t disclosed infection rates for each location, which has stymied families trying to protect their relatives. The lack of information also leaves hospice workers and other contract caregivers in the dark.

That story was from early May. Since then, we have gotten more numbers from the state.

More than 3,000 Texas nursing home residents have tested positive for the new coronavirus, as well as nearly 400 assisted living facility residents, according to data released Friday by the Texas Department of State Health Services.

Among the reported 311 nursing homes with confirmed cases, 3,011 residents have tested positive and 490 have died. Another 494 residents have recovered, according to the data. At 112 assisted living facilities in Texas with at least one confirmed coronavirus case, 382 residents have tested positive for the virus, and 95 have died.

Statewide, 1,272 people have died, but it was unclear late Friday if all of the long-term care facility patients’ deaths were included in that larger figure.

The state had previously released only the number of nursing homes with confirmed cases and fatalities, not the number of people who have tested positive.

The state is still not releasing the names of nursing homes with COVID-19 cases. Many families remain in the dark about whether their loved ones in nursing homes are at risk of exposure.

There are a lot of reasons why we need more and better reporting of this data. For one, just so that the people who have family and friends that live or work at these places can know what’s going on with them. For two, to better identify the places that are not up to standard on health and safety. For three, so we can learn from the places that are doing well as well as the places that are doing poorly, so the overall level of safety and care can be improved. This is not hard to understand, and at least it looks like there’s bipartisan agreement that the existing laws need to be upgraded for the future. Put that on the ever-lengthening to do list for the 2021 Lege.

First federal vote by mail lawsuit hearing

One down, two to go.

U.S. District Judge Fred Biery heard arguments Friday in a federal lawsuit seeking to give all voters the option to vote by mail due to fears of catching or spreading the coronavirus.

[…]

During Friday’s federal court hearing, Texas Democratic Party General Counsel Chad Dunn argued that concerns about coronavirus should not disqualify someone from exercising their right to vote. Doing so discriminates against classes of voters, such as voters under the age of 65.

Requiring people under the age of 65 to vote in person creates a “survival of the fittest election,” Dunn said via videoconference, and an impossible choice between protecting their health and exercising their right to vote. In the meantime, voters will be left in a “twilight zone,” unclear if they can apply for a mail-in ballot or not, Dunn said.

The Texas Democratic Party named Gov. Greg Abbott, Secretary of State Ruth Hughs, Travis County Clerk Dana DeBeauvoir, and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants in the suit. Other plaintiffs include the League of United Latin American Citizens (LULAC) and other individual voters Joseph Daniel Cascino, Shandra Marie Sansing, and Brenda Li Garcia.

They are seeking a preliminary injunction for the finding that the current election conditions violate tenets of the First, 14th and 26th amendments as well as some provisions of the Voting Rights Act. The suit also requests that the defendants stop issuing threats of criminal or civil sanctions for helping voters vote by mail.

Biery said he could not estimate when he would issue a ruling in the case. “All I can tell you is it will be forthcoming,” he said. “No guarantee as to when.”

Robert Green, an attorney representing Bexar County and Callanen, said the county “is not here to take a position” on the various legal arguments presented by the Democratic Party or by the State. However, Green stated that counties have no mechanism or authority to investigate what “disability” a voter cites in an application for a mail-in ballot.

“A voter who believes that they are eligible … is permitted to indicate that solely by checking a box,” he said. “If a court were to order or if the Secretary of State were to issue guidance that local officials should reject certain disability applications if they’re premised on some COVID-related fear or lack of immunity, it’s not clear at all that local officials would be able to do that because the application does not allow voters” to explain their disability, he said.

Lack of immunity to COVID-19 is a physical condition, Green said. “A voter lacking that immunity is endangered by in-person voting. I think that that’s an inescapable reality.”

See here and here for the background. As the story notes, not long after this hearing came the State Supreme Court ruling that for now at least halted efforts to encourage people to apply for mail ballots. The people who have already asked for them and cited “disability” as the reason will presumably still receive them – as noted, there’s neither a process nor the authorization to check on that. The other two federal lawsuits are not on the calendar yet as far as I know. I have no idea if we’re going to have a clear ruling on this in time for the primary runoff. Of course, the question of what comes after that is even bigger, so this story is just getting underway. Stay tuned.

When is a strip club not a strip club?

When it’s a restaurant, with no strippers. What, did you think that was a trick question?

A week after a temporary court order allowed a Houston strip club to resume operations, a federal judge has ruled that the club’s owner must operate as just a restaurant – no dancers allowed.

Houston police raided Onyx Club just after midnight on May 1, insisting the business did not qualify to reopen under Gov. Greg Abbott’s guidelines for phased reopenings. Officers threatened to arrest owner Eric Langan, who defied orders until 4 a.m., when he shut down the club.

Langan’s business, Trumps Inc., filed a federal lawsuit calling the club a restaurant, and alleging that the police raid and closure violated his civil rights.

U.S. District Judge Vanessa D. Gilmore granted Langan and Onyx Club a temporary injunction on May 1 that let the club resume operations, but said at a Friday hearing that the business may not offer any services that go beyond those specifically allowed in the new guidance.

“Sexually oriented businesses may only offer restaurant services and are prohibited from providing any other service,” Gilmore wrote in the ruling.

Onyx Club is allowed to reopen as a restaurant so long as it only serves food, but it’s presently defined as a “sexually oriented business,” according to the ruling.

“Because (Trumps Inc.) operates a sexually oriented business, they are prohibited from offering both restaurant services and entertainers, even if the entertainers are fully clothed,” Gilmore wrote.

See here for the background. That was from last Friday, and while the club owner says their business is doing well now, who knows how long that may last under these conditions. Not to put too fine a point on it, but they’re now competing with a bunch of places whose primary business has always been food service. We’ll see how Onyx does without the loss of their main amenity.

One more thing, since this came up in that post:

In a case filed by a Houston strip club that wanted to reopen as a restaurant, U.S. District Judge Vanessa Gilmore of Houston said Abbott’s changing series of orders “has caused a state of confusion that rests clearly on the Governor’s doorstep.”

Gilmore ruled that Onyx Houston could open only “without additional entertainment” — in other words, no dancers, “even if the entertainers are fully clothed.”

But she went on to suggest some flaws in the state’s executive orders.

“As previously stated, the Plaintiff has failed to add the State as a party to this action to address the First Amendment and equal protection issues raised by the Governor’s orders. Nonetheless, the Court feels compelled to point out the constitutional problems raised by the Governor’s various orders.

“The fact that the governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort,” the judge wrote, “as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied to them.”

The story points out that the state of Texas – not just Greg Abbott, but also Ken Paxton in his role as lapdog/enforcer – has been quite inconsistent in its directives to businesses and cities, doing a complete reversal on the matter of enforcement after Shelley Luther started showboating. This pandemic has been very difficult for all levels of government to manage. It’s something we hadn’t seen before, and the various stay-at-home orders do raise a lot of questions about executive authority and competing interests and so forth, which the courts will be sorting out, in some cases for years to come. Greg Abbott and his craven response to the first sign of pushback from the seething masses that make up his Republican Party didn’t make any of this any easier.