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An analysis of that Paxton opinion about schools and county health authorities

Short version: That’s just, like, his opinion, man.

Best mugshot ever

The law should mean what it says. Rule §97.6(h) of the Texas Administrative Code says: “The health authority is empowered to close any public or private child-care facility, school or other place of public or private assembly when in his or her opinion such closing is necessary to protect the public health; and such school or other place of public or private assembly shall not reopen until permitted by the health authority who caused its closure.” This law was invoked by the Harris County Health Authority this month , directing that K-12 schools in the county start operations entirely online until at least Sept. 7.

On Tuesday, Texas Attorney General Ken Paxton wrote an opinion that effectively invalidated Harris County’s control order and others. The Texas Education Agency accepted the opinion, and said it will defund schools that follow the orders. On Friday, Gov. Greg Abbott added his backing.

While the attorney general’s opinions are non-binding, they are entitled to some respect. So too, though, is the plain language of the law. I believe Paxton has it wrong and that his opinion is likely to kill people.

[…]

The law appears to be clear. The provision of the administrative code cited above gives the power to local health authorities. Despite this, Paxton concludes the law doesn’t mean what it says. He argues if read literally, the law would undercut limitations on the power of local health authorities he believes exist elsewhere in Texas law .

I wouldn’t give that argument a high grade. The “limitations” he cites would cripple local health authority’s power to effectively manage dangerous diseases that cannot survive on surfaces. More importantly, Paxton really can’t explain why Texas couldn’t give local health authorities, who have the authority to take steps such as quarantining an entire county, the (supposedly) limited powers that exist elsewhere and, just as the law says, the explicit power to close schools.

The factual assumptions underlying Paxton’s reading of Texas law are flawed. He writes before closing schools as a form of “area quarantine” (which isn’t the part of the statute the Harris County order relied on), the local health authority must demonstrate “reasonable cause to believe the school, or persons within the school, are actually contaminated by or infected with a communicable disease.”

That condition will exist the instant schools reopen.

See here, here, and here for the background. This too is one person’s opinion, in this case a law professor named Seth Chandler. What any of it actually means is uncertain until either someone sues or the counties and school districts all concede. Given his track record and the political stakes here, it’s quite rational to believe that Paxton is not the most trustworthy authority on this, but until a court gets involved he’s what we have. I hope the various county attorneys, as well as the counsel for the affected school districts, are reviewing this carefully and considering all their options.

Enforcing the mask order

Those of you who haven’t been wearing your mask when out in public, shame on you. And also, there may now be consequences for your dumb refusal to do the right thing.

Houston law enforcement officials will begin issuing fines and citations to people who do not comply with the state’s mask order, Mayor Sylvester Turner announced Monday.

The mandate from Gov. Greg Abbott requires nearly all Texans to wear face coverings in most public settings and has been in effect since early July.

Turner’s announcement comes as Houston experiences a slight dip in its COVID-19 hospitalization levels and a decline in the rate of positive tests, despite a sustained number of daily new cases. The mayor said police would continue to issue warnings at first, as Abbott’s order requires, before fining people $250 for a second offense.

“For months, we have been focusing on education and not citations, but now I am instructing the Houston Police Department to issue the necessary warnings and citations to anyone not wearing a mask in public if they do not meet the criteria for an exemption,” Turner said.

Police Chief Art Acevedo, who is appointed by Turner, agreed with the mayor’s order, saying it would help limit the spread of the coronavirus. He said HPD’s tally of infected and quarantined officers has grown “very rapidly,” with 108 testing positive and 64 awaiting test results.

[…]

The mayor in April instructed police not to issue fines or citations for Harris County Judge Lina Hidalgo’s mask order, winning favor among some of Hidalgo’s critics. Before Monday, he had told police to largely issue warnings when enforcing the governor’s order.

On the one hand, it’s a bit puzzling that the order hadn’t had the threat of a fine behind it before now. On the other hand, given the wishy-washy nature of Abbott’s order, it’s easy to understand why the city wouldn’t be all that interested in putting police resources into “enforcement” of that order. Certainly, the police union was not interested in enforcing the mask order (and yes, that was motivated by the HPOU president’s ridiculous animosity towards Judge Hidalgo), to whatever extent you give their preference weight. I honestly don’t know what difference this is going to make, but I welcome the change. We are moving in the right direction, it would be very nice to move a little faster in that direction, and whatever reasonable step we can take to advance we should take. And boy, do I wish we didn’t have to have debates like this. How much better it would be if people just understood what they need to do and did it.

SCOTX rejects multiple Hotze petitions

Some good news.

The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

See here for the background, and here for the one-line denial. This follows on the heels of an earlier denial over Abbott’s statewide mask order.

The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

See here for that background, and here for that denial. This recapitulates what I’ve been saying all along – there are serious questions to be asked about the Governor’s powers at this time and what the role of the Legislature should be, questions that I sincerely hope are addressed by the next Lege, but Steven Hotze and Jared Woodfill and their shambling evil Lawsuits R Us clown car is absolutely the wrong way to examine those questions. I would also add that SCOTX’s loopiest Justice John Devine is exactly the wrong person to be setting the outlines of this debate, but at least he did so in a concurring opinion. I’ll take what I can get at this point.

On a side note, in that first article Rice poli sci professor Mark Jones is quoted saying that in a 2015-2017 context, Greg Abbott very likely would have given more weight to the demands of the fringiest wingnuts in the Republican Party, because there would have been no political counterweight to them. But now, at a time when Donald Trump is at best running even with Joe Biden in the polls of Texas and the Democrats have a legitimate shot at taking the State House and knocking off a bunch of GOP members of Congress, some discretion on his part is the better part of valor. In other words, elections do have consequences.

Finally, since all news of bad things happening to Steven Hotze is good news, I was recently sent some relevant court documents by a very helpful reader that I will chare with you here. First, is this by a Harris County judge, issued on his own volition (the fancy Latin legal term for this is “sua sponte”), chiding Hotze and Woodfill for not properly serving all parties of his various lawsuits the relevant pleadings he’d been filing with SCOTX in a timely manner. Even more interesting is this one, filed by the Harris County Attorney on behalf of County Judge Lina Hidalgo and County Fire Marshal Laurie Christianson, accusing Hotze of filing multiple bullshit lawsuits against the county as a harassment tactic and asking for sanctions. Here’s a taste:

Hotze filed five lawsuits and two appeals against Judge Hidalgo in the last four months. Many of these cases are based on fabricated facts, and they all make identical constitutional challenges to the Texas Disaster Act. Based on Hotze’s own statements and actions, it is clear that he brought these duplicative suits for the improper purpose of harassing Judge Hidalgo.

Not only are these duplicative suits made for an improper purpose, but Hotze litigates them in a manner orchestrated to be as harassing as possible. Hotze presents all of his cases as urgent matters requiring emergency temporary restraining orders and emergency petitions for writ of mandamus to the Supreme Court. However, these cases are never urgent, have typically been pre-filed for days or weeks, are often set for hearing long after the orders they complain about have expired, and have nothing to do with science, liberty, or the Constitution. Their “urgency” is manufactured to deny Defendants due process by preventing them time to respond.

Hotze’s five lawsuits were designed to maximize delay and cost and create a never-ending conveyor belt of litigation using a six-step formula: (1) Hold a rally and generate negative media attention toward Judge Hidalgo, (2) solicit plaintiffs for a choose-your-own-adventure style lawsuit, (3) file a lawsuit, never serve it, then email opposing counsel about a hearing on a few hours’ notice, (4) make false claims, (5) amend, dismiss, or appeal before the court considers sanctions, and (6) start over with a new lawsuit and repeat the cycle.

It goes from there. It was filed in the 189th Civil Court, the same one whose judge issued that sua sponte order, and it requests “$10,000 in attorney’s fees and a conditional $10,000 in attorney’s fees if this matter is unsuccessfully appealed” on behalf of Hidalgo and Christianson in their official capacities. I have no idea what the odds of success of this motion are, but you do love to see it.

The Renaissance Festival will go on

I haven’t gone to RenFest in years, and I can’t say I was itching to go this year, but it will be there for those who want it.

The 46th annual Texas Renaissance Festival will go on as scheduled this year, but things will look a little different due to the pandemic.

Beginning Saturday, Aug. 1, tickets will be available for the 2020 festival, which starts Oct. 3 and runs through Nov. 29. Tickets will be date-specific, sold in advance online only and will not be available at the gate, according to the festival website. Tickets may also be purchased at participating H-E-B stores beginning Sept. 1.

The most visible change at the nine-week-long festival is that all staff, performers and vendors will be required to wear a face-covering and receive daily temperature checks before each shift, according to a press release.

If a statewide mask order is in place at the time of the festival, patrons will also be required to wear face masks. If no state order is in place, patrons will not be required but “strongly encouraged to do so.” In line with the festival’s long-standing tradition of themed weekends and creative costumes, a face mask contest will be held every day in search of the attendee with the most creatively decorated mask.

Texas counties with more than 20 coronavirus cases are currently under a statewide mask order. Grimes County, where the festival is held, has 828 confirmed COVID-19 cases, according to the latest available data from the Texas Department of State Health Services. The Houston region is still considered a COVID-19 hotspot and is currently at 98,565 cases total. Texas saw the second-highest day for newly reported deaths on Wednesday, per a Houston Chronicle analysis of state data.

[…]

[Texas Renaissance Festival Marketing Manager Marlena] Solomon said the festival’s 200-acre campground typically never meets 50 percent capacity during a normal season, so capacity limitations will not be issued for this season. She added that in anticipation of capacity limitations that could be issued closer to October, the festival grounds will be limited to 22,500 guests per day.

My interpretation of this is that all guests would be required to wear a mask at this time, since Grimes County is covered by that statewide mask order. But after reading this additional story, I’m not so sure of that.

The mask-optional policy has left some workers feeling that the festival will be unsafe. Niki Korontana has been working at the Renaissance Fest for 12 years, performing as a Transylvanian and pirate for 10 of those years.

She is anemic and has to have iron infusion treatments to correct the disorder. Her fragile immune system leaves her vulnerable to COVID-19, she said, and the festival’s resistance ro institute a mask order puts her in danger. She said she resigned via email and has not received a response from management.

“I do understand that we’re dealing with a lot of upheaval,” she said. “Maybe getting back to me is not a priority, but I put a lot into this job. There’s no way to socially distance in a lot of places. There’s limited access to water and hand-washing. The faire population, as a whole, is broke with no access to health care. On the regular we all get ‘faire sick’ every year even without the outbreak. We’re used to working through all of that, and I can easily imagine people infecting others.”

The festival has lost more than half of their performing staff this year, said marketing and communications manager Marlena Solomon. That estimate includes elderly workers, people in at-risk populations and those who may not want to wear masks in the hot early weekends of the event.

“We respect their decision not to come this season due to their concerns regarding facemasks,” Solomon said. “They will be welcome back next year. No one will be penalized for not being a part of this season.”

Ginnie Eatchel, who has worked at the festival for five years, doesn’t have health issues, but she said she’s quitting, too, without at mask mandate. She said she doesn’t understand how patrons can expect performers to work in full medieval dress, including suits of armor, while they balk at being asked to wear a mask.

“Many of these people at fair are of the Trump mindset saying, ‘No one can impede on my freedom’ or ‘If they make me wear a mask, I’m not buying a pass this year,’” she said. “It’s such a selfish mindset. You’re doing it for other people.”

Solomon said that partisan concerns are not behind the voluntary mask policy. “The decisions are not being made based on political views of our patrons,” she said.

Sure seems like a good case for mandating masks to me. I’d prefer that the RenFest require mask wearing, but I’m not likely to attend anyway, so who cares what I think. Honestly, I’m a little surprised to see that they’re open at all, since many other outdoor events have been cancelled. I would have thought RenFest is sufficiently spaced out that they can reasonably minimize the risks, but now I’m rethinking that. Sure would be nice to be able to do reliable contact tracing just in case. Anyway, RenFest has been going through some changes, so maybe this was just about trying to have a little more normality in our lives. I can sympathize with that.

Abbott finally speaks about schools

Of course, he mostly says weasel words.

Gov. Greg Abbott clarified Friday that Texas schools will be required to provide in-person instruction this fall, but that some districts may be eligible for extended waivers on a “case-by-case basis.”

In a letter signed jointly with fellow Republican state leaders, the governor said local health authorities do not have the power to shut down schools solely to prevent the spread of COVID-19.

The guidance, which does not appear to be legally binding, is the first detailed instruction from Abbott in the reopening plans. Earlier this week, Attorney General Ken Paxton and Education Commissioner Mike Morath said districts would not be able to close campuses for prevention purposes alone, and in fact could lose state funding should they try.

Currently, districts are allowed to delay in-person instruction for up to eight weeks.

“If any school district believes they need an extension beyond eight weeks due to COVID-19 related issues, the (Texas Education Agency) will review that request on a case-by-case basis,” the statement says.

The remarks do not give details about the requirements school districts must meet in order to suspend in-school learning. Even if districts reopen campuses, children in public schools across the state can remain at home, continue online-only classes and still receive course credit.

See here and here for the background. Basically, we don’t know anything today that we didn’t already know. Counties and school districts maybe have some flexibility to make their own decisions, but there are no objective criteria by which those decisions can be judged. Paxton’s opinion still doesn’t have the force of law, because Abbott still hasn’t updated his executive order, but it will take either a lawsuit or open defiance of the opinion to test that proposition. In the meantime, we have this deluded fantasy that in person classroom learning will be like it has been before while the pandemic is still raging. Meanwhile, other school employees fear for their health and safety, with no assurances that anyone is looking out for them. And oh yeah, it’s a lead-pipe cinch that people will die as a result of this. Good luck sorting it all out, fellow parents.

One more thing:

An Abbott spokesman did not respond to questions about whether the governor plans to follow-up with an executive order.

That should be carved into his goddam tombstone some day. What a feckless coward. The Trib has more.

Gohmert’s gonna Gohmert

On brand, possibly to the end.

Louie Gohmert

Texas Republican Rep. Louie Gohmert, a mask skeptic who tested positive for the coronavirus Wedneday as he was pre-screened to join President Donald Trump on a visit to Midland, told Fox News that he plans to take the controversial anti-malaria drug that medical experts have warned against for its health risks.

“My doctor and I are all in,” Gohmert told Fox News host Sean Hannity. “That will start in a day or two.”

Trump and other Republicans like Gohmert have touted the drug, though evidence continues to accumulate of its serious side effects and ineffectiveness treating the new coronavirus. The Food and Drug Administration has cautioned against using the drug and last month revoked its emergency use authorization for it, saying the potential, unproven benefit isn’t worth the risk.

Gohmert told Hannity that he has a friend who is a doctor who is taking the drug to treat his own coronavirus. He said his own regimen would consist of the hydroxychloroquine with azithromycin and zinc.

See here for the background. I mean, I don’t know why anyone would expect Gohmert to do something normal or rational or conventional now. I’m reminded of something my buddy’s mom said to him when we were kids and were about to do something crazy, “Well, if you break your leg, don’t come running to me”. You do you, Louie, but if it goes south please don’t expect any sympathy for your dumb decisions.

The school situation remains a big ol’ mess

You can blame Greg Abbott for all this confusion.

After weeks of confusion and conflicting signals, Texas has settled into policies that effectively compel schools to reopen their classrooms this fall no later than eight weeks after the academic year begins, whether they want to or not.

Teachers, parents, school administrators and public health officials have been seeking clarity for weeks on how the state will approach reopening schools safely as coronavirus infections and deaths rise across Texas.

Gov. Greg Abbott has not responded directly to questions from reporters about who has the authority to order schools closed in areas hard-hit by the virus, and the Texas Education Agency has sent mixed messages on reopening guidelines.

But despite the lack of any formal announcement from the governor, the die was cast in in a rapid two-step process Tuesday. First, Texas Attorney General Ken Paxton released nonbinding legal guidance saying local public health officials do not have the power to preemptively require all schools in their jurisdictions to remain closed, even as COVID-19 cases continue to climb in many Texas hotspots.

Then, state education officials reversed an earlier decision by announcing they will not fund school districts that keep classrooms closed for longer than the state allows even if ordered to do so by a local health mandate. Taken together, the actions put school districts in the position of reopening classrooms on the state’s timetable or losing funds and risking potential litigation.

Educators and families must now once again rethink their back-to-school plans this fall. The education agency has given school districts up to eight weeks to limit the number of students permitted on their campuses, after which they must open classrooms to all students who want to attend.

That ninth week is looming large for superintendents who are not sure what the public health landscape will look like at that point. Now, they can’t depend on their local health officials to give them more time, without losing money.

“Starting in the ninth week of our respective school years, regardless of the status of the virus in our communities, as the guidance is written today, we would be faced with two options,” said Northside Superintendent Brian Woods in an interview with the San Antonio Express News editorial board Wednesday. “One would be to ignore a local health order, and in doing so likely put our students and staff and families at risk, or lose funding, which is essential to teaching and serving our families.”

At a school board meeting Tuesday night, Woods indicated he and other superintendents would consider filing a lawsuit seeking to keep their classrooms closed longer if necessary. Paxton’s decision to step into the fray weeks before the school year begins has prompted more questions than answers, including whether a deluge of lawsuits is expected to hit Texas courts demanding health mandates be revoked or enforced.

Emphasis mine, and see here for the background. The Chron’s Jacob Carpenter tries to make sense of this hash.

What is the impact of Paxton’s letter?

Paxton’s letter is not legally binding. The only way the local health authority orders can be negated is through an executive order issued by the governor or a judge’s ruling in a lawsuit.

As of now, Abbott has not issued an executive order declaring that local health authorities cannot mandate school closures, and nobody has filed a lawsuit challenging the local closure orders.

As a result, at this time the school closure mandates issued by local health authorities are legally valid and enforceable.

What did Morath do Tuesday?

Hours after Paxton published his letter, Morath issued new guidance saying public school districts risk losing state funding if they keep campuses shuttered solely as a result of a local health authority closure order.

Districts still can require students with at-home technology access to remain in online-only classes for up to the first eight weeks of the school year. School boards also can push back their school start dates.

If local school closure orders are legally valid, why did Morath say districts risk losing state funding if they follow closure orders?

Morath cited Paxton’s letter in issuing the new guidance on school funding.

“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction for an indefinite period of time.

However, another section of TEA guidance says the agency will continue to provide funding to districts that are forced to close campuses by an entity “authorized to issue such an order under state law” — and as of now, local health authorities have issued legal orders.

Essentially, the TEA has provided two potentially conflicting pieces of guidance.

Who can clear up this conflict?

The simplest answer: Abbott.

At any time, Abbott could issue an executive order that negates all local health orders, or he could announce he will allow the orders to stand.

Abbott has made no move in either direction.

Asked multiple times by the Houston Chronicle earlier this month whether he planned to allow local health officials to order school closures, the governor’s office never directly answered the question. Abbott’s staff also did not respond to a request for comment Tuesday following the release of Paxton’s letter.

Yes, our Governor continues to be basically useless. At this point, the best advice seems to be just wait and see what happens. Maybe Abbott revises his executive order. Maybe all the school districts and county health authorities cave. Maybe someone (or multiple someones) files a lawsuit – unfortunately, one of those someones is gonna be Jared Woodfill, so prepare yourself for the stupid – and a judge makes a ruling that forces the issue one way or another. It’s still the case that schools don’t have to open till September 8, which is what HISD is doing, and the first six weeks after that can be online-only. It’s after that it gets dicey. So sit tight and wait to see how it gets sorted out.

Louie Gohmert gets COVID-19

The universe works in mysterious ways.

Louie Gohmert

U.S. Rep. Louie Gohmert, R-Tyler, has tested positive for the new coronavirus, he said in an interview with East Texas Now where he speculated that he may have caught the virus from wearing his mask.

Gohmert, who spends ample time on the U.S. House floor without a mask, was one of several Texas officials scheduled to fly to West Texas this afternoon with President Donald Trump. He took one test, which tested positive, then took a second test during a pre-screen at the White House which also tested positive.

“I can’t help but wonder … if I injected the virus into my mask when I was moving,” he said in an interview.

[…]

Gohmert said he received guidance from the doctors at the White House and the attending physician at the Capitol that he only needed to self-quarantine for 10 days. He said he will drive back to his East Texas home and that his staff is all getting tested for the virus.

“Like Dorothy said, there’s no place like home,” Gohmert said.

The Republican lawmaker has been known for speaking at length with Capitol colleagues while not adhering to social distancing guidelines. Last month, he told CNN that he was not wearing a mask because he was getting tested regularly for the virus.

“I don’t have the coronavirus, turns out as of yesterday I’ve never had it,” he said in June. “But if I get it, you’ll never see me without a mask.”

We’ll see about that. Gohmert is truly one of the worst people in Congress, and one of the worst in Texas. He has spent his long, miserable career in Congress working to make his district, the state, and the country a worse, poorer, meaner, dumber, unhealthier, less safe, and more violent place. According to Slate, Gohmert “returned to his congressional office after his positive test to personally inform his staff of the result”, which is to say he knowingly put his entire staff at risk for no good reason. I have one wish for Louie Gohmert, and that’s that he gain some small measure of empathy for everyone who has suffered from this pandemic. I don’t have much hope for that wish, but it’s what I’ve got. The Chron and Mother Jones have more.

Paxton overrides county health orders on schools

So much concern for the children here.

Best mugshot ever

Local health officials do not have the authority to shut down all schools in their vicinity while COVID-19 cases rise, Texas Attorney General Ken Paxton said in nonbinding guidance Tuesday that contradicts what the Texas Education Agency has told school officials.

Shortly after Paxton’s announcement, the Texas Education Agency updated its guidance to say it will not fund school districts that keep classrooms closed because of a local health mandate, citing the attorney general’s letter. Districts can receive state funding if they obtain TEA’s permission to stay closed, as allowed for up to eight weeks with some restrictions.

The change represents an about-face for the agency, which previously said it would fund districts that remained closed under a mandate. It will impact schools in at least 16 local authorities, many in the most populous counties, that have issued school closure mandates in the past month.

Dallas County Judge Clay Jenkins, whose county is among those with a mandate to close schools, said local officials will continue to make decisions to keep students safe “regardless of what opinion General Paxton comes up with.”

“The only way that it would really screw things up is if Abbott tried to take away the control from the local groups,” Jenkins said.

The guidance is non-binding, but local health authorities could face lawsuits especially now that Paxton has weighed in. Paxton’s office declined to comment on whether it would sue local health officials that don’t retract mandates, saying it could not comment on hypothetical or potential litigation.

[…]

The governor’s executive order allowing all school districts to operate overrules local mandates to close, Paxton said. Local health officials have some authority to order schools closed if people in it are infected by COVID-19, but not as a preventive measure.

See here and here for the background. I don’t know what happens next – maybe the counties fold and rescind their orders, maybe someone files a lawsuit to force the issue, maybe we wait and see what happens when schools are supposed to start in a non-pandemic world – but it is clear that one person could end the confusion. The head of the TEA is hand-picked by Greg Abbott, after all, and one presumes Mike Morath would not have let the TEA issue that directive if Abbott was not aware of it. Plus, as noted in the story, Abbott’s own executive order is part of the reason the counties don’t have this authority, at least according to Ken Paxton. So we just need Greg Abbott to come forward and clarify things and

Gov. Greg Abbott’s office did not respond to a request to clarify this earlier this month.

Yeah. You know, whoever runs against Abbott in 2022, they need to make a video montage of all of the “Abbott did not respond to a request for comment” lines in every damn story about coronavirus. If there’s a single defining trait of his reign of error, that’s it. Reform Austin has more.

UPDATE: This says a lot:

Truly, we have a weak and feckless Governor.

Harris County issues school closure order

This was expected.

Judge Lina Hidalgo

Harris County and Houston health authorities on Friday ordered all public and non-religious private schools to delay opening for in-person instruction until at least Sept. 8 — a date likely to be extended unless the region sees a significant reduction in its COVID-19 outbreak.

Flanked by their respective health authorities, Harris County Judge Lina Hidalgo and Houston Mayor Sylvester Turner said the region’s novel coronavirus outlook appears too dire to allow the restart of face-to-face classes before Labor Day. Most Houston-area public school districts already had pushed back their in-person start dates to Sept. 8, though a few remained on track to hold on-campus classes in August.

“The last thing I want to do is shut down a brick-and-mortar representation of the American dream,” Hidalgo said Friday. “But right now, we’re guided by human life.”

With the decision, officials in all five of the state’s largest counties — Harris, Dallas, Tarrant, Bexar and Travis — have ordered the closure of public schools through at least Labor Day.

None of the Greater Houston region’s other large counties — Fort Bend, Montgomery, Brazoria and Galveston — have issued closure orders. However, Montgomery County public health officials recommended this week that their school districts delay their start dates or remain online-only through Labor Day.

The Harris County order comes four days after Hidalgo and Public Health Executive Director Umair Shah issued a non-binding recommendation that campuses stay closed until October at the earliest. While county and city officials held off Friday on mandating closures through September, Hidalgo said reopening buildings immediately after Labor Day “is still likely too soon.”

County and city officials said they will need to see a significant decrease in multiple measures, including case counts, rate of positive tests, hospitalizations and deaths, before they OK the reopening of campuses. Local health officials, however, have not set specific COVID-19 outbreak benchmarks that must be met.

“If we want our schools to reopen quicker in person, it’s going to take all of us pulling together to do that,” Shah said.

See here for the background. This was done in part so that HISD would be in compliance with the TEA’s current guidelines. We all want our kids to get back to school in a safe manner as quickly as possible. That means not flattening but crushing the curve, getting coronavirus infections way down to much more manageable levels. We have the month of August to make that happen. Are we going to take this seriously – face masking, social distancing, self-quarantining as needed – or not? The choice is ours.

A very early glimmer of some possibly good news

We may be finally bending the curve, thanks to people finally taking seriously the need to wear face masks in public.

Three weeks after Gov. Greg Abbott required Texans to wear masks, epidemiologists and disease modelers say they are cautiously optimistic that the mandate is helping the state turn a corner in its efforts to contain an outbreak that has killed more than 4,500 Texans.

Throughout the summer, Texas’ coronavirus outbreak became grimmer by the day and by almost every metric: case counts, hospitalizations, deaths. But in the past week or so, Abbott and some of the state’s public health officials began to see hope in the daily case counts as they appeared to stabilize.

A growing body of evidence points to widespread mask-wearing as an effective strategy for containing the virus, and one North Texas researcher’s statistical analysis published this week argued that local mask orders in the region reduced viral transmission enough to avoid a lockdown. The governor, who has faced blistering criticism for his handling of the pandemic from members of his own political party, immediately seized upon those findings in defense of his statewide order.

“A community lock down is not needed as long as masks & other distancing strategies are used,” Abbott wrote Monday on Twitter, citing the analysis by Rajesh Nandy, a professor of biostatistics and epidemiology at the University of North Texas Health Science Center.

But public health experts warn that more restrictive lockdowns may still be appropriate in the state’s hardest-hit regions, as the disease continues to infect about 10 times as many people each day compared with two months ago, ravaging some parts of the state more severely than others.

State data now appears to show new daily infections leveling off, albeit at nearly record highs. There were around 9,100 daily new cases of the virus on average over the past week. The state recorded its largest number of daily new cases July 15, at 10,791. On Thursday, that number was 9,507.

“The downside is even though we are approaching another plateau, we are at a much higher level than in May,” Nandy said.

Yes, it would be good news if the case rate stops going up. But it won’t truly be good news until the number of infections starts to go down, and then continues to go down. You know, like it has in New York and Europe and Asia and other places with generally functional governments. It’s when we get the virus down to levels at or below where we were when we first shut down back in March that we can truly contemplate things like safely sending kids back to school and reopening the economy. You’d think this would be something that would be better understood by the elected officials who have been so resistant to taking basic measures to fight COVID-19 – poll data consistently shows that the public understands this, even if they’re not always great about doing it in the absence of leadership – but clearly for some people, these things have to be learned the hard way. And as they are learning this, the hospitals are still at capacity, and could get overwhelmed at any time.

The irony there is that it may take another broad, mostly national shutdown to get to the point we want to get to. That won’t happen under this President, and if it’s still a necessary thing under the next one, then my god have we effed this up beyond all comprehension. In the meantime:

Now Starr County is at a dangerous “tipping point,” reporting an alarming number of new cases each day, data show. Starr County Memorial Hospital — the county’s only hospital — is overflowing with COVID-19 patients.

The county has been forced to form what is being compared to a so-called “death panel.” A county health board – which governs Starr Memorial – is set to authorize critical care guidelines Thursday that will help medical workers determine ways to allocate scarce medical resources on patients with the best chance to survive.

A committee will deem which COVID-19 patients are likely to die and send them home with family, Jose Vasquez, the county health authority, said during a news conference Tuesday.

“The situation is desperate,” Vasquez said. “We cannot continue functioning in the Starr County Memorial Hospital nor in our county in the way that things are going. The numbers are staggering.”

That’s the same Starr County that was once lauded for its low infection rate and ability to keep the virus under control. That was back when local officials had the authority to make and enforce shelter-in-place orders, before Greg Abbott took that authority away. Starr County now plans to issue a new shelter in place order, though of course they won’t be able to enforce it. Greg Abbott could let them enforce it, and he could let other local governments that want to take a step back in an effort to get their numbers down do so, but that’s not something he has any interest in doing. And so here we are.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

High school sports pushed back a bit

Just a guess, but I’d bet this winds up being redone at least once more before any actual sports get played.

The University Interscholastic League is delaying the start of high school football’s regular season to Sept. 24 for Class 6A and 5A schools with the state championships moved to January.

The change is part of the league’s altered fall sports schedule for the 2020-2021 school year in response to the coronavirus pandemic.

For 6A and 5A schools, the first day of football practice and volleyball practice is now Sept. 7; volleyball’s regular season starts Sept. 14 with state championships Dec. 11-12; cross country meets and team tennis matches start Sept. 7; cross country’s state championship meet is Dec. 5 and team tennis’ state championships are Nov. 11-12.

Schools in Class 4A through Class 1A are remaining on the original schedule. For 1A-4A: football and volleyball practice begins Aug. 3; volleyball’s regular season starts Aug. 10; football regular season’s Aug. 27; volleyball’s state championships are Nov. 18-21; football’s state championships are Dec. 16-19.

The high school football playoffs for 6A and 5A schools are slated for an early December start with the district certification deadline of Dec. 5. For volleyball in these classifications, the deadline is Nov. 17.

[…]

In comparison with like-minded high school athletics governing bodies in Texas, The Texas Association of Private and Parochial Schools delayed the start of fall practice to Sept. 8 with competition beginning Sept. 21 and football season kicking off Sept. 28. The Southwest Preparatory Conference also delayed competition for its schools to Sept. 8 with conference games not occurring until the week of Sept. 21, at the earliest.

The California Interscholastic Federation is delaying its entire high school sports schedule with its football teams set to play its first games in late December or early January.

The Trib adds some more detail.

Marching bands across the state can begin their curriculums on Sept. 7.

The organization also issued guidance on face coverings, protocols for individuals exposed to COVID-19 and how to set up meeting areas like band halls and locker rooms.

Anyone 10 years or older must wear a face covering or face shield when in an area where UIL activities are underway, including when not actively participating in the sport or activity. People are exempt from the rule if they have a medical condition or disability that prevents wearing a face covering, while eating or drinking or in a body of water.

Some schools won’t have to follow UIL’s face covering rule if they are in a county with 20 or fewer active COVID-19 cases that has been approved for exemption by the Texas Department of Emergency Management. In that situation masks can still be mandated if the local school system implements the requirements locally, according to the press release. UIL still “strongly” encourages face coverings in exempt schools.

As the Chron story notes, many school districts have already announced the will begin the year as online-only, per the new TEA guidelines. Students at those schools will still be eligible to participate in UIL extracurriculars, which also includes music. This is from the Texas UIL Twitter feed:

The “Class” stuff refers to school size, where 6A and 5A are the largest schools – this classification used to stop at 5A, but suburban schools kept getting larger. It’s not clear to me why smaller schools – and 4A schools are still pretty big – are exempt from the schedule delay. In the end I don’t think it matters, because unless we really turn things around in the next couple of weeks it’s still not going to be safe, and the UIL will have to revisit this again. Don’t be surprised if in the end, everything gets delayed till the spring. The DMN has more.

Here, have a COVID update

Things are going great.

Texas set yet another record for coronavirus deaths Thursday with 154 — the third day in a row above 100.

The previous record was July 8 when 112 deaths were logged, according to a data analysis by Hearst Newspapers that shows the state reported 105 deaths on Wednesday and 104 on Tuesday.

The streak in deaths comes two weeks after Republican Gov. Greg Abbott ordered most of the state’s 30 million residents to wear masks. Despite pressure from local authorities that he give back their ability to mandate stay-at-home orders, Abbott has insisted increased mask-wearing is the key.

Abbott told Houston’s Fox 26 on Thursday that “the last step that would ever be taken is to lock Texans back down” and said other measures would be taken before resorting to that.

“It seems like I get this question a thousand times a day, and there seem to be rumors out there about a looming shutdown,” Abbott said in the interview. “Let me tell you: There is no shutdown coming.”

It will take about three weeks, Abbott said, to see the effects of his mask mandate and his closure of bars in late June. Abbott claimed cases were flattening out in Harris County, though Hearst Newspapers’ analysis shows the county’s rolling average for new cases is more than three times higher than a month ago.

[…]

A new report from Kinsa, a company that uses internet-connected thermometers to predict the spread of diseases, showed that Texas’ rate of illness is spreading faster than those of other states. The company in the past few years has successfully anticipated outbreaks of the flu weeks ahead of the federal government.

The Kinsa data, which tracks whether an uncontrolled outbreak is likely using fever trends and other information, showed that the state is hitting above the threshold for the entirety of the past 30 days.

“This level of sustained, rampant disease transmission suggests that there is likely a lot more illness in the community than what has been reflected in the case numbers to date,” the company said in a press release Thursday. “In other words, there is no relief in store for Texas over the next few weeks, and we fear that the situation there may get much worse in the near-term.”

No, seriously, it’s just terrific.

A coronavirus patient in Anahuac was flown by helicopter to a hospital in El Campo — 120 miles away — because closer facilities could not take him.

Ambulances are waiting up to 10 hours to deliver patients to packed Hidalgo County emergency rooms.

And short-staffed hospitals in Midland and Odessa have had to turn away ailing COVID-19 patients from rural West Texas facilities that can’t offer the care they need.

As the tally of coronavirus infections climbs higher each day, Texas hospitals are taking extraordinary steps to make space for a surge of patients. Some facilities in South Texas say they are dangerously close to filling up, while hospitals elsewhere are taking precautionary measures to keep their numbers manageable.

Doctors warn of shortages of an antiviral drug that shows promise for treating COVID-19 patients. And epidemiologists say the state’s hospitals may be in for a longer, harder ride than places like New York, where hospitals were stretched to capacity in the spring and some parked refrigerated trailers outside to store bodies of people who died from COVID-19.

“It used to [be that] if one hospital got kind of overwhelmed … you would start transferring out ICU patients to other facilities that had ICU beds available,” said Dr. Robert Hancock, president of the Texas College of Emergency Physicians. “And there really is none of that now, because everybody’s in the same boat and they’re struggling to get their own patients admitted.”

You might say we’re red hot.

A document prepared for the White House Coronavirus Task Force but not publicized suggests more than a dozen states should revert to more stringent protective measures, limiting social gatherings to 10 people or fewer, closing bars and gyms and asking residents to wear masks at all times.

The document, dated July 14 and obtained by the Center for Public Integrity, says 18 states are in the “red zone” for COVID-19 cases, meaning they had more than 100 new cases per 100,000 population last week. Eleven states are in the “red zone” for test positivity, meaning more than 10 percent of diagnostic test results came back positive.

It includes county-level data and reflects the insistence of the Trump administration that states and counties should take the lead in responding to the coronavirus. The document has been shared within the federal government but does not appear to be posted publicly.

Dr. Ashish Jha, director of the Harvard Global Health Institute, said he thought the information and recommendations were mostly good.

“The fact that it’s not public makes no sense to me,” Jha said Thursday. “Why are we hiding this information from the American people? This should be published and updated every day.”

[…]

The 18 states that are included in the red zone for cases in the document are: Alabama, Arkansas, Arizona, California, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Nevada, Oklahoma, South Carolina, Tennessee, Texas and Utah.

The 11 states that are in the red zone for test positivity are Alabama, Arizona, Florida, Georgia, Idaho, Louisiana, Mississippi, Nevada, South Carolina, Texas and Washington.

In May, the World Health Organization recommended that governments make sure test positivity rates were at 5 percent or lower for 14 days before reopening. A COVID-19 tracker from Johns Hopkins University shows that 33 states were above that recommended positivity as of July 16.

“If the test positivity rate is above 10 percent, that means we’re not doing a good job mitigating the outbreak,” said Jessica Malaty Rivera, science communication lead at the COVID Tracking Project, a volunteer organization launched by journalists from The Atlantic. “Ideally we want the test positivity rate to be below 3 percent, because that shows that we’re suppressing COVID-19.”

But don’t worry, Greg Abbott is on it.

As the number of new coronavirus cases in Texas continues to rise and hospitals grow more crowded, Gov. Greg Abbott said Thursday there is no statewide shutdown looming.

Abbott said last week that if the spread of the virus didn’t slow, “the next step would have to be a lockdown.” But in a television interview Thursday, he said that there have been rumors of such a move and stressed that they were not true.

“Let me tell you, there is no shutdown coming,” he told KRIV-TV in Houston.

Abbott pointed to measures he’s taken in recent weeks, including a statewide mask mandate and an order shutting down bars, to slow the spread of the virus. It will take a few weeks to see a reversal in coronavirus case surges, he said.

He has repeatedly stressed this week that, if people wear masks, he’ll be able to avoid shutting down the state. On Wednesday, he told KPRC-TV in Houston that it seems like people ask him about a shutdown “like a thousand times a day.”

“People are panicking, thinking I’m about to shut down Texas again,” he said. “The answer is no. That is not the goal. I’ve been abundantly clear.”

To also be abundantly clear, Abbott is correct that it will take a bit of time for the mask order and other interventions to work, just as there was a lag between the increasing case rate and subsequent increases in hospitalizations and deaths (not that we responded in time for them, but never mind that right now). He is also correct that universal face mask wearing would be a big help, though it may not be enough at this point, and he’s fighting headwinds from Donald Trump and his fellow Republicans on that score. And if we really want to be clear, we need to remember that Abbott mostly speaks in riddles these days, so we turn to an expert in the field for true clarity:

Yes, that’s the kind of straight talk you get from Greg Abbott.

Lawmakers quickly discovered something remarkable. It was possible to stare the man in the eyes, to speak with him for a half-hour or more, and walk away with no better idea of where he stood on important legislative matters. He seemed unwilling to speak forthrightly about nearly anything, drawing a veil around his positions, lest he alienate some key legislator or interest group.

When Abbott did make himself clear, it was to issue marching orders to those who had no reason to follow them, or to punish those who had defied him. “There was no comparison to Perry. [Abbott’s] concept of governing is ordering people around,” Republican state representative Sarah Davis told me in 2018. “He came into the regular session and kind of chided us, and then was absent for the rest of the session.”

And his public statements often contradicted his private ones. Publicly, Abbott endorsed the infamous anti-transgender “bathroom bill” in the 2017 session and pretended to advocate for its passage. But in private he reassured business groups—who worried the state would be boycotted by lucrative conventions and sports tournaments—that the bill would never pass. He was publicly accused of that duplicity by Republican state representative Byron Cook in 2018. The governor’s office has never addressed it.

[…]

Fast forward a few years, through 130,000 American deaths from the coronavirus, at least 3,500 of them from Texas so far, and the onset of the worst economic circumstances since the Great Depression. Now Abbott’s governing style is under strain. Arguably, the root cause of the current crisis is his tendency to talk a lot without saying much and his propensity to take the path of least resistance regardless of the circumstances, especially when confronted by the inchoate demands of the Republican party’s right wing. This modus operandi is on display every time Abbott gets in front of a television camera. But as we see more and more of it, the artifice is becoming more clear. Abbott’s disapproval numbers have been rising just a bit, even as other governors have seen a surge of popularity during the crisis.

Here, we could talk about Abbott’s quadruple-backflip on mask mandates; the time he issued a statewide lockdown disguised under a bureaucratic name while insisting it wasn’t one, before clarifying that it was the next day; the Shelley Luther saga, which saw him ordain that violators of his shutdown order should be punished with fines and jail time only to blame local officials for enforcing it, before retroactively nullifying what he had expressly commanded; or the way he opened the state for business before fixing the problems the lockdown was designed to address.

But instead, let’s consider a small but important test Abbott recently faced, one that seems instructive. Abbott’s party had long been planning to hold its state convention in Houston, one of the nation’s biggest coronavirus hot spots, which would have brought some six thousand attendees, many of them older and especially vulnerable to the virus, from all around the state for a crowded three-day fete. An in-person convention was a virtual guarantee that some delegates and service workers would get infected and possibly die, and that Houston’s seemingly potent strain of the virus would be spread around the state.

It was an incredibly bad idea that Abbott’s party nonetheless seemed hell-bent on pursuing. What did the governor have to say about it? Would he speak up, in an attempt to save the lives of his own party’s activists? “You’re the top Republican in the state, governor,” said an anchor for KDFW in Dallas on July 6, after Houston mayor Sylvester Turner begged the party to call off the gathering, then canceled it two days later. “What do you think should happen?”

The governor’s answer: “I know that the executive committee for the Republican Party of Texas have been talking about this. I think they continue to talk about it, and they weigh all of the consequences and the public health and measures … They’ll make a decision.”

The anchor persisted: “You don’t want to weigh in on what you think should happen?”

The governor paused and then gave his answer: “Obviously I think whatever happens—whether it be, listen, this convention or any action that anybody takes—we’re at a time with the outbreak of the coronavirus where public safety needs to be a paramount concern, and make sure that whoever does anything and whatever they do, they need to do to reduce the spread of the coronavirus.”

Huh?

A day later, an anchor for KENS in San Antonio tried a different tack: “Will you be attending in person?” Abbott dissembled, so the anchor tried again. “Yeah, listen, as for myself, as well as for everybody else,” Abbott said, “we will continue to see what the standards are that will be issued by the State Republican Executive Committee, by the state Republican Party to determine what the possibility will be for being able to attend.” To determine what the possibility will be for being able to attend.

Not only could Abbott not say whether he thought the convention was a good idea, he couldn’t even say whether he would be there. The interview went out during the KENS five o’clock broadcast. Not half an hour later, during a meeting of the SREC, the party’s executive director announced that elected officials would be pre-recording messages instead of giving in-person speeches. Abbott surely knew this important fact when he was on the air.

I hope this clears everything up.

Federal judge rules GOP can have its in person convention

Unbelievable.

A federal judge on Friday ruled that Mayor Sylvester Turner and Houston First Corp. must allow the Texas Republican Party to proceed with an in-person convention at the George R. Brown Convention Center, though the party now only intends to use the facility as a backup option.

Judge Lynn Hughes of the Southern District of Texas found the city had infringed upon the Texas GOP’s constitutional rights by canceling the convention, which initially was set to run from Thursday through Saturday before Turner ordered Houston First, the city’s convention agency, to nix it.

Hughes gave the party the option of using the convention center this weekend and next, according to Jared Woodfill, an attorney for Houston conservative activist Steve Hotze, who initially filed the lawsuit with a handful of other plaintiffs.

The party began its convention online Thursday but encountered numerous technical difficulties, forcing officials to postpone the event until Saturday. The party joined Hotze’s lawsuit Friday “to provide a last-resort method in-person if we needed it to secure our national election obligations,” Chairman James Dickey said in a statement following Hughes’ ruling. He said the party still “is on track to hold its convention online.”

Party officials will elect their party chair and select delegates for the national Republican convention at the state convention.

“Our online convention provides the greatest opportunity for as many delegates who want to participate in the convention as possible,” Dickey said. “We learned a hard lesson yesterday and with this win today, if for any reason there is an issue tomorrow, we know that we have a single location where, with the necessary SREC authorizations, we could” elect delegates to the national convention.

Turner in a statement blasted the party for its legal efforts to proceed with the convention, and said the city and Houston First would appeal upon receiving a written order from Hughes.

“We are in the midst of a pandemic, a public health crisis. More people are being admitted to our hospitals and ICUs, and more people are dying,” Turner said. “The State Republican Executive Committee is being totally irresponsible in continuing to push for an indoor, in-person convention. This reflects a total disregard for the health and safety of employees and people in our city.”

[…]

Hughes, in granting the Texas GOP an injunction that bars Turner from canceling the event, agreed with the argument by Hotze and the party that Turner’s move to cancel the convention “at the last minute” deprived party members “of their right to express their political beliefs, and make core political determinations,” a right protected by the First Amendment.

In a court filing Friday, Woodfill wrote that the party “has attempted a virtual convention and found that it is an unworkable platform.”

“Accordingly, the Republican Party of Texas has no choice but to seek relief from the Court to allow the Republican Party of Texas to prepare for the upcoming election season,” Woodfill wrote.

See here and here for some background. The plaintiffs knew which judge to pick, you have to give them credit for that. The judge bought the argument that the late cancellation of the convention, which came after they had considered but rejected changing to an online convention, which Mayor Turner begged them to reconsider, plus the GOP’s complete inability to get Zoom to work, meant that their rights were being infringed. Putting it another way:

The city and Houston First will appeal, so we’ll see what happens. Even on the Republican side, this was a bit controversial:

Before Friday’s ruling, Texas GOP Chairman James Dickey said the party was still working toward resuming the virtual convention Saturday.

“Today we have been hard at work for hours already on Plan A and Plan B and Plan C,” Dickey said during an interview with Texas Values. “We are going to make sure that we can move forward with our convention virtually tomorrow.”

[…]

Dickey’s chairmanship is on the line at the convention, where he faces a serious challenge from Allen West, the former Florida congressman. The election is tentatively scheduled for Sunday.

West has mostly stayed out of the debate over holding the convention in person, though he has increasingly questioned Dickey over the voting technology for the virtual meeting. And earlier Friday, West’s team seemed to reach a boiling point when word got out that the party was making a last-ditch legal push to join Hotze’s lawsuit.

“It is beyond belief that Chairman Dickey and the RPT allowed a foreseeable catastrophic failure such as this to unfold,” West lawyer Clyde Siebman wrote in a letter to Dickey. “Colonel West grew to doubt that it was by mere negligence but continued to give fellow Republicans the benefit of the doubt — until today.”

The party’s 11th-hour participation in the lawsuit “proves an intent to disenfranchise large blocks of grassroot Republicans across Texas,” Siebman added.

I don’t know what’s going to happen at this point, but my advice is to avoid downtown until this is over. And pray for those workers whose lives are being put in danger.

Censuring Abbott

An amusing sideline, if nothing else.

Republicans in eight different Texas counties have now voted to censure Gov. Greg Abbott for his order requiring Texans to wear face coverings and take other protective measures as COVID-19 spreads throughout the state.

Over the weekend, the Henderson County Republican Party Executive Committee, just west of Tyler, held an emergency meeting to censure Abbott, a Republican, for not calling the Texas Legislature into a special session to help manage the COVID-19 emergency.

Since July 4, seven other county Republican Party Executive Committees around the state have approved censures of Abbott, including in Montgomery County, where they voted 40-0 on the censure.

The Montgomery County Republican Executive Committee’s censure resolution says Abbott has acted with “disregard to the Texas Constitution,” pointing to the mandated mask requirement for people in counties with at least 20 positive cases, limiting gatherings and the closing of bars across the state.

It’s similar to a censure resolution passed by Ector County Republicans in the Odessa-Midland area.

“The Ector County Republican Executive Board decided it would be a fitting day for us to send a clear message to Governor Abbott,” the party wrote on its Facebook page. “A message that we will no longer sit quietly while he over reaches his authority again, again, and again.”

I noted the Ector County resolution when it happened. Here’s the list so far, according to the sidebar:

Montgomery County
Ector County
Llano County
Harrison County
Denton County
Hood County
Eastland County
Henderson County

The ones who are arguing that Abbott needs to call a special session and involve the Legislature in some of these decisions are raising a fair point that deserves better elucidation than a Steven Hotze lawsuit. The ones that are basically an expression of “but I don’t wanna wear a mask!” can go pound sand, while wearing a mask. I think that about covers it.

The GOP convention is off to a great start

Ain’t technology great?

Getting the virtual state convention up and running “has not been a walk in the park,” said Republican Party of Texas Chair James Dickey in a Facebook Live chat Wednesday evening.

Glitches related to credentialing had yet to be ironed out Thursday, preventing the party from initiating the business at hand. The live feed displayed text stating “We are at ease” and that everyone would be notified when the credentialing emails had been sent.

The frustration was evident in the social media comments.

“Has anyone received their credentials,” asked one person.

“We didn’t get ANYTHING after the registration confirmation. Feeling shut out & silenced,” posted another person.

“Still no credentials … This is crazy,” wrote a third delegate.

And yet another participant had words of blame for the party’s executive committee, writing, “If you weren’t watching during the last couple of SREC meetings, you should watch them. It is the failure to act that has brought us to this online meeting. Three and a half hour meeting to decide nothing. See which SREC were driving the train off the cliff by their interruptions and antics. If SREC members can’t remember parliamentary procedure, Heaven help us when it comes to the meeting of the convention. If SREC can’t properly use the system, who will thousands of others. Like always, in was not everyone’s fault. See if you were happy with your SREC’s interruptions and actions. Maybe yours were good ones … maybe yours needs to be changed. Make that decision while we wait.”

Never wanting to miss an opportunity to poke at the competition, the Democratic Party of Texas sent out a news release encouraging reporters to watch reruns of last month’s Democratic state convention while waiting for the GOP to fix its technical glitches.

Maybe should have spent more time preparing, and less time in court? Just a thought.

Ah, well, at least Greg Abbott got a warm reception for his keynote speech.

Gov. Greg Abbott delivered a firm defense Thursday of his coronavirus response to delegates at the Texas GOP convention who even he acknowledged have grown agitated with him.

Abbott addressed the discontent head-on as the virtual convention got underway Thursday afternoon, starting with the statewide mask requirement that he issued earlier this month. Since then, several Republican county leaders, including in some of the state’s biggest red counties, have voted to censure the governor.

“Now I know that many of all you are frustrated — so am I,” Abbott said in a video message to the delegates. “I know that many of you do not like the mask requirement — I don’t either. It is the last thing that I wanted to do.

“Actually the next to the last,” Abbott added. “The last thing that any of us want is to lock Texas back down again.”

Coronavirus has surged in recent weeks across the state, and Abbott sought to impress upon the delegates how dire the situation has become.

“Each day the facts get worse,” he said. “If we don’t slow this disease quickly, our hospitals will get overrun, and I fear it will even inflict some of the people that I’m talking to right now.”

Why the facts have gotten worse each day is left as an exercise for the reader.

UPDATE: The state GOP is gonna take today to try to fix stuff, and then resume the convention tomorrow.

Some brief runoff thoughts

You know the drill here…

– The Election Night Results page at the SOS shows 955,735 votes total in the Democratic Senate runoff. That number is likely to increase a bit over the next few days, as we’ll see shortly. It means about 300K votes were cast on Tuesday, a bit more than thirty percent of the overall total. This turnout is the highest of any Democratic primary runoff since 1990, back when Dems were the dominant party.

– That turnout was fueled in part by the Senate runoff, and in part by a burning anger at the botched pandemic response and zealous attempts by the Republicans to curtail mail voting. Some national folks commented on this, and how it maybe lends credence to the whole “Texas is in play” narrative, and not just at the Presidential level. We’ll keep checking on the polls going forward to see how far that carries us.

– As there were no statewide Republican runoffs, a direct turnout comparison is tricky. The early voting total for Republicans was 421K, not too shabby all things considered. So maybe they got to 600K or a bit higher.

– Let’s talk mail ballots for a minute. Texas Elects has a terrific overview, but let’s focus on this:

Absentee ballots are counted by a subset of election officials known as the Early Voting Ballot Board (EVBB). Well, in many counties, there are two EVBBs for primary and runoff elections. County political party chairs are the presiding judges, and there are at least two other members. A separate Signature Verification Committee with as many as 12 members may also be created, and larger committees are possible. If you’re interested in the minutiae of all this, the Secretary of State’s 2020 EVBB handbook (pdf) has it in spades.

Counties with a population of 100,000 were able to convene their Early Voting Ballot Boards as early as July 4 (likely July 6 because of the holiday) to begin the process of qualifying and scanning mail ballots. Counties with populations under 100,000 were able to convene their EVBBs as early as last Friday.

An absentee ballot may only be accepted if:

  • The carrier envelope was “properly executed”
  • The voter’s signatures on the ballot application and carrier envelope were not signed by someone else, unless it was a lawful witness
  • The ballot application states a legal ground for voting by mail (In other words, one of the pre-printed boxes is checked or otherwise marked and the voter hasn’t hand-written some other reason, like coronavirus)
  • The voter is registered to vote
  • The ballot was sent to the applicable address; and
  • If required, a statement of residence was included and properly completed.
  • It also has to be received by the county election official by no later than 7 p.m. on Election Day, with exceptions for certain overseas civilians and military voters.

When the EVBB accepts the ballot, the voter’s name is entered on the poll list and the ballot is separated from the envelope. The ballots cannot be counted until polls closed on Friday, the end of the early voting period, in counties with 100K or more residents, and until polls open tomorrow (Tuesday) in all other counties.

This is an easily overwhelmed process. All of this requires human intervention. Absentee ballots arriving by 7 p.m. on Election Day are supposed to be counted and included in election night results. There is reason to believe that a significant number of absentee ballots will arrive very late in the process. For example, as of Friday, Harris Co. had received more than 70K absentee ballots, and another 74K had not yet been returned.

Mail ballots received on Election Day are still treated as “early voting” and will be included within the early vote canvass. In close races, we will be noting who is ahead among absentee ballots, as that may provide an advantage as more votes are counted. Or not.

All of this is to put perspective on why we may not have definitive results on Election night. All of this may be magnified in November, and not just in Texas.

That’s why the final vote totals may creep up a bit, and also something to think about for the fall. You may want to ask your local elections administrator what you can do to help.

More along those same lines.

As dress rehearsals go, Tuesday’s Texas primary runoff elections weren’t bad, but for some voters and poll workers, they revealed problems that need to be fixed before November’s big show.

With much lower turnout than primary or general elections, the first in-person election day during the coronavirus pandemic saw voters reporting heavily sanitized polling places, an ample supply of gloves, finger cots or pencils to mark up their ballots, and socially distanced lines. With a tiny ballot in many places, some were in and out of polling places in minutes.

But some Texans who sought to vote by mail — and submitted their applications on time — indicated they never received their ballots. Some opted instead to vote in person. Others went uncounted. It’s unknown how many were affected.

Other voters sent in their mail-in ballots only to have them returned unopened. Some of those reached county elections offices after a second attempt, while others still appeared lost on election night. It’s also unknown how many were affected.

In some counties, previously advertised polling places were shuttered at the last minute for lack of workers, some fearing the pandemic or reluctant to risk exposure to voters who were not required to wear masks. Others walked off the job Tuesday morning after discovering some of their fellow poll workers wouldn’t be donning masks.

And throughout the night, the Texas secretary of state’s portal for reporting election night returns was either broken or incorrect, first displaying garbled numbers in various races on the ballot and later showing discrepancies with county reports.

“I would say a number of the problems we saw in this election are red flags that, left unaddressed, could result in massive problems in November,” said Anthony Gutierrez, executive director of Common Cause Texas, in a statement.

At least the SOS website got fixed in relatively short order. The rest of it, yeah. No one should have to do this to cast a ballot.

– Looks like there will be a fight over the CD23 Republican result. Good luck sorting that one out, fellas.

– The SD14 special election runoff needs to be scheduled. I expect it to be in the end of August or so. My condolences to everyone in that district who will have to see two perfectly good Democrats rip each other up for the next six weeks or so.

– Beyond that, I don’t have any deep insights at this time. We’ve got a good slate of candidates, and as of Wednesday we’ll start seeing June finance reports for everyone. Eyes on the prize in November, y’all.

Is it time to step back?

It’s not a question of whether we want to do this, it’s whether we need to.

Mayor Sylvester Turner

Houston leaders are calling for another two-week shutdown as dozens of Army personnel are set to arrive Monday to help fight a virus that continues to set record hospitalizations and deaths in the Texas Medical Center.

Mayor Sylvester Turner said it’s time for the city of Houston to “step back,” as regional cases rose to 63,864 on Sunday — up 1,596 from the day before. There have been 646 deaths in the Houston area. Positive results are coming back for about 16 percent of Texas test-takers.

“Let’s look at the numbers, look at the data, see where things are,” Turner said over the weekend. “And then gradually, move forward again.”

Harris County Judge Lina Hidalgo advocated an immediate stay-home order.

“We need to stick with it this time until the hospitalization curve comes down, not just flattens,” she tweeted Sunday. “Many communities that persevered in that way are reopening for the long haul. Let’s learn from that & not make the same mistake twice.”

[…]

While Hidalgo issued a stay-at-home order in March, Abbott has since taken over decisions on whether to open or close businesses and has refused to allow local officials to make decisions on the matter. Hidalgo’s office has unsuccessfully petitioned the governor for power to issue more restrictions as COVID-19 hospitalizations spiked.

But on Friday afternoon, Abbott, too, said that he could consider expanding which nonessential businesses would shut down should the pandemic continue to worsen.

“If we do not slow the spread of COVID-19 … the next step would have to be a lockdown,” the governor told KLBK-TV in Lubbock.

Let’s be clear, nobody wants to do this. It will be devastating to the businesses that have been able to reopen (whether they should have been allowed to or not), and people will lose jobs as a result at a time when extended unemployment benefits and other fiscal stimulus to help people tide themselves over are being held hostage by the Republicans. The problem is that we are at the point that we thought we’d been able to avoid when we shut down the first time, with the death rate spiking and the hospitals overloaded. There may be no other way to try to slow this thing down, short of building a time machine and going two months in the past to force Greg Abbott to allow local face mask orders and a more deliberate reopening strategy. But here we are, and unless there’s a sudden flattening or downward trend in the numbers real soon, I don’t know what other choice there is. Say it with me now: This didn’t have to happen. It’s Greg Abbott’s fault that it did happen.

State Supreme Court denies GOP effort to force convention to happen

Denied.

The Texas Supreme Court on Monday rejected the state Republican Party’s appeal of a lower court’s decision regarding its in-person Houston convention, all but ensuring that Mayor Sylvester Turner’s move to cancel the event will stand.

In an unsigned “per curiam” opinion, the court ruled that while the Texas GOP has the constitutional right to hold a convention, “those rights do not allow it to simply commandeer use” of the George R. Brown Convention Center, where the event was set to take place Thursday through Saturday.

“Houston First’s only duty to allow the party use of the center for its convention is under the terms of the parties’ agreement, not a constitution,” the opinion stated.

[…]

The Supreme Court also rejected a petition for a writ of mandamus — a court order requiring the city to reverse the cancellation — from Steve Hotze, a Houston Republican activist who challenged the convention cancellation along with three other plaintiffs.

Justice John Devine filed the lone dissenting opinion, arguing that the court had standing to rule on the Texas GOP’s case and that Houston First breached its contract with the party by canceling. Devine also dissented from the court’s decision to deny Hotze’s petition.

Meanwhile, Justice Jeff Boyd decided not to participate in the decision. He is one of four justices whom the Texas Democratic Party called on to recuse from the case, due to their sponsorship of the convention. The other three justices — Chief Justice Nathan Hecht and Justices Jane Bland and Brett Busby — opted not to recuse themselves.

See here, here, and here for the background. The ruling was more or less along the lines of that AG brief that supported the city’s position, that this was a matter of contract law, not election law. This was a writ of mandamus, asking for a quick ruling from SCOTX without waiting for the district court to issue a judgment. The denial of the writ means that the case goes back to the district court, but since this shindig was supposed to start on Friday – indeed, some preliminaries are already underway, presumably in virtual fashion – there ain’t much time for that. For their sake, I sure hope the RPT has its contingency plans for an online convention ready to go. You know, like the TDP had for its convention back in March. Mayor Turner’s statement is herer, and the Trib, the Press, and the DMN have more.

UPDATE: It’s official, the GOP will have a virtual convention. Here’s the updated Chron story.

Today is Primary Runoff Day

Last chance to vote for your party’s nominees. From the inbox:

Today, Tuesday, July 14th, is Election Day for the July 2020 Primary Runoff Elections.Voters can cast their ballots anytime between 7 a.m. and 7 p.m. at any of the 109 voting centers throughout Harris County. For the nearest voting location and estimated wait times go to HarrisVotes.com/WaitTimes. A total of 154,313 voters cast their ballots during the ten-day Early Voting period that concluded on Friday, July 10th.

“These are challenging times for all of us, but I want to encourage everyone to exercise their right to vote,” said Harris County Clerk Chris Hollins. “This runoff is a critical part of the election process, because it will determine which candidates go on to represent their parties in the General Election in November.”

To protect voters and election workers from COVID-19, all voting centers have been set up to allow for social distancing.  Poll workers have been provided with personal protective equipment including gloves, face masks, and shields. Sanitizing stations are set up at all polling sites, and voters are being provided with finger covers to use while voting. Additional face masks are available for voters who do not have one. Voters exhibiting symptoms of COVID-19 can vote curbside to avoid entering the polling center.

To cast a ballot, you must be registered to vote and have one of the following forms of ID:

  • Texas Driver License issued by the Texas Department of Public Safety (DPS);
  • Texas Election Identification Certificate (EIC) issued by DPS;
  • Texas Personal Identification Card issued by DPS;
  • Texas License to Carry a Handgun (LTC) issued by DPS;
  • U.S. Military ID Card containing the person’s photograph;
  • U.S. Citizenship Certificate containing the person’s photograph; or
  • U.S. Passport.

Except for the U.S. citizenship certificate, the form of identification you use must be current or have expired no more than four years before being presented at the polls. If you don’t have any of these to use for identification, you can (1) sign a sworn statement explaining why you don’t have those IDs and (2) bring one of the following:

  • Valid voter registration certificate;
  • Certified birth certificate;
  • Current utility bill;
  • Government check;
  • Pay stub or bank statement that includes your name and address; or
  • Copy of or original government document with your name and an address (original required if it contains a photograph).

To expedite your time at the polls, go to HarrisVotes.com to print your personal sample ballot, make your selections, and take it with you when you go vote. If you start the voting process and think you have received the wrong ballot, make sure you let an election official know immediately—before casting your vote.

For more election information, visit HarrisVotes.com and follow @HarrisVotes on Facebook, Twitter, and Instagram.

Also from the inbox, a list of places you can drop off your mail ballot if you didn’t receive it in time to put it in the mail. This is the first time in recent history that there has been more than a single drop-off location in Harris County, as the release says, which is cool. The 11 locations listed there are open 7 to 7, same as the period for voting.

Polling locations can be found here. As a reminder, you can vote at any of these locations. My guess is that the large majority of votes have already been cast for this runoff, so the lines should not be too bad. Do check the wait times at whatever location you’re looking at before heading out, though. And for crying out loud, bring a mask to wear. It’s precisely that mask wearing was not mandated for polling places that has caused some problems in other counties.

A lack of workers willing to run polling sites as Texas continues to report record coronavirus infections is forcing election officials in two major counties to scale back plans for the July 14 primary runoff elections.

Citing a drop-off spurred by fear of the virus, Bexar County, the state’s fourth largest, is expected to close at least eight of its planned 226 voting locations for next Tuesday, according to County Judge Nelson Wolff.

In Tarrant County, the third largest, election officials learned Thursday that the local Republican and Democratic parties had agreed to shutter two of 173 sites planned for election day voting after the parties were unable to find election judges to run the polling places.

Although poll workers are generally being provided with protective gear, Gov. Greg Abbott’s decision to not require voters to wear masks when they show up at polling locations is driving some poll workers away, Wolff said.

“There is protection for them in terms of what they try to do, but anybody can walk in without a mask,” Wolff said Wednesday evening during his daily coronavirus-related briefing. “The governor did not cover elections, and so they don’t want to work. Quite frankly, I don’t blame them.”

For this election, this shouldn’t be such a big deal. There should be plenty of other locations, most people have probably already voted, and turnout is fairly minimal, though it’s been higher than usual for a primary runoff. The fear, and the bigger picture, is what might happen in November. All signs point to record-breaking turnout this fall, and the last thing we’ll need for that is a scramble for poll workers. I appreciate that Greg Abbott extended early voting for this runoff – I think it made a positive difference – and I believe that will be in play for November. But I refuse to accept that anyone who doesn’t have a valid health reason to not wear a mask should have their personal preferences prioritized over the health and safety of poll workers. The mask mandate needs to extend to the polling places. We’re not taking this seriously enough otherwise.

I’ll have results for you tomorrow, and whatever thoughts I can muster afterward. I’ll look at the data when it’s available. Now go vote if you haven’t already.

AG sides with Mayor Turner in GOP convention litigation

But only in a limited and technical way, so cool your jets.

Mayor Sylvester Turner

The Texas Attorney General’s Office on Saturday sided with Mayor Sylvester Turner in a legal dispute over the state Republican Party’s in-person convention, arguing that the Texas Supreme Court should reject the party’s attempt to proceed with the event.

In a brief filed with the Supreme Court, Solicitor General Kyle Hawkins — the state’s top appellate lawyer — said that despite the party’s “troubling factual allegations,” the court should deny its petition for failing to “properly invoke [the court’s] mandamus authority.”

The legal proceedings began earlier this week after Turner ordered Houston First Corp., the city nonprofit that manages the convention site, to cancel the event over concerns about the COVID-19 pandemic. The Republican Party sued Turner and Houston First, but a Harris County judge denied the party’s request for a temporary restraining order that would have blocked Turner from canceling the event. The party then filed a petition for a writ of mandamus with the Texas Supreme Court.

In its petition, the party invoked a section of Texas’ election code that allows the court to issue orders that “compel the performance of any duty imposed by law in connection with the holding of an election or a political party convention.” In his brief, Hawkins argued that the party’s convention contract with Houston First does not apply, because the convention was to be held under a contract, not a law.

Prior Supreme Court rulings have “distinguished ‘a duty created under [a] contract’ as legally distinct from ‘a duty imposed by law,’” Hawkins wrote.

See here for the background, and here for a copy of the AG’s brief. A copy of the original writ is here. As the story notes, the AG similarly opposed Steven Hotze’s petition on the matter, arguing Hotze has no business in this matter. The Court also has the matter of the motion for four of them to recuse themselves to sort out. I presume that has to happen first, since we have to have the question of who is ruling on the write of mandamus settled before the ruling can happen. Gonna be a busy couple of days at the SCOTX. Oh, and Paxton also opposed Hotze’s petition for a TRO against Judge Hidalgo’s latest face mask order, on the grounds that Hotze’s multiple challenges to the Texas Disaster Act may cause “irreparable harm” to the state’s sovreignty. I presume there will be a similar filing against Hotze’s lawsuit challenging Abbott’s face mask order, too. And yes, the correct response to all this is exasperation and exhaustion.

Give the bars a break

I’m OK with this.

The Texas Restaurant Association has asked Gov. Greg Abbott to revise the definitions of “bar” in his recent order closing drinking establishments in response to a spike in COVID-19 cases.

In a letter to the governor, the TRA argues that if businesses now classified as bars but equipped with permanent kitchen facilities are allowed to reopen as restaurants, 1,500 Texas businesses could resume operation and put up to 35,000 people back to work.

Under current state rules, any establishment that makes 51% of its revenue from alcohol sales is classified as a bar, even if it serves food. The TRA’s proposed change to that definition could clear the reopening of San Antonio businesses such as Southtown fixture The Friendly Spot and brewpub Weathered Souls.

“The definition of ‘bars’ in Gov. Abbott’s executive order has inadvertently captured a lot of restaurants, requiring them to close their dining rooms, even though they were following all of the statewide health protocols for restaurants,” the TRA said in a statement accompanying the letter.

“All restaurants should be allowed to serve the public under the same health and safety standards.”

Lots of bars serve food, and as far as I’m concerned, every bar that has a kitchen ought to be able to prepare meals to go for the duration and beyond. Let them sell mixed drinks to go, too. All that qualifies as low-risk activity and should be enabled and encouraged as a sensible way to let people work without putting their health in significant jeopardy. I’m less interested in letting them open their dining rooms at this time, especially now when we’re talking about maybe having to shut down again, but for to go service they should be considered as restaurants.

You may as well mark today’s date on your calendar, because it will be a long time before I say these words again: I agree with Sid Miller.

In a July 1 letter, Miller asked Gov. Greg Abbott to amend the recent order that closed all Texas bars so that wineries and tasting rooms can reopen immediately.

Currently, wineries and tasting rooms are lumped into the same business category as bars. That’s because more than 51% of their revenue comes from the sale of alcoholic beverages.

“I am sure you will agree tasting rooms are not bars, nor do they present the same reasons for concern related to excessive alcohol intake or inability to social distance as found in a bar,” Miller writes.

The letter noted that nearly 95% of all Texas wine is sold in tasting rooms, and without that revenue, Texas winemakers may not have the ability to purchase grapes for future Hill Country vintages.

“When these wineries suffer, we lose more than just wine,” the letter continued. “The closure of these testing rooms has a damaging downstream effect on the grape producers, wineries and surrounding communities…”

I’m a bit more measured on this one, since tasting rooms are mostly going to be inside. Outdoor tasting areas should be allowed with social distancing, and indoor tasting rooms should be allowed to operate with the same basic constraints as restaurants, which is to say with a max 50% capacity right now. I believe wineries can sell their wares to go for off-premises consumption, in the way that breweries now can, but if there are any restrictions on this they should be lifted, just as all of our anachronistic and anti-consumer laws regulating beer, wine, and liquor ought to be reformed or repealed. The point here is that both of these proposals are low risk and good for both the businesses and the consumers, and we should do them. Your move, Governor.

UPDATE: Case in point.

2020 Primary Runoff Early Voting, Final Totals: Democrats carry the day

Today’s going to be a numbers-heavy post. Let’s start with Texas Elects, giving us a penultimate day summary:

Early voting in person ended today (Friday) for the July 14 primary runoff and special elections.

Through yesterday (Thursday), 532K people have voted in the Democratic runoff statewide – 193K by mail and 339K in person – which is already the fourth highest total since 1990. The number of voters will almost certainly eclipse the 2014 total today (Friday) and should easily pass the 2002 total on Election Day. The highest number of Democratic runoff voters since 1990 was in 1994, when 747K people voted in the runoff statewide.

Nearly 349K people have voted in the Republican runoff in those counties and portions of counties with runoff races – 97K by mail and 251K in person. Despite the lack of a statewide race, the number of Republican runoff votes cast is already the fifth highest in state history, trailing only the past four election cycles. Turnout is on pace to eclipse all but the 2014 (1.36M) and 2012 (1.11M) totals.

Statewide Democratic turnout through yesterday was 3.25% of all registered voters, and Republican turnout was 2.13% of all registered voters, not just those in areas with runoff races. Combined turnout for all of 2018 was 5.7%, and it was 4.0% in 2016.

The reference to 2014 is surely a mistake, as there were only 201K votes cast in the Senate runoff between David Alameel and Keisha Rogers that year. There were 434K votes in the 2018 gubernatorial runoff between Andrew White and Lupe Valdez, but 2020 was already past that total as of Thursday. I’ve looked at some other years but am just not sure what that third “highest since 1990” total may be.

I can tell you where we are as of Friday statewide:


Election     Mail      Early      Total   Mail %
================================================
D primary 114,886    886,336  1,001,222    11.5%
R primary  91,415    987,744  1,079,159     8.5%

D runoff  199,657    447,470    647,127    30.9%
R runoff   99,939    311,222    411,161    24.3%

We have now topped the 2002 Senate runoff between Ron Kirk and Victor Morales (620K), and I have no doubt we will blow past the 1994 level on Tuesday. That’s not too shabby. Data on the Secretary of State website only goes back to 1992, so I don’t know what the 1990 primary runoffs looked like, but 1990 was the last year of Democratic statewide dominance in Texas. That’s not a bad harbinger to echo.

How much does any of this mean, though? Erica Greider thinks Republicans should be worried.

“I think we’re seeing the ramifications of having failed Republican leadership, and no one is seeing it more than those of us here in Texas,” said Billy Begala, a spokesman for the Texas Democratic Party.

Begala made his remarks Friday morning, the last day of early voting in advance of Tuesday’s primary runoff elections.

“It didn’t have to be this bad,” he said of the resurgence of COVID-19 in Texas. “It really didn’t.”

[…]

The coronavirus has complicated elections administration. Democratic officials have been urging Texans to vote by mail, if they’re eligible. And Texans who’ve gone to the polls in person have noticed unusual precautions, in most of the state’s major counties. In Harris County, for example, voters have been provided with rubber finger cots and disinfectant wipes as well as the traditional “I voted” stickers.

Still, turnout — which is typically abysmal for runoff elections in Texas — has been higher than expected through the early voting period. As of Thursday, some 900,000 voters had cast ballots across the state, a majority of them in the Democratic primary runoff.

“The key takeaway is that if we’re able to make voters feel safe, and of course be safe, then it’s a very positive experience for them,” Harris County Clerk Chris Hollins said Friday.

The turnout through the early-voting period, he continued, raises the prospect that Harris County will see higher turnout in November than the 60 to 62 percent that’s typical in presidential election years.

“If I were a betting man I’d put money on 65 for sure, and I might take some odds on 70,” Hollins said.

Voter registration, similarly, has continued apace, despite the challenges presented by the pandemic. Since March, nearly 149,000 voters have been added to the rolls in Texas, bringing the statewide electorate to a record 16.4 million people.

I haven’t seen an official number for Harris County voter registration yet – we’ll know it for sure when we get election night returns – but I’ve heard 2.4 million at this time. At 62% turnout, about what we usually get in Presidential years, that’s a bit short of 1.5 million votes in Harris County. 65% is 1.56 million, 70% is approaching 1.7 million. That’s going to be more Democratic votes than it is Republican votes. It’s just a matter of how many.

Still, Republicans should be nervous about surging July turnout given that Democrats don’t have a marquee name on the ballot like former congressman Beto O’Rourke, who excited Democrats nationwide in his near-miss U.S. Senate bid in 2018.

“I don’t know that here in Texas we have one specific candidate or officeholder who is the standard-bearer for the party,” Begala acknowledged.

Perhaps voters are simply fed up with the incumbents, who happen to be Republicans, for the most part.

“I think it’s that when voters look around right now, when Texans look around right now, they see a pandemic, they see horrific racial injustice, they see record unemployment,” said Amanda Sherman, the communications director for Hegar. “Voting is a way for them to do something about it.”

I’m not sure that the high runoff turnout matters that much for November, but it does show that even in the pandemic Dems are turning out. There’s evidence from around the country that relentless Republican efforts to make voting harder have resulted in hardier and more persistent voters, especially Black voters. Maybe we’re seeing some of that here.

What you’re really here for is the final EV report from Harris County. Here it is:


Election     Mail    Early    Total   Mail %
============================================
D primary  22,785  116,748  139,533    16.3%
R primary  22,801   82,108  104,909    21.7%

D runoff   45,176   65,979  111,105    40.7%
R runoff   25,425   17,783   43,208    58.8%

The Friday runoff EV file is here, and the final EV turnout report from March is here. 18,526 Democrats showed up to vote in person on Friday. That’s more than the entire early voting in person population for the Republicans, who didn’t have a statewide race but did have a couple of countywide races. And as noted, Republicans were far more reliant on a rate basis on mail ballots than Dems were, though Dems returned far more mail ballots. You can draw your own conclusions.

I promised you more data about the early voting population, at least through Wednesday. I’m a man of my word, so here’s what I found when I examined age and gender data for the primary runoff.

Among the mail voters, there were 16 people born prior to 1920, with the oldest being born in 1915. Another 10 were born in 1920. In other words, 26 people who are at least 100 years old had voted as of Wednesday.

The daily voter rosters do not include year of birth or gender, only the full March roster does. As such, I only have that data for the people who had also voted in March. Of 41,739 total mail voters who had voted in March, 40,195 are 65 or older. The remaining 1,544 are under 65.

23,373 of the 65 or older mail voters are female, including 15 of the 16 pre-1920-birth voters and eight of the ten born in 1920. 58.1% of mail voters are listed as female. 16,230 are listed as male, for 40.4% of over-65 mail voters.

868 of the 1,544 under-65 mail voters are female (56.2%), 641 are male (41.5%).

(For some voters, the value in the Gender field is null, which may be a data glitch, or may be a stated preference of the voter. Because the number is so small, and because as far as I know there is no other option for this field that is allowed by state law, I suspect this is just a data error.)

I did not extend this to the in person early voters – I promise, I’ll circle back when I get the full voter roster for the runoff. But Keir Murray posted some facts about the voting data through Thursday:

Click over to see the rest of the thread. Keir also notes that the statewide mix of Dem primary runoff voters is more Black than Latino, which is the reverse of what it was in March. Maybe that will boost Royce West in the Senate race, we’ll see. I will have election night returns for you on Wednesday. If you haven’t voted yet, Tuesday is your last chance.

Who wants to enforce Greg Abbott’s mask order?

Anyone? Anyone? Bueller?

Gov. Greg Abbott called on police across Texas to step up enforcement of his mask order amid the mounting pandemic, explaining Thursday that they can either “be part of the problem or part of the solution.”

Facing a revolt over the mandate within his conservative base, the governor acknowledged in a new round of interviews that masking is inconvenient, but said the alternative of locking the state down again is far worse.

“We have a short period of time in the next couple of weeks to bend the curve of this explosion in cases and hospitalizations,” he said in an interview on KSAT in San Antonio. “If we can enforce this, we will be able to keep the state open and reduce hospitalizations.”

Some local law enforcement officials, including the sheriffs in Montgomery and Gillespie counties, have refused to enforce the new order, citing personal liberties or enforcement logistics. On Wednesday, the Montgomery County Republican Executive Committee voted 40-0 to censure Abbott, joining at least three other county executive committees that have taken similar steps.

It’s more than just a few.

When Gov. Greg Abbott issued a statewide executive order requiring Texans to wear masks in public, he gave counties the opportunity to opt out if they have a low number of active coronavirus cases.

A week later, 78 counties have taken him up on that offer. And a handful of other local governments have insisted that they won’t enforce the order even though they don’t qualify for the opt-out provision. Officials cited a desire to preserve personal freedoms or concerns about enforcement.

“I think it’s an insult to Texans to be required to do something they should have discretion for,” said Hugh Reed, the top administrator for rural Armstrong County, near Amarillo, which opted out.

In a press release announcing the order, Abbott said that “wearing a face covering in public is proven to be one of the most effective ways we have to slow the spread of COVID-19.” Public health experts broadly agree that masks slow the spread of the virus, and the Centers for Disease Control and Prevention recommend face coverings for anyone 2 or older in public settings.

The order came as coronavirus cases have grown quickly in the state. As of Thursday, more than 9,600 people were hospitalized with the virus.

In order to opt out of the requirement, the counties need to have 20 or fewer active COVID-19 cases. Given the spread of the virus in recent weeks, only counties that are sparsely populated and rural tend to qualify. Most are in conservative areas of the state.

Rex Fields, the top elected official in Eastland County, said Abbott’s option for counties with low coronavirus case counts “gives people some personal freedom.”

But a few local officials without that freedom are also choosing not to enforce the order. In Montgomery County, which has a population of over 600,000 and has reported more than 2,700 coronavirus cases so far, the sheriff’s office said July 3 that it would not take action on the mask rule.

“This order includes specific language prohibiting law enforcement from detaining, arresting, or confining to jail as a means to enforce the order,” the agency wrote in a press release. “This language strips law enforcement of the necessary tools to enforce compliance with the law.”

Yeah, so maybe undermining the rule of law was not a great idea. Greg Abbott could be in a position to insist that his order be enforced, if only Greg Abbott hadn’t so clearly demonstrated that Greg Abbott’s executive orders regarding COVID-19 are just suggestions.

That said, some places are more serious about trying to stop the spread of COVID-19.

Gov. Greg Abbott signaled his encouragement Wednesday to Austin city leaders to move forward on “additional enforcement mechanisms” related to a recent order Abbott issued requiring Texans to wear masks in most public spaces.

In a letter to Austin Mayor Steve Adler, Abbott said the city’s consideration of new enforcement measures “to ensure compliance with my Executive Orders is an important step toward reducing the spread of the novel coronavirus (COVID-19).”

“As you know, these Orders were created and adopted based on advise from medical experts, and if these Orders are followed, we will be able to protect both public health and the livelihoods of our citizens,” he added.

The Austin-American Statesman reported Wednesday that the City Council will meet Thursday “to vote on a resolution that would allow for a fine of up to $2,000 for anyone violating a ‘health authority rule’ like not wearing a mask” and to take “civil action against any person who maintains a business or site that does not comply with minimum health standards.”

Another riddle solved, apparently. That resolution passed unanimously on Thursday. I’m sure it’s just a matter of time before the Hotze contingent files a lawsuit against this, but in the meantime it’s something. (Hey, Greg! Now do letting counties issue stay-at-home orders.)

Now to be fair, if I’m going to advocate for letting local authorities have some of their authority to make local decisions back, I’m going to be circumspect about criticizing a small rural county with a still-low infection rate for not wanting to enforce a mask order. But let’s be clear that all parts of the state are vulnerable, and those lightly populated places also tend to be many miles away from hospitals, so their residents are in greater jeopardy should they get sick. The approach I’m looking for here is one that says “this is the minimum that counties must do – they can go above and beyond it within reason, but they have to do at least this much”. That philosophy has been distinctly lacking in recent years in this state.

But here we are, and here we once again face the worst case scenario, at least as far as Greg Abbott is concerned.

With Texas continuing to break records for new coronavirus deaths and hospitalizations this week, Gov. Greg Abbott reiterated Friday afternoon that things will continue to get worse. And if people keep flouting his new statewide mask mandate, he said, the next step could be another economic lockdown.

“Things will get worse, and let me explain why,” he told KLBK TV in Lubbock. “The deaths that we’re seeing announced today and yesterday — which are now over 100 — those are people who likely contracted COVID-19 in late May.

“The worst is yet to come as we work our way through that massive increase in people testing positive.”

Texans will also likely see an increase in cases next week, Abbott said, and people abiding by his face mask requirement might be the only thing standing between businesses remaining open and another shutdown.

“The public needs to understand this was a very tough decision for me to make,” Abbott told KLBK of his face mask mandate. “I made clear that I made this tough decision for one reason: It was our last best effort to slow the spread of COVID-19. If we do not slow the spread of COVID-19 … the next step would have to be a lockdown.”

And then when sheriffs in heavily Republican counties refuse to enforce that, then what? Say it with me now: None of this had to happen. But it did, and it’s Greg Abbott’s fault.

Greg Abbott has no one to blame but himself

Let’s be very clear about this.

Gov. Greg Abbott is under increasing political fire from fellow Republicans as well as Democrats as he responds to a sharp rise in coronavirus deaths — a record 112 on Wednesday and 106 on Thursday — by implementing more restrictions on Texans and increasingly warning of another shutdown if people fail to wear masks.

Prominent Democrats are blasting Abbott for reopening too quickly and shrugging off early warning signs. On the other side, county Republican Party committees are passing censures of Abbott for some of his latest orders, including one requiring people to wear masks in counties reporting at least 20 people infected with COVID-19. Those who violate the order face $250 fines, but no possibility of jail time.

On Wednesday, the Montgomery County Republican Executive Committee voted 40-0 to censure Abbott, joining at least three other county executive committees that have taken similar steps.

Even Republican state lawmakers are beginning to press Abbott to call a special session to cede some of the decision-making to them. State Sen. Charles Perry, R-Lubbock, said in a Fox News Channel interview that it’s time for the Legislature to be more involved and not just leave it all up to the governor.

“We have information and a lot of misinformation out there, honestly, that needs to be vetted by a legislative body,” Perry said.

It’s all coming as Abbott warns the daily number of deaths is going to keep rising.

“I think the numbers are going to look worse as we go into next week,” Abbott told Fox 26 in Houston during an interview Thursday night. “We need to make sure there are going to be plenty of hospital beds available in the Houston area.”

[…]

The criticism from Democrats comes days after Harris County Judge Lina Hidalgo said Sunday on ABC’s This Week that she and other county and city officials need Abbott to give them the authority to issue stay-at-home orders again, calling it the surest way for them to get out of the crisis. She said leaders need to be taking bold aggressive steps because of how serious things have become in Houston and Texas overall. Abbott has so far declined.

“We don’t have room to experiment,” Hidalgo said. “We don’t have room for incrementalism, when we’re seeing these kinds of numbers, nor should we wait for all the hospital beds to fill and all these people to die before we take drastic action.”

I have many thoughts about this.

– The original sin in all this, from whence all other bad decisions and unenforceable actions flow, was the inexcusable, unfathomable, and completely self-inflicted Shelley Luther saga, which the Chron’s editorial board correctly identifies as a primary failing. It’s not just that Abbott took the teeth out of his own executive orders the very first time they ran into resistance, taking Luther off the hook like that – hell, turning her into a goddam folk hero, paying her court fees, bowing and scraping to her – it’s that this sent a very clear message that there are no consequences for violating any laws or orders related to coronavirus. You can draw a straight line from this to sheriffs saying they can’t or won’t enforce the current mask order, even as Abbott is now practically begging everyone to wear a mask. Turns out undermining the rule of law is a bad idea. Who knew?

– The problem with the Shelley Luther incident wasn’t just the undermining of the rule of law, or the evisceration of any consequences for pro-COVID behavior. It was the message it sent, from the top, that the people who didn’t feel like doing their part to fight the virus, who felt that their feelings and personal definition of “liberty” mattered more than anything else, were legitimate and needed to be handled as special and exceptional. Abbott could have very reasonably expressed empathy for Shelley Luther, said words to the effect of “I know this is hard, I know small businesspeople like her are suffering, but we have to bear down and really beat this virus back so that we can get back to normal life and business like we all want”. The fact that he didn’t is a clear and ongoing failure of leadership on his part.

– Yes, I know, that same message about “my feelings are bigger than your face mask” as well as pressure to “reopen the economy” came from Donald Trump as well, and Abbott had to be concerned about the heat he was getting from his fellow Republicans. I will note that other Republican governors, like Mike DeWine in Ohio, managed to figure this out. No one ever said that being Governor was going to be easy. If Greg Abbott didn’t have the fortitude to withstand the carping from the Steven Hotze wing of his party, then he has no business being Governor.

– Another self-inflicted wound in all this has been Abbott’s abrogation of the executive powers that Mayors and County Judges had exercised in the early days of the pandemic. Remember when cities and counties were issuing stay-at-home orders, and Abbott used that as justification for him not doing the same statewide because different counties have different needs? Abbott eventually and correctly bowed to pressure to issue a statewide stay-at-home order, but in doing so he basically took away all of the local decision-making power that Mayors and County Judges had. That has come back to bite him, as the big urban counties have been complaining for weeks about their need to respond to local conditions. The capper to this was the utterly ludicrous “you solved my riddle”, in which Abbott revealed that County Judges had the power all along to order businesses to require masks for their employees and customers, but he wasn’t going to tell them that, they had to figure that out on their own even though they had been loudly saying that getting more people to wear masks was the main thing they could do to help with the pandemic. Letting local authorities have more power to make local decisions was not only the better call for fighting the virus, it would have shifted a lot of the heat Abbott now feels from him to them, with “them” mostly being Democrats. When Abbott took their power away back in April, it was seen as him coming in to take credit for their work. Too bad for him that work wasn’t finished, because it’s all on him now.

– Let’s also not forget the fact that when Abbott announced his intent to reopen, he announced four criteria that were supposed to guide the reopening timeline. Those were declining case rates, declining positive test rates, enough contact tracers, and sufficient hospital capacity. Only that last one was ever met, and because the other three were completely ignored, the hospitals are now overwhelmed. A more far-sighted leader would have counseled patience, saying we need to reach these benchmarks before we get to do the things we want to do. But as established, Abbott isn’t a leader at all, and so here we are.

– Finally, and I have said this before as well, I do agree that at some point Abbott should have called a special session, partly to clarify his own executive powers and thus blunt some of the lawsuits that have been filed over stay-at-home and face mask orders, and partly to share the responsibility with the legislative body. Abbott has repeatedly shown that he likes to operate in a bubble, where he does his thing and no one gets to ask him any questions unless they’ve been pre-approved and invited to do so. I get that hating on the mainstream media is a standard part of the Republican playbook, but I think Abbott’s self-imposed isolation isn’t serving him well simply because he’s not hearing from anyone who isn’t in his inner circle. The Lege can serve as a foil, or at least a partner in taking the blame, but not when you’re a one-man show.

Every step of the way, Greg Abbott could have made better decisions. It was clear at the time he was making those decisions that he was choosing poorly. Now we are all facing the consequences of those bad decisions. Greg Abbott bears the responsibility for what happened. Never forget that.

GOP sues over cancelled convention

As the night follows the day.

The Texas Republican Party on Thursday sued Mayor Sylvester Turner and Houston First Corp. for canceling the party’s in-person convention that was scheduled for next week in downtown Houston.

The lawsuit, filed in Harris County state district court, alleges that Turner erred when he invoked a “force majeure” clause of the contract between the Texas GOP and Houston First, the city’s public nonprofit that operates the George R. Brown Convention Center. The Republican Party also is suing Houston First President Brenda Bazan and the city of Houston.

Turner, who ordered Houston First to cancel the convention on Wednesday, said the clause allows one side to cancel over something that is out of its control, including “epidemics in the City of Houston.” In its petition filed Thursday, the GOP said Turner simply does not want to hold the convention, thus failing to meet the force majeure standard.

“Houston Mayor Sylvester Turner’s use of the force majeure clause is just a pretext to his intent to treat the Republican Party of Texas differently than other groups, such as those we have seen from recent protests in the city of Houston,” the party said in a statement Thursday. “It should go without saying that a political viewpoint cannot be the basis for unequal treatment.”

Turner said he called off the convention based on concerns about Houston’s recent COVID-19 surge and input from various medical professionals. A spokeswoman for the mayor said he would address the lawsuit at a 3 p.m. news conference.

In the lawsuit, Texas Republican Party officials are seeking a temporary restraining order that would allow the convention to continue as planned and damages due to Turner’s “anticipatory breach of contract,” including the cost of all losses and the “increased costs of handling the Convention elsewhere.”

The party argued that Turner and Houston First violated the “equal rights clause” of the Texas Constitution, and that Gov. Greg Abbott stripped Turner’s power to cancel the convention in one of his COVID-19 executive orders.

See here for the background, and here for a copy of the lawsuit. I’d love to hear from any of the attorneys out there about the merits of this one. I can’t remember where I saw this now – probably Twitter, my brain is mush – but Jared Woodfill (who is of course the plaintiffs’ attorney for this, along with fellow genius Briscoe Cain) said he was going to try to get a hearing today and secure a temporary block on the cancellation. I can imagine that happening, at least long enough for a judge to make a preliminary ruling. (UPDATE: Per a press release from the Texas GOP received at 7:30, they were indeed denied a motion to block the cancellation. They will appeal directly to the Supreme Court. Stay tuned.) Beyond that, who knows? Insert giant shrug emoji here. Texas Lawyer and the Trib have more.

UPDATE: Jasper Scherer tweets about the TRO denial. Apparently, there’s a second lawsuit as well, by Steven Hotze, because of course there is. Both motions were denied.

UPDATE: An updated Chron story, with more details on the TRO denials. Also, too, this:

The mayor also encouraged party officials to move their convention to Montgomery County, where County Judge Mark Keough offered to host the event and vowed “there will be no last-minute changes.”

“I think Judge Keough in Montgomery County is more than happy to host the 6,000 delegates (there),” Turner said. “I think they should go to Montgomery County.”

Seems like a match made in heaven to me.

2020 Primary Runoff Early Voting, Second Thursday: In which I get a look at the vote rosters

What’s a vote roster, you say? It’s a detailed list of everyone who voted in a particular election. You can find some recent ones, mostly pertaining to the 2020 elections so far, here. I’ve used the rosters from past elections to do some deeper analysis of our city election voters.

And now I’ve turned that attention to the 2020 primary and primary runoff voters. I started out with an interest in the people who have voted by mail in the runoff, as there are many more of them than there were in March. How had they voted in March? More to the point, how many of them had not voted at all in March? In other words, what was the effect of the County Clerk sending mail ballot applications to every registered voter 65 and older in the county?

Well, I’ll tell you. The following data is for early voting and vote by mail through Wednesday, July 8:

For the Democrats, there have been 41,531 total mail ballots cast in the runoff. Of those,
– 15,895 people voted by mail in the primary
– 7,052 people voted early in person in the primary
– 4,361 people voted on Election Day in the primary
– 14,223 people did not vote in the primary

Also for the Dems, there have been 40,387 early votes in person so far in the runoff. Of those,
– 135 people voted by mail in the primary
– 21,375 people voted early in person in the primary
– 10,210 people voted on Election Day in the primary
– 8,667 people did not vote in the primary

In summary, 27.9% of all Dem runoff voters did not vote in March. And 34.2% of all runoff votes cast by mail came from people who had not voted in March.

How about the Republicans? There have been 23,585 total Republican votes by mail in the runoff. Of those,
– 12,121 people voted by mail in the primary
– 1,500 people voted early in person in the primary
– 816 people voted on Election Day in the primary
– 9,148 did not vote in the primary

Also for the GOP, there have been 11,833 early votes in person so far in the runoff. Of those,
– 130 people voted by mail in the primary
– 7,671 people voted early in person in the primary
– 1,520 people voted on Election Day in the primary
– 2,512 people did not vote in the primary

So, 32.9% of all GOP runoff voters did not vote in March, and 38.8% of all runoff votes cast by mail came from people who had not voted in March. How about that?

I’m working on some more data and will present that over the weekend. In the meantime, here are the updated early vote totals:


Election     Mail    Early    Total   Mail %
============================================
D primary  21,658   82,365  104,023    20.8%
R primary  21,340   65,783   87,123    24.5%

D runoff   43,000   47,389   90,389    47.6%
R runoff   24,724   13,679   38,403    64.3%

The Thursday runoff EV file is here, and the final EV turnout report from March is here. It looks like there had been an error in an earlier days’s reporting, which had shown nearly zero mail ballots received – I think it was the Tuesday report. That has been corrected, which is why there’s such a large increase in today’s mail ballot total. Dems topped 7K in person voters, their highest single day yet, while Republicans have still not seen as many as 2K in person voters. Today should be the busiest day, and voting hours are extended till 10 PM. I’ll have the final wrapup on Sunday.

City cancels Republican convention

Game on.

Mayor Sylvester Turner

Mayor Sylvester Turner announced on Wednesday that the city has canceled the Texas Republican Party’s in-person state convention in downtown Houston next week.

Houston First, the public nonprofit that serves as the city’s convention arm, sent a letter to the party’s executive committee notifying it that the convention has been canceled.

The letter triggers a part of the contract called a “force majeure” clause, which allows one side to cancel for an occurrence out of its control. The definition included “epidemics in the City of Houston,” according to the Houston First letter.

Earlier Wednesday, Texas Republican Party officials said they were preparing for a legal fight after Turner said the Houston First and the city attorney’s office would review its contract with the party for using the George R. Brown Convention Center for the convention July 16-18.

Turner said he sought the review after Dr. David Persse, the city’s health authority, called the planned convention “a clear and present danger.”

The mayor had been hesitant to leverage his authority to cancel the convention out of fear of politicizing it, and he repeatedly had asked the party to meet virtually instead. He said Wednesday’s decision was prompted by rising numbers and an alarming letter from Persse, who reports to the mayor, outlining the danger of moving forward.

“It is a letter that as the mayor of Houston, that I simply cannot ignore or overlook,” Turner said. “The plan is to exercise those provisions, to cancel this agreement today, to not go forward with this convention.”

Persse’s letter called the spike in Houston an “unparalleled and frightening escalation” since Memorial Day.

“Now, COVID-19 infections are three times greater than they were at the peak experienced earlier this spring,” Persse wrote to Turner and Brenda Bazan, the president of Houston First. “Houston is now among the the national epicenters of the current COVID-19 outbreaks.”

See here and here for the background, and here for the announcement on Twitter. Before anyone gets their Hot Take machines fired up, please note that Greg Abbott and Dan Patrick were going to give their speeches via video, because they apparently had better things to do than bathe in a viral stew for three days. The RPT says they are reviewing their legal options, and I’d bet a year’s supply of N95 masks that someone will file a lawsuit over this. The real question is whether they’ll be able to get an expedited hearing, something the TDP was not able to get from SCOTUS with their vote-by-mail lawsuit. Priorities, you know. Anyway, Republicans should look on the bright side, because they just got something they surely prefer to a dumb convention, namely the chance to play the victim at the hands of a mean old Democrat. All that and a lower chance of death by ventilator – it’s a total win-win. The Trib, the Chron editorial board, and the Press have more.

UPDATE: Right on schedule:

We’ll see if they try for a quick ruling that disallows the cancellation. My head is spinning already.

Schools are going to reopen, like it or not

It’s gonna be crazy.

Texas public school districts must reopen campuses for in-person instruction in August to continue receiving state funding, unless the governor issues a school closure order or a confirmed case of COVID-19 on an individual campus forces a brief shutdown of the building, Education Commissioner Mike Morath announced Tuesday.

The mandate ensures that families wanting in-person classes will have the option for children to return to campuses during the novel coronavirus pandemic, though students may continue learning from home if they choose. Districts can restrict the number of students who receive on-campus instruction for the first three weeks of their school year, a period designed to “facilitate an effective back-to-school transition process,” TEA officials said.

“On-campus instruction in Texas public schools is where it’s at,” Morath said during a conference call with superintendents. “We know that a lot of families are going to be nervous, and if they are nervous, we’re going to support them 100 percent.”

The mandate came as Morath released public safety guidance for the 2020-21 school year, requiring staff and students older than 10 to wear face coverings in compliance with Gov. Greg Abbott’s mandatory mask order, and encouraging the use of social distancing in buildings, among numerous other protocols.

TEA leaders are leaving many health and hygiene decisions to superintendents, a long-expected decision given the varying spread of the novel coronavirus in different corners of the state.

[…]

Decisions over reopening schools have pitted public health concerns against the benefits of in-person classes.

Some school employees and parents fear the resumption of in-person instruction will cause the virus to spread more rapidly, particularly if classes restart in areas already experiencing an outbreak. While children display symptoms of COVID-19 at low rates, public health officials are not yet certain about how often they are infected and spread the virus to adults.

The state’s four largest teacher unions and organizations each leveled criticism of the state guidance Tuesday, arguing Texas education leaders are moving too quickly to reopen campuses and failing to require enough safety protocols. Zeph Capo, president of the Texas American Federation of Teachers, said allowing up to 100 percent of a school’s students to return to campuses will put kids and teachers at risk.

“There is no way under those circumstances you could guarantee social distancing or even have a chance at it,” Capo said. “To act like kids can’t get (COVID-19) is a farce, and the adults in those schools are probably even more at risk than the kids.”

I’ll get to that in a minute, but first, some more concerns from the teachers.

Teachers, who may be more susceptible than students to COVID-19, were concerned upon hearing last month that state leaders considered it safe to return to school. Earlier Tuesday, the Texas State Teachers Association put out a statement asking Abbott to “slow down and put safety first” before reopening campuses this fall.

After the final guidelines were announced, the teachers association said they don’t go far enough. “Children younger than 10 will still be exempted from wearing masks in schools. Teachers of those children should be able to decide whether they want their students to wear masks,” said Clay Robison, spokesperson for TSTA. “Teachers who fear they will compromise their health by returning to campus should have the choice of teaching remotely, and it doesn’t look like TEA guidelines will require that.”

And the Association of Texas Professional Educators released a statement criticizing the TEA for not providing “more explicit guidance” or including educators and parents in the decision-making process.

The guidance released Tuesday requires school employees to “meet the work expectations set by their employers” but does not include many specifics for at-risk teachers who may not feel safe going into schools.

Let’s be clear that nobody involved in this decision really knows what’s going to happen. As with everything else so far, it’s a lot of hope and not much else.

A draft version of this TEA guidance that wasn’t supposed to be made public was revealed last week. I drafted a post about it, then never got around to publishing it. But waste not, want not, so click on to read what I wrote then, which largely still applies. I hope this goes well. I fear it won’t. I worry for everyone involved.

(more…)

2020 Primary Runoff Early Voting, Second Wednesday: This is all the vote by mail we’re going to get

I’m going to start this update off with a bummer of a legal analysis from Vox’s Ian Millhiser:

The Texas case, meanwhile, is Texas Democratic Party v. Abbott, and the stakes in that case are simply enormous.

Texas law permits voters over the age of 65 to request absentee ballots without difficulty. But most voters under the age of 65 are not allowed to vote absentee. During a pandemic election, that means that older voters — a demographic that has historically favored Republicans over Democrats — will have a fairly easy time participating in the November election. But younger voters will likely have to risk infection at an in-person polling site if they wish to cast a ballot.

This arrangement is difficult to square with the 26th Amendment, which provides that “the right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.”

The Court’s order in Texas Democratic Party is subtle, but it most likely means that Texas will be able to deny or abridge the right to vote on account of age, at least during the November election.

Last month, the conservative United States Court of Appeals for the Fifth Circuit blocked a trial judge’s order that would have allowed younger Texans to vote absentee. Although this Fifth Circuit order is not the appeals court’s last word on this case, it is quite unlikely that the plaintiffs in Texas Democratic Party will prevail before the Fifth Circuit, which is among the most conservative courts in the country.

So those plaintiffs asked the Supreme Court to hear their case on an expedited basis. On Friday, the Supreme Court denied that request. As a practical matter, writes SCOTUSBlog’s Amy Howe, this refusal to expedite the Texas Democratic Party case “all but eliminated the prospect that the justices will weigh in on the merits of that dispute before the 2020 election in November.”

Thus, even if the Supreme Court ultimately does decide that Texas’s age discrimination violates the 26th Amendment, that decision will almost certainly come too late to benefit anyone in November.

The Supreme Court’s orders in Merrill and Texas Democratic Party fit a pattern. Last April, in Republican National Committee v. Democratic National Committee, the Supreme Court granted a request from the Republican Party, and ordered all ballots mailed after a certain date in Wisconsin’s April elections to be tossed out — a decision that, in practice, likely forced thousands of voters to risk infection in order to cast an in-person ballot.

The Court’s decision in Republican National Committee was also 5-4, with all five Republican justices in the majority and all four Democrats in dissent.

In recent weeks, the Court has handed down a handful of left-leaning decisions — including a narrow decision temporarily preserving the Deferred Action for Childhood Arrivals (DACA) program and an even narrower decision striking down a Louisiana anti-abortion law.

But on the most important question in a democracy — whether citizens are empowered to choose their own leaders — this Supreme Court remains unsympathetic to parties seeking to protect the right to vote, despite the greatest public health crisis in more than a century.

Slate’s Mark Joseph Stern drew similar conclusions. None of this means that these cases won’t get heard on their merits – this one, the other one that directly challenged the 65-and-over provision on 26th amendment grounds, and the lawsuit alleging other obstacles to voting – will get their day in court, and the age discrimination claims will have a decent shot at prevailing. Just, not before this election. It’ll happen eventually, in the fullness of time, because obviously there was no pressing need to address this matter now. Who ever heard of such a thing?

Anyway. Here are the updated early vote totals:


Election     Mail    Early   Total   Mail %
===========================================
D primary  19,400   66,318  85,718    22.6%
R primary  20,393   55,489  75,882    26.9%

D runoff   38,066   40,301  78,367    48.6%
R runoff   23,589   11,795  35,384    66.7%

The Wednesday runoff EV file is here, and the final EV turnout report from March is here. Today happened to be a quiet day for mail ballots on the Dem side, but a new high for in person votes. It’s possible Dems will get to 100K by the end of the EV period. My guess is that a large majority of the vote will be cast early, but we’ll see.

GOP declines Turner’s invitation to cancel their convention

The ball is back in your court, Mr. Mayor.

The Texas Republican Party is proceeding with an in-person convention next week in downtown Houston, a rejection of Mayor Sylvester Turner’s formal request Monday to move the event online amid a local escalation of the COVID-19 pandemic.

James Dickey, chairman of the Texas GOP, in a statement Tuesday said the party has been “proactive in implementing safety measures” and had “extensive conversations” with Houston First, the public nonprofit that serves as the city’s convention arm and operates the George R. Brown Convention Center. The convention is set to take place there from July 16 to 18.

“With these precautions currently in place, the Republican Party of Texas intends to proceed with an in-person convention next week in Houston,” Dickey said.

The chairman also responded to the list of conditions Turner, a Democrat, said the GOP would need to follow if it holds the convention. Those guidelines include denying entry to anyone who has tested positive for COVID or come in contact with a COVID patient between July 2 and July 15, requiring attendees to wear masks, and providing touchless hand sanitizing stations throughout the convention center.

“Mayor Turner must not have had the information about the measures being voluntarily implemented,” Dickey said. “The Republican Party, delegates, and guests are looking forward to a safe and productive Convention next week.”

Turner said he was “incredulous” that the GOP is moving ahead with an in-person convention, and reiterated that health department officials would shut down the event if they find people are not following COVID-19 guidelines.

See here for the background. For what it’s worth, the Greater Houston Partnership has also implored the GOP to cancel the in person convention.

The Greater Houston Partnership has called on the Texas GOP, along with state and local officials, to cancel the in-person Texas Republican Convention in downtown Houston next week.

Citing the health and safety of event-goers, staff and volunteers, the group of Houston business leaders said an indoor event as large as the convention — which is expected to draw thousands of people — would be unsafe.

In a letter sent Tuesday afternoon to Gov. Greg Abbott, Mayor Sylvester Turner, Harris County Judge Lina Hidalgo, and state GOP Chairman James Dickey, the GHP asked “those with the authority to cancel” the event to do so.

“In normal times we would welcome an event that was expected to draw some 6,000 delegates from across Texas to the George R. Brown Convention Center,” the letter read. “Unfortunately, these are not normal times.”

You can click over to see their letter. Of course, the modern Republican Party of Texas doesn’t really represent business interests any more (see: the bathroom bill, for one), so I would not expect this to have any effect. But at least you know, it’s more than just Mayor Turner versus the state GOP.

The one person who could (maybe) put an end to this is Greg Abbott, but I think we all know that ain’t gonna happen. So for now we have this game of chicken, and we hope there’s no significant collateral damage. And if it does come down to the city health department, well, there’s this:

Those “face mask legal exemption” cards are complete BS, in case you were wondering. Not that anyone who has printed out one of those cards for themselves will believe that, of course. If there’s a better definition of “shit show” right now, I don’t want to know what it is.

Checking on Metro’s mask mandate

I admit, I was a bit confused when I saw the earlier version of this story.

Metro wanted to make sure its mask requirement for all passengers passed legal muster, asking a Houston lawmaker to seek an opinion from Texas Attorney General Ken Paxton.

That request may be moot after Gov. Greg Abbott issued an executive order Thursday requiring Texans to wear face masks while in public, under most conditions.

State Rep. Jim Murphy, a Republican who represents a west Houston district just south of Interstate 10 between Loop 610 and the Sam Houston Tollway, had asked the attorney general in a June 26 letter whether Abbott’s previous executive orders limiting local governments’ ability to enforce public health requirements apply to the Metropolitan Transit Authority.

Metro spokesman Jerome Gray on Thursday said Murphy posed the question at Metro’s request. Only certain people — prosecutors, county attorneys and state elected officials — can solicit an opinion from Paxton’s office.

“Given the various back-and-forth discussions about masks we thought it prudent to get some clarity from the AG’s office regarding our ability to deny service to anyone who does not wear a mask,” Gray said. “Gov. Abbott just issued a new order regarding masks and that appears to clear up any ambiguity.”

[…]

When masks became conditional to ride, Metro CEO Tom Lambert said transit officials had no intention of imposing criminal or even civil penalties. Those without a mask will be provided one by Metro staff, and if they refuse to wear it Metro will provide alternative transportation but will not allow them to remain on the bus or train, officials said.

While riders have reported some lax enforcement of the mask requirement on some buses, transit officials have said most riders are compliant with the change and there have been few incidents.

See here and here for the background on the mask mandate. As noted, Greg Abbott’s statewide mask order kind of makes this moot, but the basic question is still there. When I saw the early version of this story, I must have missed the bit about this request being made on Metro’s behalf – my reaction was like “what does Jim Murphy have against Metro?”, which surprised me because that’s not his brand. Briscoe Cain, sure, but not an establishment guy like Murphy. This at least makes sense, though now I’m worried what the answer Metro might be. Anyway, we’ll check back on this when the opinion is given, hopefully at a time when it’s moot for better reasons.

2020 Primary Runoff Early Voting, Second Tuesday: A history of Democratic primary runoffs

Yesterday I said that the turnout so far in the 2020 Democratic primary runoff was already historic. Today I’m going to show my work on that. Herewith is the 21st century history of Democratic primary runoff turnout for Harris County:


Year    Turnout  Top race
=========================
2002     64,643    Senate
2006     12,542    Senate
2008      9,670       RRC
2010     15,225  Judicial
2012     29,912    Senate
2014     18,828    Senate
2016     30,334       RRC
2018     57,590  Governor
2020     72,838    Senate

The only primary runoff on the ballot in 2004 was for Constable in Precinct 7. We’ve come a long way, and please don’t forget that. We had just nudged past that 2002 mark as of yesterday, and now we are putting distance between it and this year. I didn’t include mail ballots in this accounting for two reasons. One, they didn’t quantify mail ballots in 2002, and two, this year is way off the charts compared to years prior. 2018 and 2016 are the only reasonable comps, and they both fall well short, with 19,472 mail ballots in 2018 and 11,433 in 2016. We had each of those beat on Day One.

With that, here’s the chart for this year as of today:


Election     Mail    Early   Total   Mail %
===========================================
D primary  18,503   54,325  72,828    25.4%
R primary  19,690   47,271  66,961    29.4%

D runoff   38,026   34,812  72,838    52.2%
R runoff   22,351   10,215  32,566    68.6%

The Tuesday runoff EV file is here, and the final EV turnout report from March is here. Second week Tuesday was the first big turnout day for the primary, and where Dems started separating from Republicans overall. This Tuesday was by a small amount the biggest day so far for Dems, though Monday had a slightly higher in person count. This is undoubtedly where the March turnout begins to exceed the July turnout, but this runoff is now officially leaving all previous primary runoffs in the dust.