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Glen Maxey

TDP gets initial win in vote by mail lawsuit

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: More from Texas Lawyer:

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

Will we get full Presidential primary results from Texas on primary night?

Maybe.

As their counterparts in Iowa reel from a disastrously slow election returns process, Texas Democrats raised the prospect Wednesday that a change in the way Texas reports election results could delay the final tally of delegates won by presidential hopefuls in the upcoming March 3 primary past election night.

Officials with the Texas Democratic Party said they were recently told by the Texas Secretary of State’s office that it will not be able to provide on election night the numbers needed to allocate a majority of the 228 delegates up for grabs in the state on Super Tuesday. In a Jan. 23 meeting, the Democrats said, top state election officials cited limitations to their revamped reporting system, which is used to compile returns from the state’s 254 counties.

“They basically said that’s not built out yet,” said Glen Maxey, the special projects director for the Texas Democratic Party who attended the meeting with state officials.

Late Wednesday, a spokesman for the secretary of state’s office, which initially had not responded to The Texas Tribune’s questions about the issue, contested that characterization, saying that “any allegations that delegate allocations will not be reported on election night are categorically false.”

At issue are 149 delegates that will be won by Democratic presidential candidates through a complex formula that divvies up those delegates based on the distribution of votes in each of Texas’ 31 state Senate districts. Maxey said he and other officials were told the state initially will collect election returns at the county level but not at the senatorial district or precinct level, which are needed to calculate how many delegates each candidate picks up. Party officials were told those more detailed numbers would be made available “the next day or so,” Maxey said.

In an email, agency spokesman Stephen Chang said the secretary of state’s office does plan to collect and publicly report votes for president at the Senate district level “in the same fashion” as previous primaries.

“In previous primaries, including the 2016 primary election, delegate allocations for both of Texas’ major parties on election night have been approximate allocations based on data self-reported by the counties,” Chang said. “The delegate allocations will be reported in the same fashion for the March 3rd primary election.”

An earlier version of the story did not yet have the response from the SOS office, so the answer to the question was looking like No. Part of the reason for this is that those delegates are doled out by Senate district, according to a formula that you can learn more about at the links in the story. Senate districts are of course all gerrymandered up, with many of them spanning multiple counties, so you can’t calculate the official delegate count until you have complete counts from all those counties. That could certainly make for a late night, but a reasonable estimate ought to be doable in the evening. If things are close, the allocations could be muddled, and there may not be a clear winner of the most delegates. In theory at least, we’ll have something. Hope for the best but be prepared for a late night. Still gotta be better than Iowa, right?

We should have a full statewide slate

Nice.

Judge Gisela Triana

For Brandon Birmingham, a state district judge in Dallas, the 2020 race for Texas Court of Criminal Appeals started on election night 2018.

As he watched Beto O’Rourke win more votes than any Texas Democrat ever had in a statewide race, Birmingham — who himself won reelection that night with 100% of the vote in his countywide district — began to mull his own chances at winning Texas. Within weeks, he’d reached out to the state Democratic Party. By December, he’d sat down with party officials over breakfast in Dallas to discuss a possible run.

Now, as the 2020 election season begins in earnest after the start of the filing period Nov. 9, Birmingham is one of 14 Democrats seeking one of seven seats on the state’s two high courts — an unusually crowded and unusually qualified field for races that have over the past two decades plus proved suicide missions for Democrats. This year, with a controversial Republican president on the ballot and sky-high stakes for Texas Democrats, candidates are hoping the races look more like heroes’ journeys.

“In 2018, 2016, 2014, 2012, the last four cycles, the month of October was spent talking and begging people to come to us, to run for these kinds of offices,” said Glen Maxey, a former Texas House member who is coordinating statewide judicial races for the Texas Democratic Party. “That’s what’s different about 2020. We did not make a single phone call. … We have not twisted a single arm about doing this.”

In past years, Maxey said, the party was often scrambling to find “any qualified attorney” to put on the ballot. This year, nearly every race involves at least one sitting judge or justice with years of experience.

[…]

Strategists sometimes consider statewide judicial races the best measure of the state’s true partisan split: Whom do voters pick when they know little or nothing about either party’s candidate?

Statewide judicial races are “important to watch in terms of partisan vote behavior,” said Mike Baselice, a GOP pollster. They show a “good reflection of base Democratic and base Republican vote in the state.”

That also means that judicial candidates typically rise and fall as a slate: Most likely, either all of them will win or none of them will, strategists acknowledge. It’s a blunt theory, but it offers clear strategic guidance: A rising tide lifts all boats.

“We won’t have them each deciding to be at the same chicken fry in Parker County on the same Friday,” Maxey said. Instead, he said, they’ll tell nominees: “We need you to travel. We need you to be making appearances as seven people in seven different media markets every day, so that people are hearing a Democratic message about equal justice, all over, everywhere.”

I agree with Mike Baselice that judicial races do indeed do a good job of measuring partisan vote behavior. As you know, I’ve been using CCA races across the years as my point of comparison. I like judicial races at the county level even more because they are almost always straight up R-versus-D contests, but a lot of these go uncontested in counties that have strong partisan leans, so the statewides are the best overall proxy.

By that measure, 2018 was easily the most Democratic year in recent memory. The Supreme Court and CCA Democratic candidates ranged from 45.48% (in a race that included a Libertarian) to 46.83%, the best showing since Sam Houston got 45.88% in 2008 and Margaret Mirabal got 45.90% in 2002. I’d quibble slightly with the assertion that all the Dems will win or none of them will – there is some spread in these races, so if the state is basically 50-50, you could have a couple Dems sneak through while others just fall short. That’s basically what happened in Harris County judicial races in 2008 and 2012, after all. The presence or absence of third party candidates could be a factor as well, as more candidates in the race means fewer votes, and only a plurality, are needed to win. Again, this is only relevant if the state is truly purple, and the range of outcomes that include a split in the judicial races is narrow, but it could happen.

My one complaint here is that the story only names one Democratic CCA candidate, while teasing that there are many more. So I asked some questions, of reporter Emma Platoff and Patrick Svitek, reporter and proprietor of the Patrick Svitek spreadsheet of announced candidates, and now that Statewide tab is full. Here. for your perusal, are your Democratic statewide judicial candidates:

Amy Clark Meachum – Supreme Court, Position 1 (Chief Justice)
Jerry Zimmerer – Supreme Court, Position 1 (Chief Justice)

Supreme Court, Position 6 – Brandy Voss
Supreme Court, Position 6 – Staci Williams

Supreme Court, Position 7 – Kathy Cheng
Supreme Court, Position 7 – Lawrence Praeger

Supreme Court, Position 8 – Gisela Triana
Supreme Court, Position 8 – Peter Kelly

Court of Criminal Appeals, Place 3 – William Demond
Court of Criminal Appeals, Place 3 – Elizabeth Frizell
Court of Criminal Appeals, Place 3 – Dan Wood

Court of Criminal Appeals, Place 4 – Brandon Birmingham

Court of Criminal Appeals, Place 9 – Tina Yoo Clinton
Court of Criminal Appeals, Place 9 – Steve Miears

Kelly is a Justice on the First Court of Appeals, elected in 2018. He doesn’t appear to have an online campaign presence yet, but a search for “peter kelly texas supreme court” yielded this.

William Demond is a “constitutional rights attorney” in Houston. Elizabeth Frizell is a former County Criminal Court judge in Dallas who ran for Dallas County DA in 2018 but lost in the primary. This story in The Appeal has some information about her candidacy from that year. Dan Wood is a criminal appellate lawyer who ran for the Fifth Court of Appeals in 2012 and for CD05 in 2018.

Brandon Birmingham, the one candidate named in the story, was elected to the 292nd Criminal District Court in Dallas in 2014, re-elected in 2018.

Tina Clinton serves as Criminal District Judge Dallas County Number 1, which is a felony court. I don’t know why the nomenclature is different from the other District Courts as I had not heard of this kind of court before, but similarly-named courts exist in Tarrant and Jefferson counties as well. She was elected to this court after serving eight years as a County Criminal Court judge, and you can scroll down the 2018 election results page to see more judges like her. Steve Miears is a criminal and criminal appellate attorney from Grapevine.

And now we’re as up to date as we can be The Secretary of State is now providing candidate filing information, which tells me that as of Friday Lawrence Praeger was the only one to have formally filed. More are to follow, and I’ll keep an eye on it.

Will the next SOS be any better than David Whitley?

Anything is possible, but don’t count on it.

Still the only voter ID anyone should need

Voting rights advocates are celebrating Whitley’s forced departure, but said they have no illusions that his successor will be any more committed to upholding voting rights for all Texans.

“There is certainly every reason to believe that these types of voter suppression tactics will continue with the next nominee,” Anthony Gutierrez, executive director of the government watchdog group Common Cause Texas, told ThinkProgress.

Glen Maxey, legislative affairs director for the Texas Democratic Party, told ThinkProgress that Whitley had promised Democratic and Republican officials shortly after assuming office in January that he would run a fair election system.

Within weeks, however, Whitley drew up a list of nearly 100,000 people he wrongfully identified as non-citizens, saying they had to be deleted from voter rolls. Most, as it turns out, actually were U.S. citizens, and a federal judge blocked his plan to expunge the names.

Abbott — who himself has a long history of pushing voter suppression efforts — will now get to pick someone to replace Whitley as the state’s chief election official, a critically important position looking ahead to 2020.

Gutierrez said he was not overly optimistic that a change in personnel will lead to the end of Republican voter suppression efforts.

“Texas has a long history of using systemic obstacles to limit participation,” Gutierrez said. “I have no question that we’ll keep seeing a variety of voter suppression tactics until we have a greater number of legislators and statewide elected officials who want to see more Texans voting and participating in our democracy.”

[…]

Maxey said he believes the massive voter purge attempted by Whitley was probably the brainchild of Gov. Abbott or Attorney General Ken Paxton, and suspects that Whitley simply was carrying out orders.

“He did not come up with this plan on his own. He wasn’t even in office long enough to come up with it,” he said. “Either he was boldface lying to us or it was something that happened that was cast with his signature or his name attached.”

I think that’s probably right. At the very least, I think if Whitley had done all this on his own, and screwed it up in such spectacular fashion, he wouldn’t have Abbott and all the rest of the DPS-blaming enablers backing him. Ken Paxton surely had a hand in it as well. The best case scenario here is Abbott appoints someone competent and conscientious who actually does care about the integrity of the data, which leads them to stay away from hair-brained schemes to “cleanse” the voter rolls via noisy data and weak matches. The worst case scenario is that Abbott appoints someone who is competent at carrying out such a scheme. Either way, we can’t afford to ease up on vigilance.

On a related note, the Trib has a deep dive into how things went down in the Senate in the latter days as Abbott tried to get Whitley confirmed.

The pressure on the Democrats intensified as the legislative session pressed on. Some senators had received calls from business associates, clients and donors, who had apparently been nudged by the governor’s office to encourage them to back Whitley, and they were facing veto threats, said Sen. Borris Miles, a Houston Democrat who did not receive such overtures but said he heard from his colleagues about them.

But with the i’s dotted and the t’s soon to be crossed on Abbott’s top legislative priorities, his office made a final, last-minute push to sway Senate Democrats in the final days of the legislative session, multiple sources said.

And some Democrats whom Abbott hoped to turn were brought in individually. State Sen. Judith Zaffirini, D-Laredo, was called to Abbott’s office on Saturday, where the governor asked her, in a one-on-one meeting, to support his nominee.

“He said he would like for me to vote for David, and I said that I couldn’t — I wished I could, but I couldn’t,” Zaffirini said in an interview this week. “I like David … and he’s a good person. But he made a terrible mistake.”

On Monday, two of her bills were vetoed — one to increase transparency at the State Commission on Judicial Conduct and one to allow for specialized courts for guardianship cases. Both had passed both chambers with near-unanimous support and were championed by Republican sponsors in the House.

“I was surprised to see them vetoed, and I was surprised to see the veto so early,” Zaffirini said, and she “disagreed” with the reasoning Abbott gave.

[…]

Miles, who said he wasn’t facing threats of vetoes, said tit-for-tat menacing would seem out of character for Abbott — a governor the Democrats say is generally professional. But he confirmed that some of his colleagues had clearly been targeted with pressure.

“Yes, there were runs at individual members, and we had to secure them and let them know this was not something we could go on without,” Miles said. “There were some threats of vetoing bills.”

On Sunday evening, the day before the Legislature had to gavel out, [Sen. Jose] Rodríguez said the Senate GOP Caucus Chair, Paul Bettencourt, came by to test the waters.

“At one point, he came over and said, ‘Would y’all be okay with the lieutenant governor calling up Whitley to take an up and down vote? He doesn’t want any questions or speeches. We know you have him blocked, but the governor wants a vote on it,’” Rodríguez recalled.

Rodríguez told Bettencourt that if a vote were called, he and other Democrats were prepared with “pages and pages” of questions, enough to delay for hours — effectively killing the bills still sitting vulnerable on the calendar on the last day the Senate could approve legislation.

Ultimately, no vote was called.

It’s worth reading. I know Abbott really likes Whitley and all, but I continue to be amazed that no one ever thought to advise him to take responsibility, admit his errors, apologize, and promise to do better. Did they not think it was necessary, did they think that some combination of sweet talk and veto threats would be enough, did they have some other strategy in mind? I wish I knew.

Dallas County GOP sues to knock basically all Dallas Democrats off the ballot

Well, that escalated quickly.

Dallas County Republicans have filed a lawsuit to have 128 Democrats kicked off the March 6 primary ballot.

The lawsuit, filed in Dallas County late Friday, contends that Dallas County Democratic Party Chairman Carol Donovan didn’t sign the petitions of 128 Democratic Party candidates before sending them to the Texas Secretary of State’s office, as required by law.

“The Election Code says the chairman, and nobody else, has to sign them,” said Elizabeth Alvarez Bingham, a lawyer for the Dallas County Republican Party. “Carol Donovan is the chair. She was supposed to sign them. She didn’t do it.”

The news stunned some Democrats after a lawyer for their party notified them of the lawsuit Sunday afternoon.

“We have assembled a legal team of Dallas’ best and brightest Democratic election law attorneys,” Donovan said late Sunday in a news release. “Though we are taking this case seriously, the Republican Party’s lawsuit is not supported by Texas law. We will fight to ensure that all Democratic voters in Dallas County can participate in a fair Primary election.”

[…]

According to the lawsuit, only a fraction of the candidate petitions approved by Donovan actually contained a signature by her hand. The GOP lawsuit alleges Donovan’s signature on other petitions was not hers.

There’s not a whole lot of information to go on here, so let me note a couple of comments I saw on Facebook from people who know election law far better than I do. The first is from Glen Maxey:

“This is a frivolous lawsuit. The Primary Director, under the direction of the Chair, signed these forms. That’s the way it’s been done for decades. And the courts have ruled that way in the past.”

And the second is from Gerry Birnberg:

“And that’s how the Harris County Republican Party does it (or has for years).”

To that extent, and based on another comment I saw, here is Sec. 1.007:

DELIVERING, SUBMITTING, AND FILING DOCUMENTS. (a) When this code provides for the delivery, submission, or filing of an application, notice, report, or other document or paper with an authority having administrative responsibility under this code, a delivery, submission, or filing with an employee of the authority at the authority’s usual place for conducting official business constitutes filing with the authority.

In other words – and remember, I Am Not A Lawyer – it seems like the law allows for an employee of the county party to sign the documents, in place of the Chair. Which is what Maxey and Birnberg are saying. Individual candidates have had ballot applications rejected for technical issues with petitions they have submitted, but this isn’t quite the same as that.

There’s also the question of standing, which DCDP lawyers brought up in response to this suit.

According to a document filed late Monday on behalf of 14 candidates threatened with removal from the ballot, the Dallas County Republican Party and its chairwoman, Missy Shorey, have no standing to bring the suit, since they are not candidates in the election.

“The DCRP is clearly not a candidate and Shorey does not allege that she is a candidate for any office,” according to the filing from the lawyers. “As such, neither the DCRP nor Shorey have the necessary personal interest to have standing to seek the removal of any candidate from the ballot.”

Shorey and her attorney, Dallas lawyer Elizabeth Alvarez Bingham, argue that Dallas County Democratic Party Chairwoman Carol Donovan was required to sign the candidate paperwork of Democrats appearing on the March 6 ballot and send the documents to the Texas Secretary of State. Donovan signed only a fraction of the petitions submitted to her, but her signature, clearly signed by someone else, appears on the documents of the 128 candidates in question.

But the candidates, led by state Sen. Royce West, D-Dallas, say there’s nothing in election law that requires Donovan to “sign” candidate petitions, and that she can designate a person to review and sign petitions, if she chose.

[…]

Buck Wood, an attorney for the 14 candidates who responded to the suit, said it’s unlikely that the GOP lawsuit would result in anybody being removed from a ballot.

Wood said process duties, like those of a county party chairman, should not determine the fate of an “eligible” candidate because it would open the door for sloppy or diabolical county leaders sabotaging efforts of candidates across the state.

“It’s not an eligibility issue,” Wood said. “There’s no way anybody can be replaced.”

I have a hard time believing a court would essentially cancel dozens of elections for what seems to be normal practice, but I suppose anything can happen. At the very least, it looks like this action may be dismissed or withdrawn for now, but may be raised again after the primaries. We’ll see.

Let’s do talk about Democratic legislative candidates

I have so many things to say about this.

The hottest new trend in Democratic politics these days is running for Congress — everybody’s doing it. So far, more than 200 Democrats have filed to challenge Republican incumbents and raised at least $5,000. That’s more than the number of Democratic congressional candidates who had announced at this point in the cycle in the last four elections, combined. Trump’s election freaked people out, and this is how they’re responding. Obviously, it’s an encouraging sign for Democrats. You want people running everywhere, even in beet-red districts where they may not stand a chance.

There are a boatload of people running for Congress in Texas, too. Which, again, is good! Strangely, though, the Democratic slate for statewide offices — from the governor down to the land commissioner — is so far mostly empty, or lacking credible candidates. And there’s no sign (yet) of people lining up to run for the Legislature, where Democrats have traditionally been most in need of worthy candidates.

[…]

In huge swathes of the state, there simply is no Democratic Party to speak of. The local infrastructure doesn’t exist. Particularly in rural areas, local elections may feature no Democrats at all, and decades may have passed since the last competitive race outside of the Republican primary.

Without local representation, the “face” of the Democratic Party becomes, at worst, the caricature presented on talk radio, or, at best, Barack Obama or Chuck Schumer or Nancy Pelosi — Chicago, New York and San Francisco — which produces the sense that Democrats could never be champions of their communities.

But it also means marginalized communities go unrepresented. As this great 2016 Austin American-Statesman series relates, the Panhandle, which has some of the most ideologically conservative elected officials in the country, has huge populations of Hispanic and nonwhite voters who have very little say in their local communities, let alone in Austin. Deaf Smith County, west of Amarillo, is more than 70 percent Hispanic, but every elected member of county government is Anglo. That’s a pattern repeated throughout much of the state.

Reversing that trend is gonna require a lot of local work, in places where Democrats are not necessarily strong and where they won’t reap benefits right away. In Lubbock, where Democrats have a tiny footprint, two Democrats have already declared their intention to run against each other to challenge U.S. Representative Jodey Arrington. Trump beat Clinton by almost 50 percentage points in Arrington’s district.

You could make a plausible case that a vigorous, two-year congressional campaign is a good way to boost local organizing. But the candidates most able to reach out to individual voters are those with the smallest constituencies. Inside Arrington’s district is Lubbock’s state House District 84, represented by Republican John Frullo. Frullo’s district was teetering on the brink of being a majority-minority district at the time of the 2010 census, but a Democrat has only run once in the last three election cycles. In 2014, Frullo crushed a retired teacher named Ed Tishler, whose sole campaign expenditure was his filing fee. So far, nobody’s stepped up to run this year.

The point isn’t that Democrats are likely to turn the Panhandle blue. But the broader retreat from local politics allows Republicans to depress the nonwhite vote and run up high margins in red areas that cancel out Democratic votes in blue ones during statewide elections. Recently, $60 million was flushed down the toilet as part of Jon Ossoff’s losing congressional bid in Georgia. What would happen if some rich person donated a few grand to the Deaf Smith Democratic Party and paid for a few advisory trips from some veteran organizers?

Maybe nothing! My role is to second-guess, and I’m often wrong. But nothing is also what Ossoff’s loss left behind, which is the problem with blockbuster electoral bids in general. A lot of money will be raised by losing congressional candidates this cycle, and a lot of money will be spent in the top-dollar media markets of Dallas and Houston to buy ads to beat Pete Sessions and John Culberson. That gets a lot of people paid, which is partially why it happens. But I don’t know how much it actually accomplishes. Investing in people, in the places they live, seems like a better bet.

Where to begin?

1. The ability of progressive folks to find the negative in any situation never ceases to amaze me. People, including lots of women and people of color, have been inspired to run for Congress! Districts that have never had a contested primary have multiple candidates vying for the nomination! Money is being raised to support these candidates, many of whom are young and first-timers! But we’re gonna lose and all that money will be wasted anyway, so why bother? Argh! That sound you hear is me banging my head on my desk.

2. I realize that it was just being used as an anecdotal illustration, but for the record Deaf Smith County is in HD86, where it represents a bit less than 12% of the total population and where Donald Trump received 79.5% of the vote. The ratio of voting age population (VAP) to overall population in HD86 is 62% for Latinos, compared to 78% for Anglos. I don’t have the figures, but I’d guess the Latino VAP in Deaf Smith is lower than 70%, and if we go all the way to Citizen VAP, I’m sure it’s lower still. I completely agree about the need to build the party in places like the Panhandle, and that starts with city and county offices in places like Deaf Smith, but if the goal is to have a full slate of legislative candidates for 2018, at least for the districts that may be within striking distance, there are a lot of more promising targets than Deaf Smith County and HD86.

3. My biggest frustration by far with this article is that there appears to have been no effort made to actually find out how many announced or rumored or being-recruited candidates there are for the Lege next year. Did you know, for example, that there are already multiple Democratic candidates for the two closest Senate districts, SDs 10 and 16, and that there is at least one promising candidate looking at the next closest district, SD17? Neither SD16 nor SD17 was contested in 2014, by the way. But mentioning that kind of muddies the point of the story, so let’s just pretend it’s not worth it.

4. On the House side, nearly all of the Republican-held seats that were carried by Hillary Clinton in 2016 are in Harris and Dallas Counties. Dallas had a full slate of Democratic House candidates in 2016, and I see no reason why they won’t do that again this year. Maybe pick up the phone and call the county party chairs and ask them how it’s going? For that matter, the other districts of great interest are in a few other counties – Collin, Denton, Tarrant, Fort Bend, Williamson – maybe make a few more phone calls? Again, I strongly agree with the larger point about broadening the reach of the Democratic Party, but again, if you want to know about candidates for 2018, maybe go looking where they’re likely to be running. Maybe also call a couple of organizations that recruit and support Democratic legislative candidates – the Texas AFL-CIO, Annie’s List, the HDCC, you get the idea.

(By the way, Deaf Smith County has a Democratic Party Chair, too. You can thank Glen Maxey, who has done a ton of work ensuring that every county in the state can have a Democratic primary, for that. That’s a claim the Republicans couldn’t make in 2016, you know.)

5. Going back to point #3, every campaign finance report website that I’ve looked at for July finance reports either presents every report that has been filed or has a way to search for all filed reports. The FEC website, which used to suck, now has a very handy feature for querying, say, every Democratic Congressional candidate from Texas in the 2017-18 cycle. Every site makes it easy to find candidates whose existence you didn’t know except one – the Texas Ethics Commission website, which doesn’t have a way to query by district and doesn’t allow a search with the name field left blank. Speaking as an amateur blogger, I would have really really really appreciated the efforts of a professional reporter at a professional news-gathering organization to do some legwork and find a comprehensive list of candidates. Maybe if such a reporter had done that legwork, he might have found evidence to corroborate or disprove his hypothesis about a dearth of candidates for this point in the campaign.

6. Which is another point that bugs me. If you’re going to say there aren’t that many candidates, I will say, compared to when? How many candidates were there, based on finance reports, at this time in 2016 or 2014? I have no idea. Neither does the author of that story, or at least if he does he isn’t telling.

7. All of that said, there are fewer Democratic candidates for legislative seats so far in Harris County than I would have expected at this time. Of the four districts I most want to see good candidates run – HDs 138, 135, 132, and 126 – only HD138 has a candidate that I know of so far. It’s barely August so I’m not sweating it, but it would be nice to see a few more people out there. So it may well be that this story is 100% correct, and there just aren’t as many legislative candidates out there as we might have thought there’d be, especially given the energy given to Congressional campaigns. My whole point is that you can’t actually tell that from this story.

A bipartisan bill to address actual vote fraud

Miracles do happen.

Here’s something folks rarely see in Austin, or other statehouses, in these politically prickly times: a bipartisan effort to crack down on voter fraud.

In the waning days of the 85th Texas Legislative Session, a group of Republican and Democratic lawmakers — backed by party leaders — are pushing to tighten oversight of absentee ballots cast at nursing homes, which experts have long called vulnerable to abuse.

This effort has another twist: It could also bolster ballot access among the elderly.

“When was the last time you heard about a voter fraud bill that actually made it easier to vote?” said Rep. Tom Oliverson of Cypress, one of the Republicans championing the proposal.

A bill he filed died this week after failing to reach the House floor. But a unanimous Senate committee vote Thursday gave some life to identical legislation, Senate Bill 2149, filed by Sen. Joan Huffman, R-Houston.

It would create a process for collecting absentee ballots at nursing homes — essentially turning them into temporary polling places during early voting — to ensure facility staffers or others aren’t manipulating residents’ votes. That’s been a well-documented threat surrounding such vulnerable voters.

“Many of our elderly voters in Texas are being disenfranchised,” Eric Opiela, a lawyer for the Texas Republican Party, told lawmakers at Thursday’s hearing of the Senate Committee on State Affairs.

[…]

State law allows Texans with disabilities, those who are at least 65 years old, or those who plan to be out of the county during voting to request a mail-in ballot. That typically includes voters at residential care facilities. Huffman’s bill would change the process for homes that request five or more absentee ballots. During early voting, counties would send election judges to deliver the ballots and oversee voting at those homes, providing assistance if need be. And political parties could send registered poll watchers, just as they do at regular polling places.

Qualified voters who might have forgotten to request an absentee ballot could fill out such paperwork on site and cast a vote during the election judges’ visit.

“This is just going to help seniors vote. It’s going to allow them to participate in greater numbers,” said Rep. Eric Johnson, a Dallas Democrat who authored the House legislation with Oliverson, and has closely followed the Dallas fraud investigation.

Glen Maxey, legislative director for the Texas Democratic Party, on Thursday called the bill “the biggest expansion of voting rights in Texas since we moved to early voting.”

Would it be churlish of me to say that Democrats have argued in vain for years that voter ID laws have no effect on mail ballot fraud, and that if the Republicans had been serious about combating the kind of vote fraud that actually happens they wouldn’t have gotten their asses handed to them in the voter ID lawsuit? Because if it would be churlish of me to say that, well, too bad, I’ve already said it. As far as this bill goes, if Glen Maxey says it’s a good bill, it’s a good bill. Let’s hope it makes it to the finish line.

Paxton finds another way to be in trouble

Like fleas to a dog, trouble just follows this guy around.

Best mugshot ever

Best mugshot ever

Remember that historic Supreme Court ruling last year? The one that ended decades of discrimination against same-sex couples who wanted to get married?

Texas Attorney General Ken Paxton surely does because it’s probably still causing him headaches, in addition to his legal woes. The Lone Star State’s top lawman is accused of securities fraud.

We just learned that on January 29, the Board of Disciplinary Appeals, appointed by Texas’ Supreme Court, decided not to dismiss a grievance against Paxton filed with the State Bar Chief Disciplinary Counsel for an alleged violation of the Texas Disciplinary Rule of Professional Conduct, which means the Texas State Bar has been ordered to continue a disciplinary investigation into the alleged violation.

That whole defying the Supreme Court thing is good for television spots, but, not so good in reality.

You can see a copy of the complaint embedded in the story. Amazing, right? I looked in my archives and found that somehow, this had fallen entirely below my radar – I have no posts that mention this, as far as I can tell. So off to Google we go, and our first stop to get up to speed is this Trib story from July 3.

Roughly 150 Texas attorneys have signed on to a letter threatening to file a complaint with the State Bar of Texas against Attorney General Ken Paxton for his response to the U.S. Supreme Court’s ruling on same-sex marriage.

“It seems to us that your edict to encourage Texas clerks to violate a direct ruling of the United States Supreme Court violates” the State Bar’s rules requiring attorneys to uphold the U.S. Constitution, the letter states.

After the Supreme Court legalized gay marriage nationwide, Paxton issued an opinion telling Texas clerks they did not have to issue marriage licenses to same-sex couples if it violated their religious beliefs — though he suggested that they could face litigation.

On Friday, Paxton spokeswoman Cynthia Meyer said the attorney general’s legal opinion was “a nonbinding interpretation of the law,” one that “emphasizes the importance of protecting religious liberty while enforcing the Supreme Court’s expanded definition of marriage.”

If Paxton doesn’t change his direction to county clerks in the coming weeks, Steve Fischer, a former director of the State Bar of Texas, said he plans to file a complaint he anticipates hundreds of other lawyers will sign onto.

“I think he could very easily be disbarred,” said Fischer, who wrote the letter sent to Paxton’s office Friday. “He violated his oath to specifically uphold the United States Constitution.”

Note the reference at the end of this story to a complaint that had already been filed by then by former State Rep. Glen Maxey. This Courthouse News story covers that.

Glen Maxey, a member of the Texas Democratic Party executive committee and the state’s first openly gay legislator, filed a grievance with the State Bar of Texas on June 30.

It came two days after Paxton issued a nonbinding advisory opinion urging county officials not to issue the licenses if they have personal religious objections, but warned that if they did so they would probably be sued.

Paxton’s letter came after the Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 that struck down several states’ same-sex marriage bans.

Maxey said it is “irresponsible” for an elected official and attorney to tell other elected officials to break the law.

“He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples,” Maxey said in a July 3 statement. “This past Friday, the Supreme Court was clear with their decision to let same-sex couples marry. Paxton took an oath to defend and protect the Constitution. He must comply with the court’s decision.”

You can find a copy of Maxey’s complaint here. The grievance for which all those attorneys’ signatures were collected, which is the one referenced in the first link above, was eventually filed later in July. (The Trib, my usual source for this kind of political esoterica, oddly had the story about the complaint being filed in their subscription-only Texas Weekly section.) Why the wait? Steve Fischer, the former State Bar director, explains his reasoning.

Maxey, however, is not a lawyer and didn’t allow Paxton the 25-day implementation period, as provided by U.S. Supreme Court Rule 45 and in the 5th Circuit Court of Appeals mandate, which specified a July 17 compliance deadline.

Attempting to steer clear of politics, Fort Worth lawyer Brian Bouffard and I sent a warning to the attorney general that he must comply with the law. We posted on Facebook that we would collect attorney signatures, but quit after receiving about 300 in two days. If a grievance becomes necessary, we will have many more.

We allege the Texas attorney general has violated several of the State Bar Disciplinary Rules, most of which are found in Section 8.04 a (4) obstruction of justice, and 8.04 (a) 12 that he has violated his attorney oath to uphold the law of the United States. As the state’s top legal officer, he can’t be offering county clerks any legal ammunition to circumvent the law when it’s clear, to most legal analysts, they would be “shooting blanks.”

The State Bar of Texas, the licensing authority for all Texas lawyers, is 100 percent nonpartisan. When a complaint is filed it goes to State Bar disciplinary counsel and if they find grounds, Paxton would be required to file an answer. If his answer is insufficient, he would be given the choice of appearing before a grievance panel of a few lawyers and perhaps one nonlawyer or having his case heard in district court.

The penalties range from a reprimand to license suspension, and in the most egregious cases, disbarment. Usually, these cases are private and confidential; however, the bar has made an exception for public interest cases.

Many believe the State Bar does not go after its own, and it is accurate to say most complaints against lawyers are dismissed. The reason, however, is that the vast majority of filings are rancorous, rambling rants that do not allege a specific violation.

We hoped Paxton would take a deep breath and proclaim that although the Supreme Court decision violated his personal and religious beliefs, he would follow the law.

We know how that turned out. Which brings us back to today. Towleroad has an excerpt from the Board of Disciplinary Appeals’ ruling.

On January 29, 2016, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered the appeal from the dismissal from the above grievance by the Office of the Chief Disciplinary counsel of the State Bar of Texas. After reviewing the grievance as filed with the sState Bar Chief Disciplinary Counsel’s office and no other information, the Board grants the appeal, finding that the grievance alleges a possible violation of Texas Disciplinary Rule of Professional Conduct 1.02(c).

The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for investigation and a determination whether there is just cause to believe that the attorney has committed professional misconduct. The Office of the Chief Disciplinary Counsel will notify both parties of each step of the process, including asking the attorney to respond to the complaint. For information concerning the handling of the case from this point forward, please contact the Austin Office of Chief Disciplinary Counsel.

And here’s the Trib story, and the Chron story, which recap everything we’ve discussed here in a much more concise fashion. The one bit of information mentioned in the Trib piece that I haven’t covered here is that the complaint was initially dismissed by the Chief Disciplinary Counsel’s office; it was the appeal to the Board of Disciplinary Appeals that brought us to this point. I can hardly wait to see what comes next. Trail Blazers and Daily Kos have more.

Voting by mail made easier

The Trib is reviewing some of the bills that were passed this spring and the changes they will bring, one of which will be to make the voting by mail process easier.

In Texas, disabled or elderly residents can currently receive mail-in ballots for all elections in a calendar year under a seemingly innocuous condition: The elections must be held in areas where the county clerk is the early voting clerk.

That requirement, however, has proved to have an unintended consequence: Some people eligible for annual mail-in ballots have not been receiving all of them because some elections are not held with the help of the county. For example, school boards sometimes hold elections on their own.

A bill set to go into effect Sept. 1 looks to change that. Among other things, House Bill 1927 by Rep. Greg Bonnen, R-Angleton, aims to close that loophole and ensure that annual mail-in ballots are sent to every person who applied for them.

“For them not to receive them is just unjust,” Bonnen said. “You can’t choose not to send the mail ballots.”

The bill might be the most consequential elections legislation signed by Gov. Greg Abbott from the standpoint of the average voter, said Glen Maxey, the legislative affairs director for the Texas Democratic Party. Several other elections measures were tacked on to HB 1927 on its way to Abbott’s desk, including a measure that lets Texans electronically apply to vote by mail.

“With all those things together,” Maxey said, “it will make mail balloting a lot easier.”

[…]

Bonnen called HB 1927 a no-brainer, and it drew no apparent opposition when it was heard by the House Elections Committee. The panel advanced the bill to the full House on a unanimous vote.

Among the measures that were later added to HB 1927 was one that sets up a process by which counties can maintain the most up-to-date information on vote-by-mail applications. The provision addresses problems that arise when voters’ identifying information changes over the course of a year, like when a person’s name changes after a marriage.

In that case, the spouse’s annual mail-in ballot would go “belly up, automatically,” said Bill Sargent, chief deputy clerk for elections in Galveston County. “We changed that and said, ‘Wait a minute. This is the same person. Why are we doing this?'”

Bonnen does not expect many hiccups when the law takes effect. After all, he added, “it’s such a commonsense piece of legislation.”

This is all to the good, and I recall Maxey celebrating the bill’s passage on Facebook. I’m all in favor of removing barriers to voting, as you know. I just wish it were possible to imagine a similar outcome for legislation relating to voter registration or any form of in-person voting.

Paxton takes the culture-warrior lead

Well, at least he’s found his calling in life.

Ken Paxton

In the six months before Ken Paxton won election as Texas attorney general last fall, he stayed largely out of sight. Under an ethical cloud amid claims of financial fraud, he avoided public events and rarely spoke to reporters, coasting to victory as part of new Republican leadership including Gov. Greg Abbott and Lt. Gov. Dan Patrick.

Lacking Patrick’s knack for political theater, and yet to display the lawyerly intellect of Abbott, his predecessor as the state’s top attorney, the 52-year-old former legislator struggled to emerge from their shadows during his first several months in office.

But now, even as his personal legal troubles resurface, Paxton is poised to claim his place in the sun as the state’s top culture warrior.

Two days after the U.S. Supreme Court struck down Texas’ long-standing same-sex marriage ban, Paxton issued an opinion telling county clerks with religious objections that pro bono lawyers were standing by to help defend them against legal challenges if they denied licenses to same-sex couples.

“Our religious liberties find protection in state and federal constitutions and statutes,” he said. “While they are indisputably our first freedom, we should not let them be our last.”

The missive launched him into the national consciousness, earning comparisons to George Wallace, the former Alabama governor who fought desperately to preserve racial segregation in the 1960s. Blasting Paxton for encouraging state officials to violate the law, a Democratic lawmaker has since asked the U.S. Justice Department to monitor the implementation of the Supreme Court’s decision.

The nonbinding opinion amounted to more of a statement of moral support than legal defiance. But to social conservatives — some beginning to feel abandoned by a governor who has declined their requests to call a special legislative session to address the issue of same-sex marriage — it bolstered the McKinney Republican’s standing as one of the last guardians of religious liberty.

“Texas often tries to bill itself as the most conservative state in the union, which isn’t very often the case actually. We have a reputation that we don’t live up to. But I think that Ken Paxton is living up to it,” said Julie McCarty, president of the NE Tarrant Tea Party, which wields considerable influence in Republican primaries. “I haven’t heard anything from our governor, which is not surprising, but again disappointing.”

Even Patrick, who came to power with the backing of the conservative movement, has not avoided the perception that he failed to do enough as the Senate’s presiding officer to protect traditional marriage this session.

“There’s a lot of other things that should have been passed, that the rest of the Republican leadership caved into the homosexual demands — that would be Abbott and Patrick and [Speaker] Straus,” said Steve Hotze, a Houston doctor who operates the powerful Conservative Republicans of Texas political action committee.

Paxton’s office was “very instrumental” in pushing lawmakers to pass legislation affirming religious officials’ rights to refuse to perform same-sex marriages known as the Pastor Protection Act, said Hotze, whose group distributes mailers and scorecards to a vast network of GOP voters.

“Most people don’t understand, but Ken Paxton does understand the direction of this movement, and he is speaking out,” he said. “Abbott has been AWOL on the issue.”

[…]

Based on the questions about Paxton’s ethical compass, former Railroad Commissioner Barry Smitherman, the candidate who came in third in the primary, later endorsed Paxton opponent Dan Branch in the runoff.

But concerns about Paxton’s business matters did not dissuade conservatives in 2014, and don’t seem to have gained traction among them recently.

McCarty said Thursday she was not aware that Paxton could face a felony charge, but said it did not affect her support for him.

“This is how politics goes. People are always pressing charges and making frivolous suits just to smear someone’s name,” she said. “The general public doesn’t follow it closely enough to know when everything’s been cleared and that it was all trumped up for nothing. Until we have a conclusion, I would definitely side with Paxton and give him the benefit of the doubt because I just know that’s how these games are played.”

So this is where we stand. And just to add a little gasoline to the fire, there’s this:

As if Attorney General Ken Paxton didn’t have enough troubles with a potential felony indictment, now he’ll be fighting off an ethics complaint over his opinion on same-sex marriage.

[…]

Now long-time Travis County Democratic mainstay Glen Maxey has savaged that opinion as nothing more than political cant, and filed a complaint with the Texas State Bar Association against Paxton. In it, the Texas Democratic Party county affairs director alleges multiple violations by Paxton of the Texas Disciplinary Rules of Professional Conduct, including that Paxton made a false statement of law that is “flatly inconsistent with the United States Constitution”, as well as violating the statutes defining his official duties, the oath of office as attorney general, and the terms of his license to practice law in the state of Texas.

In a statement Maxey, who was Texas’ first openly gay state representative, writes, ““It’s irresponsible for an elected official – and a lawyer – to tell other elected officials to break the law. He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples.”

You can see a copy of the complaint here. It’s not the first time someone has complained to the State Bar about Paxton. I’m not a lawyer and will pass on evaluating the merits of Maxey’s complaint. If that’s in your wheelhouse, by all means please chime in.

As for the larger issue with Paxton, all this raises the stakes on the grand jury/special prosecutor investigation against him. He can complain all he wants about being made a target, but he’s not being tried in Travis County and may have a hard time making that charge sound believable to anyone outside of Ms. McCarty’s circle. If he gets no-billed or manages to beat the charges one way or another, he’ll be in a very strong position politically. If he goes down, there could be collateral damage. At some point, Abbott and Patrick and the rest are going to have to decide if they want to stand by Ken Paxton or let him sink or swim on his own. I imagine there have been a few very off the record back-room discussions about how to play things if it all goes to hell for the state Republican brand. Trail Blazers and the Trib have more.