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elections administrator

Meet Clifford Tatum

Harris County’s new Elections Administrator has a chat with the Chron’s Jen Rice about his new job and the fact that early voting starts in less than seven weeks.

Why did you start working in elections and why do you continue doing it?

I started out with the Georgia Secretary of State as a securities enforcement attorney. And after a couple of years, enforcing the securities law, the elections division needed a staff attorney. So I became the assistant director of legal affairs for the state elections division, which then worked with the Georgia Secretary of State on a number of issues related to the state election board, election law enforcement, election code enforcement. And I guess you could say that … I kind of got bit by the public service bug, and that foray into the elections division in 2002 has turned into a lifetime of public service. I enjoy the fact that I’m supporting democracy and helping voters express their voice.

When election-related topics come up at Harris County Commissioners Court meetings, two of the commissioners typically raise the argument that elections should be run by elected officials, not an appointed election administrator, which was the model used in Harris County until 2020. Do you have a response to that criticism?

If we talk about the the county clerk who was running the election side of the process, they were responsible for the election side, but they had to get the information to actually conduct the election from the tax assessor. The tax assessor was responsible for the voter registration side. At the end of the day, you’re looking to two separate entities for accountability. And that gap allows for there to be this flux of, what really happened here? So, combining the two offices, you avoid that. It now becomes a single unit that’s responsible for the entire operation. And you actually have a greater level of accountability because both operations are now under the same unit and the information flows much better because there’s not a go-between.

The mail ballot rejection rate is an ongoing issue in Harris County. What is your plan for getting the mail ballot rejection rate down and to what extent are you expecting to be able to address that for this election?

The good news is that the team here has now experienced the new mail ballot requirements for now, I think, three elections. We’ve made a lot of internal strides on how to assist voters in making sure they provide the correct information to allow their ballot not to be rejected. And then if they, for whatever reasons, fail to include that information, we’ve identified internal procedures to immediately respond back to the voter, highlighting what needs to be corrected in order for that ballot to be resolved and counted. The unfortunate aspect about all of that is time. If a voter waits too late, then there’s a likelihood that the voter can’t cure an issue if they didn’t provide the correct information.

I’m fairly optimistic that we’ll have a good experience this fall. Some of the factors on which Tatum will be judged are how well the equipment works and how easily equipment errors are overcome, how long the lines are, how many mail ballots are rejected, and how long it takes to see results and updates on Election Night. My hope is that he and his office will communicate quickly and effectively when there are any issues – it’s a big county, probably over a million people will be voting, there will be issues – so that at least everyone will have a chance to be informed and make adjustments. I intend to do an interview with him myself at some point, but that can wait until after this election.

More on the Gillespie County elections office resignations

From Votebeat, how this mess got started.

Last November’s sleepy constitutional amendment election nearly came to blows in Gillespie County, a central Texas county known for its vineyards. A volunteer poll watcher, whose aggressive behavior had rankled election workers all day, attempted to force his way into a secure ballot vault.

The burly man was repeatedly blocked by a county elections staffer. Shouting ensued. “You can’t go in there,” the staffer, Terry Hamilton, insisted to the man, who towered over Hamilton. “We can see anything we want!” the poll watcher and his fellow election integrity activists yelled, according to an election worker who witnessed the scene. They accused Hamilton and Elections Administrator Anissa Herrera of a variety of violations of the state elections code, which they quoted, line by line.

“Oh Lord, they can cite chapter and verse,” recalled Sue Bentch, a Fredericksburg election judge who saw the confrontation that night. “But you know, just as the devil can cite scripture for its own purposes it seemed to me that it was often cited out of context and misinterpreted.”

“Finally, I called the sheriff’s officer,” said Bentch. The officer barred the activists from the vault. “Poor Terry was coming to fisticuffs.”

Previous elections had been no better. In 2020, a poll watcher called the cops on Herrera and filmed election employees in a dark parking lot. The same year, Herrera received a clutch of obscene, often racist, emails. And in 2019, a group of activists filed suit after Fredericksburg voters overwhelmingly rejected an obscure public-health ballot measure. That election, the activists argued, had been irrevocably tainted by fraud.

Three years of these hostilities were clearly enough for Herrera, who resigned this month.

The rest of the office staff — one full-time employee and one part-time employee — also departed, leaving the elections office completely vacant.

Recent media coverage of the exodus attributed it to threats of the type that have become common since the 2020 presidential election. In fact, Votebeat’s review of court documents, emails, and social media postings show Herrera and others struggling to combat fringe election conspiracy theories in Gillespie County long before former President Donald Trump encouraged his supporters to question the integrity of the 2020 vote.

In Gillespie County in 2019, the fringe was focused on fluoride.

See here for the background, and go read the rest, there’s a lot more. This is a reminder that shitty paranoid conspiracy theories existed well before The Former Guy, but as with most other bad things, he amplified and intensified them, in this case with some generous assistance from the Gillespie County Republican Party. I have no idea what a good way forward for Gillespie County is, but it’s not my problem to solve. I feel bad for the people of good faith who are trying to solve it. The problem is a lot bigger than they are.

Paxton finds a new way to be two-faced

I mean, what were we supposed to believe?

Best mugshot ever

Texas Attorney General Ken Paxton stunned election administrators across the state last week when he released an opinion that, in theory, would allow anyone to access ballots almost immediately after they were counted.

Records show that, as recently as five days before the office released that opinion, it was providing the exact opposite guidance to counties.

“The information at issue is confidential for at least 22 months after election day,” a public records opinion from the office, dated Aug. 12, reads. “Accordingly, the district attorney’s office must withhold the information at issue.”

Then, five days later, Paxton released his new opinion. “Members of the public” the new guidance read, are welcome to inspect “voted ballots during the 22-month preservation period.”

“What a difference five days makes,” said Chris Davis, elections administrator in Williamson County.

The record shows that Tarrant County did not receive the opinion telling it not to release the ballots until Aug. 22 — five days after Paxton issued his new opinion. This left the county unsure of how to proceed, and by that time, it had already challenged the new opinion in court. Paxton’s office did not respond to questions about what, if anything, changed in the five day period between the contradictory opinions.

[…]

Tarrant County’s court challenge to Paxton’s new opinion was filed as part of an ongoing records dispute. Citing yet another opinion issued to the office this summer, this one dated July 26 and also instructing the county not to release ballots, attorneys for the county’s election department asked the judge to find Paxton’s new opinion “erroneous.”

“On August 17, 2022, the Attorney General issued a formal opinion concluding for the first time in almost 40 years that voted ballots are not confidential,” they wrote. “The Attorney General’s most recent interpretation is erroneous, and the Court should not follow it.”

In addition to the opinions issued to Tarrant County and dated July 26 and Aug. 12, records provided to Votebeat show Paxton’s office provided identical advice in opinions dated June 16 and Aug. 1.

“We have two documents coming from the same office saying opposite things,” Tarrant County Elections Administrator Heider Garcia told Votebeat. “We’ve got to figure out what’s the path we’re going to walk to do our job.”

Garcia has clear reason to be concerned about the ruling. Earlier this year, after the 22 month window for the March 2020 primary lapsed, a group of activists spent weeks inside his office examining the 300,000 ballots cast by Tarrant County voters. The request took Garcia weeks to fulfill, and then required a dedicated room with videotaped surveillance and a staffer’s supervision.

“You want it as safeguarded as possible in case you actually do have a criminal investigation or some sort of proceeding where [ballots] become evidence,” Garcia said. “Ballots are really easy to alter. You just grab a Sharpie and draw a line on them and now how do you know if it’s been altered or not? Having absolute protection on the physical document, to me, is extremely important.”

See here for the background. I cannot think of a good reason for the sudden turnaround, not to mention the chaos caused by the out-of-order delivery of the contradicting opinions in Fort Worth. The simplest explanation is sheer incompetence. Which would be a surprise given that office’s track record – they’re evil, but they’ve been pretty effective at it. If you have a better idea, by all means say so.

I trust that the irony of Heider Garcia’s words in that last paragraph aren’t lost on anyone. The single biggest threat to the security of the ballots is the idiots that demand to “audit” them, who have to be watched like hawks to ensure they don’t accidentally or deliberately spoil them. I hope that the madness this all represents is helping to drive home the message that Republicans are a clear threat to democracy, as the January 6 hearings and confidential-document-theft-a-palooza have been doing. There are plenty of other things to be talking about as well, from guns to abortion to LGBTQ rights to climate change and renewable energy, but we can’t lose sight of this one. Whatever it’s going to take to convince people they can’t trust the Republican Party as it now exists, we need to be doing it.

Paxton issues deranged opinion on access to ballots

This is utterly chaotic. And completely out of the blue.

Best mugshot ever

A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.

Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a time frame Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.

The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted elections administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.

“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.

[…]

Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office  — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.

“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”

Paxton’s office did not respond to specific questions about why he disagreed with Bitter’s conclusion, nor did he respond to requests for comment.

For months, election administrators in Texas and across the country have been fielding records requests from activists intent on re-examining every ballot cast in every election since November 2020 — or, in some cases, even earlier. In Tarrant County, volunteers with a conservative group occupied a room in the elections office for weeks this summer, examining 300,000 ballots from the March 2020 primary, which were made available by the county 22 months after the election.

Ballots are kept in secure lock boxes for 60 days, and then transferred to another secure facility for the remainder of the waiting period in order to comply with the Civil Rights Act of 1960, a federal law which, in part, requires ballots be securely stored for 22 months. In 2017, the Republican-dominated Texas Legislature even amended state law to specify “22 months,” updating state standards to mirror federal requirements.

In the letter to the attorney general’s office, Bitter, the general counsel for the secretary of state’s office, wrote that an election clerk may effectively have to break state law in order to comply with a request for ballots so soon after an election.

Texas law says that if the ballots’ legal custodian, typically a local election official, “makes unauthorized entry into the secure container containing the voting ballots during the preservation period, or fails to prevent another person from making an unauthorized entry, the custodian has committed a Class A misdemeanor,” Bitter wrote.

Paxton’s opinion, experts say, does not appropriately address the potential criminal exposure.

Matthew Masterson, who previously served as the Trump administration’s top election security official and now is Microsoft’s director of information integrity, said that Paxton’s opinion will make it impossible for election administrators to appropriately ensure that ballots are kept secure. The security controls exist for a good reason, he said, and undermining them has serious implications.

“If you open up the floodgates and give anyone access to the ballots throughout that process, you have broken that chain of custody to the point where you would not be able to prove that this was the ballot a given voter cast,” Masterson said.

The opinion itself provides little guidance as to how long or for what reasons election administrators can block access to such ballots, leaving administrators across the state concerned about their ability to appropriately comply.

“If I read this literally as a layman, I think I’m required to provide ballots the day after an election before the results have even been canvassed,” said Chris Davis, elections director in Williamson County, who said such a release would make it impossible for counties to confidently conduct recounts that would stand up to legal scrutiny.

“I don’t know if the drafters of this opinion have a firm grasp on how ballot security and ballot processing is done at the county level,” he said.

There’s more, go read the whole thing, and add on this tweet thread from story author Jessica Huseman. There’s absolutely no justification for this – state and federal law are clear, and nothing has changed about them. It’s just chaos intended to give a boost to Big Lie enthusiasts, and as the story notes later on, it’s potentially a conflict of interest for Paxton since he himself is on the ballot this year, and everyone agrees it’s likely to be a close race.

County election officials around the state are already reporting getting a bunch of requests, some of which appear to be part of a coordinated effort. I think Harris County has the right response here.

Harris County Attorney Christian Menefee says the county is not releasing the ballots, arguing the opinion Paxton issued in the name of election integrity last week runs afoul of the law.

“Attorney General Ken Paxton is distorting the law to fuel conspiracy theories, encouraging reckless behavior that erodes public trust in our democratic process,” Menefee said in a statement. “The law is clear that these voted ballots are confidential and it’s a crime for anyone to access them unless authorized by law.”

Menefee said Harris County had received more than three dozen requests to inspect ballots since Paxton issued his opinion. The county attorney’s office did not respond to a request for more information about the requests, including who submitted them.

[…]

Federal and state laws requires ballots be securely stored for 22 months after an election, in part to preserve them for recounts or challenges to election results. Menefee said Paxton’s opinion “directly contradicts” a separate opinion his office issued last month, as well as an opinion issued by the AG’s office more than 30 years ago, which both concluded that ballots are confidential for 22 months following an election.

“Our election workers should not have to fear being criminally prosecuted because the attorney general wants to play politics and try to rewrite laws,” Menefee said. “Everyone who has closely read the law agrees the ballots are confidential: the Secretary of State’s Office, counties across the state, and his own office just a month ago. Harris County will continue to follow Texas law, not the Attorney General’s ‘opinion.’”

That’s what I, a non-lawyer who has no responsibilities in these matters, would have done. It is highly likely that a lawsuit will result. No one wants that, but sometimes having the fight is the most straightforward way to resolve the dispute. If that’s what we have to do, then so be it.

This is why elections administrators are under attack

What a lousy thing to do right now.

Harris County’s new elections administrator has not taken office yet, but the Harris County GOP is already trying to shape his reputation.

On Wednesday, State Senator Paul Bettencourt, R-Houston, tweeted an image of records showing Clifford Tatum has a federal tax lien of more than $100,000. Bettencourt questioned Tatum’s ability to run the office based on his tax records. According to the tweet, the records were obtained July 5, the date Tatum’s selection was announced.

The Internal Revenue Service filed the $108,209 lien against Tatum last October.

In response to Bettencourt’s tweet, Tatum said in a statement: “This is a personal tax matter and not related to my career as an elections administrator. I have been in touch with the IRS and expect the matter to be resolved by the end of the year. I have been a public servant for over 20 years and my personal life has never impacted my professional career.”

Tatum was selected by a unanimous vote of the five-member Harris County Election Commission in July.

[…]

On Tuesday, Harris County GOP Chair Cindy Siegel was the only person on the five-member Harris County Election Commission to vote against final approval of Tatum, which could not be completed until after he had established residency in Harris County. The commission met briefly to take the vote and adjourned in under 10 minutes.

“Why did the four Democrats on the Election Commission shut down debate on this yesterday?” Siegel said in a statement on Wednesday. “Why didn’t the recruiter do their job and disclose issues with Mr. Tatum’s background before the original offer was voted on? I’ve been asking the paid recruiter and the county attorney’s staff about this for a month.”

In response, Harris County Attorney Christian Menefee issued a statement: “The interview, offer, and selection process for the new elections administrator was thorough and all members of the Elections Commission participated. Mr. Tatum’s experience speaks for itself, and I look forward to working with him.”

See here for the background. Personal tax issues are standard fodder in election campaigns, mostly for the purpose of casting someone as untrustworthy or irresponsible. This isn’t an election, though, it’s a job application, and and having a personal tax issue is generally not an obstacle to getting hired. If there’s evidence that Tatum was dishonest about this to the recruiter and/or the Commission, then bring it forward and we can evaluate that. If not, if he answered honestly any questions he might have been asked about this, then it’s not that much different than telling me he’s got a big unpaid balance on his credit cards. Not great from a personal finance perspective, but not relevant to the job he’s been hired to do.

Also, too. Not to put too fine a point on it, but if you’re out there being a big public supporter of Ken Paxton and The Former Guy, dismissing all criticism as mere partisan attacks, I’m not very likely to take seriously your complaints about some other guy’s back taxes. We all love throwing the word “hypocrisy” around, but maybe try a little self-awareness. I’m just saying.

And look, while no public servant is above criticism or having their conduct scrutinized, now is maybe not the best time to be pointing and screaming at election officials for things that have nothing to do with running elections. Election officials around the country and right here in Texas are besieged by violent threats and harassment from the people that Paul Bettencourt is talking to when he says this stuff. Someone is going to get attacked, even killed, if this keeps up. Could you maybe refrain from throwing gas on the fire for a little while? Is that so damn much to ask?

All of Gillespie County’s elections staff resigns

Who could blame them?

Citing threats and even stalking, all three employees at the Gillespie County elections office have resigned from their positions, leaving the office empty with less than three months before the primary election in November.

The Fredericksburg Standard-Radio Post first reported the wave of resignations last Wednesday, after staff say they received numerous threats and in some cases, even stalking. Now former Gillespie County Elections Administrator Anissa Herrera told the Standard that after the 2020 election she was threatened, stalked and called out on social media.

“The year 2020 was when I got the death threats,” Herrera told the Post. “It was enough that I reached out to our county attorney, and it was suggested that I forward it to FPD (Fredericksburg Police Department) and the sheriff’s office.”

[…]

Josh Blank, director of research at the Texas Politics Project at the University of Texas at Austin, says that with the threats election workers are facing — coupled with an already difficult job — it is more surprising that additional election workers have not yet resigned.

“You’re asking people to do more work under greater scrutiny, and now, threats of physical violence. So it’s not so surprising that this sort of, you know, election workers has decided to resign.” Blank said.

Gillespie County voter Victoria McClurd says that she was both shocked and not shocked that resignations occurred.

“If they’ve been receiving death threats, then I would too, because we’ve gotten to a point where the threats are not benign,” McClurd said. “[In] the last election I was going to be a poll person, and they were talking to us about what to do if someone comes in and is violent. That’s not what happens in a civilized society.”

Sam Taylor, the assistant secretary of state for communications, said the state is already working with Gillespie County officials to help them move forward and prepare for the upcoming election.

“We have already committed to sending trainers from our office to ensure that the County will have the tools and resources they need to conduct a successful election in November,” he said in an email statement.

As we know, it’s not just in Gillespie County that election workers are being terrorized. These folks were just the highest profile to date to say screw it, my life and my family’s life aren’t worth this shit. Note that Gillespie County voted 79% for The Former Guy in 2020. At the risk of trying to impute rational thought on these idiots, what exactly do you think was going on there?

Obviously, the bulk of the blame here lies with our felonious ex-president, but it certainly doesn’t stop there. Every statewide elected Republican that has ever dabbled with election conspiracies, unsubstantiated claims about voter “fraud”, casting suspicion on mail ballots or ballots cast in Democratic counties, they all share the blame for this. State Rep. Kyle Biederman, who “represents” Gillespie County, is one of the worst offenders out there. If they would like for their own elections to be handled in a smooth and competent manner, now would be a good time to say something to push back on the paranoia and rage that they’ve been stoking. Greg Abbott could ask the Texas Rangers to step in and investigate the threats made against Anissa Herrera and her colleagues. Ken Paxton could personally vow to prosecute whoever gets arrested to the fullest extent of the law. Dan Patrick could promise to pass a law that would offer more protection to election workers and provide harsher penalties for making these kinds of threats. That won’t undo their damage but it ought to make the jackals doing the threatening think twice about it. It would also be the right thing to do, and might help turn the temperature down a bit.

This is a five-alarm fire. For once, the arsonists have a chance to try to atone for their sins. What are they going to do about it?

UPDATE: From the Express News, as carried by the Chron:

Gillespie County Judge Mark Stroeher told the Standard-Radio Post that the entire staff resigned for similar reasons, leaving the county in a dire situation for the upcoming November election.

He said that the county has “some people who are pretty fanatical and radical about things” and drove out Herrera and the staff. Stroeher said that the job became more difficult than it probably should be “because of some individuals who are continuing to question how they are doing things,” according to the Standard-Radio Post.

“Elections are getting so nasty and it’s getting dangerous,” Stroeher said to the Standard-Radio Post.

Stroeher told the outlet that he will be contacting the Texas secretary of state for guidance about holding the November elections.

“It’s unfortunate because we have candidates that need to be elected, and we have voters who want their voices to be heard by the ballots,” Stroeher said. “I don’t know how we’re going to hold an election when everybody in the election department has resigned.”

And what have you been doing to combat that fanaticism and radicalism you mention, Judge Stroeher? This is your responsibility, too.

Election officials and workers need our help

We’ve identified the problem. That’s good. Now let’s do something to fix it.

Misinformation about elections has led to violent threats against election workers in Texas and other states — including one who was told “we should end your bloodline” — according to a new report released by a House panel Thursday.

The House Committee on Oversight and Reform heard from one county election official in Texas that he received death threats after being singled out by out-of-state candidates who claimed the 2020 election was stolen. Those threats quickly escalated and eventually included his family and staff.

Tarrant County Elections Administrator Heider Garcia received social media messages including, “hunt him down,” “needs to leave Texas and U.S. as soon as possible,” and “hang him when convicted for fraud and let his lifeless body hang in public until maggots drip out of his mouth.”

The report said Garcia had to call law enforcement when his home address was leaked and calls for physical violence against himself and his family increased — eventually leading to threats against his children that included “I think we should end your bloodline.” Law enforcement determined that none of the threats broke the law, but they did provide coordination and additional patrol around his neighborhood.

The findings are the latest evidence of how former President Donald Trump’s unfounded claims that the 2020 election was rigged against him have taken root as they have been echoed by his supporters, including Texas Republicans who passed new voting restrictions last year.

The report comes as polling released this week indicates two-thirds of Texans who identify as Republicans still do not believe the 2020 election was legitimate. The June survey by the Texas Politics Project at the University of Texas at Austin found 66 percent of Texas Republicans said they don’t believe President Joe Biden legitimately won the election. That was unchanged from February when they were asked the same question.

The report is part of a longrunning effort by congressional Democrats to push back on Trump’s claims and new voting restrictions in states, including Texas.

“Election officials are under siege,” said U.S. Rep. Carolyn Maloney, a New York Democrat who chairs the oversight panel. “They face growing campaigns of harassment and threats, all driven by false accusations of fraud.”

[…]

Garcia wrote that Sidney Powell, Trump’s former lawyer who sought to overturn the 2020 election, appeared on Fox News pushing bunk claims about voting machines turning Tarrant County blue. Garcia was also targeted by Michelle Malkin, a conservative commentator on Newsmax, and far-right website The Gateway Pundit.

Their attacks on Garcia came when Biden won the typically red county by 0.2 percentage points after Trump had led the initial count on election night, before late absentees and provisional ballots were included.

“What followed in the next 4 to 6 weeks was a terrible time of threats and concerns for the safety of my family, my staff and myself,” Garcia wrote.

The House panel in April sent letters to elections administrators in Texas, Arizona, Florida and Ohio asking how misinformation had impacted their work. The report’s findings are based, in part, on responses by Remy Garza, a Cameron County election official who is president of the Texas Association of Election Administrators.

Garza told the committee that during debates in the legislature over proposed changes to voting laws, public testimony frequently included “broad generalizations of alleged fraud” and “repeated misleading information about actions taken by the Harris County clerk responsible for the November 2020 election.”

Garza said the bills Texas Republicans passed were inspired by “false information” and were also sometimes impossible for elections administrators to implement. For instance, the state Legislature enacted a requirement for voting machines to produce a paper record without providing the necessary funds to cover the costs of converting existing equipment to comply, as well as other requirements that are not possible in counties that don’t have certain elections systems.

I have a hard time understanding how those threats against Heider Garcia’s family would not be considered violations of the law. If that’s the case, then the law needs to be updated, because we just can’t have that in a world where we also want free and fair elections run by competent people. Various provisions to offer protection to election officials were included in the voting rights bills that passed the House but were doomed by the filibuster in the Senate. I’m hopeful we’ll get an update to the Electoral Count Act of 1877 to shore up the weaknesses that Trump tried to exploit in 2020, but I seriously doubt that an amendment to include those election official protections could be added, for the same filibuster-related reasons. We’re going to need the same “hold the House and expand the Dem majority in the Senate” parlay to have some hope for this next year. I hope we can wait that long. The Trib has more.

Most of the lawsuit against the voter suppression law survives a motion to dismiss

Some good news.

In a limited order this week, a federal judge threw out some civil rights and discrimination claims brought as part of a complex and ongoing legal dispute over strict new voting rules in Texas.

The lawsuit filed last year alleges that the rules violate the U.S. Constitution, the Voting Rights Act and the Americans with Disabilities Act by restricting voter assistance and making it easier for “partisan poll watchers to intimidate voters and poll workers.”

[…]

In his order on Tuesday, U.S. District Court Judge Xavier Rodriguez, a George W. Bush appointee, did not provide a clear win to either side in the protracted legal fight.

On one hand, Rodriguez did agree with Texas officials that civil rights groups had in some cases failed to a state a claim, meaning they could not adequately show a violation of federal law or a potential injury to voters. He dismissed a handful of claims brought by the civil rights groups, which include the League of Women Voters of Texas and the Workers Defense Action Fund.

On the other hand, Rodriguez’s order was hardly kind to Texas officials. Over the course of 61 pages, he detailed not only why civil rights groups had standing to sue, but also how they’d “clearly” established that SB1 could have discriminatory effects on voting rights.

The judge waved off efforts by Texas officials to have more or all of the lawsuit dismissed — including the state’s unusual argument that civil rights groups shouldn’t be able to sue because “the organizations themselves do not have a disability.”

“It is well settled,” Rodriguez wrote, “that an organization may sue as the representative of its members.”

While past filings in this lawsuit have largely hinged on nuances of civil rights law, Tuesday’s order was interesting because it detailed the lived experiences of disabled voters in Texas.

The civil plaintiffs presented examples from at least three voters — all members of the disability voting-rights group REV UP — whom they said could be harmed by Texas’ new voting law.

These examples were “non-exhaustive,” plaintiffs said, and represented just some of the disabled Texans who could face voting difficulties if SB 1 is allowed to stand.

See here for the background. There were multiple lawsuits filed, with the Justice Department getting involved later on. This is the San Antonio lawsuit from that first blog post. I assume that most if not all of these cases have been combined but it’s hard for me to say from the information I have easily available. Democracy Docket has some information on this one, and they provide a PDF that combines multiple orders from Judge Rodriguez; the Courthouse News story only has one of them, which threw me for a minute as I was trying to verify that I was referring to the correct case. This stuff is complicated, y’all.

Anyway. That story goes into two of those examples, and you should read about them, they’re quite compelling. I’m never quite sure if the Republicans who pass these voter suppression bills legitimately don’t care that people such as these plaintiffs won’t be able to vote as a result, or if they just can’t be bothered to hear their stories while the bills are in progress, lest they have some feelings of guilt or remorse, if those are possible for them. The end result is the same, I just want to know how to calibrate my contempt. Anyway, this is in addition to the other voter suppression bill that was struck down – we are apparently at a point where a bunch of these are getting some action, which is always exciting. As usual, nothing is safe until the Fifth Circuit is done with it, and we know what that usually means. So celebrate responsibly, we may be mourning later on.

Some ideas for improving elections in Harris County

Put it on the new guy’s to do list.

When Harris County’s new elections administrator starts the job next month, he will have less than three months to get ready before polls open on Oct. 24 for early voting in the November election. On top of the tight timeline, he will run his first Harris County election under intense scrutiny from political insiders who will watch to see whether the county repeats its mistakes from the March primary.

There is work to be done to prevent those and other missteps in the upcoming November election, according to a new report commissioned by the county to look for weak spots in the March primary. The findings point to numerous changes Harris County could make, such as improving training and resources for workers and voters, strengthening recruitment of election workers and streamlining operations.

[…]

The draft report from the research firm Fors Marsh Group offers a glimpse behind the scenes of the primary election — and an accounting of the many challenges the county elections office faces as employees adapt to new leadership, new voting machines and new state laws.

Before Commissioners Court created the appointed elections administrator in October 2020, the county clerk and tax assessor-collector managed voter registration and elections in Harris County. Longoria took on the newly-created position just as the county began to roll out its new voting machines in May 2021.

According to the report, executives at Hart InterCivic — the company that makes the county’s voting machines — pointed to several reasons behind difficulties in the March primary, such as “the transition of electronic to paperbased voting, compounded by the creation of a new Elections Office, the pandemic, and the lack of funding for execution of an effective training and voter education effort.”

A survey of Harris County election judges and poll workers included in the report showed 91 percent were satisfied with the instructors who trained them and the answers they received. However, only 66 percent of those who served as election judges in March thought the training was sufficient, while 35 percent of first-time election judges and poll workers said they did not feel adequately prepared to serve in the election.

Voters would benefit from training on the new machines, too. According to the report, however, “much of the funding initially planned for education and outreach had to be repurposed as part of the office’s internal budgeting process in order to meet other pressing elections needs.”

There also is room to improve how election judges and poll workers are recruited, according to the report. Many election workers were recruited at the last minute for the March primary, the report revealed; 30% were recruited three to four weeks before the election, and 29% recruited one to two weeks before the election.

The report indicates Harris County could streamline its election operations by switching to joint primaries. In Harris County, the Democratic and Republican primaries are operated separately at each voting location, with separate lines and separate machines. In the March primary election, the county had 90 voting locations open during early voting and 375 locations on Election Day, but the report suggested the county really operates double those numbers since each polling place housed two separate primaries: “This system effectively meant setting up and managing 750 polling locations on Election Day, each with its own equipment pick-ups and drop-offs.”

Honestly, a lot of this sounds like growing pains to me, with adjustments needed to get used to new voting machines and the new Election Administrator office. I haven’t gone looking for a copy of the report, but I would also put the issue of collecting election results on Election Day, which also needs a clear answer from the Secretary of State office about what is legal. There’s nothing here that suggests to me that this is a big broken mess that’s going to require a total redesign of the entire system. More training of election workers and of voters on the new machines, both of which will require some more funding, is the big takeaway. That sounds very doable to me, and it sounds like a clear and measurable mission for the new Elections Administrator. Welcome to the job, Clifford Tatum.

We have a new Election Administrator

From the inbox:

Harris County’s election commission today named Clifford D. Tatum the county’s next Elections Administrator. He is scheduled to take over from interim EA, Beth Stevens.

Mr. Tatum is the chief information security officer for the DC Board of Elections in Washington, D.C. He brings 16 years of election experience to the EA position.

He holds a bachelor’s degree in Administration of Justice from Guilford College and a Juris Doctorate from Western Michigan University’s Thomas M. Cooley Law School in Lansing.

In response to the selection, Harris County Democratic Party Chair Odus Evbagharu issued the following statement:

“Following a nationwide search, the election commission is thrilled to select Clifford D. Tatum as the county’s new elections administrator.

“The commission worked well together to reach our decision, and Mr. Tatum was unanimously selected in a 5-0 vote.

“Mr. Tatum has an impressive background in leading elections — currently with the DC Board of Elections and prior to that as general counsel for the U.S. Election Assistance Commission. We are excited to bring him on board.

“Mr. Tatum’s elections experience — combined with a background in information security and elections law — make him perfectly suited for the Elections Administrator position, and we look forward to welcoming him to Harris County.”

See here, here, and here for the background. The above is a press release from the HCDP. As of 5:30 PM when I draft this, I’ve not seen a news story yet, though there’s this tweet from Judge Hidalgo saying that his hiring was unanimous. I’m sure there will be some coverage shortly. In the meantime, the Google machine found this biography for Cliff Tatum from the US Election Assistance Commission, and this WaPo story from 2011 about Tatum taking over as the head of the DC Board of Elections. He sounds like a solid hire, and he certainly has the background and experience you’d want for the person taking this job, especially with the next election looming. I’m sure we’ll learn more about him soon. In the meantime, welcome to Houston, Clifford Tatum.

UPDATE: And here’s the Chron story, which doesn’t have much in the way of new information but which does remind us that “Tatum’s appointment will be confirmed in a vote at a later meeting pending a background check and after he meets a residency requirement to become a voter under the Texas Election Code”.

The continued Republican threat to voting

They cannot be satisfied.

Not satisfied with the new voting restrictions put in place less than a year ago, the Texas Republican Party is plowing ahead with yet new measures that would reduce the number of early voting days and end the practice of allowing any senior to vote by mail without an excuse.

At the same time, party leaders are threatening GOP state lawmakers who control the Texas Legislature with increased sanctions if they don’t support the platform, including potentially spending tens of thousands of dollars directly to oppose them in future primaries.

“We made a good step the last time, but we are not there yet,” State Sen. Bob Hall, a Republican from Edgewood, said about last year’s election reforms packages that reduced early voting hours in places like Harris County and put new restrictions on mail-in voting.

The push to further restrict early voting and mail-in ballots is rooted in former President Donald Trump’s continued claim without evidence that the 2020 election was stolen from him largely because of mail-in balloting. At the same convention where the state GOP adopted the new legislative priorities, more than 8,000 delegates also approved a resolution rejecting the “certified results of the 2020 Presidential election” and declaring “that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States.”

“Texas Republicans rightly have no faith in the 2020 election results and we don’t care how many times the elites tell us we have to,” said Republican Party of Texas Chairman Matt Rinaldi, who was elected the leader of the party with no opposition.

What’s more, the Republican Party of Texas membership voted overwhelmingly at its statewide convention in June to make more election reforms its No. 1 priority for the next legislative session that begins in January. That would include increasing penalties for those who violate election laws even inadvertently, reducing early voting days and restricting mail-in balloting to only the military, the disabled and people who will be out of the county during the entirety of early voting.

Texas has allowed voters 65 and older to vote absentee without needing an excuse since 1975. If the GOP succeeds, that would end. More than 1 million Texans used vote-by-mail during the 2020 presidential election and more than 850,000 of those ballots came from people 65 and older, according to the Texas Division of Elections.

“There’s no reason, just because you’ve turned 65, that you can’t show up to vote,” Hall said in promoting the changes during the June GOP Convention in Houston.

[…]

Texas was a pioneer of in-person early voting. It created a 20-day window of early voting in the late 1980s and expanded it dramatically in the early 1990s to include more locations like shopping malls and grocery stores. Currently, Texas has two weeks of early voting before elections, though in 2020 Gov. Greg Abbott expanded early voting for an additional week to allow more people concerned about COVID-19 to vote before Election Day.

If the state cut early voting to just one week, as Hall has proposed, it would affect up to 6.5 million Texans — that’s how many voted in the first two weeks in 2020.

Look, there’s no point in deploying things like “logic” to point out that they seem to have no problems with the elections that they won, or that doing this would hurt their voters, too. It doesn’t need to make sense. It also doesn’t matter whether the “regular” Republicans support this madness or not. Once it has a foothold, the momentum only goes in one direction. Either we win enough power to hold them off, or we are left with nothing but the hope that the likes of Bryan Hughes is unwilling to go that far.

Also of interest:

The Harris County Attorney’s office on Thursday said it is looking into allegations a grass-roots group knocked on doors in Sunnyside and attempted to get residents to sign affidavits verifying the identities of registered voters living at their addresses.

The county attorney’s probe is based on a complaint from at least one Sunnyside resident who said two men came to her home and asked questions they said were to confirm the identities of registered voters who live at that address. The men gave her an official-looking affidavit form and asked her to sign it attesting to the residents at the address “under penalty of perjury.”

“We are investigating this issue and exploring legal options to protect residents and prevent this from happening again,” the County Attorney’s office said in a statement, adding it is working closely with the Harris County Elections Administrator’s office to fully understand what happened.

In a Wednesday evening news release, the elections office warned residents against “scammers” it said pretended to be from the county elections and voter registration offices and attempted to collect sensitive personal information from voters.

The County Attorney’s office, however, said it had no information that anyone had attempted to misrepresent themselves as public employees, which would be illegal.

The two men, according to doorbell camera video footage recorded by a Sunnyside resident, wore badges identifying themselves as members of Texas Election Network, a conservative grass-roots organization formed in 2021.

[…]

In video footage recorded Sunday and reviewed by the Houston Chronicle Thursday, a man carrying the clipboard explains to the resident: “What they told us to do is get a yes or no to confirm whether everybody is here. If not, we’ll take the ones off that are not, and then they update their records.”

The Texas Election Network website — which has minimal information about the organization and does not disclose its leadership — lists five objectives, including clean voter rolls and fraud-free absentee ballots.

In its release, the county elections office said it does request the information being asked on the form used by men and added that voters are not required to sign them.

“In the event that the Harris County Elections Office ever needs to contact you directly, our staff will have county ID badges to prove their identity, and/or paperwork with the logo or official seal of the office included,” the release states.

James Slattery, senior staff attorney with the Texas Civil Rights Project, said for the average voter, the organization’s name, badge and paperwork could convey a sense of an official visit by the government without explicitly doing so.

“I’m sure they’ll say they’re just a bland nonprofit, but to a voter who does not have a law degree, who does not have a background in law enforcement, you are a lot more likely to believe that this is some kind of quasi-official visit,” Slattery said.

“This is one of the precise situations I have been most worried about this election — people in shadowy volunteer groups who suggest in one way or another that they are acting under official authority questioning the eligibility of voters directly by knocking on their doors,” Slattery said.

I’m sure this group is totally on the up-and-up and will spend an equivalent amount of time canvassing in Baytown and Kingwood and the Villages.

Still no new Election Administrator

C’mon, y’all.

Harris County officials canceled an election commission meeting for the second time this week, again citing a lack of quorum because only two members were able to attend in person. The rescheduled meeting now is set for Tuesday.

Harris County Judge Lina Hidalgo, one of five members of the commission, announced Sunday evening that she had tested positive for COVID-19.

When they meet, members of the county’s election commission are expected to pick a new official to run elections, as outgoing Harris County Elections Administrator Isabel Longoria’s resignation went into effect Friday.

At their most recent meeting on June 15, members of the commission narrowed their search to two finalists. Both candidates live outside Texas and have previous election experience, according to Hidalgo.

See here and here for the background. Again, I would like to know who (besides the presumably still-testing-positive Judge Hidalgo) was unable to attend and why, and I would like to know when we might reasonably expect the next meeting to occur. We may be at risk of losing out on one or both of these candidates if we don’t move forward, and that would be a catastrophe. I want to see this done by the end of next week. Please!

No new election admin yet

Hope this delay is brief.

Harris County’s top election position remains unfilled, after a Monday meeting of the county’s election commission to select a candidate was canceled due to a lack of quorum. Their final pick will face a narrowing time frame to prepare for his or her first test: Early voting for the November election begins Oct. 24, less than three months after the new administrator’s likely start date.

The tight schedule adds to an already daunting job in a sprawling county with more than 2.5 million voters, an adversarial political climate with frequent election lawsuits, and a startlingly high rejection rate of nearly one out of five mail ballots in this year’s March primaries under the state’s new voting laws.

Only two of the five members of the commission were able to attend the Monday meeting in person, a day after County Judge Lina Hidalgo announced she had tested positive for COVID-19. The commission has not yet rescheduled the meeting.

With outgoing Harris County Elections Administrator Isabel Longoria’s resignation going into effect Friday, Beth Stevens, chief director of voting for the county, will become the interim administrator until the new hire begins, which Harris County Judge Lina Hidalgo said is likely to be Aug. 1. The new administrator’s appointment will be voted on at a later meeting after the selected candidate meets a residency requirement to become a voter under the Texas Election Code.

The commission was slated to hold a closed-door executive session to interview two finalists for the position and take “possible action” to name the administrator at Monday’s meeting. Both finalists have prior experience running elections and are located out of state, according to Hidalgo.

See here for some background. I agree with Campos, it would have been nice to know who besides Judge Hidalgo (who had a perfectly good excuse) didn’t show up and why. May have been valid reasons, but the clock is ticking and we deserve to know. I get the impression that there’s no real dissension on the committee, they just need to finish the job.

The target date to have the new admin in place is still August 1. That’s a brief time to get up and running, but if they are hiring an experienced person and the operational staff is in place – and hopefully we have a way forward on the ballot collection question for Election Day – then I think we’ll be fine. So with that in mind, let me comment on this:

At the commission’s most recent meeting on June 15, Rob Icsezen, deputy chair of the Harris County Democratic Party’s primary committee, presented a letter to the commission signed by around 100 members of the public, many of them current or former Democratic election workers, asking that Longoria be reinstated as elections administrator. One of the reasons they cited was the time frame left until the November election.

“Any new elections administrator would have the same challenges as Ms. Longoria, without the benefit of a year and a half of hands-on experience,” the letter stated. “In short, they would be starting from scratch. November is rapidly approaching. The voters of Harris County do not have time for this.”

This will not be the first time an administrator has overseen a major Harris County election on relatively short notice. In June 2020, Chris Hollins took over as county clerk shortly before the November election, after outgoing clerk Diane Trautman resigned her position, citing health concerns during the pandemic.

“On my first day as County Clerk in 2020, we had just four months to figure out how to administer an election in pandemic conditions for the first time in Texas history,” Hollins said in a statement. “That included acquiring the necessary protective equipment, recruiting the election workers we needed, and creating and training our team on new safety procedures.”

Hollins benefited from an unprecedented budget to administer the 2020 election, after Commissioners Court approved $27 million — much of that coming from federal CARES Act dollars — to fund his plan, which included additional polling locations, up to 12,000 election workers and an extra week of early voting.

“Many core planning items (e.g., number and location of voting centers) should be well under way by August, but the new EA will need to ensure that solutions are in place for issues that have arisen in recent elections, as well as problems created by the recent voter suppression law,” Hollins said. “These include record rejection rates for mail ballots, which we saw in March, and intentional disruption by partisan poll watchers, which will be something we face for the first time in November.”

I was contacted by Icsezen and a couple of other folks, all people I respect, with this pitch. I did not join them. I like Isabel Longoria and I totally get where Icsezen and the others are coming from, but I just think that ship has sailed. It didn’t work out. That’s unfortunate, but it is what it is. Let’s get the new person in there, give that person all of the support and financing they will need to run a successful election, and do everything we can to help. At least COVID ought to be a much smaller issue this time around. We can do this.

Harris County GOP drops its lawsuit over election night vote dropoffs

It wasn’t getting anywhere, anyway.

The Harris County GOP on Friday dropped its lawsuit, filed on the day of last month’s primary runoff election, challenging the county’s plan for counting ballots.

Local Republican party officials argued the county’s ballot transport protocol violated state election law. The lawsuit, filed just hours before polls closed on Election Day, could have caused serious delays in counting ballots on May 24 had the Texas Supreme Court agreed with the Harris County GOP that the plan was unlawful. Instead, the court did not issue an opinion and election night ballot counting proceeded uneventfully at NRG Arena.

[…]

The Harris County Elections Administrator’s office debuted the plan in the May 7 election — deputizing law enforcement officials and full-time county staffers to deliver ballots from the polling location to the county’s central counting station.

Traditionally, the responsibility of transporting the ballots to the counting station on election night has fallen to election judges, the final task at the end of their 15-hour day. An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process.

The Harris County GOP pushed back on the county’s plan, arguing only election judges are allowed to transport ballots and instructing Republican election judges to drive ballots themselves. The Election Administrator’s office notified Republican election judges they could “opt in” to the county’s plan if they wished, and at least 31 of them did so.

At a May 11 hearing with the state House Elections Committee, Harris County Elections Administrator Isabel Longoria argued the county’s ballot delivery plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

Keith Ingram, the secretary of state’s director of elections, told lawmakers in the hearing he disagreed with that interpretation and believed Harris County’s plan violated the law.

See here for the background. As noted recently, the Supreme Court never responded to the initial writ, so I assume this was just a matter of the local GOP deciding it wasn’t worth the effort to continue. With a new election administrator about to come on board, we can revisit the matter and see if there’s a consensus to be had. From what I’ve gathered from talking to people, the multiple-dropoff-locations idea, which had been Diane Trautman’s original plan, is probably the best way to go. But we’ll see what happens.

We have finalists for the Election Administrator job

Good.

The director of voting for Harris County will become the interim elections administrator, officials said Wednesday as the county elections commission narrowed its search for the permanent job to two candidates.

Following a closed-door executive session of the Harris County Elections Commission, County Judge Lina Hidalgo said both candidates live outside Texas and have previous election experience. The commission will schedule another meeting to make its choice to replace Isabel Longoria, the outgoing elections administrator whose resignation takes effect July 1.

[…]

In the meantime, Beth Stevens, chief director of voting for the county, will become the interim elections administrator until the new hire begins, which Hidalgo said is likely to be on Aug. 1.

That will give Longoria’s replacement less than three months to prepare for his or her first test: early voting for the November election begins Oct. 24. The fall ballot will include several high-profile state and local races, including those for governor, attorney general and Harris County judge.

See here for the previous update. It would have been nice for this person to have a longer runway, or a lower-profile election in which to get themselves acclimated, but this is the hand we’re playing. I certainly hope that whoever these folks are, they have a lot of experience doing this job. They’re going to need to change the narrative about how elections are run in Harris County, sort out the best way to collect and transport election night returns (at last report, the Supreme Court has still not issued any ruling on that writ of mandamus the local Republicans filed), and probably deal with a slavering horde of Republican poll-watchers in November. Godspeed and keep a stiff upper lip, whoever you are.

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”

[…]

Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.

[…]

The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”

[…]

“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

On reporting election night results faster

Not sure about this.

Ahead of next week’s primary runoff elections, Harris County officials are recruiting county staffers to help speed up the results by picking up ballots at polling locations and driving them to the county’s central count location. Harris County was the last of the state’s largest counties to finish counting ballots in an election held earlier this month, even with assistance from law enforcement officers who took on delivery duties.

In the past, the responsibility of delivering the ballots has fallen to election judges, the final task at the end of their 15-hour day. Starting with the May 7 election, law enforcement officers with the Harris County Constables offices and the Harris County Sheriff’s Office picked up the ballots and made the delivery instead. The change didn’t do much to cut down on reporting time. While Dallas County and Tarrant County sent complete results to the state shortly after midnight, Harris County’s results came in around 9:37 a.m. Sunday, according to the Texas Secretary of State’s office.

This week, Harris County officials plan to train and deputize full-time county staffers from various departments to take on those delivery duties, as well. An email sent to county staffers on Tuesday from Harris County Administrator Dave Berry and Harris County Elections Administrator Isabel Longoria requested volunteers to help expedite the process.

“What’s required? Drive to a single polling location and pick up two sets of voting equipment, from both the Democratic and Republican sides, for the May 24th Primary Runoff Election. Return the equipment to NRG and be greeted with snacks, water, and a big THANK YOU for your service,” officials wrote in the email.

Each participating law enforcement officer or county employee will be assigned on average two polling locations, which will cut down by half the total number of cars lined up at central count at the end of the night, according to a spokesperson with the Election Administrator’s office.

While all Texas counties must comply with the state election code regulations — which were modified significantly when Senate Bill 1 went into effect last year — the Election Day ballot counting process varies considerably depending on the county.

At a May 11 hearing with the House Elections Committee, Tarrant County Elections Administrator Heider Garcia told lawmakers his county speeds up results by using multiple dropoff spots on Election Night, instead of one central count location.

“Because we are a large county, we use regional dropoff locations for the poll workers to deliver the materials to us. If we had 350 poll workers queued up outside our office, election night would become election week,” Garcia said.

Rep. Mike Schofield, a Harris County Republican, told Longoria and committee members he was alarmed by Harris County’s plans to deputize county staffers to make deliveries.

“I would be very, very troubled to find out in November that we were just deputizing whoever the elections office thought it wanted to deputize to go touch my election results and bring them to the central counting station,” he said. “So let’s make sure that we know what the law is and that we’re following it because that’s not kosher. Or at least doesn’t seem kosher.”

According to the story, Keith Ingram of the SOS office said he disagreed with Harris County’s interpretation of the law in question. He’s not a lawyer and that’s not an official pronouncement, but that sounds to me like it’s maybe not the best plan to pursue, as there could be unwanted consequences from it. I will say, it’s not clear to me why this would be illegal. I can’t think of any reason why trained county staff would be any less reliable or trustworthy than election judges, who had to be trained by the same election office people to do the same thing. Maybe this is just a quirk of the law if in fact it is not in compliance with it, maybe there was some nutball conspiracy theory reason for county election workers to be not on the sanctioned list of vote-equipment-deliverers, or maybe there’s a legitimate reason that I’m not aware of. All I can say is that at first glance it’s not clear to me why it should be off limits.

That said, rather than risk a confrontation over this, maybe the multiple dropoff points plan is better, as that seems to be how other counties do it. I will confess total ignorance here about why that might not work for Harris County. Maybe it’s just not a thing we’ve done before and so we don’t have a workable plan in place. I’d say one of the first questions we should be asking the next Election Administrator is what they think about this.

There’s also this:

The Harris County GOP is urging Republican election judges to break with Harris County’s election night plan for next week’s primary runoff, arguing the county’s ballot delivery protocol violates the law. Earlier this week, Harris County officials sent an email to county staffers asking for volunteer drivers to help expedite the ballot counting process for the upcoming primary runoff. With hundreds of polling locations spread out over 1,700 square miles, the state’s most populous county has a history of delayed election returns.

In hopes of speeding up election results, the Harris County Elections Administrator’s office also used this plan earlier this month in the May 7 election — deputizing law enforcement officials and full-time county staffers to deliver ballots from the polling location to the county’s sole central counting station. However, the Harris County GOP is pushing back on that plan and instructing Republican election judges to drive ballots to central count themselves.

While the Harris County GOP is opposing the county’s ballot delivery plan, in an email to the Chronicle, party chair Cindy Siegel outlined strategies they would support in order to speed up election results. Those included better tracking of equipment and improved training for staffers receiving ballots.

Their key recommendation: “Include multiple drop off locations around the county with livestream video of the drop off process.”

At the May 11 hearing, Tarrant County Elections Administrator Heider Garcia told lawmakers that’s the system they use to speed up results.

“Because we are a large county, we use regional drop-off locations for the poll workers to deliver the materials to us. If we had 350 poll workers queued up outside our office, election night would become election week,” Garcia said.

Under the tenure of former Republican County Clerk Stan Stanart, Harris County used four drop-off locations to count ballots. Stanart reassured voters the system of transmitting ballot counts was secure.

When the county clerk’s office flipped to Democratic control in 2018, the new County Clerk Diane Trautman intended to use multiple locations, as well, but scrapped the plan after the Texas Secretary of State’s office said the county would violate state law prohibiting the transmission of election results via the internet. Trautman told Commissioners Court in November 2019 she believed her system to relay results was legal, but rather than risk a lawsuit, Harris County would begin to count votes at a single location.

In this year’s primary election on March 1, Harris County used four drop-off locations to shorten the drive time for election judges, according to the Elections Administrator’s office spokesperson Leah Shah. She said they’ve returned to one drop-off location while trying to implement a program to reduce the need for multiple locations.

In response to the Harris County GOP urging judges to transport ballots themselves, Shah said the Elections Administrator’s office has sent out an email to GOP election judges notifying them that they can “opt in” to the county’s plan if they don’t want to drive the ballots themselves. Thirty-one GOP judges have opted in so far, according to Shah.

Someone is going to need to explain to me what Tarrant County is doing differently than what Harris County would have done under Diane Trautman’s plan. Having multiple dropoff locations makes sense to me, so let’s figure out what needs to happen from there and go forward with it. Make that a top priority for the next elections administrator. And again, election night reporting for the earlier May election was fine. If we have a similar experience on Tuesday night, that too will be fine.

SCOTx ponders the questions the Fifth Circuit asked it about SB1

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

Actually, May Election Day vote reporting was basically fine

This headline is correct, but it leaves out some relevant details.

Even with help from constable’s offices, Harris County again was the last of the state’s largest counties to finish counting Saturday’s election results, turning its final tally to the Texas Secretary of State’s office after 9:30 Sunday morning.

In a move touted by the Harris County Elections Administrator’s Office, constable deputies picked up ballot boxes from the 465 polling locations on Election Day and delivered them to the county’s central counting station. Typically, that responsibility has fallen to election judges, the final task at the end of their 15-hour day. Even with deputies taking over delivery duties, results from Harris County slowly trickled in hours after other big Texas counties had reported their tallies.

Dallas County and Tarrant County sent complete results to the state shortly after midnight, while Harris County’s results came in around 9:37 am on Sunday, according to the Texas Secretary of State’s office. With hundreds of polling locations spread out over 1,700 square miles, the state’s most populous county has a history of delayed election returns.

Outgoing Elections Administrator Isabel Longoria announced her resignation following a botched March primary election. The county took 30 hours to finish counting and then two days later announced it found 10,000 ballots that had not been included in its final vote count. Longoria took the blame for the miscues and resigned days later. Her resignation takes effect July 1.

The Harris County Election Board — consisting of Harris County Judge Lina Hidalgo, District Clerk Marilyn Burgess, Tax Assessor-Collector Ann Harris Bennett and the heads of the county Democratic and Republican parties — voted last month to hire a national search firm to find Longoria’s replacement.

Deputy constables have picked up and delivered ballot boxes during early voting in previous elections, but this time they delivered ballot boxes on Election Day, as well. Nadia Hakim, a spokesperson for the Elections Administrator’s Office, said the constables also will assist with the primary runoff election set for May 24.

The county’s elections office boosted its staff on Election Day by bringing in employees from most constable’s offices, along with Harris County employees across several divisions who were available to help, Hakim said. The process, she said, went smoothly.

Asked why the county was the last to report results, Hakim noted Harris County still was within the 24-hour deadline for reporting results to the state, and said there was no issue. Harris County is the third largest county in the country, she added.

Here’s the thing: The Elections Office was updating its results every hour on the hour Saturday night. I know this because I get an email from that office every time there are new results, and I have an email from them with those updated results every hour from 7 PM when the EV totals were posted up until 3 AM, when 95% of the results were in. Maybe that’s slower than you want – as of the midnight report, only about a third of the votes had been counted – but as someone who has spent many an hour by the computer hitting Refresh on the browser, it’s the lack of updates, and the unpredictability of when the next one will arrive, that truly drives us up the wall. This might have felt drawn out, but at least you knew when to check again.

Can we do better than this? I think we can certainly try, and I would hope that whoever the Election Board hires in July will have some solid ideas for how to achieve that. Until then, getting updates on a regular schedule will help most of us keep our blood pressure under control.

We will have a new elections administrator on July 1

Let’s get the best we can.

The Harris County Election Board on Tuesday voted to accept Elections Administrator Isabel Longoria’s resignation and hire a national search firm to find a replacement, two weeks after the five-member panel could only agree to adjourn without taking any action.

Harris County Judge Lina Hidalgo, who chairs the election board, said the county would post the job Tuesday, as well as review applications submitted when the elections administrator job was created in 2020. Before then, elections in Harris County were managed by the county clerk’s office, while the tax assessor-collector’s office handled voter registration and maintained the voter rolls.

“I think it bodes well that the body has worked well together,” Hidalgo said afterward.

The board, which at times sparred over election procedures and replacing Longoria, approved the county administration’s preferred search firm and settled on the job description the firm will circulate and the timeline to have a new elections chief in place by July.

The steps taken were the first since an April 6 meeting ended with nothing achieved after members balked at proceeding with a a search before they formally had accepted Longoria’s resignation. Though she announced her intent to resign after the botched March primary, the election board had — until Tuesday morning — never accepted it.

[…]

Hidalgo had defended leaving Longoria in place through the upcoming election, saying officials needed to efficiently find a permanent replacement by mid-year and not try to transition to an interim leader and then into a second permanent person.

“I am afraid if we have another transition it will complicate things,” she said.

As a compromise, the board agreed to a change in its timeline by [Republican Party Chair Cindy] Siegel to meet by June 30 to appoint a permanent administrator or an interim replacement, assuring Longoria would not last into July.

“I just want to make sure we are not artificially boxing ourselves in,” Siegel said.

See here for the previous update. I think it’s fine to not want to have an interim administrator in place for the May elections, and it’s also fine to want to ensure that we have closed the books on Longoria’s term by July 1. It would be nice to have the next administrator in place by then, but I’d rather we get it right than we get it done quickly. There’s plenty to learn from the last couple of years’ experience, and I hope that whoever comes in fully avails themselves of that opportunity.

Where are we voting in the primary runoffs?

Still TBD.

Harris County Democrats on Thursday accused their Republican counterparts of excluding predominantly Black and Latino areas from a “disturbingly racist” map of proposed voting locations for the May 24 primary runoff, days after alleging the county GOP was purposely dragging its feet in submitting the map.

Republicans rejected the allegations, blaming the delay on a dispute with the county elections administrator over the number of polling places planned for the runoff. They contend the county has breached an agreement with the party in offering a total of 260 runoff polling locations, instead of the 375 used during the first round of voting on March 1.

The delay in approving the map threatens to trigger a cascade of problems, officials warn, in a county already known for its election mishaps.

Under Texas election law, both parties must approve the layout of voting locations in counties, such as Harris, that allow residents to visit any polling place, not just their assigned precinct. Typically a procedural hurdle that is resolved with little fanfare, the two parties have been hung up on this step for weeks, leaving the elections administrator’s office with a shortened timeline to recruit and train workers and set up voting equipment.

Harris County Democrats have accused their GOP counterparts of “willfully delaying the planning process in order to create turmoil that will further erode confidence in our democratic elections.”

Republicans say those allegations are false, noting that a party official emailed the county on March 31 — a week after the elections office sent the GOP a proposed list of locations — to inquire about the smaller number of voting locations.

In a letter to the Harris County Attorney’s Office last week, Steven Mitby, an attorney representing the county GOP, wrote that operating fewer polling places “will have the effect of disenfranchising voters and making the voting experience more difficult.” He argued the county is legally bound, under a contract with the party, to operate the same number of runoff voting locations that it had during the March 1 primary.

The elections administrator’s office, meanwhile, has said the 260 polling places would be more than double the 109 operated by the county during the 2020 primary runoff election, the first runoff under the countywide voting system that allows people to vote outside their home precincts. In the 2016 and 2018 runoffs, the county provided 78 and 89 voting locations, respectively, according to the elections administrator’s office.

[…]

The GOP proposal, [the HCDP] said, does not contain any polling places in an area enclosed by Texas 288, Interstate 45 and Loop 610, which includes Third Ward, Riverside Terrace, Texas Southern University and the University of Houston. The map also does not include voting locations in Sunnyside or near Hobby Airport.

Other areas that would go without polling places under the GOP map include Trinity Gardens and swaths of east and northeast Houston that, like the other areas, are predominantly made up of Black and Latino residents.

“The Harris County GOP’s proposed list of polling locations, if adopted as presented, would be a violation of the Federal Voting Rights Act,” Rob Icsezen, deputy chair of the Harris County Democratic Party Primary Elections Committee, said in a statement. “This list of locations is a bad faith first step from Republicans in a process that should have started weeks ago.”

The HCDP press release about this, which includes images of the proposed locations by each part, is here. You can judge for yourself. I’m a partisan Democrat, so I’m not going to try to convince you that I’m impartial about this. I will say, turnout in primary runoffs is almost always much lower than in the primaries (the 2012 Republican runoff for US Senate is the main exception to this), and in the pre-voting centers days it was quite common for multiple precinct locations to be combined, making the total number of locations smaller. It seems to me that maybe we’d all benefit from there being a more objective set of criteria for this, with a default option for the counties’ elections offices in the event that one party or the other fails to meet a deadline. Something to incentivize agreements in a timely fashion, with protection for the out party from being pushed around by the party in charge. I confess that I don’t know a whole lot about this aspect of the process, so maybe we already have that and this is mostly chest-thumping. I’d just like this to be settled in a sensible and equitable manner so we can get the rest of the details worked out.

Fifth Circuit asks SCOTx for help on some SB1 issues

The Twitter summary:

To recap the history here, back in September a group of plaintiffs including Isabel Longoria filed one of many lawsuits against SB1, the voter suppression law from the special sessions. In December, a motion was filed to get a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. A federal district judge granted the motion, which would have applied to the primaries, and I’m willing to bet would have helped ease the confusion that led to all of those rejected mail ballots, but the Fifth Circuit, as is their wont, put a hold on the injunction.

It’s not clear to me where things are procedurally with this litigation – and remember, there are a bunch of other cases as well – but in this matter the Fifth Circuit wanted to get some clarity on state law before doing whatever it has on its docket to do. Let me just show you what that second linked file says:

The case underlying these certified questions is a pre-enforcement challenge to two recently enacted provisions of the Texas Election Code: section 276.016(a) (the anti-solicitation provision) and section 31.129 (the civil-liability provision) as applied to the anti-solicitation provision. The anti-solicitation provision makes it unlawful for a “public official or election official” while “acting in an official capacity” to “knowingly . . . solicit[] the submission of an application to vote by mail from a person who did not request an application.” The civil-liability provision creates a civil penalty for an election official who is employed by or an office of the state and who violates a provision of the election code.

Isabel Longoria, the Harris County Elections Administrator, and Cathy Morgan, a Volunteer Deputy Registrar serving in Williams and Travis counties, sued the Texas Attorney General, Ken Paxton, to enjoin enforcement of the civil liability provision, as applied to the anti-solicitation provision. And in response to the recent Court of Criminal Appeals case holding that the Texas Attorney General has no independent authority to prosecute criminal offenses created in the Election Code, they also sued the Harris, Travis, and Williamson County district attorneys to challenge the criminal penalties imposed by the anti-solicitation provision. The plaintiffs argue that the provisions violate the First and Fourteenth Amendments because the risk of criminal and civil liability chills speech that “encourage[s] voters to lawfully vote by mail.

After an evidentiary hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, enjoining the defendants from enforcing and prosecuting under the provisions. Paxton and one of the district attorneys (Shawn Dick of Williamson County) appealed. Because the Harris and Travis County district attorneys did not appeal, only Longoria’s challenge to the civil penalty permitted by the civil-liability provision and the Volunteer Deputy Registrar’s challenge to the criminal liability imposed under the anti-solicitation provision were at issue in the appeal.

On its own motion, the U.S. Court of Appeals for the Fifth Circuit has certified the following questions to the Court:

(1) Whether Volunteer Deputy Registrars are “public officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they intend to engage in constitutes “solicitation” within the context of Texas Election Code § 276.016(a)(1). For example, is the definition narrowly limited to seeking application for violative mail-in ballots? Is it limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies) or does it broadly cover the kinds of comments Plaintiffs stated that they wish to make: telling those who are elderly or disabled, for example, that they have the opportunity to apply for mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper official to enforce Texas Election Code § 31.129.

The Court accepted the certified questions and set oral argument for May 11, 2022.

You now know everything I know. Let’s see what happens in May.

Bexar County looks for ways to reduce future mail ballot rejections

Good luck. I hope if they learn anything useful they share it with the rest of us.

Bexar County Commissioners on Tuesday directed local officials to come up with a plan to reduce the number of rejected mail-in ballots in upcoming elections after the county — and Texas — saw record high rejection rates in the March primary.

As many as 22% of mail-in ballots were rejected in Bexar County. Before the new election law took effect, the rejection rate was 2-3%, Bexar County Elections Administrator Jacquelyn Callanen has said.

A statewide analysis by the Associated Press showed about 13% of mail ballots sent to election offices across Texas were thrown out for various errors, many tied to the new, stricter voting rules backed by Republican lawmakers.

“We want to get some feedback from our lawyers in terms of what we can and can’t do in terms of a public outreach campaign,” said Commissioner Justin Rodriguez (Pct. 2), who initiated the process that was approved by the court Tuesday. “The important thing is we want … their votes to count, we want it to be safe and secure.”

The county will have to walk a fine legal line in any awareness campaign, as public officials are now not allowed to promote voting by mail.

“We want to be within the confines of the law, but I think a thorough legal analysis will be helpful,” Rodriguez said.

The Bexar County Elections and District Attorney’s offices will make recommendations ahead of the November election, he said. That may involve hiring more election staff, a coordinated awareness campaign or other mechanisms that may require funding.

See here for the previous entry. Bexar County hopes to have something in place for the May elections, which makes sense. It is of course ridiculous that they have to consult their lawyers before they can attempt to pursue a voter education message – “easier to vote and harder to cheat”, my ass – but that’s where we are. As a reminder, private entities like the Bexar and Harris County Democratic Party can do this as well, without the bizarre legal restraints. I do believe that a concentrated wave of voter education can make a difference, but it needs to be all hands on deck and it needs to start now. Harris County, I hope you’re paying attention.

Longoria to resign as Election Administrator

Ultimately for the best.

Harris County Elections Administrator Isabel Longoria submitted her resignation Tuesday, about an hour and half after Judge Lina Hidalgo announced she intended to replace her following last week’s bungled primary contests.

Longoria said her resignation would take effect July 1.

“I think this date ensures that there’s a presiding officer during the May and June elections, and allows the election commission the time they need to find a replacement,” Longoria said.

She said she took responsibility for last Tuesday’s miscues, including the discovery Saturday of more than 10,000 ballots that had not been included in the final, unofficial count. Her office also had been faulted for a slow count that took 30 hours to tally.

Hidalgo said some mistakes were due to new rules under SB1, the voting law the Legislature passed last year, while others were simply unforced errors by Longoria and her staff.

[…]

Election judges who spoke at Commissioners Court on Tuesday described numerous problems during the primary voting period, including inadequate supplies, malfunctioning machines and a lack of support from elections office staff.

Art Pronin, president of Meyerland Area Democrats, was not at Tuesday’s meeting, but applauded Longoria’s resignation, saying he has been inundated with texts and calls from demoralized and angry precinct chairs and election workers since last week.

“This feeling comes from a lack of support on Election Day,” he said. “They told me of issues from their training session, lacking enough paper at the polling sites and being left on hold up to an hour when calling in for help with machines.”

He added, “I urge the hiring of a highly qualified individual who has a history running elections with the machines we now use here, along with robust voter education on machine and mail ballot usage, and more support for our precinct chairs and judges.”

See here and here for some background. I feel bad about this – I like Isabel, I thought she was a perfectly fine choice for the job when she was appointed, but it just didn’t work out. I’ve seen some similar comments to those made by Art Pronin among activist Dems on Facebook, and it’s just not possible to continue in a job like that when you’ve lost people’s confidence. I wish Isabel all the best, I hope we can learn from this experience to make the May and especially November elections run more smoothly, and I absolutely hope we make a solid choice for the next administrator.

Also last night a bit after I wrote this, the updated primary totals were posted. As I expected and wrote about, none of the races were changed by the additional mail ballots. I’ve been annoyed by some of the coverage of the uncounted absentee ballots, mostly because the mention that some races “could” be affected completely fails to address the fact that the leaders in the closest races were almost always also the leaders (often by a lot) of the counted mail ballots. Indeed, Joe Jaworski went from having a 4,129 to 1,658 advantage in mail ballots over Lee Merritt to a 6,572 to 2,643 lead, a net gain of 1,458 votes. Harold Dutton netted 80 votes as well. It’s not that these or other races couldn’t have been affected – theoretically, it was possible – but leaving out that context was really misleading. It could have happened, but it was very unlikely based on the information we had, that’s all I’m saying. I’ll keep my eye on the results and will post when they appear to be finalized. The Trib has more.

UPDATE: Forgot to mention, final turnout for the Dems was 165,983, or about a thousand less than 2018. For Republicans it was 187,651, a gain of about 30K.

UPDATE: Stace has more.

Harris County GOP sues Isabel Longoria

It’s a lawsuit kind of day.

The Harris County Republican Party filed a lawsuit Monday against the county’s elections administrator, Isabel Longoria, for what they call the “worst elections fiasco in Texas history.”

The lawsuit was filed after Longoria’s office confirmed over the weekend there were approximately 10,000 mail-in ballots that were not added to the unofficial Election Night count.

The Harris County GOP has consistently criticized Longoria and her team for what they said has been the most “egregious” and “mismanaged” election process to ever occur in the history of Harris County.

Some of the issues the GOP point out, according to their lawsuit, include:

Issuing of incorrect ballots to certain polling locations, preventing voters from being able to vote
Providing ballots on the wrong size paper
Failing to complete the counting of the ballots within 24 hours of the polls closing
Failing to deliver the required number of working voting machines and adequate supplies

Harris County Republican Party Chairman Cindy Siegel said they want Longoria, along with her management team, to resign or be fired. The GOP also wants independent oversight of the next three upcoming elections.

See here for the background. The lawsuit is embedded in the story – it asks for between $100K and $250K in damages, which I presume is recovering their cost for the election. The plaintiffs ask for monetary relief and essentially for the elections office to comply with the state’s electoral code with regard to counting votes and publishing the results. I’m not sure where the “independent oversight of the next three upcoming elections” comes from, though I should note that I just skimmed the complaint, I didn’t read it thoroughly.

According to the Chron, there’s a second lawsuit as well:

A second lawsuit, filed by Democratic and Republican primary candidates, also alleged poll workers were not given proper supplies, and in some cases voting machines malfunctioned, leading to damaged ballots.

I don’t have any more information about that lawsuit.

How likely is this one from the HCRP to succeed? I have no idea. As noted before, I don’t think much of any legal complaints the local GOP has made, as they have been a lot of hot garbage lately. But there have definitely been issues with this election, and you never know what can happen in a courtroom. It won’t surprise me if this gets kicked on a motion to dismiss, it won’t surprise me if it bounces around the system for years, and it won’t surprise me if the Republicans recover at least some of their costs for the election, more likely via settlement.

There were mail ballots not included in the count on Election Day

Oof, this is bad.

Harris County Election Administrator Isabel Longoria’s office on Saturday announced that they have identified approximately 10,000 mail-in ballots that were not added to the original count on Election Night.

The county said that approximately 6,000 of the uncounted ballots were for the Democratic primary and approximately 4,000 were for the Republican primary.

“The oversight occurred between the hours of 1 and 4 a.m. as the political parties that make up the Central Count Committee were reviewing ballots,” Longoria’s office said in a press release.

They said the votes were scanned into the tabulation machines but not transferred, which meant they were not being counted in the unofficial count on Election Night. The votes are set to be added to the final count when the Central Count Committee next meets on Tuesday, according to the elections administrator’s office.

The county says it has reached out to the Secretary of State’s office as an investigation into what happened takes place.

“We are committed to full transparency and will continue to provide updates as they are available,” Longoria’s office said.

[…]

In a statement Sunday to KHOU 11 News, the Harris County Elections Office said, “We are focused on ensuring that every ballot cast is accounted for through this canvassing process. We will continue to be transparent in that process through our updates but as you can imagine it is most critical that everyone on our team stay focused and commit all of their time to the task at hand. We will be discussing at commissioners court and that will be an opportunity for broadcast to hear from our office.”

The Chronicle story adds a little more.

“While we understand the seriousness of this error, the ability to identify and correct this issue is a result of a lengthy, rigorous process and is a positive example of the process ultimately working as it should,” the elections office said.

The Secretary of State’s office said they notified Harris County officials of the oversight on Friday after they noticed a discrepancy on the election night reconciliation form, which indicated a difference of 10,072 between the number of ballots counted and the number of eligible votes cast.

“We agree that this is the process working as it should, and we note that it’s only because this Election Night reconciliation form is now required for all 254 counties that we were able to identify the discrepancy and work with the county to find out exactly what happened,” said secretary of state spokesman Sam Taylor.

I guess these are votes that were counted, but the official totals were not updated correctly to reflect this. That’s my interpretation of the statement, I could be wrong. I hope we get some clarity from the official vote canvass on Tuesday.

The first thought one has when seeing something like this – okay, the first thought I had – was “six thousand votes could be enough to change the outcome in some races”. So I went and reviewed all of the results, for both parties (four thousand votes is a lot, too). I looked at all of the close results, to see if the trailing candidate in a two-person race or the third-place finisher in a runoff situation might have a chance to catch up.

The first thing I did was to see how the candidates did with mail ballots in the posted results, on the assumption that the uncounted ballots will likely be similar to the counted ones. In all but two races on the Democratic side, the leading candidate also did better in mail ballots than the trailing candidate. (Example: Joe Jaworski, in second place in the AG primary by less than 1,500 votes statewide, received 4,129 mail ballots to third-place finisher Lee Merritt’s 1,658 mail ballots.) That doesn’t rule out the possibility that the trailing candidate could catch up, but it would require those uncounted ballots to be extremely different from the ones that are already in the official total. I consider that to be sufficiently unlikely as to be nearly impossible.

There were two races where the trailing candidate did better in mail ballots than the leading candidate. One such race is for the 263rd Criminal District Court, where incumbent Judge Amy Martin trailed challenger Melissa Morris by less than two percentage points. Martin led in mail ballots over Morris by a 5,489 to 4,012 margin, which is to say that she got 57.8% of the mail ballots. If we assume she got 57.8% of six thousand uncounted mail ballots, that’s 3,466 for her, and 2,534 for Morris, a net gain of 932 votes. But Morris led Martin by 2,520 votes overall, so that hypothetical net gain is not nearly enough to overcome the existing lead. By my count, Martin would need to win about 71% of the uncounted mail ballots to catch up to Morris. Not impossible, but not likely.

The other race was for County Civil Court at Law #4, where David Patronella finished third, about 4,000 votes behind Treasea Treviño. He also led Treviño in mail ballots, 3,753 to 2,342, with another 3,320 mail votes going to first place finisher Manpreet Monica Singh. If all of the mail ballots were only for Patronella and Treviño, Patronella would need nearly 5,000 of the 6,000 to gain entry into the runoff. With Singh earning about a third of the mail ballots on her own, there would likely be less than 4,000 total mail ballots left for the Patronella and Treviño, and the math from there is clear. This race isn’t going to change.

On the Republican side, there were fewer close races to begin with, and none that rose to this level of scrutiny. So at least we have that small bit of good news, which is that in the end it is very unlikely that any races will be affected by this error.

But holy crap, this is bad. It’s as basic an error as an election administrator’s office can make. Even if it doesn’t affect any results, people are justifiably going to be upset. It’s good that the error was caught before the vote was certified – that’s what the process should do – but it still took five days for it to be reported. The elections office has countered criticism of its slow election night reporting by saying they were focused on accuracy over speed. Needless to say, this undercuts that line of argument.

I’m willing to accept that there were difficulties on Election Day due to relatively new voting machines plus the paper ballot scanners, and people having their first experiences with them. I’m old enough to remember when people thought the eSlate machines were confusing and hard to use. I’m willing to accept that the ridiculous new requirements on mail ballots, which were rolled out in a chaotic fashion by the Secretary of State’s office, caused all kinds of havoc for election administrators everywhere, and forced election office workers to spend many hours trying to track down voters whose mail ballots needed to be fixed. I’m willing to accept that everyone was operating on little sleep at the time that this error happened. But it’s such a basic error, with such potentially enormous consequences that we luckily appear to have avoided, that there needs to be accountability for it. That has to fall on Isabel Longoria, the person in charge of the Elections Office. I get no joy from saying this, but Harris County is already in the state’s crosshairs, and we have to do better. I don’t see a way forward that doesn’t include a new person in charge of the Elections Office. We’ll see what Commissioners Court says.

Of course the Fifth Circuit put a hold on the SB1 injunction

There is nothing more reliable in this world than the Fifth Circuit giving Republicans everything they ask for.

The 5th U.S. Circuit Court of Appeals has put a temporary hold on a preliminary injunction that had blocked enforcement of a rule that keeps local election officials from encouraging voters to request mail-in ballots, according to Harris County officials.

U.S. District Judge Xavier Rodriguez last week halted enforcement of a provision of Senate Bill 1 that made it a crime for election officials to solicit mail-in ballots. The judge said the law likely violates the First Amendment.

[…]

Harris County Attorney Christian D. Menefee on Thursday expressed disappointment in the decision by the 5th Circuit, which has blocked a number of court challenges to conservative policies.

“I am disappointed that the Fifth Circuit has undone the preliminary injunction that protected Administrator (Isabel) Longoria’s First Amendment rights,” Menefee said in a written statement. “As the district court already determined, this law is unconstitutional and prevents election officials from encouraging people to vote by mail, including our seniors, our neighbors with disabilities, and our active-duty service members. One thing that’s clear from the high number of mail-in ballot applications being rejected is that our election officials should be empowered to explain the process and encourage folks to apply to vote by mail if eligible. Today’s decision allows the threat of criminal prosecution to loom over election officials trying to help voters.”

See here and here for the background. This court is a sham and a disgrace, and the only way forward is to pack it with judges that will actually apply the law. Don’t ask me when that is likely to happen.

Because I have nothing better to say, here are a couple of tweets from Harris County Attorney Christian Menefee:

Good luck with that. I wish I felt more optimistic, but it’s not like the Fifth Circuit will care.

Injunction granted in lawsuit over criminal penalties for election officials who encourage voting by mail

That’s a somewhat complicated headline for this.

A new Texas law that keeps local election officials from encouraging voters to request mail-in ballots likely violates the First Amendment, a federal judge ruled late Friday.

Following a testy three-hour hearing earlier in the day, Federal District Judge Xavier Rodriguez temporarily blocked the state from enforcing the rule against Harris County’s election administrator until the rest of a lawsuit plays out. Although the scope of Rodriguez’s preliminary injunction is limited, the judge dealt the first legal blow to new elections restrictions and voting changes Republican lawmakers enacted last year.

The injunction applies to Texas Attorney General Ken Paxton and local county prosecutors in Harris, Travis and Williamson counties.

The state is expected to quickly appeal the ruling. The lawsuit was brought by Harris County election administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who is appointed to help register voters in Travis and Williamson counties.

Feb. 18 is the last day for counties to receive applications for mail-in ballots for the March 1 primary.

Rodriguez previewed his order throughout a Friday morning hearing during which he repeatedly pressed the state’s attorneys — with increasing exasperation — to fill in what he cataloged as ambiguities in the new law. The challenged provision makes it a state jail felony for election officials to “solicit the submission” of an application to vote by mail if the voter did not request it.

Rodriguez took particular issue with the lack of a clear definition for what constitutes soliciting when talking to voters, even those 65 and older who automatically qualify to vote by mail under the state’s strict rules.

“It has a chilling effect,” Rodriguez said while questioning a state attorney Friday morning. “They don’t know when they’re going to run afoul of this vague [law].”

His comments followed testimony from Longoria and Morgan, who said they feared the civil and criminal penalties that could come from violating the broad prohibition.

Longoria said her office was now taking a “passive” approach to voter outreach in regard to voting by mail, with staffers “gingerly” weighing their words while answering voters’ questions about their options.

“When it comes to voting by mail, I have to be very careful with my words,” Longoria said from the witness stand. “I stop mid-sentence sometimes at town halls. … I’m tentative to overreach at the moment.”

Morgan testified that she was concerned the law applied even to volunteers like her, given that her role is formally certified by county election offices. She offered examples of voters she no longer felt she could help navigate the vote-by-mail process. That included an 88-year-old voter whom Morgan would typically call at the start of every year to remind her that she has to reapply for mail-in ballots.

State attorneys said that the law did not apply to volunteers like Morgan and argued the government can prohibit interactions between local election officials and voters without running afoul of the First Amendment.

[…]

And even the state’s witness — Keith Ingram, the Texas secretary of state’s director of elections — indicated the threat of prosecution loomed over election officials. While Ingram was on the stand, Rodriguez presented him with hypothetical interactions between Longoria and voters, asking if she could recommend voting by mail to someone who appeared to qualify.

“I would be very careful about that,” Ingram responded. “You wouldn’t want to recommend” voting by mail as an option “because you’d be worried about prosecution,” he said.

Throughout the hearing, Rodriguez also pressed for the reasoning behind the anti-solicitation provision, interrupting the state’s questioning of Ingram in search of an answer. Ingram said he didn’t know the purpose of the provision.

Eventually, Will Thompson of the Texas attorney general’s office told Rodriguez that the provision was meant to limit “official encouragement” of voting by mail, indicating the state preferred people vote in person even if they qualify to vote by mail.

“We’re not taking the position that the Legislature is opposed to voting by mail,” Thompson said. “That doesn’t mean the Legislature wants resources to be used toward nudging people toward voting by mail.”

See here for the background, and here for a copy of the ruling. The Statesman has a couple of key bits from the ruling:

In his order, Rodriguez rejected Paxton’s argument that the solicitation ban targets government speech, which isn’t protected by the First Amendment because the state is allowed to regulate how public employees perform official duties.

But, the judge noted, Longoria and Morgan do not work for the state. Longoria is employed by Harris County, and Morgan is a volunteer registrar.

Rodriguez also rejected Paxton’s claim that granting the injunction would interfere with the orderly operation of Texas elections. The judge said his order does not affect any voting procedures, change the vote-by-mail process or affect voting deadlines or eligibility.

“Nor does it require that election officials start soliciting applications to vote by mail — it simply prevents the imposition of criminal and civil penalties against officials for encouraging people to vote by mail if they are eligible to do so,” Rodriguez wrote.

None of that will stop the Fifth Circuit from doing what the Republicans ask them to do since that’s what they believe their job is, but at least he tried. For anyone who thinks that it’s hysterical to imagine Longoria or Morgan being prosecuted for these actions, Rob Icsezen and Dana DeBeauvoir would like to have a word with you.

Reporter Edward McKinley and plaintiffs’ attorney Sean Morales-Doyle have good Twitter threads with more details, so go check them out. The main argument was that this provision of SB1 criminalizes speech on the basis of its content and the viewpoint expressed, since Longoria could talk all day about not voting by mail but risked arrest if she said the opposite. This is a preliminary injunction, and whether it survives the Fifth Circuit or not there will be a trial on the merits later this year, and you can bank on it going all the way to SCOTUS. The Supreme Court is occasionally solicitous of the First Amendment, if it approves of the speech in question, so who knows what they might do. In the meantime, we have a small victory, for now, against SB1. There will be a lot more litigation over the rest of that law to come. The Chron has more.

Preliminary injunction sought against mail ballot restrictions

Of interest.

Today in U.S. District Court for the Western District of Texas, the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges, and the Harris County Attorney’s Office moved for a preliminary injunction in Longoria v. Paxton, their challenge to the provision in Texas’s restrictive voting law (S.B. 1) that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The Brennan Center, Weil, and the Harris County Attorney’s Office are seeking the injunction on behalf of Isabel Longoria, the Election Administrator for Harris County, Texas; and the Brennan Center and Weil are also representing Cathy Morgan, a volunteer election worker in Texas.

The motion filed today requests a preliminary injunction against the S.B. 1 provision no later than February 14, 2022. Texas has a primary election on March 1, 2022. To vote by mail in the primary, Texas voters must request mail ballot applications between January 1, 2022, and February 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” said Isabel Longoria, Harris County Election Administrator. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy –an option they have under Texas law.”

Under S.B. 1, Longoria, Morgan, and other election officials and election workers across Texas can be imprisoned for a minimum of six months and fined up to $10,000 if they encourage a voter to apply for a mail ballot application. As the motion filed today argues, this provision violates the First Amendment and undermines election officials’ and election workers’ ability to perform their duties.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” said Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the Governor have made it a crime to do so.”

Texas law allows voting by mail in certain circumstances, including when a voter is 65 years old or older, sick, or disabled, out of the country on election day, or confined in jail.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” said Christian Menefee, the County Attorney for Harris County, Texas. “This anti-solicitation provision of SB 1 not only makes it harder for these folks vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections Administrator and violates the First Amendment.”

“S.B. 1 makes it a crime for public officials or election officials to encourage voters to request a mail ballot application, even if the person would be eligible to vote by mail. By contrast, under Texas law, it is not a crime for a public official or election official to discourage eligible voters to vote by mail,” said Liz Ryan, partner at Weil, Gotshal & Manges. “There is no valid justification for such a one-sided restriction on speech.”

S.B. 1 went into effect on December 2, 2021. It is an omnibus law, containing the provision challenged in Longoria v. Paxton as well as restrictions on other aspects of voting and elections. The law has drawn multiple lawsuits in addition to Longoria v. Paxton. The Department of Justice has challenged S.B. 1 and, many other entities, including the Brennan Center (in LUPE v. Abbott), have also filed suit against various parts of the law.

The motion for a preliminary injunction in Longoria v. Paxton is here.

The complaint, and more background on Longoria v Paxton, is here.

The first lawsuits filed against SB1 were filed in September, with Isabel Longoria a plaintiff in a complaint filed by MALDEF on behalf of a large group. The Justice Department lawsuit was filed in November, and there were three others filed in between. This one was filed on December 10, and if there was any news coverage of it I am not able to find it. The amended complaint was filed on Monday, December 27. It’s the motion for preliminary injunction, filed on Tuesday the 28th, for which I received a press release from the Harris County Attorney’s office, which in turn led me to find the linked article from the Brennan Center (and this Twitter thread), that is trying to make something happen more quickly.

My read on this – I’ve sent some questions to the Harris County Attorney’s office to get clarification – is that Elections Admin Longoria would like a ruling from the court to settle the question of what exactly she is and is not allowed to do, given that as things stand right now saying the wrong thing could get her arrested. We have the primaries coming up real soon, which means mail ballots are going to be getting requested, and people will have questions about them. Raising this as a First Amendment issue makes sense to me, and maybe it will make sense to the courts as well. Hopefully, we’ll find out soon.

UPDATE: Later in the day I found this Statesman story, which added a few details.

The ban on sending unsolicited mail-voting applications was one of many provisions contained in Senate Bill 1, the sweeping GOP voting law that was passed Sept. 1 during the Legislature’s second special session.

Several other provisions of SB 1 have been challenged in a half-dozen lawsuits by civil rights groups and the Biden administration’s Justice Department, including bans on 24-hour and drive-thru voting, ID requirements for mail-in ballots and protections for partisan poll watchers.

Those challenges are awaiting a summer trial.

Longoria and Morgan, however, told U.S. District Judge Fred Biery of San Antonio that waiting until summer is not an option for a prohibition that will handcuff them in the weeks leading up to the March 1 Texas primaries.

“Longoria has planned to engage in speeches and hold voter-outreach events but has been unable to do so for fear of criminal prosecution and civil penalties,” said Tuesday’s filing, adding that Longoria also halted plans to promote mail-in voting with fliers and on social media.

Similarly, Morgan argued in the filing that her work as a voter registrar — particularly around the University of Texas in Austin — will be hampered if she “can no longer proactively suggest that eligible but unaware voters request an application to vote by mail … as she has in the past.”

They asked Biery to rule no later than Feb. 14, noting that to cast a mail-in ballot in the primaries, voters must fill out and return an application between Jan. 1 and Feb. 18.

Texas Attorney General Ken Paxton has not yet filed a response to the lawsuit, though his office opposes the request for an injunction and will respond to that in the future, as well.

So there you have it. My guess is that the state’s response will be some combination of “you can’t sue us” and “neener neener neener”, secure in the belief that the Fifth Circuit will undo anything Judge Biery does. I will of course keep an eye on it.

So what happened with election night reporting this time?

The Chron turns its attention to how long it took for election results to get posted on Tuesday night.


Since last year, Harris County has purchased a new fleet of voting machines, created a new elections administration office and hired a new executive to run it.

Why then, many residents wondered, did Tuesday’s low-turnout election see the same delays in vote counting that plagued the county in the past?

By 1 a.m. Wednesday morning, just 60 percent of votes had been tallied for the ballot, which included state constitutional amendments, school board races and a handful of municipal contests. The county elections administrator’s office did not publish the final unofficial tally until 8:30 a.m., 13 ½ hours after the polls closed.

Election Administrator Isabel Longoria blamed the delay on an “extremely unlikely” glitch in the backup power supply at the vote count headquarters at occurred around 2:30 p.m. on Tuesday afternoon. That triggered a warning on the new voting system, which is sensitive to anything that may resemble a cyberattack, though it is not connected to the internet.

Longoria ordered a test of the system, which took about two hours and delayed the counting of ballots cast during the early vote period, which under Texas law cannot be counted until Election Day. That, in turn, caused delays when election judges began returning Election Day ballot boxes after polls closed at 7 p.m., she said.

“I get that it’s frustrating … but when you trip your new system, you want to be thorough,” Longoria said. “That’s the most responsible thing to do as an elections administrator, so there are no questions later about why you did not stop when you had the chance to double-check.”

Longoria said she does not anticipate the issue in future elections. Higher-turnout contests are no more difficult, she said, since they have the same number of polling places and memory cards that must be processed.

[…]

Tuesday’s delays were unacceptable to Republican Precinct 4 Commissioner Jack Cagle, who last year opposed the creation of an independent elections office and the hiring of Longoria as its first leader. Cagle said Wednesday the county should revert to the old model, in which the county clerk oversees elections and the county tax assessor-collector maintains the voter roll.

“We have an unelected bureaucrat who was appointed by three members of Commissioners Court,” Cagle said. “There’s no accountability to the public.”

Commissioners Court last year created the election administration office on a party-line vote. Longoria was hired by a committee that included Hidalgo, the county party chairs, tax assessor and county clerk.

Cagle said the three Democratic members of the court, County Judge Lina Hidalgo and commissioners Rodney Ellis and Adrian Garcia, bear responsibility for ensuring Wednesday’s delays do not happen again.

Marc Campos, a longtime Houston Democratic strategist, wrote on his blog Wednesday morning that he “expect(ed) outrage” out of the trio.

“This is not about every election watch party that was ruined last night across Harris County,” Campos wrote on his blog. “This is about botching the reporting of election results and the Harris County Elections Administrator’s Office folk’s epic failure.”

Hidalgo said in a statement that while running elections is never easy, the county needs to identify any issues with Tuesday’s elections and correct them for the future. Ellis echoed that sentiment, saying he trusted that Longoria’s team acted in the interests of security and accuracy.

Garcia said the elections office needs to improve communication with the public and anticipate problems before they occur.

“Not getting timely results is unfair to voters and the candidates, and I expect this will be a one-time glitch rather than a continuance of the reputation Harris County earned when elections were run by Republicans like Stan Stanart,” Garcia said in a statement.

See here and here for the background. I’m going to bullet point this one.

– Just as a reminder, the elections administrator idea was first put forward by Ed Emmett back in 2010. Most counties in Texas have them now. Harris was very much an outlier with its Tax Assessor/County Clerk approach to handling voter registration and running elections. Harris County followed state law in creating the position and putting oversight on it.

– The first thing we need is a clear and publicly-available explanation of what exactly happened, why it happened (if we can determine that), and what we are doing to prevent it from happening again. Was the complete reboot necessary, or could that have been skipped? That glitch in the backup power supply may have been extremely unlikely, but given that it did happen, will there be some further mitigation built in to the system now?

This is basic stuff, and speaking as someone who has worked for a big company for a long time, it’s a good way to learn from experience and maintain confidence in one’s own processes. Campos worries that this episode will cause voters to question the capability of Democrats to govern Harris County. Transparency about what happened and what is being done about it is the best antidote for that.

– Something that Commissioner Garcia mentioned but has otherwise been overlooked is that there was inadequate communication from the Elections Administrator’s office on Tuesday night, while we were all waiting for the results. There was the “go watch the Astros” tweet and a couple of Facebook Live videos on the Harris Votes Facebook page, but I went to bed Tuesday night not really knowing what was happening, and I believe that was true for a lot of people. That’s a failure on Isabel Longoria’s part, and I believe it has contributed to the continuing criticism.

People have a reasonable expectation to see at least the early voting results at 7 PM or shortly thereafter. When that doesn’t happen, for whatever the reason, there has to be a clear and easy to find explanation for it. A message on the HarrisVotes website and at the top of the Election Day results page would have sufficed. I looked to Twitter because that’s usually where the breaking news is, but there was nothing to really answer my questions. Maybe those Facebook Live videos would have told me what I wanted to know, but who wants to sit through a video like that when a couple of lines of text that can be readily shared elsewhere will do? I’m sure the Elections office was busy trying to work through the problems so they could get the results out, but they really needed to be letting the rest of us know what was going on and when we might expect an update of the situation. It was the lack of relevant information that made the Tuesday night experience as frustrating as it was. That’s an error that cannot happen again.

– Also, why was there a location that was still voting at 8 PM? What happened there? That needs to be explained as well.

We need to know what happened. We should have known more on Tuesday night, but regardless of that we need to know it now. I hope that process has begun with the Commissioners Court meeting from yesterday. It won’t be done until I can find and link to a report about it.

More on the Mac Walker ballot name situation

Good move by HISD.

Mac Walker

Houston ISD on Tuesday took responsibility for failing to include the nickname of a trustee candidate when it entered his name in a county elections office portal.

Lee “Mac” Walker, vying for district 7, said last week he learned of the issue when a voter asked whether he was on the ballot. On his application to run, he listed his preferred name — Mac — as the name he wanted identified on the ballot. He has been campaigning under the nickname.

He is listed on the ballot, however, simply as Lee Walker.

“HISD acknowledges and takes responsibility for the error in inputting Mr. Walker’s name into the Harris County Elections Administrator’s Office Entity Portal,” district officials said in a statement Tuesday. “Corrective actions and systems in the Office of Board Services have been put into place to ensure that this does not happen again.”

County elections officials said last week the name cannot be changed on the ballot, citing the resources and time required to perform a logic and accuracy test for the entire election before voting begins.

HISD said it will use both Walker’s legal and preferred name in election notices it is required to publish in a newspaper, on the bulletin board used for posting board meeting notices and on its website.

The district said it additionally will publish election notices in the Forward Times, La Voz and Vietnam Post and mail notices of the Nov. 2 election to registered voters in all five of the single-member districts having an election.

See here for the background. Sometimes you make a mistake that can’t be corrected. When that happens, you can at least make amends, and do everything you can to make sure it doesn’t happen again. That’s what HISD has done here, and as someone who wants fair elections, I appreciate it. It’s not the best of all possible situations, but it was the best they could do given what had already happened. That’s all you can ask.

What’s in a ballot name, 2021 edition

This is unfortunate.

Mac Walker

A candidate for the Houston ISD Board of Education said Friday his name has been printed incorrectly on ballots and county elections officials said it is too late to change the name.

Lee “Mac” Walker, running for the district 7 seat, said the issue came to his attention last weekend when a voter emailed to ask if he was on the ballot. The voter sent him a picture of the ballot, which showed his legal name, Lee Walker, instead of the nickname he has gone by and campaigned under, he said.

Walker’s notarized application shows he wrote he wanted his name to be displayed as Mac Walker on the ballot, according to district records. The application has a notary’s stamp on the bottom. A sample ballot shows his name appears as Lee Walker.

An HISD spokesperson said Friday evening the district was looking into questions from the Chronicle.

“I have gone by Mac since the day I was born,” Walker said. “I am just disappointed.”

[…]

Harris County Elections Administrator Isabel Longoria told Walker changing the language of the ballot would require a new logic and accuracy test for the entire election, according to an email sent to Walker that he shared with the Chronicle.

That test requires voting more than 15,500 ballots, five days and more than 60 staffers. Post-test requirements include multiple tasks that would be “impossible” to complete with the test before Wednesday, when equipment and materials will be delivered to early voting sites, Longoria wrote in the email.

“In short: at this point in our election preparations, making a correction in even one race would imperil our ability to start early voting for all the 44 entities on the ballot,” Longoria wrote. “After consultation with the Office of Texas Secretary of State, I’ve decided to move forward with our course of action to avoid derailing the entire Nov. 2nd election.”

Walker forwarded me the email correspondence he had with HISD and the Harris County Elections office regarding this snafu. The error is HISD’s, and at this point it appears to be too late to fix it. (Walker said in his email to Isabel Longoria that he “notified your office on Monday” and that he was disheartened to hear her say that “time is the real bottleneck in the matter when it took you four days to respond”.) I have not spoken to anyone at HISD or in the Elections office – I received this correspondence Friday night after I had gone to bed – so I have no further context to offer for any of this. I am in favor of people appearing on the ballot by their preferred name (within reason), and by any reasonable standard, “Mac Walker” is the name that should be on this ballot. It’s unfortunate that it likely will not happen in this race. Given that, the best I can do is to let you know the situation. Hope this helps.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.