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Dana DeBeauvoir

Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

Attorney General Ken Paxton informed county judges and election officials Friday that if they advise voters who normally aren’t eligible to apply for mail-in ballots due to a fear of contracting COVID-19, they could be subject to criminal sanctions.

His warning came in a letter to local officials Friday and two weeks after a state district judge had issued a temporary injunction allowing eligible voters who are fearful of contracting COVID-19 by voting in-person to cast their ballots by mail.

In order to qualify to vote by mail under state law, Texans must submit an application and be either 65 years or older, disabled, out of the county on election day and during early voting, or be eligible to vote but confined in jail.

During a hearing last month, the Texas Democratic Party argued that Texans following stay-at-home orders and exercising social distancing fall under the Texas Elections Code’s definition of a disability, which is “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”

In Friday’s letter, Paxton said that while a person ill with COVID-19 would qualify under the state’s definition of “a sickness,” a fear of contracting the virus is simply “a normal emotional reaction to the current pandemic and does not, by itself, amount to a ‘sickness’” that would meet the eligibility requirements to vote-by-mail.

Therefore, officials and “third parties” should not advise voters to apply for mail-in ballots for those “who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19,” the letter reads.

Chad Dunn, the general counsel for the Texas Democratic Party, which is one of the plaintiffs in the lawsuit, said in a statement Friday that the court has already overruled Paxton’s arguments.

“Paxton can keep on stating his opinion over and over again for as long as he wants but the bottom line is he needs to get a court to agree with him,” Dunn said. “We all have opinions. In our constitutional system, what courts say is what matters.”

In his letter, Paxton also said the lawsuit “does not change or suspend these requirements” due to his appeal of the judge’s ruling.

“Accordingly, pursuant to Texas law, the District Court’s order is stayed and has no effect during the appeal,” Paxton wrote. “Moreover, even if the order were effective, it would not apply to any county clerk or election official outside of Travis County. Those officials must continue to follow Texas law, as described in this letter, concerning eligibility for voting by mail ballot.”

Dunn disagreed with that assertion, and Thomas Buser-Clancy, a senior staff attorney with the ACLU of Texas, which had also joined the lawsuit, said Paxton’s letter misinterprets the law.

“Ken Paxton’s letter — which is not binding — gets the law wrong and serves no other purpose than to attempt to intimidate voters and county officials. The simple fact is that no Texan should have to choose between their health and exercising their fundamental right to vote,” Buser-Clancy said in a statement.

See here for the background. You can see a copy of Paxton’s letter here, and a copy of the ACLU and Texas Civil Rights Project’s responses here. The Austin Chronicle adds more:

The letter, also distributed as a press release, presumably has been sent to officials in all 254 Texas counties. Asked to respond to the Attorney General’s explicit threats of “criminal sanctions” in the letter and his interpretation of state election law, Travis County Clerk Dana DeBeauvoir said, “This is [Paxton’s] opinion and he’s stated it a couple of times previously. We are waiting to hear from the courts.”

State District Court Judge Tim Sulak recently granted a temporary injunction, ruling that the risk of infection by the coronavirus that causes COVID-19 is sufficient to enable all Texas voters to apply for mail ballots for the July 14 elections (Congressional run-offs and a Senate District 14 election in Travis County, other contests elsewhere). Paxton appealed that decision to the Third Court of Appeals, and has adopted the position that while the appeal is pending, “the District Court’s order is stayed and has no effect.”

However, some election officials have said they are planning for a surge in voting by mail. Earlier this week, DeBeauvoir told the Chronicle that Travis County normally receives about two VBM applications a day for an interim election like the July run-off. “Right now they’re running at about 200 a day,” she said.

[…]

An earlier, “advisory” Paxton letter to state Rep. Stephanie Klick – issued prior to the District Court’s official ruling – made the same general argument about the disability provisions of state election law. The latest letter is addressed to County Judges as well as election officials. Travis County Judge Sarah Eckhardt told the Chronicle that Paxton’s invocation of possible “criminal sanctions” is a “threat designed to suppress voter turnout.”

Eckhardt added that Paxton’s argument that the temporary injunction is “stayed” during the Third Court appeal is simply “one lawyer’s opinion, and the higher court may have a different opinion.”

As for the reiteration of Paxton’s earlier advisory letter, DeBeauvoir said, “He wants to make certain his threat is being heard.”

I mean, I know I’m not a lawyer and all, but usually you have to ask for a court order to be stayed pending appeal. If any of that has been done, then all I can say is that it has not been reported in a form that was visible to me. If there hasn’t been a subsequent order to stay Judge Sulak’s ruling pending appeal, either from Judge Sulak himself or from the appellate court, in this case the Third Court of Appeals. For what it’s worth, the official order from Judge Sulak says at the end:

“It is further ORDERED that for this Temporary Injunction Order to be effective under the law, cash bond in the amount of $0 shall be required of the Plaintiffs and filed with the District Clerk of Travis County, Texas. The Clerk of Court shall forthwith issue a write of Temporary Injunction in conformity with the law and terms of this Order. Once effective, this Order shall remain in full force and effect until final Judgment in the trial on this matter.”

Seems pretty clear to me. As for the matter of the claim that even if there’s no stay on the order it only applies to Travis County, there’s nothing in the text of the order that looks to me (again, Not A Lawyer) like it supports that interpretation. The judge does refer to the Intervenor Plaintiffs and the fact that they represent voters “throughout the state of Texas”. I suppose this could be clarified, but the interpretation that it’s a statewide ruling seems just as reasonable to me. I know Ken Paxton is full of bluster, but this seems to me to dance close to the line of blatantly disregarding the judge’s order. Is he gonna send in the Texas Rangers to arrest Diane Trautman? Maybe the plaintiffs need to ask the judge to please remind Ken Paxton where the lines are here.

UPDATE: The Chron now has a story about this, which mostly draws from the Paxton letter and ACLU/TCRP responses.

TDP gets initial win in vote by mail lawsuit

It’s a good start, but we’ve got a long way to go.

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

[…]

During the hearing, those plaintiffs offered up two expert witnesses — a local doctor and an epidemiologist — who testified to the risks for transmitting the virus that would come with in-person voting. Meanwhile, the risks tied to mail ballots are “negligible,” said Catherine Troisi, an epidemiologist with the University of Texas Health Science Center at Houston School of Public Health.

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice” that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.

See here and here for the background; there is also a federal lawsuit over the same issues, for which I don’t know the status. The Chron adds some more detail.

State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton wrote in a letter on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, which voting rights advocates had claimed as a victory.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this when public health makes it dangerous to vote in person.”

But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess,” said Glen Maxey, the Texas Democratic Party’s primary director, who administers elections in dozens of counties, as he testified about the guidance during a court hearing on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

But Anna Mackin, an assistant attorney general, argued that the law clearly does not cover those afraid of COVID-19 and urged state District Judge Tim Sulak “not to allow this global crisis to be manipulated as a basis for rewriting a provision of the election code.”

Yes, Paxton’s “letter” does indeed seem to fly in the face of that SOS advisory. Is that a lack of communication between branches, or a real difference of opinion? Hard to say. Bear in mind, there’s nothing in state law that allows the Governor to order the cessation of abortions in the state. AG Ken Paxton interpreted the Abbott emergency order that initiated a shutdown of non-essential businesses and services to include abortion providers, which the exigent circumstances allowed. Here, however, he’s arguing that these same exigent circumstances do not allow for an interpretation of the state’s absentee ballot law that includes voting by mail for people who claim under that law that they are unable to vote in person. It’s not that these interpretations are indefensible, but the two of them together sure suggest a strictly partisan motive. (Add in the ruling that gun shops do count as “essential” for some extra zest.)

In a vacuum, I think people of good faith could reasonably differ on the interpretation of our vaguely-worded state law, and one could make a principled argument that it’s the role of the Legislature to make such a significant change in how it should be read and enforced. But Ken Paxton is not making a good faith argument, he’s simply doing what he always does, advancing his partisan interests over anything else. He certainly may win, in both venues. Let’s just be clear about what he’s doing. The TDP (a plaintiff in the case), the ACLU of Texas (an intervenor), and the Texas Signal have more.

UPDATE: More from Texas Lawyer:

The dispute—which asks whether all Texans should be able to vote by mail because of social distancing restrictions and the risk of contracting the coronavirus—was headed to a higher court. Acknowledging that, Judge Tim Sulak of the 353rd District Court ruled from the bench that he would grant a temporary injunction, and reject jurisdictional arguments by the state of Texas.
The judge will issue a written order once it’s prepared.

Sulak said that if voters didn’t get clarity on whether the Texas vote-by-mail law applied to them, they might face a choice of having to vote in person, and accept the risk of getting sick. Or they could try to apply for a mail-in ballot. However, if the government later found their mail-in ballot inappropriate, voters could face prosecution, or find that their ballot was not counted, the judge said.

Also, if Sulak didn’t grant relief, he said there was a risk of future conflicts involving candidates filing election contests to challenge the voting results.

“Some of that could lead to the unstable, unsettled, uncertain situation about: Who are our elected representatives,” Sulak said. “Especially now that we are in this disaster scenario, where we don’t have courts running as efficiently as they have previously, it could result in some very serious governance issues, very serious jurisprudential issues.”

[…]

The plaintiffs sought a temporary injunction, and eventually a permanent injunction, that would require the defendants to accept and tabulate mail-in ballots from voters who are practicing social distancing to stop the spread of the virus.

On the other hand, the state of Texas, which intervened as a defendant, argued that the court didn’t have jurisdiction. The state claimed that a voter wouldn’t qualify to vote by mail just from having a fear of contracting the coronavirus. Also, the claim wasn’t ripe, since no one knows if the contagion will still be present in July, when the primary runoff elections are scheduled.

However, during a hearing Wednesday on the application for a temporary restraining order, an infectious-disease epidemiologist who testified for the plaintiffs said that it’s highly likely that the coronavirus will continue to spread in Texas through the summer.

“Once social distancing guidelines are relaxed, in my expert opinion, it’s inevitable we will see a rise in cases,” said Cathy Troisi, a professor at the University of Texas School of Public Health in Houston.

Voters going to the polls will be at risk of infection because they’ll come into close contact with other people, and they’ll touch voting machines that many voters have touched, Troisi explained. Election workers would be at a higher risk, because they stay at polling locations all day and have contact with many more people, she added.

When asked if voting by mail carries a risk of infection, Troisi replied, ”Voting by mail does not, so yes, voting by mail would protect the public health and public safety of Texans.”

Sulak rejected the state’s jurisdictional arguments, which also included claims that the plaintiffs’ interpretation of the vote-by-mail law was significantly expanding the statute the Texas Legislature wrote.

“I respect the separation of powers. We’ve got a choice here between arguments from that perspective and arguments from something that has seminal, fundamental, individual constitutional rights: that is, free people making full choices and having full access to have choices about their government,” Sulak said.

The judge asked plaintiffs’ counsel to draft an temporary restraining order, and to submit a proposed order denying the state’s plea to the jurisdiction.

And now we wait for the appeal, and for a hearing in the federal case.

Intervening in the mail ballot expansion lawsuit

From the inbox:

The ACLU of Texas, American Civil Liberties Union, and Texas Civil Rights Project on Wednesday joined a case seeking to declare that under Texas law all registered voters qualify to request a mail-in ballot as a result of the COVID-19 public health crisis.

The lawsuit states that in order to prevent wide-scale disenfranchisement during this public health crisis, the court should declare that the Texas Election Code’s definition of “disability” in the vote-by-mail provision – one of the basis of eligibility to vote-by-mail in Texas – currently encompasses all registered voters. The suit further states that the court should order that all mail-in ballots received by eligible voters under this category due to the pandemic be accepted and tabulated.

Because of the current COVID-19 public health crisis and the need to be confined at home, all individuals cannot physically appear at a polling place on Election Day without a risk to their health. Texas has 3,997 confirmed cases as of today. The latest guidance from the Trump administration advises against gatherings of more than 10 people, and many Texas counties have ordered restaurants and bars closed.

“Public safety must be prioritized during the coronavirus pandemic,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “If we don’t address how COVID-19 will affect our access to the ballot, people will find themselves balancing their civic duty to vote and their need to stay healthy. Clarifying that all Texans may vote-by-mail during this crisis under current state law is unquestionably the most effective and immediate way to ensure we protect both public safety and voting rights. Our state leaders must act fast so we can educate the public about how they can safely exercise their right to vote.”

The civil rights organizations are asking for the court’s declaration that the vote-by-mail provision applies to all Texans in light of the pandemic to allow for public education and planning to process an increase of mail ballots.

“Texans should not be asked to choose between their physical well-being and their fundamental right to vote, when we already have an election code that can accommodate a public health emergency,” said Joaquin Gonzalez, lead attorney on the case in the Voting Rights Program at Texas Civil Rights Project. “The secretary of state has been shockingly silent when our clients have been seeking her leadership and guidance the most. I know we’re in isolation, but you can send an email.”

“States all across the country are making vote by mail available because they know it is a common-sense solution to protect democracy and people’s well-being during this public health crisis,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project, citing states such as West Virginia, Indiana, Delaware, and Virginia, among others. “In failing to issue guidance making clear that all Texans are eligible to vote by mail due to the COVID-19 outbreak, Texas is forcing a false choice between protecting public health and allowing Texans to exercise their right to vote. Vote-by-mail for all eligible voters allows for both. Texas can and should make this common-sense solution explicit.”

The plaintiffs in this filing include the League of Women Voters of Texas, MOVE Texas, League of Women Voters of Austin Area, Workers Defense Action Fund, and University of Texas student Zach Price.

A copy of the motion to intervene is available here.

See here for the background. Again, the arguments are straightforward and have been discussed before. It’s mostly a question of how the state will oppose them, and what the courts do from there. As the Chron editorial board notes, the Secretary of State could simply agree to the plaintiffs’ demands and be done with it, but I think we both know that Abbott and Paxton won’t let that happen. We’re going to need a ruling soon for this to matter for the primary runoffs. The Texas Signal has more.

UPDATE: And as soon as I finished drafting this, I got the following in my mailbox:

On Wednesday, Texas Secretary of State Ruth Hughs’s office responded to Progress Texas’ petition calling on Texas to implement universal vote-by-mail. So far, the petition has received roughly 3,000 signatures from voters across the state.

In the response, the Secretary of State’s office hinted at the possibility that Texans who are concerned for their health may meet the disability requirements currently in place to apply for a ballot by mail. However, the vague response is open to interpretation and requires clarity in the form of an official proclamation or agreed court order from Secretary of State Ruth Hughs or Governor Greg Abbott.

“Right now, no voter we know of has immunity to COVID-19, and physical polling places could risk exposure and cause injury by way of sickness,” said Ed Espinoza, executive director of Progress Texas. “We have to make our upcoming elections as safe as possible. We believe that election law provides a remedy for all voters to vote-by-mail, but we need clarity from the state. Texas already allows no-excuse vote-by-mail for voters aged 65 and up, and we need our statewide lawmakers to step up and expand the benefit to everyone.”

“Being terrified of catching a virus that’s killing hundreds of thousands of people should obviously qualify as a legitimate reason for Texans to want to vote by mail, but we need an advisory from Secretary Hughes to make that official,” said Anthony Gutierrez, executive director at Common Cause Texas. “This email communication seems to indicate the Secretary of State agrees with our position, but this needs to be explicitly stated.”

Secretary of State Ruth Hughs office’s response states:

“One of the grounds for voting by mail is disability. The Election Code defines ‘disability’ to include ‘a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.’ (Sec. 82.002). If a voter believes they meet this definition, they can submit an application for ballot by mail.

“As the situation changes, we will be updating our guidance. We hope this information has been helpful.”

Progress Texas and Common Cause Texas call on Secretary Hughs and Gov. Abbott to act in the interest of Texans’ health, safety, and voting rights to officially expand vote-by-mail universally through an official proclamation or agreed court order as soon as possible.

We all agree on what the law says. What matters is what it means. If, as we have previously discussed, the state agrees that anyone can claim the disability allowance, then great! We’re done here. If not – and clearly, I think they won’t, though I’ll be happy to be proven wrong – that’s where we need the court to step in and issue a ruling. The clock is ticking.

We already have the power to do more voting by mail

KUT points to a path forward that could get a lot more people voting by mail in Texas.

Texas has one of the most restrictive vote-by-mail laws in the country, but it is open to some of the state’s most vulnerable populations.

Grace Chimene, the president of the League of Women Voters of Texas, says she hopes the state and counties encourage eligible voters to mail in their ballots.

In Texas, people over 65 can apply for mail-in ballots, so the state’s older population can obtain a ballot ahead of elections.

People with underlying health issues can also apply. Whether those people qualify, however, largely depends on the county election officials who administer elections in the state.

Chimene said it’s possible many people with some health issues could qualify as disabled, which is one of the categories of people allowed to vote by mail here, but those qualifications could be clearer.

“I would like the secretary of state’s office to really explain who qualifies, who can vote absentee,” Chimene said. “I think it’s not super clear.”

Travis County Clerk Dana Debouvoir said that a disability can be a “fungible” thing that changes often throughout a person’s life. She says this could be a category that would allow people who should stay away from large groups because of COVID-19 concerns to vote at home.

“Here at the elections office we are not doctors,” Debouvoir said. “So if you say on one of those forms that you have a disability, we are going to believe you. I am not going to reject an application for ballot by mail on the basis that I think or don’t think someone has a disability. That’s not going to work right now.”

Chimene said she thinks state officials should make it clear if “sick” or disabled could apply to many of these voters who have underlying health issues, like a chronic disease or immunodeficiency.

“What qualifies as sick should be something that we are encouraging the secretary of state to expand on,” Chimene said.

As the story notes, not a lot of people 65 and older, who are eligible to vote by mail no questions asked, take advantage of it now. Travis County Clerk Dana Debouvoir puts the figure at 10-15% there, and I’d bet it’s similar in Harris County. We could already have a lot more people voting by mail right now if they wanted to. The HCDP has a program where it sends a vote by mail application to all of its known-to-be-Democratic voters and then calls them to remind them to send it in (I’ve participated in that), and you can see the effect it has had in recent elections. Thanks to the high level of turnout in this year’s primary we have a lot more Dems identified, and we could get a lot more mail ballot applications sent out. It’s up to the voters themselves to take it from there.

I should note, since I pointed this out before, that having more people vote by mail will also mitigate the effect of not having a straight ticket voting option, in that it will not add to the lines at voting locations. That’s another pretty big consideration after this year’s primary, too. What I’m saying here is: If you’re a Dem and you’re 65 or will be by this November, please consider getting a mail ballot. Pester your eligible friends about it, too. Yes, I know, I love going to the polling places, and I’d greatly miss it if I didn’t do that. And Lord knows, we should very much be on the other end of the coronavirus curve by then – if not, we’re in much deeper trouble than we’re in now – but still. This is a thing you can do that would help on more than one level. Give it some thought.

Even more so, if you’re a person with health issues, especially if you’re in any way immuno-compromised, you can request a mail ballot as well. Your County Clerk ought to oblige. Again, we’ll very likely be mostly out of the pandemic woods by November, but again, why not take advantage anyway? It’ll be good for you, and good for the wait times at polling places. What’s not to like?

Now having said all that, there are potential drawbacks to expanding vote by mail, and we need to take them seriously. One, as Josh Levin, the election protection fellow at the Texas Civil Rights Project notes, vote by mail applications can be rejected due to signature mismatches, and elections officials aren’t good at notifying applicants when this happens. That was noted in the earlier story about the possibility of an all-mail primary runoff election. You’ll need to be persistent and pester your county clerk if you don’t get your mail ballot in a timely fashion. Two, if you do go this route, please don’t then show up at a polling place and vote again in person. Every cycle some people get confused about this, and it is a thing you can be prosecuted for. Three, if the GOP suspects that Democratic voters are trying to game the system somehow by getting mail ballots to people who are not 65 but are claiming a health exception, they will surely take some kind of legal action to stop it. It’s hard to say how big a deal that could be, but we really don’t need further attacks on the legitimacy of our elections.

Finally, Campos raises a good point:

On the mail ballots for everyone thing, we need to be careful on this. I am all for going to a vote by mail system in the future. Last week, I watched a CNN piece on how the state of Washington handles their vote by mail system. It is pretty elaborate with a lot of special equipment and a physical layout to handle the volume. I don’t think the folks who conduct our elections in Texas have the infrastructure in place to handle 16 million mail ballots. I just don’t think we jump into this system under emergency circumstances. Convince me otherwise. We saw what happened a couple of weeks ago today.

Yeah, I agree with that. I think we can encourage people who are already eligible to vote by mail to consider doing so if they haven’t already – there’s a clear benefit to that and the system should have no trouble handling it. Anything bigger than that will require planning and coordination, and we’re not there yet. We don’t want to risk having a worse outcome because we weren’t able to deliver on our promises.

On balance, there’s no reason why folks who are clearly eligible to get a mail ballot not to do so, and many reasons why they should. The first order of business is to make sure they know that they can, and then follow up from there. We can do that this year. It’s already in our power. Daily Kos and TPM have more.

We talk once again about straight ticket voting

We have a new study, so we have a new reason.

The state’s decision to kill straight-ticket voting could cut turnout in down-ballot races in the 2020 elections — even if more voters show up to the polls.

Sure, those additional voters will cast ballots for president and U.S. Senate. But voter interest and knowledge gets thinner and thinner as the ballots go on and on.

Without straight-ticket voting — where voters register support for all of their parties’ candidates with a single vote — down-ballot candidates will have to win with the support of the relatively few voters who make it past the marquee contests.

Two-thirds of Texans voted straight ticket in 2018. In 2020, candidates for offices like constable and justice of the peace will need all the help they can get from friends and family; it won’t be enough to rely on the straight-ticket voters.

In particular, Democratic candidates depending on a growing base of voters may suffer, according to a study done by the Austin Community College Center for Public Policy and Political Studies.

“Most analyses of the election contend that straight-ticket voting helped the Democratic Party candidates in certain types of counties — metropolitan and some suburbs,” authors Stefan Haag and Peck Young wrote. “And we agree that the increased competitiveness of Democrats in many counties was abetted by straight-ticket voting.”

It’s not so much that Democrats were depending on straight tickets for their strength; it’s that strong candidates at the top of the ticket — like Democrat Beto O’Rourke — were making it easier for the rest of the party’s candidates to win some votes.

[…]

“The greatest effect of the elimination of straight-ticket voting will probably not be the elimination of Texans voting for all candidates of one political party — the essence of straight-ticket voting,” the two wrote. “The effect will be that people will spend more time in the voting booth.”

You can see the study here, and you can read everything I’ve had to say on the topic here. The authors get some things right, in my opinion, including the conclusion that I quoted at the end there, but I’m not convinced yet that there will be a huge effect on downballot races. I’m especially not convinced that this is going to help Republicans win judicial races in Harris County again. The Harris County GOP has much bigger problems than that.

The main effect is to make voting take longer, which (it is hoped by the GOP) will not only make some (Democratic) people skip some races, but will also make lines longer and thus discourage some (Democratic) people from getting in to vote at all. There are other techniques they are employing towards this end as well.

The Texas Legislature never seems to pass up a chance to make voting harder, scarier, or more confusing. True to form, Texas was one of several states this year that restricted—rather than expanded—access to the polls.

HB 1888, which Governor Greg Abbott signed into law in June, goes into effect this week, effectively banning the use of mobile polling places, a strategy adopted by some counties to facilitate early voting in communities where people may have a harder time getting to a polling site. Travis County, for instance, has for the past several years operated dozens of temporary polling places at various times during the state’s two-week early voting window, opening up temporary sites at colleges, rural community centers, and senior living facilities. More than 28,000 people voted at those rotating polling sites last year, or nearly 6 percent of all Travis County votes cast during the 2018 midterm election.

However, since the county can’t afford to turn all of those temporary polling places into permanent early voting sites, as required by HB 1888, some areas accustomed to having early voting won’t get it during the 2020 election, according to Travis County Clerk Dana DeBeauvoir. “We’re struggling with what to do for some of these communities now,” DeBeauvoir told the Observer. “We won’t be able to open polling places that some people have gotten used to.”

It’s all of our responsibility to find ways to keep lines manageable and give everyone the best chance to vote in a timely manner. A couple of suggestions come to mind:

1. If you are 65 years old, or will be by Election Day, you are eligible to vote by mail. Take advantage of it.

2. The best days to vote early are Tuesday through Friday of the first week of early voting, and the Monday and Tuesday of the second week. If you’ve made it to Thursday of the second week of early voting, go ahead and wait till Election Day. Those last two days of early voting, especially the very last day, are by far the busiest. Don’t make it more so.

3. If you really want to go the (literal) extra mile, find the lower-volume early voting locations and vote at one of them. You can look back at my daily EV reports to see which places to seek out. Vote first thing in the morning (7 AM during the second week), later in the morning (like between 9:30 and 11), or early afternoon (say between 1:30 and 3) to avoid the commute and lunchtime crowds.

4. If you have the time, sign up with your county to be an election judge, so that if they do want to open another EV location, they will have the staff for it.

Every little bit helps. When we finally take over state government, we can work on actually fixing this. Until then, do what we can to not make things worse.

More on the STAR Voting System

The Chron updates us on the latest in modern voting technology.

The drumbeat of election rigging and foreign hacking of voting machines have energized ongoing efforts to develop a new model of digital election equipment designed to produce instantly verifiable results and dual records for security.

Election experts say this emerging system, one of three publicly funded voting machine projects across the country, shows potential to help restore confidence in the country’s election infrastructure, most of which hasn’t been updated in more than a decade.

“It’s the hardest thing I’ve ever done in my life. It’s taken years and years to get it done,” said Dana DeBeauvoir, the Travis County clerk and leader of the voting machine project. “Now that we’ve had this election, there’s renewed interest.”

A prototype of the system, dubbed STAR Vote, sits in an engineering lab at Rice University, and bidding is open for manufacturers who want to produce it wholesale. Similar efforts to innovate voting systems are in the works in Los Angeles and San Francisco.

“County clerks in these jurisdictions are the rock stars of running elections,” said Joe Kiniry, CEO of Free & Fair, an election systems supplier currently bidding on contracts to manufacture the designs of both Travis and Los Angeles counties. “If they have success in what they do, it will have, in my opinion, a massive impact on the whole U.S.”

Like any aging digital device, the voting machines are eventually bound to stumble, said Lawrence Norden, deputy director of the Democracy Program at the Brennan Center for Justice. He pointed to Detroit, where the number of votes counted didn’t match the number of voters who signed in. And he noted that reports of machines flipping votes more likely result from aged touch screens than a conspiracy to rig the election.

Yet there is seldom space in county budgets to replace the machines, which cost usually between $3,000 and $5,000 each. The vast majority of electronic voting equipment was purchased with federal funds from the Help America Vote Act of 2002. Most money reached the states by 2004, and there’s no foreseeable second wave of federal aid.

“This is really an oncoming crisis,” said Norden, who interviewed more than 100 election officials for a 2015 report about aging voting equipment published by the Brennan center. “A lot of election officials have been unhappy with the choices that the major vendors are providing.”

[…]

STAR Vote runs automatic audits, comparing a statistical sample of the paper ballots with the digital records to verify results.

“The savings are just enormous over doing a recount,” Stark said.

While other systems allow for comparison of precinct-level data, STAR Vote can compare paper ballots with individual voters’ digital ballots, which are encrypted and posted online.

Officials could take a small sample of printed ballots and compare them with digital results to conclude with high confidence that election results were correct.

The system itself is also inexpensive, built with off-the-shelf tablet computers and printers, which Wallach said will cut the price down to half of the current norm. Advanced software makes up for the cheap hardware, designers said, and they plan to make the software open-source, meaning it is free to use and, unlike current systems, can be serviced by any provider without exclusive long-term contracts.

I’ve written about this before, and while I love the design of the STAR machine, I don’t have much hope of getting to vote on one any time soon. The political climate just doesn’t seem conducive to any effort to improve the voting experience, and the lip service we got from Greg Abbott back during the peak Trump-whining-about-rigged-elections period has surely gone down the memory hole. The one possible way in that I can see for these devices is their lower cost. At some point, enough of the current voting machines will become sufficiently inoperable that replacement will be needed, and a cheaper device ought to have an advantage. Let’s hope the process of getting a manufacturer in place goes smoothly.

(NB: “Wallach” is Rice professor Dan Wallach, who as I have noted before is a friend of mine.)

As long as we’re talking about improving our voting machines

Then this is what we should be talking about.

Dana DeBeauvoir

[Travis] County Clerk Dana DeBeauvoir called Rice University computer science professor Dan Wallach, who has been poking holes in voting-machine security for years. He’s testified before Congress on the subject.

Now DeBeauvoir wanted him to design a new one.

“Wow,” he says. “That doesn’t happen very often.”

The last time voting technology went through a major design change was after the disastrous Florida recount in the 2000 presidential election. Confusion over badly designed and incompletely punched paper ballots threw the results into chaos.

In 2002, Congress passed the Help America Vote Act, committing $4 billion to help localities buy new electronic voting machines.

“All of these machines, we understand now, are wildly insecure,” Wallach says. “Even though the vendors made claims that they were great, those claims have turned out to be false. And we’re now dealing with that problem.”

But replacing them costs money that many localities don’t have, and it’s not clear that Congress will pony up again.

So Wallach’s new system would have to be cheaper than what’s on the market now.

[…]

The system that the team of cybersecurity and usability experts came up with is called STAR-Vote, for secure, transparent, auditable and reliable.

It has two parts: A kiosk containing an off-the-shelf tablet computer and a standard inkjet printer, plus a metal ballot box with a built-in scanner.

Off-the-shelf parts keep the cost down and can be easily sourced and replaced. Wallach says the metal box costs more than all the electronic components inside it. The whole system should cost half or less what current machines do, which cost about $3,000 each.

Voters make their selections on the touchscreen tablet, which is kept off the internet and stripped of all software (and potential vulnerabilities) except the voting application.

State-of-the-art cryptography protects the integrity of the vote. But it’s not the only safeguard. Hard copy remains one of the most secure ways to cast a ballot.

“The crypto can do some really great tricks,” Wallach says. “But if you don’t trust the cryptography, that’s OK. Because we also have printed paper ballots that go into a box.”

Voters can see who the computer says they chose. The vote is only cast when the voter puts it in the ballot box.

And if there is any question about the electronic votes, the paper ballots are the backup.

This is nothing new – I wrote about it in July of 2014, and Wallach’s team made a presentation about STAR-Vote in August of 2013. The point is that this system, which is both more secure than what we have now while also being less expensive, could be in place for the 2018 election if we really wanted it to be. Given the lip service some Republicans like Greg Abbott are giving to election integrity, this is totally doable. You will know by what happens in the 2017 legislative session whether Abbott et al meant any of it or not.

(Disclaimer: As noted before, Dan Wallach is a friend of mine.)

Wait, who supports paper ballots now?

I have three things to say about this.

Following repeated allegations by Republican Donald Trump that the election may be rigged to ensure a win for Democrat Hillary Clinton, Texas lawmakers are actively considering ways to boost confidence in the state’s elections during next year’s legislative session.

Among the ideas drawing interest: adding paper trail backups to thousands of electronic voting machines.

The idea was brought up in a tweet Saturday by Gov. Greg Abbott.

“That’s a great idea & we are considering it as an election reform measure. Election integrity is essential,” Abbott tweeted in response to a voter who tweeted that he wanted printed proof of how he cast his ballot.

Over the last decade, several Texas lawmakers have filed bills to require paper trails on electronic voting machine. The proposals often include adding a printer in a sealed case to the state’s electronic voting machines so voters could check their votes against the receipt. The paper trail could be consulted in the event of a recount.

During the 2007 legislative session, interest in the idea stalled following estimates that adding the printers to all of the state’s voting machines could cost $40 to 50 million, according to a Fort Worth Star-Telegram article from the time.

One of the 2007 bills was authored by then-state Rep. Lois Kolkhorst, R-Brenham. Now a state senator, she said she may re-introduce her previous legislation.

“I agree with Governor Abbott’s call for election reform,” Kolkhorst said Tuesday in an emailed statement. “I have personally spoken with his office about re-introducing my legislation from 2007 to strengthen ballot integrity by requiring a paper record be printed of a person’s vote on an electronic voting machine. Texans have the right to inspect and verify that their vote was accurately recorded.”

[…]

The move toward election reform comes amid an election season in which Texans have expressed concerns about election rigging and voter fraud. Last week, Trump highlighted reports of voting machines in Texas changing votes for president from voters casting straight-ticket ballots. Those reports, however, have been largely debunked by election officials, who have stated that alleged instances of “vote flipping” were the result of user error.

1. I’m old enough to remember when suspicion of electronic voting machines and faith that only paper ballots could ensure the integrity of our electoral system was a shibboleth on the left, largely having to do with dire conspiracy theories about the Diebold corporation and vote counting in Ohio in 2004. Here’s a little blast from the past for those of you who have blocked this out or weren’t there for it the first time. Who knew that a sociopathic sore-losing narcissist could spark such an interest in voting machine integrity among Republicans? For that matter, who knew that so many Republican voters could be that suspicious of the electoral process in a state whose elections they have been dominating for over 20 years? Clearly, all these Republican County Clerks and Republican-appointed elections administrators can’t be trusted.

2. Travis County has already done a lot of the heavy lifting on building a better mousetrap. Maybe we should just emulate their work and save us all a bunch of time and effort.

3. Putting aside the question of paper ballots for a moment, perhaps we should take a moment and contemplate the fact that the electronic voting machines we use now are all a decade or more old, and are generally past their recommended lifespan. If we do nothing else, spending a few bucks to upgrade and replace our current hardware would be an excellent investment.

Supreme Court dismisses effort to dissolve state’s first same-sex marriage

I could be wrong, but I believe this closes the books on all the same-sex marriage litigation from last year.

RedEquality

The Texas Supreme Court on Friday tossed out Attorney General Ken Paxton’s effort to undo the union of the first gay couple to legally wed in Texas. The court-ordered same-sex marriage of two Austin women had occurred months before such unions were legalized by the U.S. Supreme Court.

In light of the U.S. Supreme Court’s landmark June ruling that same-sex marriage is protected by the U.S. Constitution, the state’s highest civil court dismissed Paxton’s request as moot.

The case dates back to February 2015 when Austin residents Sarah Goodfriend and Suzanne Bryant were legally wed after obtaining a marriage license from the Travis County clerk under direction from state District Judge David Wahlberg.

At the time, Texas’ constitutional ban on marriage was still in effect. But Wahlberg ordered Travis County Clerk Dana DeBeauvoir to issue the license under special circumstances because Goodfriend was diagnosed with ovarian cancer a year earlier. Wahlberg ordered the county to “cease and desist relying on the unconstitutional Texas prohibitions against same-sex marriage.”

Although Wahlberg’s court order was specific to the Austin couple, Paxton challenged the marriage before the Texas Supreme Court, which later blocked Wahlberg’s ruling to prevent other same sex couples from obtaining marriage licenses. A day after the couple wed, Paxton asked the court to overturn the order and void the marriage license to “avoid the legal chaos” that could arise.

See here and here for the background. Paxton had dropped his appeal of a similar case in July, after the Obergfell ruling; I had thought at the time that he’s also drop this one, but clearly he did not. Three of the Supreme Court justices were critical of the judge who granted the license and of the attorney who represented the plaintiffs, and I can see where they’re coming from on that, but in the end that didn’t matter. The marriage is valid, as it should be and should have been, and this is now a settled question. There are still plenty of battles to wage, but we can cross this one off the list.

Dan Wallach: The case for not letting everybody vote by mail

You know who Dan Wallach is by now. Voting systems and security are in his wheelhouse, and when he sent this to me in response to this, I was happy to queue it up.

vote-button

Vote by mail (VBM) is cheaper! It’s more enfranchising! Take your time and do it right! Yes, indeed, and why not even do it over the Internet! Sigh. But what proponents of VBM seem to miss in these arguments in that voting is not the same as doing your taxes. It’s not the same as buying stuff from Amazon. Why? Because voting fraud happens. Voting fraud has a long history. You name the voting technology, and there are people who try to use it to influence the outcome of elections.

Let’s take a trip in the Wayback Machine to the time before the modern “Australian” secret ballot. Voters would get colorfully printed “party slates”, often from their partisan newspapers, and would take them to the polls to deposit in the ballot box. (Check out the pretty pictures!) Why did we switch to having the state doing the printing and having voters fill those ballots out in a private booth? To eliminate bribery and coercion! This transition was even connected with the women’s suffrage movement, since the women at the time were apparently less interested than the manly men in putting up with a partisan gauntlet between the street and the ballot box. (See this NPR interview with Jill Lepore for lots of fun details.)

Okay, so secret ballots are a good thing, but they only work when the voter cannot prove how they voted, even if they want to. That’s why you’re not supposed to have your smartphone out when you’re voting, because you can make a video of your whole interaction with the machine. That’s why you vote alone, without assistance, because your “assistant” could then monitor your every move. Yes, “assisting” voters is a prominent mode of voter fraud, especially for the elderly. (See this article about the history of voter fraud in Chicago for some details.) That articled also gets into my problem with absentee / VBM balloting:

Joe Novak, a longtime Chicago political operative who knew the intimate details of the election system, explained in 2002 that election fraud still worked the way it had for years. “Precinct captains still like to control the vote by pushing absentees.” The captain goes to a retirement center or other places where the elderly gather and gets a signed statement from a voter that they can’t make it to the polls on Election Day. The captain can tell the voter how to vote. The idea is “Captains like to be ranked No. 1” in their ward organization. Alderman Joseph Moore from the Forty-Ninth Ward added, “The captain will offer to take (a completed absentee ballot) downtown for you.”  “Until they tightened the rules a few years ago,” Moore said, “it was common to see captains bringing in buckets full of ballots.”

A similar instructive example is the election of “Landslide” Lyndon B Johnson for the U.S. Senate in 1948 (background article, academic discussion). Texas, at the time, was largely controlled by the Democratic Party, so the Democratic Primary election was to be decisive for who would win the Senate seat, much like the Republican Primary is today. The 1948 primary went to a runoff between Johnson and former Texas Governor Coke Stevenson, Johnson defeated Stevenson by an “87-vote landslide.” Much attention has focused on ballot stuffing in Jim Wells County’s infamous “Box 13,” but ballot box stuffing, among other fraudulent behavior, was apparently the norm across the state. Counties were allowed to report “revisions” to their tallies in the week following the election, allowing local party bosses to continuously adjust their vote totals to assist their preferred candidate.

Let’s get back to VBM. Yes, it’s absolutely easier to defraud an election where voters are using VBM. In Texas today, if you want to vote absentee, you must either be over 65, or have one of a small set of valid reasons. If we expanded this to the general population, would we have more voter fraud? Without a doubt. Sure, VBM proponents like to talk about the extent to which they verify signatures on envelopes, but they cannot possibly hope to combat elderly vote fraud, never mind undo family influence. VBM fundamentally enables fraud.

Okay, but what about those electronic voting machines? They certainly have their own serious problems. Here’s a 93 page report I co-authored as part of California’s 2007 “Top to Bottom Report” on the Hart InterCivic eSlate. Our conclusion then was that there were unacceptable security flaws in the design of the eSlate and every other voting system we analyzed. So far as I can tell, Hart InterCivic hasn’t meaningfully changed anything since then. We’re still voting on the same poorly engineered machines here in Harris County today. But are these weaknesses being actively exploited? I don’t know, and neither does anybody else.

What would I recommend to replace our aging and breaking voting systems? I was invited by Travis County Clerk Dana DeBeauvoir and her team to help design something new, from scratch, that might better meet the needs of Travis County and others. Our design, called STAR-Vote (secure, transparent, auditable, reliable), uses state of the art cryptographic and statistical auditing techniques that can help voters prove their votes were counted correctly or prove they were defrauded (yet not be able to prove to a third party how they voted). STAR has printed paper ballots, so tampered software can’t mess with the final tallies without detection. And STAR is designed to use off-the-shelf commodity computer hardware rather than the overpriced proprietary devices being sold by the voting systems industry. Where does STAR stand today? We’ve got a great design. We have prototype implementations here at Rice, today, where we’re running usability tests. Ultimately, we need to get the funding together to professionally build and maintain the software, and that’s as much a political challenge as anything technical. Once the software’s done, the incremental cost of rolling out new hardware would be something like a third of the cost of what the voting machine industry wants to charge, and we haven’t even begun to talk about the ongoing service contract savings. (The exact business model for STAR is very much dependent on its funding situation. Legally, any company could take our design, implement it, and sell it, yet none have; sadly, some voting system vendors have inappropriately adopted similar technical lingo while shipping products without any of the desirable security properties.)

Yeah, but what about voter turnout? If your goal is to increase voter turnout, then there are plenty of ways to make that happen. 22 countries make voting mandatory. If you want something a little less draconian, might I suggest an “open primary” as California has done? That would better enfranchise “independent” voters who don’t want to be forced to vote in one party or the other’s primary. Or how about compact districts, so we can have more competitive races? Want something less disruptive? Okay, how about Election Day vote centers? In Travis County today, you can go to any polling place in the county, on Election Day, and you get to vote on your particular ballot. Want to vote near your work? No problem. Travis County adopted this to work around a nightmarish redistricting that would have otherwise resulted in large numbers of voters going to the wrong polling places, but you can see how it could add convenience for everybody.

My colleague, Bob Stein, likes to quip that all voters have one thing in common: they know who they want to vote for. If you want to increase turnout, I’m all for it, but if that’s truly the goal, then let’s not weaken our protections against voting fraud.

Getting ready for the SCOTUS same sex marriage ruling

Travis County is prepped and raring to go.

RedEquality

If the U.S. Supreme Court rules that same-sex couples have the right to marry, Travis County Clerk Dana DeBeauvoir plans to be ready.

The clerk’s office, which issues and records marriage licenses from its location at 5501 Airport Blvd., plans to offer extended evening and weekend hours to accommodate the pent-up demand from gay and lesbian couples who have been unable to marry under state law.

“We’re hoping for crowds,” said DeBeauvoir, a strong supporter of same-sex marriage.

When the Supreme Court issues its ruling — expected by the end of June, when the court typically finishes its term — a team of lawyers from the county attorney’s office will scour the decision to determine its implications for Travis County.

If the ruling allows, the goal is to begin issuing marriage licenses to same-sex couples as quickly as possible.

Plans include setting up special areas in the clerk’s office dedicated to marriage licenses and offering extended office hours dedicated to serving those seeking a marriage license. The hours and availability of marriage licenses will be updated on the clerk’s website.

County officials also expect couples to drive to Austin from all over the state, particularly those living in counties that haven’t prepared for the court ruling.

That’s a smart plan, because a lot of other counties are being more cautious about it right now.

Representatives from the Bexar and Travis county clerks’ offices say they’re prepared to physically modify marriage license application forms, which are generated by the state Vital Statistics Unit and currently say “male” and “female.” However, clerks in Dallas and El Paso counties—both Democrats—said they’d be reluctant to do so. Clerks in Harris and Tarrant counties, both Republicans, didn’t return calls seeking comment.

El Paso County Clerk Delia Briones said she reached out to the Vital Statistics Unit about the forms in February, but was told to wait until after the court rules.

“What am I going to do, ask the person who’s the man and who’s the woman? I can’t do that,” Briones said. “You want to be proactive and be prepared, but they’re stalling it at the state level, so my hands are tied.”

Chris Van Deusen, a spokeswoman for the Texas Department of State Health Services, which includes the Vital Statistics Unit, said that after the Supreme Court rules, officials will consult with the attorney general’s office to determine what changes are needed.

“Until the court rules, [we] won’t be able to know the impact on current operations or forms,” Van Deusen said.

Republican Attorney General Ken Paxton, a staunch opponent of same-sex marriage, didn’t respond to a request for comment.

Dallas County Clerk John Warren suggested his office won’t issue licenses to same-sex couples until the forms are modified by the Vital Statistics Unit.

“I don’t think Travis and Bexar may have thought it through completely because the marriage license application is a state form that is provided to the county clerks as the ‘local registrar,’” Warren said. “I can assume those two counties will manually strike through the language on the application. … The problem I have with this is that it makes the action of the clerk deliberate with the strike-out. That shows a direct intent to ignore the law.”

[…]

Ken Upton Jr., Dallas-based senior counsel for the LGBT civil rights group Lambda Legal, said if the Supreme Court rules in favor of same-sex marriage, gay couples could sue the Vital Statistics Unit and quickly get a federal judge to order officials to immediately change the application forms.

“I think there will be some places where this is a problem, but it isn’t going to be a problem for very long,” Upton said. “I think a clerk that hides behind Vital Statistics, when the law clearly states you have to let them get married, risks personal liability.”

Upton said it would also be illegal for clerks to stop issuing licenses to all couples, because they’d be interfering with the fundamental right to marry under the U.S. Constitution. If clerks or state officials refused to comply with a federal judge’s order, they could face punitive damages into the millions of dollars, he said.

“If the Supreme Court rules in our favor, I think there will be relatively little resistance in most places,” Upton said. “Where there are people resisting and throwing up obstacles, I think it will be a fireworks show worth watching, because the truth is they are going to get their heads handed to them.”

I think there will be some chaos for a couple of days, and for sure some number of county clerks will need to be whacked upside the head with a clue stick, but it will get sorted out fairly quickly. The only thing left is rear-guard action.

With legislation to block county clerks from issuing same-sex marriage licenses dying in the Legislature, it is not surprising that social conservatives are asking Governor Greg Abbott to call a special session on the issue.

The U.S. Supreme Court is expected later this month to rule on whether state bans on same-sex marriage are constitutional, and the conventional wisdom is the court is going to say the bans are unconstitutional. Social conservatives had hoped to block implementation in Texas by passing a law that banned the issuance of same-sex marriage licenses, giving the state a means for continued litigation. The conservatives hope to use Harris v. McRae, 448 U.S. 297 (1980) to argue that the federal government cannot force states to spend local money to enforce a federal policy; i.e., issuing licenses for same-sex marriage.

After a legislative session where Abbott can claim a level of success, I find it difficult to believe he would call a special session on such a divisive issue, especially while he is still signing and vetoing bills. But on a single-issue special session, the only thing to stop a bill such as this from passing quickly would be a quorum break by Democrats.

The only prediction I will make is that some currently obscure government functionary is going to make himself or herself a hero/martyr figure among this crowd for a bold act of stupid intransigence that will get stomped on in with all due haste. Those of you that track current events and local stories for “year in review” stories, you will have much to keep track of.

Complaint filed against judge who allowed same sex marriage

Whatever.

RedEquality

The judge that allowed Texas’ first gay marriage to go forward is the target of a judicial conduct complaint, the latest volley in the state’s attempts to call the historic union into question.

“This judge deliberately violated statutory law and this is unacceptable,” Rep. Tony Tinderholt, R-Arglington, said after confirming he had filed a complaint against state District Judge David Wahlberg with the State Commission on Judicial Conduct.

“This complaint and any action, which the legislature decides to take, is about ensuring that our judicial system respects the laws of our state and respects the separation of powers. Judge Wahlberg allowed his personal views to dictate his action and ignored state law to accomplish his desired outcome.”

[…]

Immediately after Judge Wahlberg issued the order, Travis County Clerk Dana DeBeauvoir signed the couple’s marriage license and they were wed outside of the clerk’s offices by their rabbi. The next day, Attorney General Ken Paxton asked the state Supreme Court to declare the license null and void.

Reached for comment Wednesday, DeBeauvoir stood by the license’s legality and was not surprised by the complaint.

“I do believe the judge acted in good faith and in a fully legal way, and I believe the court order that I followed was a legal court order,” said DeBeauvoir.

Tinderholt’s complaint was filed Feb. 19. In it, he cites a Texas law that requires the attorney general to be notified when anyone “files a petition, motion, or other pleading challenging the constitutionality of a statute of this state.”

See here for the background. Tinderholt, who has his own issues, wasted no time filing that complaint, as Judge Wahlberg issued his ruling on the 19th. Seems like a stretch to me, but as always I Am Not A Lawyer. What do the real lawyers think about this?

First same-sex marriage in Texas happens

It may be the only one for awhile, but it will definitely not be the only one.

Despite Texas’ longstanding ban on same-sex marriages, two Austin women made history on Thursday when they became the first gay couple to legally wed in the state.

A judge directed the Travis County clerk to issue a marriage license to Sarah Goodfriend and Suzanne Bryant. The order does not clear the way for other same-sex couples in the county to be married.

The order by state District Judge David Wahlberg of Travis County directed Travis County Clerk Dana DeBeauvoir to “cease and desist relying on the unconstitutional Texas prohibitions against same-sex marriage” and issue the couple a marriage license.

The license was issued under special circumstances because one of the women has “severe and immediate health concerns,” a county spokeswoman said in a statement.

BOR was the first to break the news. The Statesman fills in some details.

In their petition to Wahlberg, the couple said the inability to obtain a marriage license was causing them irreparable harm, particularly because Goodfriend has been diagnosed and treated for ovarian cancer.

Saying they had no adequate legal remedy to enforce their right to marry, the couple asked Wahlberg to issue a restraining order directing DeBeauvoir to issue a marriage license and waive the 72-hour waiting period.

At 9:25 a.m., Wahlberg’s order arrived at the county clerk’s office. Bryant and Goodfriend immediately filled out the paperwork and quickly walked to the site of their vows, fearing the state would attempt to step in and enforce the law and constitutional amendment banning same-sex marriage.

“Given the urgency and other circumstances in this case,” Wahlberg’s order said, “and the ongoing violation of plaintiffs’ rights, the court has concluded that good cause exists” to move forward with the marriage.

To get the license, the couple sued DeBeauvoir, and the county clerk emphasized that she is not issuing additional marriage licenses to same-sex couples but was complying with the court order.

You can see Judge Wahlberg’s order here. Not too surprisingly, AG Ken Paxton took action as well:

After the couple obtained the marriage license, Texas Attorney General Ken Paxton called Wahlberg’s order “erroneous” and asked the Texas Supreme Court to block his ruling. Paxton is seeking to void the marriage license and has also filed suit to keep the Travis County Clerk’s office from issuing marriage licenses to other same-sex couples.

“The law of Texas has not changed, and will not change due to the whims of any individual judge or county clerk operating on their own capacity anywhere in Texas,” Paxton said in a statement. “Activist judges don’t change Texas law and we will continue to aggressively defend the laws of our state and will ensure that any licenses issued contrary to law are invalid.”

Wahlberg’s order came on the heels of Tuesday’s ruling by Travis County Probate Judge Guy Herman that said banning gay marriage is illegal. After Herman’s ruling prompted uncertainty among officials who were unsure what effect it has on gay marriage in the county, Paxton asked the Texas Supreme Court to intervene in the case and block Herman’s ruling.

The Texas Supreme Court granted Paxton’s requests Thursday afternoon, temporarily blocking both rulings.

Background on the probate case is here. You can see Paxton’s request for a stay here, and a copy of the Supreme Court’s orders here. According to the couple’s attorney, this does not void the marriage itself – the AG would have to sue them to try to nullify the license. (Longer version of the Chron story is here.)

At this point, I have no idea what will happen next. Until then, congratulations and mazel tov to Goodfriend and Bryant and their family. Hair Balls, Newsdesk, Equality Texas, Freedom to Marry, ThinkProgress, Unfair Park, the Observer, RG Ratcliffe, and Texas Leftist have more.

Another judge finds Texas’ ban on same sex marriage to be unconstitutional

This ruling is a bit more narrow, however.

RedEquality

A Travis County judge ruled Tuesday that the Texas ban on gay marriage is unconstitutional, but there was no rush to the altar after county officials — scrambling to assess the impact of the judge’s 3 p.m. order — declined to begin issuing marriage licenses to same-sex couples, at least for now.

Probate Judge Guy Herman’s ruling, which affects only Travis County, came as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her eight-year relationship with another woman, Stella Powell, declared a common-law marriage. Powell died last summer of colon cancer.

After an hourlong hearing in the downtown Austin courthouse, Herman found that the state ban on gay marriage violated the U.S. Constitution’s promise of equal protection and fair treatment under the law.

Whether the women’s relationship was a common-law marriage — which would entitle Phrasavath to a share of Powell’s estate — will be decided at a future date.

“It was never about property rights or about property,” Phrasavath said after the hearing. “At least for me, it was about standing up for my relationship and my marriage. If I didn’t do that, I would absolutely have no voice.”

[…]

Travis County Clerk Dana DeBeauvoir, who praised Herman for his ruling, reluctantly declined to begin issuing marriage licenses to same-sex couples “at the present time,” but said county lawyers are examining the decision to determine her options.

“Right now, I think it’s no, but we are checking,” DeBeauvoir said.

Michael Knisely, the attorney for Powell’s siblings who opposed Phrasavath’s claim on her estate, said no decision had been made on whether to appeal.

Texas Attorney General Ken Paxton last month declined to intervene in the case and thus isn’t in a position to ask the 3rd Court of Appeals to review Herman’s ruling. “Our office is reviewing today’s ruling from Travis County,” Paxton spokeswoman Cynthia Meyer said.

See here for the background. This ruling only affects Travis County, as Herman is a county judge. Obviously, there are the SCOTUS and Fifth Circuit appeals for the federal lawsuit, as well as the request to the Fifth Circuit to lift the stay on the original ruling. In the meantime, despite his initial lack of reaction, Ken Paxton isn’t sitting still.

Attorney General Ken Paxton on Wednesday asked the Texas Supreme Court to issue an emergency order blocking a local probate judge’s ruling that the state’s same-sex marriage ban is unconstitutional.

[…]

Paxton is petitioning the state’s highest court to immediately halt the ruling’s effect because it is “unnecessary and overly broad” and could give rise to “legal chaos” if county clerks interpret it to mean they can begin issuing marriage licenses to same-sex couples, according to the attorney general’s petition.

“The probate judge’s misguided ruling does not change Texas law or allow the issuance of a marriage license to anyone other than one man and one woman,” Paxton said in a statement.

And neither is Equality Texas:

Earlier today, Equality Texas called upon Travis County Clerk Dana DeBeauvoir to follow the law in Travis County and immediately begin issuing marriage licenses to same-sex couples in Travis County.

On Tuesday, Travis County Judge Guy Herman issued a ruling finding that the restrictions on marriage in the Texas Family Code and in the Texas Constitution that restrict marriage to the union of a man and a woman and prohibit marriage for same-sex couples are unconstitutional because the restrictions violate the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution. Contrary to the county clerk’s position previously stated in the media, this ruling in fact allows her to immediately issue marriage licenses to same-sex couples in Travis County.

“Travis County Clerk Dana DeBeauvoir previously stated she would be happy to issue marriage licenses to same-sex couples once the law allows for it. The law in Travis County now allows for the freedom to marry. Equality Texas calls upon the county clerk to stand with us–on the right side of history,” Equality Texas Executive Director Chuck Smith said.

Just as the Supreme Court may issue a marriage ruling this summer that applies to all 50 states, and just as the 5th Circuit Court of Appeals may issue a marriage ruling any day now that applies to the 5th Circuit, Judge Herman has issued a ruling that has the effect of law in Travis County.

So things are happening, and they may change quickly. Stay tuned.

UPDATE: According to BOR, Travis County Clerk Dana deBeauvoir did issue a marriage license to a same-sex couple this morning. Wow.

What will the clerks do?

Some of Texas’ county clerks are making plans to accommodate same-sex marriage license applicants in the event that federal judge Orlando Garcia lifts the stay on his ruling that tossed out the state’s ban on same-sex nuptials. Some other clerks are planning to be jerks about it.

RedEquality

Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia, a Republican, said Tuesday he consulted with the DA’s office about the issue after receiving an inquiry from a citizen.

“They advised us very explicitly that the lifting of the stay by Garcia in San Antonio, which is a different district than the one we’re in, doesn’t have any effect on us,” Nicholson told the Observer. “I think the DA’s position is here, until this is very clearly decided, that Texas law is Texas law, and we’re going to sit tight.”

Ken Upton, Dallas-based senior counsel at the LGBT civil rights group Lambda Legal, said clerks in other states, including Kansas and Missouri, have taken similar positions.

“I don’t think there is anything keeping them from issuing the licenses once the stay is lifted, but an argument could be made that they aren’t required to do so until it [the outcome of the case] becomes final,” Upton said.

Ken Upton is nicer about this than I would be. I think that’s a chickenshit move, and I’d be happy to see any clerk that refused to follow the law get slapped with a contempt of court charge. Judge Garcia’s ruling invalidated a provision of the state constitution, which last I checked applied to all of the state. And why are they consulting with the DA’s office? Are there no qualified civil attorneys available to advise the Tarrant County Clerk? Sheesh.

Fortunately, same-sex couples from Fort Worth will be able to obtain licenses in Dallas, where Democratic clerk John Warren said he’s prepared to issue them.

“You take an oath to uphold the law, and if the law changes, you’ve got to do it,” Warren said. “If the law says I can’t, then I won’t. If the law says I can, then I will.”

Republican Bexar County Clerk Gerhard C. “Gerry” Rickhoff said in addition to keeping his office open ’round-the-clock, he’s considering setting up tables in Main Plaza to accommodate same-sex couples. Rickhoff said he’s also lined up district judges to waive a 72-hour waiting period before ceremonies can occur, as well as officiants to conduct them.

“There’s a pent-up demand to stop these civil rights violations that are pretty evident,” Rickhoff said. “I would imagine they’ll be driving into San Antonio in droves, and that’s what we’re prepared for. Nobody will be turned away. We’ll work until there’s nobody left.”

Democratic Travis County Clerk Dana DeBeauvoir said her office will also be ready to extend its hours if Garcia lifts the stay.

DeBeauvoir said she’s also prepared to “flip the switch” on changes to a database that would replace “bride” and “groom” with “Person 1” and “Person 2.”

Now that’s the way you do it. Harris County Clerk Stan Stanart says he’ll ask the AG’s office for advice and will do what they tell him, which is slightly less weaselly than Tarrant County Clerk Garcia. I don’t know what Judge Garcia will say or when he might say it, but this is coming whether some squeamish bureaucrats are ready for it or not. Those that aren’t need to grow up and get with the program or get out of office.

Paper ballots make a comeback

From the Everything Old Is New Again department:

States have abandoned electronic voting machines in droves, ensuring that most voters will be casting their ballots by hand on Election Day.

With many electronic voting machines more than a decade old, and states lacking the funding to repair or replace them, officials have opted to return to the pencil-and-paper voting that the new technology was supposed to replace.

Nearly 70 percent of voters will be casting ballots by hand on Tuesday, according to Pamela Smith, president of election watchdog Verified Voting.
“Paper, even though it sounds kind of old school, it actually has properties that serve the elections really well,” Smith said.

It’s an outcome few would have predicted after the 2000 election, when the battle over “hanging chads” in the Florida recount spurred a massive, $3 billion federal investment in electronic voting machines.

States at the time ditched punch cards and levers in favor of touch screens and ballot-scanners, with the perennial battleground state of Ohio spending $115 million alone on upgrades.

Smith said the mid-2000s might go down as the “heyday” of electronic voting.

Since then, states have failed to maintain the machines, partly due to budget shortfalls.

“There is simply no money to replace them,” said Michael Shamos, a computer scientist at Carnegie Mellon University who has examined computerized voting systems in six states.

The lack of spending on the machines is a major problem because the electronic equipment wears out quickly. Smith recalled sitting in a meeting with Missouri election officials in 2012, where they complained 25 percent of their equipment had malfunctioned in preelection testing.

“You’re dealing with voting machines that are more than a decade old,” Smith said.

Roughly half of the states that significantly adopted electronic voting following the cash influx have started to move toward paper.

[…]

Shamos said he expects the move back to paper ballots to continue, unless there’s a high-profile crisis similar to the 2000 election.

Still, he predicted the drumbeat for Internet and mobile voting will grow.

“Eventually [a generation is] going to have the thought that it’s idiotic for me not to be able to vote using my cell phone,” Shamos said.

Then all bets are off.

No doubt. I can think of plenty of reasons for this, beyond the lack of money for new machines. There are the well-known security issues and accompanying mistrust of electronic voting machines, mostly coming from my side of the aisle. Some local officials are working on that, but the money issue is likely to be a formidable hurdle. Beyond that, there is the success that some states have had with voting by mail, plus the success we saw here in Texas in pushing absentee ballots. They’re convenient, they allow one to take one’s time, and they don’t require a photo ID. I have to wonder what the politics of expanding access to mail ballots would look like in the Lege this year, especially if a Democrat filed a bill to enable it. Might be worth watching.

Mail ballots aren’t perfect – people who move frequently or who aren’t particularly fastidious about keeping track of their incoming mail may find them inconvenient – and it’s hard to see this as a step forward, even if it might help boost turnout. I think Professor Shamos is exactly right about how future generations will view a return to paper ballots. But until the killer voting app gets developed, this may be our best bet. Link via Ed Kilgore.

Travis County pursues new voting machines

Very, very interesting.

Dana DeBeauvoir

With the nation facing what a January government report described as an “impending crisis” in voting technology, officials in Travis County are taking matters into their own hands by seeking to create a unique, next-generation system of voting machines.

The efforts put Travis County, along with Los Angeles County in California, at the cutting edge of a race against time to create an alternative voting technology system.

The new machines would have voters use off-the-shelf electronic equipment like tablets, but also provide them with receipts and printed ballots to allow for easier auditing. The development and implementation process won’t be finished in time for the 2016 elections, though officials hope to have the system ready by the 2018 gubernatorial race.

[…]

Some election administrators have said the status quo will likely fall apart within a few years. Across the country, “it’s all just a guessing game at this point: How long can we last?” said Dana DeBeauvoir, the Travis County clerk.

Three years ago, DeBeauvoir decided that something had to change. “I said, ‘Okay, I’m fed up. I’m going to design my own system.’” Part of her frustration stemmed from complaints lodged against the county that she felt blamed officials for things beyond their control. Travis County voters filed a lawsuit in 2006 alleging that electronic voting machines lacked reliability and security. The case was dismissed by the Texas Supreme Court in 2011.

After deciding to create a new system, DeBeauvoir gathered a citizens’ study group, and then a panoply of experts, to iron out the details.

The group is now close to finishing the design of a prototype known as the STAR (Security, Transparency, Auditability and Reliability) Voting System. The county intends to issue a request for proposals within a couple of months and hopes to select a winning bid by the end of the year, DeBeauvoir said.

[…]

The designs already posted on the Travis County clerk’s website lay out a multi-step process: A voter checks in, signs a roster and receives a ticket. Then, she gives the ticket to a poll worker to get a unique ballot code from a ballot control station, which sends information to a voting device. At the device, she makes her choices, prints out a completed ballot and deposits it in a ballot box with a scanner. She also receives a receipt that allows her to check online the next day to ensure the ballot was counted.

All the devices communicate with each other to update and confirm data. To ensure security, the system employs cryptography that “has never been done before” in voting technology, DeBeauvoir said.

The printed paper ballot is particularly crucial, as it addresses one of the principal criticisms of the existing electronic systems. The touchscreen machines common in many counties lack “a paper trail that actually captures the intent of the voter so that you can audit the machines,” said Alex Russell, a University of Connecticut professor of computer science and mathematics and faculty member at the school’s Center for Voting Technology Research. During recounts, auditors can only double-check what the machines say, without any way to verify that the machines reflect voters’ choices.

The presentation is here. It’s pretty technical in places, but the main gist of it is easy to understand and well-summarized by the Trib story. There’s an accompanying video of the presentation on this page, with the presenter being Rice University computer science prof Dan Wallach, who has been studying this stuff for years. Other materials are here on the Travis County Clerk website.

As noted, the STAR-Vote collaboration is close to issuing an RFP for this. One key requirement for the hardware will be sufficient battery life – Election Day and some early voting days last for 12 hours, so your voting machines will need to do so as well. The collaboration will be approaching other counties to participate, which will allow for cost-sharing while making the RFP more attractive to vendors since there would be more potential customers for their proposed devices. I need to check and see if Harris County Clerk Stan Stanart has any interest in this. Our eSlate machines are as old and outdated as Travis County’s are, after all. One other potential hurdle is that this idea is very new and contains aspects that are not addressed by existing federal laws, so either the laws will need to be updated (as if Congress is capable of doing that) or waivers will need to be obtained. The latter ought to be doable, but as with anything new and unprecedented you never know what potholes may exist in the pathway. Be that as it may, this is a thorough and thoughtful design that addresses all kinds of concerns and would put electronic voting machines on a much more sustainable path. I look forward to seeing how the RFP process goes. What do you think about this?