Off the Kuff Rotating Header Image

Harris County

Appeals court sides with Hollins in mail ballot applications case

It’s up to SCOTX now.

A Texas appeals court on Friday upheld a district court ruling that denied Attorney General Ken Paxton’s request to block Harris County officials from sending mail ballot applications to the county’s 2.4 million registered voters.

Despite the decision, Harris County Clerk Chris Hollins remains barred from sending out the applications under a Texas Supreme Court ruling earlier this week. Paxton has sought a writ of mandamus and an injunction from the high court to permanently block the mailout, both of which remained pending Friday.

In the appellate ruling, 14th Court of Appeals Justices Charles Spain, Meagan Hassan and Meg Poissant wrote that the state failed to prove Hollins’ plan would cause irreparable injury to voters. State officials have argued that by sending mail ballot applications to every registered voter, Hollins would be “abusing voters by misleading them and walking them into a felony.” County attorneys noted that Hollins planned to attach a brochure to each application informing voters of the eligibility requirements to vote by mail.

“The State’s argument is based on mere conjecture; there is, in this record, no proof that voters will intentionally violate the Election Code and no proof that voters will fail to understand the mailer and intentionally commit a felony, or be aided by the election official in doing so,” the justices wrote.

The justices also cited an exchange between Hollins’ attorney and Texas Elections Director Keith Ingram, during which Ingram was asked how a voter could knowingly or intentionally cast a fraudulent ballot after reading the information on the clerk’s brochure.

“I don’t know the answer to that question. I mean, for most voters, I agree this is sufficient, but not for all of them,” Ingram said, adding that some voters may “have the attitude, well, I’m not really disabled, but nobody is checking so I’m going to do it.”

The justices cited Ingram’s response in concluding that a voter who “intends to engage in fraud may just as easily do so with an application received from a third-party as it would with an application received from the Harris County Clerk.”

See here, here, and here for the background. The 14th Court’s opinion is here, but you can just read the excerpt in Jasper Scherer’s tweet to get the main idea. Basically, the court said that the state needed more evidence than just Keith Ingram’s claims of mass hysteria if Hollins sent out the applications. It’s not a whole lot deeper than that.

So now it goes to the Supreme Court, and as noted in the story, the previously granted order preventing Hollins from moving forward with the sendout of applications to the not-over-65 voters is still in effect, until such time as SCOTX rules on the appeal (we know it will be appealed, because of course it will). This provides them an opportunity to play politics without necessarily appearing to play politics. Hollins had intended to begin sending out the applications by now, because as we all know, people are going to want and need to get and return their mail ballots early in order to ensure that they get counted. As such, a ruling from SCOTX on, say, September 25 is a lot more meaningful than the same ruling on October 25. Will they take the weasel’s way out and slow-walk this to a resolution, or will they dispose of it in a timely manner? Only one way to find out. The Trib has more.

HPD adopts cite-and-release

Took them long enough.

The Houston Police Department plans to join Harris County’s cite-and-release program, fulfilling advocates’ long-running request to implement the policy they say keeps low-level offenders out of jail and saves law enforcement resources for more serious threats.

In a presentation to the city council’s Public Safety Committee, two assistant chiefs on Thursday laid out the program they would use for a set of six misdemeanors offenses. The strategy mirrors that already used by the Harris County Sheriff’s Office and other local departments in the county, using a program set up by Harris County court-at-law judges.

In those cases, officers now would be required to give people a citation with the time and date they must appear in court, instead of hauling them to jail, unless they meet certain exceptions. Like the sheriff’s office, HPD officers who use their discretion to disqualify an eligible offender from the program would have to get supervisor approval and list the reason in their report, according to the presentation.

“I believe cite-and-release programs are critical, not just as it relates to police reform, but addressing the prison pipeline and, quite frankly, racism in our criminal justice system,” said City Councilmember Abbie Kamin, who chairs the committee. “I reiterate that this is just one aspect of improving and making sure our city is safe for all Houstonians. We can’t be finished after cite and release.”

Assistant Chief Wendy Baimbridge said the department plans to adopt the program internally, as it is allowed to do under state law. It was not clear when that will be done.

[…]

Darrell Jordan, a Harris County court-at-law judge who helped design the cite-and-release program, which launched in February, said the city should not win plaudits for dragging its feet and finally succumbing to pressure.

He said the roll-out and presentation of the program was “all for show” and wasted time. The city could have opted into the program without an ordinance days, weeks, or months ago, if it wanted. The county’s cite-and-release court has processed 113 cases since the program’s launch in February. About half of those, 60, came from the Harris County Sheriff’s Office, that agency reported.

“I don’t believe in applauding people for waiting six months to fix a problem,” he said. “That’s six months Houstonians had less officers on the streets. How many victims have suffered waiting for police officers to respond? How many alleged criminals have gotten away?”

See here and here for the background. I largely agree with Judge Jordan here, with two caveats. One, late is still better than never, so I do credit the city for eventually coming around. It shouldn’t have taken this long, but at least in the end they did make the right decision. And two, I do want City Council to vote on making this an ordinance, to make it harder for future police chiefs to tinker around the edges of this system if for whatever the reason they don’t like some part of it. It would also ensure that HPD doesn’t take too much time getting around to implementing this. This can, and ideally should, be part of a larger ordinance that includes other reforms. It’s a first step, not the end of the journey.

Smoots-Thomas takes a plea

A sad but hardly unexpected end to this story.

The ex-judge in an orange jail uniform stood before a judge in black robes, swore to tell the truth and tried to make sense of her predicament.

“My world truly turned upside down,” Alexandra Smoots-Thomas, a former Harris County civil judge, told federal Judge Lynn N. Hughes on Thursday, enumerating the heartbreaks amid tears. Her husband’s unemployment. A house in foreclosure. Her cancer treatments. Her father’s cancer diagnosis. Two divorces. A child’s suicide attempt.

“I regret wholeheartedly leaving such a terrible stain at what is the end of a wonderful and rewarding 18-year legal career,” she said. “I truly apologize for my actions. I apologize for the stain that this has placed on my family and even my former colleagues on the bench.”

The 44-year-old pleaded guilty to using campaign funds to pay personal expenses, capping off a turbulent year that included chemotherapy, remission, a failed bid to reclaim her former bench and criminal charges last month alleging she fired a shotgun at her husband’s girlfriend. The government dropped six remaining counts of wire fraud.

Her plea agreement details how she siphoned off campaign money to purchase a Zales engagement ring and two Prada handbags, and to make two mortgage payments and cover private school tuition for her two sons. As a convicted felon, she will no longer be permitted to practice law, the only career she’s ever known, according to her lawyer in the assault case.

Hughes took into consideration her admission of guilt, her hardships and her likelihood of re-offending, and sentenced her to the 36 days she’d just spent in jail for a bond violation connected to the shooting charges, as well as three years of supervised release.

He ordered her released from federal lockup in Conroe, and made off-handed remark to a deputy U.S. marshal to make sure she got a ride back into Houston.

Prosecutor Ted Imperato, of the U.S. Attorney’s public corruption unit, challenged the “unreasonableness” of the sentence. The judge responded, in his trademark snarky bluster, that the sentence was “pure wisdom.”

The prosecutor had requested a sentence within the guideline range of 18 to 24 months in prison, saying the defendant abused her power and authority as a sitting judge.

Imperato noted that rather than agree to a deal where she would leave the bench, “She thumbed her nose at us, and, with these charges pending, ran for re-election.”

See here and here for the background. As I’ve said before, I know Smoots-Thomas and I feel terrible for the things she has gone through. I truly hope she is able to get the help she needs to get her life back on track. I hope her children are doing all right – the story goes into more detail about the effect this has had on their lives, and it was not good. I’m also glad she lost her primary election – I voted against her in both rounds. And I hope the next time we see her name in the news it’s for something positive.

On a side note, we can certainly have a debate about the prosecutor’s complaint that the sentence she received was too light. One could argue that the guideline range is too harsh, or too limited, or that we should just let judges have the discretion to sentence defendants as they see fit. Perhaps the problem is not that she got off too easy, but that other, less prominent, defendants in her position get sentences that are overly severe. It’s a good debate to be having in many contexts.

The post-Harvey flood control march

It’s a long journey, with a lot to be done. It’s going to take awhile.

Most of Kenwood, a working class, mostly Latino neighborhood, is so deep in the 100-year floodplain that Harris County engineers have concluded no flood control project could protect it from a strong storm. Instead, the county began a voluntary buyout program in Kenwood and seven other vulnerable areas two years ago, but found few takers. Under pressure to spend federal Harvey recovery aid more quickly, the county this summer chose to make the buyouts mandatory.

The extraordinary step only underscores that, more than three years after Harvey rolled ashore as the worst rainstorm in continental U.S. history — and amid a record-setting Atlantic hurricane season — progress toward reducing Houston’s greatest vulnerability has been painfully slow and piecemeal at best.

Voters passed a $2.5 billion bond two years ago, giving the county a huge injection of funding to tackle nearly 200 flood control projects. Those projects take time, often years, to complete, however. And county officials concede the cost to fully protect against 100-year storms is more than 10 times higher than what voters approved.

City Hall lacks a comparable cash infusion and so mostly is waiting on the slow-motion arrival of federal aid. Meanwhile, its voter-approved street and drainage program has been shorted by more than $260 million over the last six years, money that has been used on other city services.

The city and county did update their floodplain building standards in the months after the storm, but City Council has yet to follow Commissioners Court’s lead in strengthening storm water detention rules.

“Folks are definitely still quite dissatisfied with the level of flood protection that’s been provided thus far from the city and the county,” said Chrishelle Palay, director of Houston Organizing Movement for Equity. “When it comes to historically underserved communities of color, those are the communities where the infrastructure has been disinvested, both from street flooding and from watershed protection.”

The Houston region’s most readily available defense against future floods is the $2.5 billion county bond.

To date, the county Flood Control District has begun work on 144 of its 188 planned bond projects, but only 18 have reached the construction stage, said Deputy Executive Director Matt Zeve. A dozen projects the district funded with other revenues also have been completed since Harvey, removing an estimated 5,000 homes from the 100-year floodplain.

The bond funds are helping to accelerate long-planned projects and start new ones, Zeve said, but large infrastructure improvements cannot be engineered and built overnight.

“There are places in Harris County that are right where they were three years ago, but there are several areas where we’ve completed projects or are constructing projects right now, and those areas will have a lower risk of flooding in a future storm event,” Zeve said. “It’s not as fast as everyone wants, but we do feel like we’re making good progress on major flood damage reduction projects all over Harris County, with more to come.”

Home buyouts, though some take a year to complete, move the fastest, making the 560 repeatedly flooded homes the county has bought since Harvey among the few tangible signs of progress the city and county have made toward reducing flood risk since the storm.

Even this seemingly simple task, however, can be an arduous process fraught with difficulties and heartache for residents.

There’s progress, but it’s slow and spotty. We should acknowledge that capital projects take time by their nature, and so does relocating people. There’s a lot to be done because there was so much that hadn’t been done over the past thirty or forty years. I don’t know what else there is to say about this. We should keep a close eye on the progress of all of the projects, we should continue to demand that more is done, and we should be voting for politicians who work towards these goals, but in the end and under the best of circumstances, this is going to take time.

Harris County preps to print mail ballots

How many they have to print remains an open question at this time.

For the first time, Harris County will pay a third-party vendor to print mail ballots, a move intended to help the county clerk handle what is expected to be a record number of requests for absentee voting during the COVID-19 pandemic.

Commissioners Court on Tuesday approved $1.5 million to hire Arizona firm Runbeck Election Services to print up to 1.5 million ballots for this fall’s presidential election. That figure may end up smaller, however, because Attorney General Ken Paxton so far has thwarted Harris County’s plan to send mail ballot applications to all 2.4 million registered voters.

To date, the County Clerk’s Office has received 187,552 mail ballot applications; the deadline to apply is Oct. 23. County Clerk Chris Hollins said the 1.5 million figure is the high estimate, so the county can ensure it can handle any volume of mail ballots.

Planning to use an outside vendor to print ballots began last year, as the county prepared for potentially record turnout in a presidential election, Hollins spokeswoman Elizabeth Lewis said.

[…]

During the July primary runoff, the first since COVID-19 arrived in March, 36 percent of voters cast mail ballots. If a similar proportion do so in the general election, using Harris County’s 2016 turnout of 61 percent, 529,000 mail ballots would be cast.

That number, however, may be determined by a lawsuit filed by Paxton against Harris County. Mail ballot applications are available online, though Hollins had planned to send one to each registered voter as a way to encourage more participation.

See here for the background. There were about 84K mail ballots returned in the primary runoffs, the first post-COVID election in the county. In the 2016 and 2018 general elections, there were about 100K mail ballots returned. Some 400K ballot applications have been sent so far to the over-65 crowd. How many more wind up getting sent depends on the outcome of the current litigation.

Whether the latest stay would be lifted or the case resolved before the election remains unclear. An appeals court is expected to rule on the merits of the case this week, though the case is likely to end up before the Supreme Court

Martin Siegel, a Houston appellate lawyer who has practiced before the high court, said he expected the justices to rule well before the Oct. 23 mail ballot application deadline. If recent history is any indication, he said, the attorney general is likely to prevail.

“I’m confident the court will make its decision on the merits, but so far they’ve construed the vote-by-mail right quite narrowly despite a raging pandemic, and the fact that the court is made up entirely of justices from the party that’s tried so hard to constrict voting rights in Texas these many years won’t give people any comfort,” Siegel said.

Siegel was a candidate for the 14th Court of Appeals in 2008, and as noted he practices before the Supreme Court. It’s actually kind of shocking to see him speculate like that. I hope his initial confidence is accurate, but we should bear what he’s saying in mind.

SCOTX extends stay in Harris County vote by mail case

I was set to be super outraged about this, but as you will see it’s not quite as bad as it first looked.

The Texas Supreme Court on Tuesday blocked Harris County from sending mail ballot applications to all registered voters in the county, granting Attorney General Ken Paxton’s request hours earlier for the high court to step in before a different order halting the mailout was set to expire.

Paxton, a Republican, has argued that Harris County Clerk Chris Hollins’ plan to send applications to each of the county’s 2.4 million registered voters would confuse voters and lead to potential fraud. A state district judge rejected that argument Friday, and Paxton swiftly appealed to Texas’ 14th Court of Appeals.

The appellate court denied Paxton’s request for an order blocking the mailout, deciding instead to speed up the trial by ordering Hollins and Paxton to submit arguments by Wednesday afternoon. Under an agreement between the state and county offices, Hollins was barred from sending out mail ballot applications until 11:59 p.m. Wednesday.

Paxton, who noted that the appeals court “offered no assurance” it would issue a ruling by then, argued in a court filing Tuesday afternoon that the Texas Supreme Court should prevent Hollins from sending out applications once the clock strikes midnight Thursday morning. The court granted Paxton’s request, ordering Hollins not to send unsolicited applications “until further order of this court.”

The state Supreme Court already had blocked Hollins from mailing out applications to voters under 65 through a similar lawsuit filed by the Harris County Republican Party and conservative activist Steven Hotze. However, Paxton noted, the court’s stay order will expire before the state and county agreement is up Wednesday evening.

Hollins was not immediately available for comment.

The clerk’s office already has mailed applications to voters who are 65 and older, all of whom are eligible to vote by mail under Texas law. The state election code also allows voters to cast mail ballots if they are disabled, imprisoned or out of their home county during the voting period.

Emphasis mine, and see here and here for the background. You can see the court’s order here, a statement from County Clerk Chris Hollins here, and the filings in the appeal to the 14th Court here. (You might also note that the three judges in the panel are all Dems, which may have influenced Paxton’s actions.) There should be a hearing today, and one presumes a fairly quick ruling, after which point this will go back to SCOTX and they’ll have to rule one way or the other on the actual case, not on what can happen while the case is being appealed. So as Samuel L. Jackson once said, hold onto your butts. The Trib and Reform Austin have more.

The case for voting in person

From Wired, an argument for worrying less about voting by mail because voting in person is still a fine way to do it.

Casting a ballot in person, it turns out, isn’t so dangerous after all. Early in the pandemic, this might have seemed a crazy thing to suggest. The Wisconsin primary, back in March, was widely described in apocalyptic tones. The New York Times called it “a dangerous spectacle that forced voters to choose between participating in an important election and protecting their health.” After state Democrats fought unsuccessfully to extend the deadline for mailing back absentee ballots, the ensuing photos of long lines at Milwaukee polling places seemed to presage an explosion of Covid-19 cases.

But the bomb never blew. As I observed in May, there was no noticeable rise in coronavirus cases thanks to the Wisconsin primary. A follow-up study by researchers at the City of Milwaukee Health Department and the US Centers for Disease Control and Prevention concluded, “No clear increase in cases, hospitalizations, or deaths was observed after the election.” In fact, case numbers in Milwaukee were lower in the weeks after the election than in the weeks before it. There are caveats: In-person turnout was low overall thanks to broad use of mail-in ballots, and we don’t know how coronavirus prevalence in March will compare with November. Still, it’s telling that there have been no credible reports of virus spikes attributable to any other election this year, even though ill-considered polling place closures have led to further instances of Milwaukee-style overcrowding.

Why might voting be safer than expected? We now know that the coronavirus spreads mostly when people are in sustained indoor contact—settings like a restaurant, a bar, or a shared home or office. The risk of transmission in fleeting encounters, by contrast, is small. Outdoors, it is vanishingly so. Even the massive protests following the killing of George Floyd, which even sympathizers feared would seed outbreaks, did not, according to several large studies. The pandemic is really an indoor problem. Even the defining image of the danger of voting during a pandemic—lines around the block—serves to illustrate why there’s little to fear. For most people, standing in a spaced-out line, outdoors, while wearing masks, entails at most a paltry risk.

“I think if carefully done, according to the guidelines, there’s no reason I can see why that’d not be the case,” said Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, at a recent National Geographic event. “If you go and wear a mask, if you observe the physical distancing, and don’t have a crowded situation, there’s no reason why you shouldn’t be able to do that.” Likewise, a recent report from the Brennan Center for Justice advises, “In-person voting can be conducted safely if jurisdictions take the necessary steps to minimize the risk of transmission of Covid-19 to voters and election workers.”

This assumes that any lines one may have to wait on will be primarily outside. That’s not been my experience in past elections, but I feel reasonably confident that outdoor lines will be the norm this time around. In Harris and Bexar and Dallas and hopefully other counties, there will be some larger venues, like convention centers and sports arenas, being used as voting locations, which will also help. Point being, I tend to agree with the assessment that the risk of in person voting, assuming widespread mask usage, is fairly minimal.

There are also practical considerations about voting by mail. Jamelle Bouie wrote in the Times that a key piece of Trump’s Election Day strategy is to delegitimize any votes that are not counted on Election Day. Remember how many elections Democrats won in 2018 due to mail ballots that weren’t counted until after Election Day? That’s been called the “blue shift”, and Donald Trump will scream from the rooftops that those mail ballots don’t count and amount to stealing the election if he’s in any position to claim a win on the evening of November 3, regardless of the lie of his statement. The best way to prevent that is to have as many votes counted by the time the news people start giving us numbers from around the country. That means voting in person. Note that in some states, even if your mail ballot is received way early, it may be the case that it won’t be officially tallied until Election Day, which could still lead to this situation. Voting in person will not have that problem.

Other concerns include the unknown potential for mail delivery delays, which G. Elliott Morris tried to quantify, and problems with mail ballots being rejected due to alleged signature mismatches or other issues, which is something that of course happens at a higher rate to Black and Latino voters. (Black voters are, understandably, more dubious about voting by mail.) The recent court order helps in this regard, but it’s still a factor, and we don’t know yet if there will be an appeal. I know it sounds ridiculous, but younger voters are just simply not used to using the postal service, and may have problems with mail ballots as a result. All of this may turn out to be minor, but maybe it won’t. We just don’t know. Again, the remedy here is to vote in person if that is a reasonable option for you.

Of course, to some extent in Texas, this is an academic point. The large majority of us cannot vote by mail, something the state leadership has done everything in its power to ensure will still be the case. I have said and will continue to say, if you do qualify for a mail ballot, by all means apply for it and use it. Having more people vote by mail not only keeps them safe, it also means shorter lines and faster processing times at voting locations, which is something we all want. Just be very prompt about it, and track your ballot to make sure it is received. Use a dropoff location if practical. The real point here is that we all actually do need to make a plan to vote, and that plan needs to encompass the when, the where, and the how. Be part of the solution to ensure that everyone can vote as easily and safely as possible. I don’t need to say how much is riding on that.

Cite and release for Houston

Good.

Houston is preparing a cite-and-release policy that could let people accused of certain misdemeanors off with a ticket instead of an arrest, perhaps the city’s most significant bid at criminal justice reform since the killing of George Floyd ignited a renewed national reckoning over policing.

Mayor Sylvester Turner previously has alluded to the effort, and the proposal is scheduled for discussion at the Public Safety Committee on Thursday. City Councilmember Abbie Kamin, who chairs that committee, said she has helped work on the policy.

“I’m thankful to community groups for advocating for this, and to HPD and Mayor Turner for bringing this forward so quickly,” Kamin said.

The details of the measure, which remain in the works, were not immediately available Monday, including which offenses would be included and whether tickets would be required — or merely preferred — instead of arrests. It also is unclear whether the measure would be an ordinance passed by the city council or an administration policy.

Since 2007, state law has allowed citations for all Class C misdemeanors and some others. Among them: possession of up to 4 ounces of marijuana; criminal mischief (damage up to $750); graffiti; theft of up to $750; providing contraband in a correctional facility; and driving with an invalid license. In those cases, officers can give offenders a written citation with a date and time to appear in court, allowing them to await the hearing without going to jail.

Advocates and elected officials in Houston have been calling for a cite-and-release policy for years. The “Justice Can’t Wait” report, released in July by a broad coalition of Houston-area criminal justice advocacy groups, renewed calls for the policy, and five city council members echoed that in a letter released late last month.

The mayor’s own transition team recommended such a policy in a 2016 report after Turner first was elected.

See here for some background. I know some people can’t sleep at night unless everyone who has ever encountered a police officer is in a jail cell, but would you rather have those officers spend their time hauling graffiti artists and people with expired licenses off to jail, or patrolling the streets after writing them a ticket? The Harris County Sheriff’s Office has had a similar policy since February, and as far as I can tell the region has not fallen into anarchy and chaos. Keep people out of jail and keep cops on the streets. And maybe that Task Force report (due by the end of the month) will have more.

UPDATE: Here’s a later version of the story, with some back-and-forth about whether the city should implement this now as a matter of policy, or draft an ordinance to mandate cite-and-release and implement it that way.

Houston to allow some limited events

I dunno, man. I get the impulse, but I don’t think I’m ready.

Mayor Sylvester Turner

Houston will allow certain events in what the mayor calls “controlled environments” to resume in the city, marking his most significant move toward reopening as the spread of COVID-19 slows here.

The events still will have limited crowds, with a maximum capacity of 25 percent, Mayor Sylvester Turner announced at a news conference Wednesday. All attendees must wear masks, answer a virus questionnaire, submit to a temperature screening and maintain social distancing.

The events that received the city’s approval so far are: a drive-in tailgate Thursday for the Texans: 100 cars are allowed, with a maximum of four people per car; Houston Symphony concerts: 150 guests will be allowed in the 3,000-seat Jones Hall auditorium; and Houston Dynamo and Dash games at BBVA Stadium: the teams are preparing for up to 3,000 fans, which would be about 14 percent capacity.

The Dynamo averaged 15,674 fans at 17 home games in 2019, and the Dash garnered an average of 4,086 fans, the teams said. The schedule for Major League Soccer’s Phase 2 has not been released yet, so it is not yet clear when fans will return. The teams’ plans for welcoming fans include staggered entry times for the stadium, and “seating pods” that minimize interaction between different groups of fans.

“I think we are all wanting to open up even more,” Turner said, “but we also recognize that it is better to be cautious rather than to be aggressive, and then finding ourselves having to go right back to the very beginning.”

While transmission is decreasing, the virus continues to spread in Houston. The city has driven down its positivity rate — the number of tests that come back positive — to 6.6 percent. Turner had set a goal of getting that number, which peaked above 25 percent in late June and early July, below 5 percent by the end of August.

The national average is 5.3 percent, according to Johns Hopkins University. Some states, like New York and Connecticut, have seen their rates drop to below 1 percent. Houston has reported 66,483 cases of the virus and 906 deaths as of Wednesday.

Dr. Jill Weatherhead, assistant professor of infectious diseases and tropical medicine at the Baylor College of Medicine, said the region has made significant progress, but it has not reached the point where it is in control of the virus.

“Any large gathering where there are people in close contact — particularly if you’re indoors and generating a lot of respiratory droplets, if you are yelling or screaming or singing — it’s going to increase the chance of outbreaks,” she said.

[…]

The city is requiring an extensive list of safety protocols, [Susan Christian, director of the Mayor’s Office of Special Events] said. The three events approved Wednesday already had adopted most of those protocols.

“We just had to tweak it a bit,” she said. “These producers have been working on these guidelines, as we have, for quite some time now.”

Harris County Judge Lina Hidalgo’s office said the county is waiting for its threat index to lower before it considers allowing similarly-sized events. The county remains at the most serious threat level, which “signifies a severe and uncontrolled level of COVID-19.”

“Trends are moving in the right direction right now, but we’re not quite there yet,” said Rafael Lemaitre, Hidalgo’s communications director.

I’ve stared at this draft for some time now, and I still don’t know what to say. I lean towards the county’s view, but I get what the city is trying to do. There’s got to be a lot of pressure for some return to having public events, and of course not being able to have them is a drain on city finances. You can make a risk-based assessment for either position. I just hope this works out.

County’s plan to make in person voting safer is having an effect

So says this poll.

Voters with the highest risk of suffering COVID-19’s worst effects say they’re more likely to vote early this November, according to a Rice University study.

A poll of nearly 6,000 Harris County voters found roughly 80% said they will vote in the presidential election regardless of the threat from COVID-19. That jumped to 90% among African Americans, according to Rice University political science professor Bob Stein, who authored the study.

“Among African Americans, Hispanics, and Asians, there’s a greater fear of COVID-19 – for obvious reasons, they have suffered more,” Stein said. “Yet, they were more likely to vote given what the county clerk has been doing.”

Stein said that’s largely the results of steps Harris County Clerk Chris Hollins took to make voting safer during the July primary runoff – such as providing PPE for poll workers, as well as hand sanitizer and finger coverings for voters.

The study, however, found substantial confusion among voters about how to cast a mail-in ballot – with more than a third wrongly believing they could hand in a mail-in ballot at an in-person polling location.

Stein said that confusion is in no small part because of the legal wrangling over voting by mail. Texas election law allows registered voters to request a mail-in ballot if they meet one of four conditions: if they are older than 65, if they are disabled, if they will be out of their home county during voting, or if they are in jail but otherwise eligible to vote.

The poll data is embedded in the story, so click over to see. In short, if you go all in on expanding voting access, people will respond positively. Funny how that works. I’m not too worried about the confusion over returning mail ballots – there will be a number of dropoff locations as it is, and I expect there will be plenty of messaging over how to return them. The bottom line is, this is how it should be done. Kudos to County Clerk Chris Hollins, County Judge Lina Hidalgo, and County Commissioners Rodney Ellis and Adrian Garcia for making it happen.

A new COVID testing strategy

Sounds promising.

Harris County wants to implement a program that would look at how and where active COVID infection exists, hoping to better understand how the virus spreads within the region in real time, and use those findings to help shape public health policy.

This commonly used public health strategy involves analyzing representative samples of the population to get a better picture of how the virus is acting rather than just looking at overall infection numbers in the hopes that such data could help single out and address hotspots. By understanding the circumstances, occupations and activities that drive community spread, public health officials and legislators would be better equipped to understand the virus and address high-risk COVID communities.

While Harris County COVID testing currently takes place at a number of fixed drive-through and mobile sites, as well as through private and other healthcare providers, the program, known as surveillance testing, would provide data at the community-level that broadens data collection beyond those actively seeking out testing for possible infection. This type of survey would also help obtain data on asymptomatic cases.

How the county will implement the program has not been determined. A committee has been in the process of reviewing proposals from organizations that submitted applications to conduct the study. Each proposal must outline a plan — including collection strategy, finances and other project details.

Surveillance testing programs generally involve recruiting participants for a medical test as well as having them complete a questionnaire or additional survey, explained Dr. Rebecca Fischer, epidemiologist and assistant professor at Texas A&M’s School of Public Health. This information could be collected by going door-to-door, setting up an outdoor site, or recruiting participants through a website.

“A community surveillance testing program could really be a game-changer if done correctly,” Dr. E. Susan Amirian, epidemiologist at the Texas Policy Lab at Rice University, wrote in an email. The group was approached by County Judge Lina Hidalgo’s office to help officials better understand the epidemiological and scientific aspects of such a project. The Harris County Public Health Department has also been involved in an advisory role, said the department’s media specialist Martha Marquez.

With no national community-level COVID surveillance testing program in place, states, counties and universities have taken it upon themselves to conduct these kinds of “surveillance tests” to learn more about how the virus acts and spreads in their communities. Current reporting tactics are considered “passive” surveillance since they rely on people actively seeking diagnosis, said Fischer.

There’s more, and you should read the rest, but stop and focus for a minute on the first sentence of that last paragraph. Why, exactly, is there “no national community-level COVID surveillance testing program in place”? I mean, we know the answer to that question, but the point is that in the midst of the non-stop chaos and sabotage and authoritarianism, we’re still asking the same questions, making the same arguments, and waiting for the same basic things as we were six months ago. We should maybe try not to forget that.

Now we wait on SCOTX

Shouldn’t have to wait too long to get a resolution to the “Harris County Clerk wanting to send out mail ballot applications to all registered voters” question.

Chris Hollins

A day after a court ruled against him, Texas Attorney General Ken Paxton appealed on Saturday an order that allowed mail-in ballot applications to sent to all of Harris County’s 2.4 million registered voters.

Paxton indicated in a press statement that he expects the court should rule by Monday.

“The proposed mass mailing would sow confusion because applications would go to all registered voters, regardless of whether they legally qualify to vote a mail ballot and regardless of whether they even want to vote by mail,” says a news release from Paxton’s office. “Texas law requires the clerk to send applications to voters who specifically request them.”

Harris County Clerk Chris Hollins said Saturday that applications to voters under 65 are in production and will be sent out soon. His office has already sent out vote-by-mail applications to registered voters 65 and older.

“We’re disappointed that the attorney general is fighting so hard to keep information and resources out of the hands of Harris County voters, but, sadly, we aren’t at all surprised,” Hollins said. “The Harris County Clerk’s Office will continue to do everything we can to protect Texans’ right to vote, and we know that the law is on our side.”

See here for the background. Judge Sandill’s ruling very clearly addressed Paxton’s claims, so it’s really just a question of whether the Supremes want to put a thumb on the scale for Paxton or not. I keep coming back to their original ruling in the TDP vote by mail lawsuit, and I don’t know how you get to Paxton’s desired outcome without really warping the meaning of the existing law. Which doesn’t mean that they won’t do it, just that it should be clear what it would mean if they did. I don’t know what else to say.

Scrambling to finish the Census

It’s a hell of a job, and it’s so important.

With a deadline looming for local governments to complete a population count for the 2020 Census, Houston Mayor Sylvester Turner is warning that the city could miss out on billions in federal funding for services such as road repairs and school lunches.

The reason? Less than 57 percent of the city’s residents have filled out the census form, a nine-question survey that can be completed by mail, phone or online. The city of Houston was planning a major outreach effort to avoid an undercount among young and poor people, immigrants and communities of color. The pandemic and economic insecurity from shuttered businesses, however, hampered outreach efforts and hobbled participation, officials say.

“September is the final month to respond to the Census,” Turner tweeted this month. “Over 40% of Houstonians have yet to answer 9 questions @mycensus2020.gov which could cost Houston $1500 person per year for 10 years. Please do so now.”

Sasha-Joi Marshall Smith, a city planner who has been coordinating outreach efforts, attributed low participation to political interference, civil unrest and the coronavirus pandemic. She is “terrified” about the economic and social reverberations of an undercount that’s now running about 15 percentage points behind 2010.

Every 1 percent of the population that’s not counted means $250 million in federal funding that the city is entitled to will be directed to another city, she said. “It’s that serious.”

“I tell people, ‘It’s our federal tax dollars… God forbid it goes to Dallas,’” she said. “Whether you were born here or not, it’s our job to make sure people here have basic services.”

Harris County faces a similar predicament, with just under 61 percent of residents having participated.

“There are so many pockets in Harris County where we haven’t heard from most people — perhaps a fraction of the people have responded but most have not responded,” said Tazeen Zehra, a senior census staffer in Houston.

Galveston County has had such a low return rate — 58 percent — that census workers have sought helpers from neighboring counties. Montgomery County is doing slightly better with just under 66 percent reporting. Fort Bend County has the highest participation rate in the state with more than 73 percent responding overall, including nearly 80 percent in Sugar Land.

The current deadline for local governments to complete their counts is Sept. 30. But outreach workers are hoping a federal judge will extend that deadline to Oct. 31 for the entire country at a court hearing in California next week. Harris County Commissioners Rodney Ellis and Adrian Garcia joined as plaintiffs in the California case because they’re concerned that their districts will be undercounted without an extension. The Trump administration previously offered an extension, then withdrew the offer.

We’ve discussed the challenges of the Census many times. The undercounting issue is so pervasive that even our retrograde state leadership has been forced to try to do something about it. There’s a temporary restraining order in that California lawsuit to which Commissioners Ellis and Garcia are parties, with a hearing scheduled for the 17th. I think the odds are good that the plaintiffs will prevail since “arbitrary and capricious” is the standard operating procedure for this administration, but even with those extra 31 days it’s going to be tough to get an adequate count. As with so many other things these days, this did not have to happen.

On a related note:

A three-judge federal panel in New York has ruled that the Trump administration cannot keep undocumented immigrants from being counted when lawmakers reapportion congressional districts next year — an effort that could have potentially cost Texas several seats in Congress.

In a significant departure from the way representation is typically divided up, President Donald Trump signed a memorandum in July directing Secretary of Commerce Wilbur Ross to exclude undocumented immigrants from the base population used to distribute seats in Congress. But in its Thursday ruling, the panel of judges deemed the memo an “unlawful exercise of authority granted to the President.”

The constitutionally mandated count each 10 years of every person residing in the country is used to determine congressional representation from each state. Excluding undocumented residents from the counts used to parcel out congressional districts would likely lead to a drastic realignment of political power throughout Texas.

Trump pursued the change by arguing that the U.S. Constitution does not define “which persons must be included” in that base population. But the New York panel of judges blocked Ross, who oversees the census, from providing any information on the number of undocumented people in each state.

See here for the background. This would almost certainly cost the state of Texas at least one if not two of the Congressional seats that it’s otherwise likely to get. Not that any of our state leaders care, going by their utter lack of any reaction to that memorandum. The courts can’t save us from everything, but they have been there at times like this.

County Clerk can send his vote by mail applications

Good.

Chris Hollins

A judge on Friday rejected Attorney General Ken Paxton’s request to halt Harris County’s plan to send mail ballot applications to all 2.4 million registered voters.

State District Judge R.K. Sandill denied Paxton’s request for a temporary injunction, stating that nothing in the Texas Election Code bars Harris County Clerk Christopher Hollins from carrying out the plan.

Sandill was unpersuaded by the state’s argument that sending applications to voters, accompanied by eligibility rules, would lead residents to apply for mail ballots for which they do not qualify. Texas Elections Director Keith Ingram warned that this would lead to voter fraud and potential felony prosecutions of residents.

“This Court firmly believes that Harris County voters are capable of reviewing and understanding the document Mr. Hollins proposes to send and exercising their voting rights in compliance with Texas law,” Sandill wrote in his opinion.

The case now will be decided on its merits, with Hollins free to send the applications in the meantime. His spokeswoman said the mailings to voters under 65 would be sent starting Saturday.

See here for the background. The ACLU sent out a link to a copy of the ruling, which is short and straightforward. There were two claims made by the plaintiffs, that County Clerk Chris Hollins was acting ultra vires, which is the fancy Latin term for “outside his authority”, and that sending the applications could cause fraud by luring unsuspecting voters who did not qualify for the mail ballot to commit fraud. On that second point, the embedded illustration of the ballot application makes exceedingly short work of that concern:

As for the ultra vires claim, let me quote from the ruling:

The Legislature has spoken at length on the mechanisms for mail-in voting. There are no fewer than 42 Election Code provisions on the subject. See TEX. ELEC. CODE, Chs. 84, 86 & 87. In those provisions, the Legislature has made clear that in order to vote by mail a voter first “must make an application for an early voting ballot.” Id. at § 84.001. But, as to how the voter is to obtain the application, the Election Code is silent.

There is no code provision that limits an early voting clerk’s ability to send a vote by mail application to a registered voter. Section 84.012 contains no prohibitive language whatsoever, but rather, requires the early voting clerk to take affirmative action in the instance a voter does request an application to vote by mail. That the clerk must provide an application upon request does not preclude the clerk from providing an application absent a request.

Indeed, there are a number of code provisions that demonstrate the Legislature’s desire for mail voting applications to be freely disseminated. For example, section 1.010 mandates that a county clerk with whom mail voting applications are to be filed (e.g., Mr. Hollins) make the applications “readily and timely available.” Id. at § 1.010. In addition, section 84.013 requires that vote by mail applications be provided “in reasonable quantities without charge to individuals or organizations requesting them for distribution to voters.” Id. at § 84.013. Further, the Court notes that, consistent with these provisions, both the Secretary of State and the County make the application for a mail ballot readily available on their respective websites.

Against the backdrop of this statutory scheme, the Court cannot accept the State’s interpretation of section 84.012. To do so would read into the statute words that do not exist and would lead to the absurd result that any and every private individual or organization may without limit send unsolicited mail voting applications to registered voters, but that the early voting clerk, who possesses broad statutory authority to manage and conduct the election, cannot. Mr. Hollins’s contemplated conduct does not exceed his statutory authority as early voting clerk and therefore is not ultra vires.

I made pretty much the same argument, so yeah. This was a weak case, and I’d hate to have been the attorney that was forced to make it. They had to know it was a loser, but I guess once you’re all in for stamping out voter convenience, you’ve got to take it to the finish line. The state has filed its appeal, so one presumes they are hoping to get lucky with the Supreme Court.

Which brings me to the larger point that needs to be made here. As with the age discrimination claim, there is a clear and straightforward legislative solution to this. Unlike that age discrimination case, the legislative solutions go both ways. What I mean by that is that with this ruling in the books, the Republicans have a planet-sized incentive to close this gaping loophole (as they see it) in the law. If the Republicans maintain control of the House, I guarantee you – guarantee you – they will pass a bill that severely restricts the ability to send out vote by mail applications to anyone who does not expressly ask for them. One could argue, given recent legislative history, the only reason such restrictions don’t already exist is that they hadn’t thought of it before. (And to be fair, up until very recently vote by mail was very much the province of Republican candidates and campaigns. I’ve said this before and I’ll say it again, there’s a reason why voting by mail was excluded from the voter ID law, and that reason is because at the time, voting by mail was seen as a boon to Republicans. Now that any form of convenience for voters is seen as pro-Democratic, it’s open season.)

So, either we flip the House to Democratic control, and prevent a bill like that from passing, or Republicans maintain control and voting by mail becomes that much more obstacle-laden. Maybe they will find a way to add mail ballots to the voter ID law, perhaps by requiring all mail ballots to include a notarized signature. The Republicans have made it clear what they want to do. We have one chance to stop them. The Trib has more.

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

This is pretty much the end of the line, at least as far as the courts are concerned.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Thursday that Texas can keep its strict eligibility rules for voting by mail.

Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age.

The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.

“In sum, the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age,” the panel wrote. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”

The federal panel vacated a lower court’s sweeping ruling that found Texas voters would face irreparable harm if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. On Thursday, state Democrats indicated they would push forward with their challenge at the lower court, where the appellate court sent the case for further consideration of the party’s remaining arguments against the state’s restrictions.

[…]

“Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” the judges wrote.

The panel was made up by Judges Carolyn Dineen King, who was appointed to the bench by President Jimmy Carter; Carl Stewart, who was appointed by Bill Clinton; and Leslie H. Southwick, who was appointed by George W. Bush.

Dissenting in part to the majority opinion, Stewart wrote that the state’s eligibility rules fail to “treat members of the electorate equally with regard to mail-in voting.”

“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart wrote. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”

See here for the background, and here for a copy of the opinion. Michael Hurta has a good brief analysis of it. As to what happens next, Rick Hasen thinks the original trial judge will find for the plaintiffs again, which will trigger another appeal. As such, this isn’t really the end of the line as I’ve suggested above, but it seems very unlikely to me that there will be a ruling that favors the plaintiffs any time before the November election. Whatever ultimately happens with this will not happen until at least 2021. I don’t care for this ruling, and this was about as friendly a three-judge panel as we were gonna get. It’s hard for me to see how the outcome changes.

Which means, as I have been saying over and over again, the ultimate fix rests within the legislative process. Just add this to the ever-increasing list of things that a Democratic Legislature, in conjunction with a Democratic Governor, will need to fix. The Republicans have made their position crystal clear. There’s no bipartisan solution. The only way out is through, and that means electing a better government. The Chron has more.

Mutant mosquito update

Keeping you informed on the news you can really use.

Four years ago, the Zika virus became an issue. More than 300 people were infected in Texas. Zika can cause birth defects and fetal neurodevelopmental abnormalities in pregnant women.

The vector is Aedes (rhymes with ladies) aegypti and Aedes albopictus mosquitoes. The Aedes mosquitoes transmit Zika, chikungunya, dengue and yellow fever, which prompted state and county health officials to discuss actionable solutions to control the mosquito.

Talks about releasing genetically modified mosquitoes in Houston began in 2018 between Harris County and Oxitec, a United Kingdom-based company that produces sustainable technologies or transgenic methodologies to stem the impact of disease-spreading insects. Talk also began about a similar action in Monroe County, Fla.

However, ecological concerns have been raised about the use of these mosquitoes.

“We had stakeholders there who wanted to use it,” said Kevin Gorman, head of field operations at Oxitec. “We had vector control authorities who were keen to try the technology.”

The Environmental Protection Agency stated in a May 2020 press release that it approved an experimental use permit to Oxitec to field-test its genetically engineered mosquito in the United States.

The genetically modified Aedes aegypti mosquitoes are males that mate with wild female Aedes aegypti, essentially causing the offspring to die before they can reproduce due to a genetic variation.

Oxitec had two successful years of controlling the Aedes aegypti in Brazil with its current generation of mosquito and had several years of efficacy in Brazil with its first-generation, Gorman said.

[…]

A release in Florida seems imminent, but not in Texas. Despite an established relationship and much communication, it looks like the Florida Keys will be going solo.

“Although we really enjoyed a sort of really great relationship with Houston at the moment we’re in a holding pattern with Houston,” Gorman said. “And we’re unlikely to be releasing there, and there certainly aren’t firm plans to do so in the next year.”

He cited uncertainty due to personnel changes in the county government as the reason for the decision.

A statement sent to Reform Austin by Sam Bissett, a communications specialist with Harris County Public Health, said the choice to not move forward with the release was made last year by both parties.

“At this time, there are no agreements or approval in place for Harris County to work with Oxitec in 2021. While we have had discussions with Oxitec previously about a potential partnership with Harris County Public Health, those discussions were paused last year between both sides.”

See here for my previous post on Oxitec and mutant mosquitoes, from 2017. There’s a lot more to the story and it’s hard to just capture the essence of it, so go read the whole thing. Apparently, the Aedes aegypti mosquito is more abundant in the Rio Grnade Valley than in Harris County, so maybe we’re not the best place to test this out in the US. Harris County also employs mosquito traps and dragonfly armies to control the local skeeter population. Which all seems a whole lot more quaint these days, but Zike and its ilk haven’t gone away just because we’re mostly inside these days. We will be spending more time outside again, and when we do we’d like to not be at significant risk from some other emergent deadly disease, thank you very much. Maybe next time we’ll be able to work something out.

State appeals court rules (mostly) against Libertarians in filing fee lawsuit

Here’s the story. It gets into the legal weeds, and I’m going to try my best to clear them out.

A state appellate court this week upheld a 2019 law that extended a requirement that candidates pay a filing fee or submit a petition to appear on the ballot to minor party candidates.

A district court found the fee was unconstitutional, siding with nine Libertarians who had sued, saying it was unreasonably burdensome. But the three-justice panel of Texas’ 14th Court of Appeals on Tuesday sided with the state, saying the plaintiffs did not make a strong enough constitutional argument to waive the secretary of state’s sovereign immunity to civil suits.

The law at issue, House Bill 2504, lowered the amount of votes a party needed to get in a statewide election to retain a place on the ballot. But it also added a requirement that candidates nominated at a convention — such as those in the Libertarian and Green parties — rather than through a primary had to pay a filing fee or gather petition signatures in order to be on the ballot. Previously, only major party candidates had to pay those fees.

The law “imposes reasonable and nondiscriminatory restrictions that are sufficiently justified by the State’s interest in requiring candidates to show a modicum of support to guarantee their names on the general-election ballot,” Justice Meagan Hassan wrote. “These are the same restrictions imposed on major-party candidates with respect to their participation in the primary election.”

The ruling Tuesday will not affect Libertarian candidates on the ballot this year.

There are a couple of active lawsuits challenging the new filing fee/petition signature requirements from HB2504, this one in state court which I had not blogged about before and a federal lawsuit that as far as I know has not had a hearing yet. I gave the state lawsuit a mention at the end of this post, mostly to note that the requirement to pay the filing fees was in effect in Texas despite the original order from Judge Kristin Hawkins, as it had been superseded by the state’s appeal. This lawsuit was partly about that now-not-in-effect injunction that enjoined the collection of the filing fees, partly about whether Secretary of State Ruth Hughs could be properly sued over this, and partly about the constitutionality of the fees in the first place. Let’s go to the opinion to try to unpack things.

The trial court granted Appellees’ request for a temporary injunction and enjoined Hughs from enforcing section 141.041 and the related advisory. The trial court also denied Hughs’s plea to the jurisdiction. Hughs filed separate appeals with respect to these decisions, which were consolidated into a single appeal.

For the reasons below, we affirm the trial court’s temporary injunction in part as modified and reverse and remand in part. We conclude the trial court erred insofar as it (1) denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the constitutionality of section 141.041 and (2) improperly enjoined the enforcement thereof. We further conclude the trial court (1) properly denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the advisory and (2) did not abuse its discretion by temporarily enjoining the advisory’s enforcement in part.

First, the appeals court denied SOS Ruth Hughs’ claim that she was immune to being sued for this. Harris County Judge Lina Hidalgo and then-Harris County Clerk Diane Trautman were also sued in their official capacities in the original petition, but they were not party to the appeal.

Second, the appeals court overturned Judge Hawkins’ ruling that the filing fees were unconstitutional. This was covered in the story and is the bulk of the opinion, which gets into some exceedingly mind-numbing detail. I consider myself a reasonably sophisticated layman for the purposes of reading and understanding legal writings, but boy howdy did my eyes glaze over in this part of the document. The bottom line is that the court concluded that the fees did not constitute an excessively burdensome requirement.

The matter of the injunction is where it gets a little tricky. Let’s skip ahead to the end, where that piece of business is addressed.

The trial court’s temporary injunction enjoins Hughs from enforcing section 141.041’s requirements at the time of the Advisory’s December 9, 2019 deadline or “at any other time.” We therefore construe the injunction to enjoin the enforcement of both section 141.041 and the Advisory.

We concluded above that sovereign immunity precludes Appellees’ claim challenging the constitutionality of section 141.041. Therefore, to the extent the injunction enjoins enforcement of section 141.041, the trial court lacked subject matter jurisdiction to enter the injunction.

Turning to the enforcement of the Advisory, […]

I’ll spare you a bunch of mumbo-jumbo to say that this means that while the law is constitutional and thus will not be enjoined, the enforcement of the law via the Secretary of State’s advisory that specified the minor parties’ need to collect filing fees or petitions was still in question. Let’s move up to the thrilling conclusion:

When injunctive relief is provided for by statute, we review the trial court’s decision on a temporary injunction application for an abuse of discretion. 8100 N. Freeway Ltd., 329 S.W.3d at 861. We do not substitute our judgment for that of the trial court and may not reverse unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonableness. Id.

As discussed above, we conclude that the Advisory conflicts with section 141.041 in part by impermissibly expanding the section’s requirements to all minorparty candidates seeking nomination at a convention. Considered in conjunction with Texas Election Code section 273.081, this conclusion supports the trial court’s finding that Appellees “are in danger of being harmed by a violation or threatened violation” of the Election Code. See Tex. Elec. Code Ann. § 273.081. Therefore, the trial court did not abuse its discretion by enjoining Hughs’s enforcement of the Advisory insofar as the Advisory required compliance with section 141.041’s fee/petition requirements by minor-party candidates who have not been nominated by the convention process. See 8100 N. Freeway Ltd., 329 S.W.3d at 861. Candidates who ultimately secured their party’s nomination as a result of the convention process, however, must comply with section 141.041. The injunction thus is erroneous to the extent that it relieves candidates nominated by convention of any obligation to comply with section 141.041 at any time. Therefore, we modify the injunction’s language by deleting the bolded text from the following paragraphs:

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to accept or rejecting applications for nomination from third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to certify third-party nominees for the general-election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to certify third-party nominees for the general-election election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or any other time.

The bolding is in the original, where the appeals court is quoting from Judge Hawkins’ order establishing the injunction. What this says is that the SOS and Harris County were enjoined from enforcing the filing fee requirements at the time that the candidates were being placed on the ballot, but not forever. These candidates were in fact required to pay the filing fee or collect the petition signatures – again, because the court ruled those requirements were legal. That was essentially the status quo when the Democrats successfully defenestrated the Greens, and it is my interpretation that this means the Libertarians would have been equally vulnerable to such a challenge if the Republicans had timely fashion.

All of this is my reading, and I Am Not A Lawyer, so those of you who know better please feel free to point out my idiotic errors. As to what happens next, the plaintiffs may appeal to the Supreme Court – they did not comment about that in the story – and of course there remains the federal challenge, though based on the Ralph Nader experience of 2004, I would not be holding my breath. Use the next year-plus between now and the 2022 filing period to figure out how to pay the fees or collect the signatures, that’s my advice. The Statesman has more.

Another look at the County Commissioner race

It’s the most consequential local race on the ballot this year.

Michael Moore

Every four years since 1968, Harris County residents have been able to count on a Republican winning the Precinct 3 commissioner’s seat.

In that half century, a parade of Democrats have been trounced. Some years, the party did not even bother to field a candidate in the traditionally conservative district, which covers the western portion of the county. The past three Democratic presidential nominees carried Harris County, but no challenger in those cycles came within 16 points of Precinct 3 incumbent Steve Radack, who has held the post since 1989.

Of course, 2020 has been anything but normal. The COVID-19 pandemic has upended normal life. The Astros play in front of cardboard cutouts. And Democrats say they finally will capture Precinct 3, an open seat since Radack decided not to seek a ninth term.

They said the unpopularity of President Donald Trump in Harris County, against the backdrop of a mismanaged coronavirus response by state leaders and demographic shifts that favor Democrats will help the party’s nominee, political strategist Michael Moore, defeat his Republican opponent, former Spring Valley Village Mayor Tom Ramsey.

[…]

Demographic shifts in Precinct 3 give Moore an advantage, Democratic consultant Keir Murray said. When Radack first was elected, the west Harris County district largely was white and rural. It since has grown rapidly and diversified, with an increase in non-white and college-educated residents. Both groups favor Democrats.

“Precinct 3 now is probably about half white, and that’s a massive change from 15 years ago,” Murray said. “Forty percent of the voters are probably people of color now.”

He said Harris County’s shift to reliably Democratic also affects Precinct 3. Recent elections bear that out.

In 2016, Democratic presidential nominee Hillary Clinton lost the precinct by less than 1 point. The 2018 election, in a midterm year where Democrats traditionally struggle, U.S. Senate candidate Rep. Beto O’Rourke won the district by 4 points.

A wave of Texas Republicans, including six members of Congress, have decided against seeking re-election in 2020. University of Houston political science Professor Jeronimo Cortina said that suggests the party privately is pessimistic about its prospects this year, especially after Democrats made significant inroads in suburban communities in 2018.

“From a political perspective, it’s easier to retire than lose an election,” Cortina said.

I skipped over a bunch of back-and-forth about who’s gonna win, because that doesn’t tell us anything. We know about the Moore poll that shows both him and Joe Biden leading by double digits. Tom Ramsey claims to have his own poll that shows otherwise, and maybe he does, but we have no numbers to go with it, so. The 2016 and 2018 results tell a good story for Dems (see the Moore poll link for links to earlier precinct analyses), and I don’t think the current environment does Republicans any favors. Oh, and there’s some dire warnings in the story from a Republican about how those dumb Dems can’t count on straight-ticket voting to carry them anymore. I think you know what I think of such arguments.

On a side note, as Harris County’s registered voter population has grown over the past few years, so has the RV population in Commissioners Court Precinct 3:


Year      County RVs      CC3 RVs
=================================
2008       1,892,656      507,839
2012       1,942,566      501,988
2016       2,182,980      568,512
2020       2,370,540      622,890

The dip in RV population from 2008 to 2012 is due to redistricting. CC3 as a share of the total number of RVs in Harris County has grown slightly, from 25.8% in 2012 to 26.3% as of July, 2020. The main takeaway from that is that this precinct really is a different place than it was as recently as eight years ago. The precinct has 25% more voters than it did in 2012, and that’s pretty significant. As a whole, Harris County has gotten more Democratic as its number of registered voters has increased. Seems like that’s the same phenomenon in CC3, it’s just a question of whether it’s enough.

No, seriously, what are we going to do to prepare for the next Hurricane Laura?

I mean, the next one is coming whether we’re ready or not. We just don’t know when it will be here.

Though the storm ultimately tracked east, sparing Houston, the problem remains: The region is disastrously unready to handle any of the three main threats of an intense hurricane: a high surge, damaging winds and — even three years after Hurricane Harvey — flooding.

While Harvey’s devastating stall over the Houston area has resulted in billions of dollars of investment in flood control infrastructure and new regulations, Laura reminded the region of what a different kind of storm could do.

In its wake, leaders have made impassioned pleas about preparing for when — not if — that storm does arrive. Most notably, they have ramped up calls for federal funding on a so-called “coastal spine,” a system of levees, gates and dunes first proposed after Hurricane Ike in 2008, to protect the region from a storm surge.

Those plans, though, remain mired in the slog of the federal approval process. The kind of political will and cohesion needed to fast-track such infrastructure typically only forms after disasters, not before.

[…]

There are signs the region has reached an inflection point on the need to protect against that threat. A growing consensus among local officials around the effects of climate change has shifted the public policy debate to figuring out which infrastructure projects will help stave off its worst effects, and at what cost.

The proposed coastal spine, a 71-mile-long barrier system to protect the southeast Texas coast, has received the most attention since it was taken up by the Army Corps of Engineers in October 2018.

The plan is an outgrowth of the “Ike Dike” concept first pitched more than a decade ago by William Merrell, a professor of marine sciences at Texas A&M University at Galveston. It includes a series of gates that stretch the two-mile length of Bolivar Road, twin rows of 14-foot-high sand dunes across Galveston Island and Bolivar Peninsula, a ring levee around Galveston’s city center and investments in ecosystem restoration.

The price tag has been put at $23 billion to $32 billion, with the dunes and sea gate at the ship channel alone costing up to $18 billion of that. It is in the midst of a five-year design and study process and is on track to be sent to Congress for final approval in May 2021.

“Quite frankly, we need it yesterday,” Houston Mayor Sylvester Turner said last week. “We’re running out of lives, so to speak.”

Even on the most optimistic timeline, the coastal barrier is 10 to 15 years from becoming a reality. With the Houston-Galveston region a perennial target during the Atlantic hurricane season, there is a growing urgency to find a more expedient, cheaper solution.

The Galveston Bay Park Plan, first proposed by the Rice University’s Severe Storm Prediction, Education & Evacuation from Disasters (SSPEED) Center in 2015, includes similar protection features as the coastal spine, but adds a mid-bay barrier island system with a 25-foot wall that would protect the industrial complexes and densely populated areas in the west and northwest sections of Galveston Bay.

Jim Blackburn, an environmental attorney and co-director of the SSPEED Center, says the plan could provide vital protection a lot sooner than the coastal spine, but that it also could complement that barrier. He estimates that if allowed to use dredging spoils from the planned widening of the Houston Ship Channel to build the barrier islands, the project could be completed by 2027 at a fraction of the cost of the coastal spine — an estimated $5 billion to $7 billion.

“You have a coastal defense and that’s your first line of defense and then you come in with your in-bay defense, that is really the one that can protect against your bigger storms,” Blackburn said. “It’s very much almost like thinking in a military sense of how do you defend against an enemy invasion?”

See here and here for some background. I’m of the opinion that we just need to start building something, and that the price tag is a mirage, because the federal government can absolutely afford this. What we can’t afford is to sit around on our asses until the devastating storm we’ve been warned about for years comes and wipes our unprepared selves right off the map.

Where are we with the lawsuit to stop Harris County from sending out vote by mail applications?

Thanks for asking, we had the hearing in district court yesterday.

Voting in person will be safe across Texas in this fall’s general election despite the ongoing coronavirus pandemic, the state’s elections director asserted in a Harris County courtroom Wednesday

Keith Ingram, with the Texas Secretary of State’s office, made the statement while testifying against Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county.

“Voters who want to vote by mail, and qualify to vote by mail, they should. And voters who want to vote in person, we would encourage them to do so,” Ingram said. “It’ll be safe for them to do so, and the counties will have a good experience for the voters.”

The Attorney General’s Office called Ingram as a witness in an injunction hearing seeking to halt Hollins’s plan while the underlying case makes its way through the courts. Attorney General Ken Paxton sued Hollins on Aug. 31.

State District Judge R.K. Sandill made no immediate ruling on the injunction, though at times appeared skeptical of the state’s arguments.

At the heart of the case is whether Hollins would exceed his authority as county clerk by sending mail ballot applications to each voter, which Harris County never has done. In the four-hour online hearing, lawyers for the state and county described starkly different consequences of carrying out the plan.

Ingram said Harris County’s plan would confuse voters and encourage some to vote fraudulently, undermining the public’s trust in the integrity of elections. He noted that lying on a mail ballot application is a state jail felony and residents could be prosecuted well after this fall’s election.

“When something strange, or unusual happens, voters are very concerned that this is an opportunity for fraud, and when they think the other side is cheating, they tend to stay home, Ingram said. “That’s the concern about a mass mailing like this.”

Hollins said he simply is trying to help as many eligible voters cast ballots as possible, especially during the COVID-19 pandemic when many would feel safer voting by mail. The top of each application would feature a checklist explicitly explaining the eligibility rules. Hollins dismissed the state’s argument that voters would be confused as absurd.

“It would be a very bizarre and highly unlikely outcome that somehow, someone would unfold this fully, go to the very bottom, and think ‘I need to fill this out,’ without ever having looked up here,” Hollins said, pointing to a draft mailer in his hand.

See here and here for the background. You already know how I feel about this, and there’s nothing in this story to suggest that the state has improved on its weak arguments. I’m glad to see that Judge Sandill pointed out to the state that they had no objections before when Hollins sent applications to every over-65 voter in the county. There’s an edge of desperation in this lawsuit, and while one could argue it’s not the best use of the county’s money to do this, the law as interpreted by the Supreme Court seems pretty clear.

Several organizations have taken action to support the County Clerk or oppose the state. The League of Women Voters of Texas, the ACLU of Texas and the Texas Civil Rights Project filed an amicus brief, as HEB executive Charles Butt had previously done. The NAACP of Texas and the Anti-Defamation League Southwest Region filed a petition to intervene in opposition to the state, saying an injunction would harm the people they represent. Clerk Hollins’ response to Paxton is here. We should get the ruling by tomorrow, but we all know it will be appealed.

Speaking of such thing, here’s Hollins’ response to Hotze, from that ridiculous mandamus. The arguments are what you’d expect, and given the courtroom action in Houston I’d expect the Supremes to deny the writ, since there clearly is the time to litigate the matter. When they take action is of course anyone’s guess. Stay tuned.

Back to school

How’d it go for you and your kids?

On a normal first day of school, Texas children would wake up early to cram into school buses, eager to huddle and chat with their friends in the hallways before streaming toward their classrooms.

On Tuesday, as many of the state’s biggest urban and suburban districts return for their first day of in-person instruction, there is anxiety mingled with that excitement. Many parents will not be allowed to walk their kindergarteners inside for their first day. Teenagers will be shooed away if they congregate around their lockers. Meals will be grab-and-go, often eaten in classrooms instead of raucous cafeterias. Students and teachers will wear masks, trying to stay as far apart from one another as possible even as they come together for the first time in months.

Many kids will not be entering their schools at all. Some of the state’s biggest districts, including Houston and Dallas independent school districts, will not open their classrooms for in-person learning until late September or October, and they may even ask the state for more time if the virus isn’t under control.

In-person instruction will look very different from campus to campus. Some districts will bring students back in phases, starting with those who most need in-person education, like students with disabilities or those learning English. In San Antonio’s North East ISD, no more than five students will be in each classroom this week. Other districts are welcoming back all students who opted for in-person instruction at the same time.

Only about half of Seguin ISD’s students are expected to head into classrooms Tuesday morning for the first day of in-person instruction. They will walk past thermal scanners, which can measure the body temperature of about 30 people at a time and detect fevers that may be signs of illness. Middle and high school students will sit in desks spread apart, in many cases less than 6 feet with dividers, and younger students will be separated by dividers at large round tables.

Most teachers will be simultaneously instructing 12 to 16 students in their classrooms and more at home tuning in from cellphones or laptops. Some teachers will sit in empty classrooms and broadcast lessons to 20 or 30 students. A small number who have health conditions or young children received waivers to teach virtually from their homes.

Here’s the local view.

Students in Klein and about nine districts throughout the region will get their real first taste of the new learning environment on Tuesday as those districts welcome back those who opted to come to school rather than attend online. Among them are Cypress-Fairbanks, Katy, Conroe, Spring Branch, La Porte, Magnolia and Santa Fe ISDs.

It marks the biggest return of students to school campuses in six months, after schools were closed in mid-March to help slow the spread of COVID-19. Already, students in Lamar CISD and Humble, Alvin, Dickinson, Galveston and Barbers Hill ISDs have brought some of their students back in recent weeks.

The districts are forging ahead with plans to reopen campuses despite warnings from regional health authorities and some local leaders who say it still is too early. Harris County Judge Lina Hidalgo and Public Health Executive Director Umair Shah recommended in August that schools remain closed until there are fewer cases of COVID-19 and less community spread. The two set benchmarks for schools to begin reopening, but with current statistics, it would take weeks to reach them.

Hidalgo and Shah only can offer recommendations, after Gov. Greg Abbott said local government officials do not have the legal authority to preemptively close campuses. Instead, he said, those decisions should be left to school districts. In some Houston-area districts, school boards, parents and some educators have argued that the benefits of face-to-face instruction, especially after such a long hiatus, outweigh potential health risks.

“We can provide a schooling online, but we can’t provide an education online,” Cypress-Fairbanks ISD Superintendent Mark Henry said at a July board meeting.

Others have opted to keep their students learning remotely for the foreseeable future, including Fort Bend and Alief ISDs. In Houston ISD, the state’s largest district, students will return Tuesday to online-only classes, which are scheduled to remain in place until mid-October.

District officials estimate that about 18,000 students still lack the computer or internet access needed for online classes. As a result, HISD is directing those students to 36 “learning centers” with adult supervision and available technology. HISD officials said they are not publicizing the learning center locations.

“It just can’t be everyone showing up,” HISD Interim Superintendent Grenita Lathan said. “It’s truly assigned locations for students and staff.”

[…]

For those that already have opened classrooms, teachers and students still are adapting.

In Humble ISD, middle and high school students are coming into the buildings in alternating groups, with an A group coming on some days and a B group on others.

Superintendent Elizabeth Celania-Fagen said she has been surprised the elementary schoolers have not had as many issues with face masks and social distancing as some had feared.

“We’re starting to get our arms around it pretty well,” Fagen said. “Every day there are new metrics to monitor, and we hope we can get to a place for (more) in person in near future.”

For students at Klein ISD’s Mahaffey Elementary who chose in-person instruction, last Wednesday served as a crash course for their new school realities.

Staff practiced funneling students through entrances assigned by grade rather than the main doors in the front. They showed students how to keep their distance in hallways and spent class periods juggling between in-person students and those learning remotely on Zoom calls. They adjusted their cameras, helped parents troubleshoot technology problems and made sure the kids in their classrooms knew the new procedures.

It was a strange day here, as my girls started with remote learning. We’re used to that, in that we had done it before, but it was still strange to just transition from “no school” to “distance learning school”. Didn’t have that usual “first day of school” feel, you know? There were some connection issues on the HISD hub that affected Olivia’s school, but students were redirected to an alternate site that seemed to work, so no big deal. Ask me again in a week how it’s going.

For the schools that are reopening for in person instruction, I sure hope it all goes well. I hope the mask-wearing and social distancing and other protocols that are being adopted to (hopefully) keep virus spread to a minimum works as planned, not just for them but for the rest of us, who will be in the same position in six weeks. Unless it doesn’t go well, of course, in which case they’ll be in the same position as us. I absolutely want everyone to get back to school. I also absolutely want everyone to literally survive the year, with no adverse health effects lingering on. I don’t know that we can do both of those things just yet. I’m glad it’s not my kids’ schools that are the guinea pigs for that experiment, and I sincerely hope that experiment is a ringing success. I figure we’ll know, more or less, by the time it’s our turn to go back.

They just don’t want you to vote by mail

It’s okay if you’re a Republican, of course.

As states across the country scramble to make voting safer in a pandemic, Texas is in the small minority of those requiring voters who want to cast their ballots by mail to present an excuse beyond the risk of contracting the coronavirus at polling places. But the ongoing attempts by the White House to sow doubt over the reliability of voting by mail has left Texas voters in a blur of cognitive dissonance. Local officials are being reprimanded by the state’s Republican leadership for attempting to proactively send applications for mail-in ballots, while the people doing the scolding are still urging their voters to fill them out.

What was once a lightly used and largely uncontroversial voting option in Texas — one even Republicans relied on — is now the crux of the latest fight over who gets to vote and, equally as crucial in a pandemic, who has access to safe voting.

“Ensuring vulnerable populations can vote by mail during a pandemic is designed to protect human life & access to the vote,” Harris County Judge Lina Hidalgo said on Twitter this week after the county’s mailing plan was temporarily blocked by the Texas Supreme Court. “Those who stand in the way—using voter suppression as an electoral strategy—are throwing a wrench in democracy. We’ll keep fighting.”

[…]

Lt. Gov. Dan Patrick characterized efforts to expand mail-in voting during the pandemic as a “scam by Democrats” that would lead to “the end of America.” In a rolling series of tweets, President Donald Trump has pushed concerns of widespread fraud — which are unsubstantiated — in mail-in ballots. Texas Attorney General Ken Paxton quoted a local prosecutor saying voting by mail “invites fraud.”

Meanwhile, the Texas GOP sent out applications with mailers urging voters to make a plan to request their mail-in ballots. Fighting in court against Harris County’s plan, Paxton’s office argued “voting by mail is a cumbersome process with many steps to limit fraud.”

Luke Twombly, a spokesperson for the Texas GOP, confirmed the party had sent out ballot applications “like we do every year” to older voters and voters with disabilities that would allow them to qualify. Twombly did not respond to a follow up question on how the party determined voters who would be eligible based on a disability, nor did he respond to questions asking for specifics on the party’s get-out-the-vote efforts tied to voting by mail.

“The cynical explanation is that the intent here is to make it as easy as possible for Republicans to vote by mail but discouraging others and casting doubt over the process following the lead of the president,” said Rick Hasen, an elections lawyer and professor at the University of California-Irvine. “I think that’s a real fine needle to thread.”

It might be in the GOP’s best interest to “encourage voters to vote safely” by mail, particularly as the state’s vote-by-mail rules allow many of their base voters to be automatically eligible for an absentee ballot, but the president is complicating matters for them, Hasen said

“They are caught between a rock and a hard place,” Hasen said.

Some Texas Republicans quietly express frustration that party leaders are casting doubt on a system that they have worked for years to cultivate. West and other prominent Texas Republicans have floated unsubstantiated concerns that increased mail-in voting creates opportunities for widespread voter fraud. In interviews with multiple Republican operatives and attorneys who have worked on campaigns in the state, all suggested privately that the modernized system precludes such a scenario. None of these Republicans would go on the record, for fear of alienating colleagues.

There are some documented cases of fraud in mail-in voting in Texas. But like voter fraud overall, it remains rare.

“This issue … of fraud and voting fraud and all that was brought up years ago, 19 years ago when I was secretary of state,” said U.S. Rep. Henry Cuellar, a Laredo Democrat who was appointed Texas secretary of state by former Gov. George W. Bush, a Republican. “I looked at it as secretary of state, and it was so rare, so rare.”

[…]

In an effort to combat confusion among voters, Harris County said it intended to send the applications for mail-in ballots with “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” In its mailers, the Texas GOP instructs voters to “take immediate action” by confirming they meet the eligibility requirements and filling out an application proactively sent out by the party.

[Derek] Ryan, the Republican voter data expert, suggested that a past Republican campaign emphasis on vote-by-mail lends credibility to the objections Republicans are raising in Harris County.

“Voting by mail is our bread and butter,” said Ryan, the Republican voter data expert. “I kind of dismiss that more ballot by mail votes automatically favor the Democrats over the Republicans. That might not necessarily be the case. I think that kind of says the Republicans who are opposed to it aren’t necessarily doing it because they think it benefits the Democrats. They’re doing it because of election integrity.”

But in light of those objections, the Texas Democratic Party painted the GOP’s mailings to voters who did not request them as “a shocking display of hypocrisy.”

“It seems if Republicans had their way, the only requirement for Texans to cast a mail-in ballot would be ‘are you voting for Donald Trump?’,” Abhi Rahman, the party’s communications director, said in a statement this week.

I don’t know that I have anything to say here that I haven’t said multiple times already. There’s no valid principle behind the Republicans’ zealous objections to vote by mail, which is something they have used and still use but apparently cannot believe that anyone else would dare use against them. The screeching claims of fraud are just the usual shibboleth, packaged for today’s needs. We know that national Republicans have largely given up on their ability to win a majority of the vote. It’s just kind of morbidly fascinating to see Republicans in Texas adopt the same stance. Who knew they had so little faith in themselves?

Census shenanigans halted for now

Good.

[On] Saturday, US District Judge Lucy Koh issued a temporary restraining order to stop Census Bureau officials from winding down door-knocking and online, phone, and mail response collection by September 30—a month early—writing that the shortened census timeline could cause “irreparable harm.”

“Because the decennial census is at issue here, an inaccurate count would not be remedied for another decade, which would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources for a decade,” Koh wrote.

The US Census Bureau had originally planned to end their count by October 31, a date chosen to accommodate delays caused by the pandemic. But on August 3, the bureau announced that it would stop collecting census responses by the end of September, and was attempting to “improve the speed of our count without sacrificing completeness.” At the time, just 63 percent of households had responded. Immediately afterward, four former census bureau directors issued a public statement explaining that a shortened timeline would “result in seriously incomplete enumerations in many areas of the country.” Later that month, the Government Accountability Office, a nonpartisan watchdog, also reported that “compressed timeframes” in the 2020 census could undermine the overall quality of the census count.

Now, at least until a hearing on September 17, the Census Bureau may not take steps to wind down its counting operations, such as terminating field staff.

The Chron adds some detail.

At a hearing Friday, Justice Department attorney Alexander Sverdlov told Koh that any “anxiety” about the census was “not warranted” and that operations were shutting down only when 85% to 90% of residents in a particular locale had responded. He argued in a court filing that said the government’s “decisions on how and when to complete a census turn on policy choices that are unreviewable political questions.”

The population count is crucial for states’ U.S. House representation and the distribution of $800 billion in federal aid each year. Separately, President Trump is seeking to exclude undocumented immigrants from the census, an action challenged by California and other states in multiple lawsuits.

Koh questioned the government’s explanations at Friday’s hearing and was equally skeptical in Saturday’s ruling.

The administration has insisted that moving the deadline up to Sept. 30 was necessary to deliver the census results to the president by Dec. 31, rather than by next April, under a previous timetable. But Koh said the Census Bureau’s deputy director, Albert Fontenot, “acknowledged publicly less than two months ago that the bureau is ‘past the window of being able to get accurate counts to the president by Dec. 31.’” She said the bureau’s head of field operations made the same admission in May.

Koh also quoted Fontenot as saying, in a court filing Friday night, that the bureau has begun terminating its temporary field staff in areas that have completed their work, and it is difficult to bring them back. That underscores the need for a restraining order halting any further cutbacks until the legality of the one-month delay is resolved, she said.

See here for the background. Harris County, along with Commissioners Ellis and Garcia, are among the plaintiffs in this lawsuit. Perhaps if we can wait to deliver the results to the President until, say, January 21, we can feel a bit more comfortable that they will get a proper review, and that the data is sufficiently accurate. Perhaps we could also then see about fixing anything that was clearly effed up thanks to the Trump team’s constant efforts at sabotage. If we are blessed with an all-Democratic government, we can pass a bill to allow statistical sampling, which would help a lot. There’s no reason to trust anything this administration has done with the Census, and every reason to give a new administration a chance to fix the more egregious errors. The Trib has more.

HISD may do remote learning on Election Day

Makes sense to me.

Houston ISD’s administration wants to hold online-only classes on Election Day this November, citing safety concerns at more than 100 campuses that are expected to be used as polling locations.

“While it is not unusual for our school sites to be used as polling locations, the COVID-19 pandemic makes the safety of our students and staff more challenging when significant numbers of voters would be entering the schools throughout the day,” district officials wrote in documents provided to the school board.

HISD trustees are expected to vote Sept. 10 on the request.

[…]

It is not immediately clear whether the Texas Education Agency will penalize HISD for not offering in-person classes on Election Day, which is Nov. 3.

Under current TEA guidelines, public school districts can keep campuses closed up to eight weeks at the outset of the school year, though they must start to offer some in-person classes after the fourth week. Election Day falls on HISD’s ninth week of classes.

Districts that violate TEA guidelines risk losing state funding. However, TEA officials have said they plan to remain flexible amid the pandemic on safety matters.

As we know there will be 808 voting locations in Harris County on Election Day, which is nearly one per precinct. Schools have always been used as polling places – the elementary (Travis) and middle (Hogg) schools in my neighborhood are voting locations, as are nearby Crockett and Field elementaries. It is completely sensible to keep the kids home on a day when these schools will be full of strangers, in this time of pandemic. I would very much hope that the TEA will see it that way, but given some of the desperate shenanigans that are being pulled right now, I will need to hear it from them before I believe it. I hope HISD has been checking in with the TEA on this, and I hope the trustees are fully informed on this when they vote. We’ll find out next week.

Politico profile of Lina Hidalgo

Good stuff.

Judge Lina Hidalgo

In late April, Lina Hidalgo stood at a microphone in the Harris County emergency operations center in Houston and pushed up the teal fabric face mask that had slipped off her nose. Her voice was slightly muffled as she spoke. Next to her, an American Sign Language interpreter translated for an audience that couldn’t see her lips. But there was no need to worry her message would be lost. Soon it would become the subject of debate across the country—and so would she.

Hidalgo, the county judge of Harris County—the top elected official in the nation’s third-largest county—announced that millions of people in the Houston area would be required to wear a face covering in public to slow the spread of the coronavirus. People who didn’t comply would risk a fine of up to $1,000. Behind her, charts and graphs told the statistical story that had led Hidalgo to this moment. Since early March, when the state’s first case of Covid-19 had been identified in Houston, the urban heart of Harris County, the number of infected people in the county had climbed to 3,800. That day, the death toll stood at 79 and Houston’s mayor, Sylvester Turner, warned that number could “exponentially increase.”

Hidalgo had been bracing for the disease for weeks. She had sought advice from officials in King County in Washington state, the nation’s first hot spot. Armed with their insight, she rallied her own emergency management and public health officials to prepare a response and on March 16 ordered the closure of bars and restaurant dining rooms. Initially, state officials followed suit. Three days after Hidalgo’s order, Gov. Greg Abbott declared a public health disaster for the first time in more than a century. Texans huddled indoors. But by early April, pressure was mounting on Abbott to end the lockdown. Hidalgo was pulling the other way.

You know what happened from there. You should read the whole thing, it’s mostly stuff you already know but it’s deeply satisfying to see someone who’s been right about the virus in all the ways that matter and who’s been the target of some vicious, racist insults as a result of her being right about it get her due. I’m going to highlight two other bits here:

“The perils of straight-ticket voting were on full display Tuesday in Harris County,” the Chronicle’s editorial board clucked. “Longtime County Judge Ed Emmett, a moderate Republican who’s arguably the county’s most respected official, was ousted by Lina Hidalgo, a 27-year-old graduate student running her first race.”

“We hope she succeeds,” the editorial continued, “but residents can be forgiven for being squeamish about how Hidalgo will lead the county and, by extension, the region’s 6 million people, through the next hurricane.”

I can understand the initial apprehension about a political newcomer taking over as County Judge, and I can understand some unease at it happening as part of a partisan wave. But I guess I’m just going to die mad about all the pearl-clutching over straight-ticket voting, which casts a whole lot of people as mindless automatons instead of individuals who made a choice. That choice in 2018 was to vote for change, and to vote against Donald Trump. One can admire Ed Emmett for his competence, his compassion, his deep concern for Harris County and its residents, and still disagree with him on principles and priorities, and want to see our county government move in a different direction. The sheer condescension in that first paragraph will never not annoy the crap out of me.

“I expect for some Texans it’s a little hard to take that a young Latina who earned her citizenship, as opposed to being born here, has the level of authority that she has,” one of her advisers, Tom Kolditz, told me. “She absorbs every criticism, she listens to every racial dog whistle, she puts up with ageist comments about what her abilities are or are not.”

[…]

Re-opening schools has emerged as another battleground. Hidalgo has taken a position that is consistent with her aggressiveness throughout the pandemic. On July 21, she ordered all school districts in Harris County to delay opening schools for in-person learning for at least eight weeks. Wearing a floral face mask at a recent press conference, her curly hair longer than normal due to the pandemic, she urged the community to work together “until we crush this curve.”

“Then, we can responsibly bring your kids back to school,” she said. “Right now, we continue to see severe and uncontrolled spread of the virus and it would be self-defeating to open schools.”

A familiar chorus of criticism from state and federal Republicans followed quickly. Rep. Crenshaw, among others, has beat the drum that schools must open. And a week after Hidalgo’s announcement, the Texas attorney general said that local health authorities can’t close schools to preemptively prevent the spread of Covid-19. The Texas Education Agency, which oversees public education in the state, announced it wouldn’t fund schools that closed under such orders.

Kolditz, Hidalgo’s adviser and a retired Army brigadier general, has framed the pandemic like a war that can’t be won without a common objective and unity. When Hidalgo was empowered to call the shots in Harris County the pandemic was relatively under control, he said. Since Abbott undermined that, “it’s been a disaster.”

“We’re going to wake up from this pandemic and be stunned by how many lives were wasted by bad leader decisions, and she is not a part of that,” he said.

Hidalgo has largely tried to avoid making the pandemic into a political fight, but she is not naïve about the political implications of every decision. “If we do the best we can and, politically, that wasn’t appropriate for people and I’m not re-elected in two years, I’ll be disappointed, but I’ll be able to sleep at night.”

I mean, we could listen to the person who’s been consistently right, or we could listen to the people who have been consistently wrong. Seems like a clear choice to me, but what do I know?

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

The Texas Supreme Court on Saturday rejected an attempt by Republicans to kick 44 Libertarians off the ballot in the November elections.

Several Republican Party candidates and organizations had sued to remove the Libertarians, arguing they did not pay filing fees — a new requirement for third parties under a law passed by the Legislature last year. But the Supreme Court dismissed the suit, finding that the Republicans missed the August 21 deadline to successfully boot people from the ballot.

“The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility,” the court wrote in a per curiam opinion. “But the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed.”

[…]

“Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code,” the court wrote.

See here, here, and here for the background. Let me quote from the intro to the opinion, which was released on the Saturday evening of a holiday weekend, to give you the basic gist of it.

Several Republican Party candidates and organizations seek to prevent 44 Libertarian Party candidates from appearing on the 2020 general-election ballot due to the Libertarians’ failure to pay the filing fee required by section 141.041 of the Texas Election Code. The Republicans concede that the statutory deadline to have the Libertarians removed from the ballot using a declaration of ineligibility passed on August 21. See TEX. ELEC. CODE § 145.035. They claim a later deadline applies to their petition, which they describe as a challenge to the Libertarians’ ballot applications governed by the deadline in section 141.034.

For the reasons explained below, the Election Code does not authorize the requested relief. Because the Libertarian Party nominates candidates by convention rather than primary election, its candidates’ applications are governed by chapter 181 of the Election Code, not by chapter 141’s procedures for challenging ballot applications. See id. §§ 181.031–.034. The relators invoke deadlines governing challenges to “an application for a place on the ballot” under chapter 141, but Libertarian Party candidates do not file such applications. Instead, they file “an application for nomination by convention” under chapter 181, which is a statutorily separate type of application governed by a separate set of statutes. Id. The Election Code does not subject the Libertarian candidates’ applications for nomination by convention to the procedures and deadlines for ballot-application challenges on which the relators rely.

Although the result in this instance may be that candidates who failed to pay the required filing fee will nevertheless appear on the ballot, this Court cannot deviate from the text of the law by subjecting the Libertarian candidates’ applications to challenges not authorized by the Election Code. The Legislature established detailed rules for ballot access and for challenges to candidates, and courts must carefully apply these rules based on the statutory text chosen by the Legislature. The available mechanism for seeking the Libertarians’ removal from the ballot for failure to pay the filing fee was a declaration of ineligibility. However, the deadline by which such a declaration can achieve the removal of candidates from the ballot has passed. The Election Code does not permit the relators to bypass that deadline by belatedly challenging the Libertarians’ applications. The petition for writ of mandamus is denied.

In other words, the novel attempt to say they are not challenging the candidates’ eligibility, which the Republicans conceded was too late, but were challenging their applications. The Supreme Court says that the law the Republicans were citing for this challenge doesn’t apply, and as such they’re out of luck. They did say in a footnote on page three that the Green Party could have sought Supreme Court review of that Third Court of Appeals order that forced their candidates off the ballot, and that an Attorney General amicus brief that took no position on that question was filed and considered for this case. They don’t seem to be saying how such a motion for review might have been received, just that it could have been done.

The bulk of the opinion is a tour through the part of the Election Code that governs parties that nominate their candidates by convention instead of by primary election, and how the Legislature treats the two kind of nominating processes differently. I gave it only a quick scan, because life is short and it is a holiday weekend, but feel free to dive in if that’s your jam. I will say, unless the Libertarians win one of their lawsuits challenging the new statute that mandates a filing fee, which was the basis for all of this legal wrangling, both Rs and Ds will be sure to do this again in 2022, since it is clear that they can knock Libertarians and Greens who don’t pay that fee off the ballot. The Ls and Gs may not like this law, but it’s in effect until further notice, and they know what the price of not following it is. And I have to imagine that somewhere, someone inside the Republican Party is getting reamed out by someone else for not being as on the ball about this as the Democrats were. They had a path to get what they wanted, they just didn’t take it in time. From where I sit, they were caught flat-footed and were out-lawyered by the Dems. That’s gotta sting a little for them.

Yes, bail reform is good

Here’s the first pieces of evidence, from Harris County, to support that.

A new report examining the impact of recent changes to bail practices in Harris County found that releasing more misdemeanor defendants from jail without requiring cash bail did not lead to an increase in arrests for reoffending.

The findings are being cited as a win by criminal justice reform advocates who have long argued that cash-bail requirements unfairly penalize poor defendants who can’t afford release from jail before trial.

Wednesday’s report was the first by independent monitors appointed by a federal judge as part of a settlement order in a lengthy lawsuit that led to changes in the bail system in Texas’ most populous county. The case has been noted by civil rights groups as the first to put America’s cash bail system on trial in federal court.

“This misdemeanor bail reform is working as intended and there are real results,” said Brandon Garrett, a law professor at Duke University and independent monitor of the reforms. “Many more people are released promptly, cash bond amounts are vastly reduced except in cases where there will be public safety concerns… [and] there has been no change in reoffending.”

[…]

The report found the rate of new criminal complaints filed against misdemeanor defendants in Harris County within a year of their initial arrest had not changed since the reforms were implemented in early 2019.

The report also found the gap between white and Black defendants being released before trial narrowed under the county’s new system. Before the lawsuit, white people were more likely to bond out of jail before trial than Black people. Data on Hispanic defendants is unavailable.

Not included in the report is data on how often the defendants who were released without payment failed to show up at court hearings. Bail reform opponents across the country have used rises in missed court appearances as ammunition against releasing people on no-cash bonds. The report said appearance rates and reasons for missed hearings will be considered in future reports.

You can read the report for yourself. It’s not the be-all and end-all, as there are still questions about defendants released on PR bonds who would have had to pay bail before versus those who did pay bail, and about rates of showing up in court, but those will be answered in time. The point is, every apocalyptic prediction about murder and mayhem in the streets resulting from jaywalkers and pot smokers not being kept in jail has proven to be spectacularly wrong. Not that this should have been a surprise, since that has been the experience everywhere else this kind of bail reform has been tried, but that didn’t stop the doomsayers. In the meantime, many fewer people were exposed to the risks of being in jail for no good reason. That right there is a whole lot of good. The Chron has more.

We are not ready to re-reopen

I don’t know who needs to hear this, but…

Texas COVID-19 hospitalizations have declined the most significantly — 4,144 Tuesday, down from 10,893 on July 22 — but new cases, positive test rates, daily deaths and viral spread are all dropping. They are dropping enough that one Texas modeler, Spencer Fox of University of Texas at Austin, went so far as to say he thinks that Texas may have seen the worst of the pandemic — as long as people continue to wear masks and keep their guard up.

A number of other health experts warned against lifting restrictions, noting that the coming Labor Day weekend, the expected resumption of schools and seasonal weather changes have the potential to cause a resurgence like Texas experienced earlier in the summer. They also said the amount of transmission, although improved, is still way too high.

“I don’t want to be Debbie Downer, but we’ve been surprised before,” Catherine Troisi, an infectious disease epidemiologist at the UTHealth School of Public Health, said last Friday. “It’s a double-edged sword when things start looking better. The virus is still out there, but people think things can go back to normal.”

Troisi added that some experts are hesitant because of the state’s data reporting problems, because it’s possible some other issue will surface. Those problems include under testing, coding errors that caused backlogged results and combining positive diagnostic and antibody tests.

Chris Amos, a Baylor College of Medicine quantitative scientist, said “the timing could not be worse for rolling back.”

“Given the number who test positive reflect perhaps 10 times as many individuals who have not been tested but are positive,” said Amos, “there remains a large pool of individuals who can spread COVID-19 if they begin interacting with many others, and particularly if we allow large groups to start coming together again.”

Amos acknowledged that optimism about opening up is natural given the slowing of COVID-19’s spread. The spread is measured by a value, known as reproductivity, that suggests a slowing or growing of the virus. Over 1 means each infected person transmits it to an average of more than one person and the epidemic grows; under 1 means the virus is transmitted to less than one person and the epidemic won’t sustain itself.

The value for the state overall has been under 1 since July 20.

According to Amos’ calculations, if the state maintains the current trend, with the number around 0.87, it would take 38 days to reduce the COVID-19 burden by another 50 percent.

It’s important to keep reducing that burden before students resume in-person classes, Amos said. He and others advised against a one-size-fits-all approach.

“Not every community or county in Texas is experiencing the same burden of disease,” said Angela Clendenin, an epidemiologist with the Texas A&M School of Public Health. “In some places, it may be justified to roll back some restrictions whereas in others, it’d be ill-advised to do so. It will be critically important that rolling back restrictions does not send the message that we are somehow ‘all clear.’”

See here for the background. The basic fact remains that we are still at levels well above where we were in early June, when we first re-opened. There’s no question that if we re-reopened like we re-opened the first time around, we will get the same result. To me, three things are clear. One we shouldn’t change anything until we are back at early-June levels. Two, we should have sensible objective metrics that we can actually measure with accuracy and that we stick to, unlike the first time around. And three, give some discretion back to local jurisdictions so that the counties with a sufficiently low infection rate can be more open (though still within state guidelines) while those that aren’t ready for that kind of openness can continue to do what they need to do to get there. All of this should be screamingly obvious after what we just went through, but I see no reason to believe that Greg Abbott or Dan Patrick have learned anything from that experience.

Houston’s hottest neighborhoods

That’s temperature hot, not realtor hot.

This summer, Houston joins 13 other cities in a massive, community-driven, heat mapping project. More than 80 volunteers like Powers and her son, dubbed “street scientists” by the organizing groups, covered roughly 300 square miles in 32 different polygon-shaped areas.

The project, which is taking place when Houston and Harris County are usually at their hottest, will give scientists, public health officials and community leaders the data necessary to try to cool Houston down. Local leaders hope the heat maps will help direct policy and planning within neighborhoods for things like cooling center locations, greenspace, green rooftops and tree planting. Continuously rising temperatures within cities like Houston can usher in a host of health and environmental problems, and may disproportionately affect lower-income neighborhoods that tend to have less green infrastructure.

As the third largest county in the nation, Harris County’s efforts represent one of the biggest single-day community-led heat mapping events ever held. Scientists say Houston heat mapping has been done before, but this appears to be the first that will provide readily available, comprehensive data.

“This is something that, frankly, is a little bit overdue,” said Jaime González, Houston Healthy Cities program director at The Nature Conservancy in Texas, one of organizations participating in the project.

Indeed, last August was Houston’s second hottest on record, and experts predict it will continue to get hotter this year. By 2065, the number of days above a heat index — which is how hot it feels outside with added humidity — of 105 degrees is predicted to septuple. Houston is already at least 13 degrees hotter than nearby rural areas, according to Climate Central, a nonprofit news organization that analyzes and reports on climate science, and increasing temperatures put undue pressure on power grids.

Houston is undeniably hot, but some areas may be hotter than others. Infrastructure — treeless tracts, packed concrete apartment blocks, busy streets — can create conditions that could result in pockets with higher temperatures. Studies show that temperature discrepancies within a city can differ by 15 to 20 degrees, with more extreme heat often occurring in lower-income neighborhoods.

These heat maps will show quantitative data about urban neighborhoods, and specifically, which ones are more directly impacted by extreme heat.

This is a serious matter of public health, and it’s something that can be addressed by public policy if there’s sufficient data to inform that policy. The simple act of planting trees where they are most needed helps. Let me tell you, as someone who is responsible for walking a dog every day, I am very grateful to live in a neighborhood with a real tree canopy, because it’s the only thing that keeps me from turning into a pile of soot and ash on these brutally hot July and August days. Everyone should have such an amenity available to them. This is also a reality of climate change, in that our failure to address the causes of global warming means we have to take action to try to mitigate its effects, so we can live with them. I hope this effort is a great success.

(I should note that the “Powers” mentioned in the first paragraph of the excerpt is my friend and neighbor Rachel Powers, executive director of the Citizens’ Environmental Coalition. Nicely done!)

From the “Those who forget the past are condemned to repeat it” department

Who’s ready to re-reopen Texas?

Gov. Greg Abbott signaled he may be preparing to roll back some emergency restrictions put in place this summer at the height of the state’s coronavirus surge.

Responding to concerns from the battered restaurant industry, the governor tweeted Monday night that new infections and hospitalizations from COVID-19 are receding, and added, “I hope to provide updates next week about next steps.”

“Since my last orders in July, COVID numbers have declined—most importantly hospitalizations,” said Abbott, a Republican.

The governor gave no indication about what steps he might take, and a spokesman did not respond to questions. Abbott has previously said he would consider allowing bars to reopen and restaurants to open further if positive trends continue.

Statewide, new daily infections and hospitalizations are declining, though they remain well above where where they were when Abbott began reopening the state in May — hospitalizations are now double, and average new daily infections are four times as high. It’s also unclear whether the rate of people testing positive, a key metric, is anywhere near where public health experts recommend before opening more businesses and allowing children back into schools.

What could possibly go wrong? See here for a statement from Mayor Turner, who unsurprisingly urges caution. You should also read this Politico profile of County Judge Lina Hidalgo, which I will blog about separately, and remember that at every step of the way in this crisis, Lina Hidalgo has been right and Greg Abbott has been wrong.

When HEB is on your side

Who could be against you?

Charles Butt, the billionaire owner of the San Antonio-based grocery chain H-E-B, sent a letter to the Texas Supreme Court this week, siding with Harris County on its plan to send mail ballot applications to all registered voters ahead of the November election.

In the letter, Butt argued that Harris County Clerk Chris Hollins’ plan was permissible under the Texas Election Code.

“Clerk Hollins’s efforts to make absentee ballots widely available trusts voters, protecting those who are vulnerable from unnecessary exposure in this new Covid world in which we’re living,” Butt wrote. “It’s always been my impression that the more people who vote, the stronger our democracy will be.”

[…]

“Based on our experience at H-E-B, many people, including those of all ages, are nervous about contracting the virus,” Butt wrote. “By extension, in my opinion, many would be anxious about voting in person. Clerk Hollins has reasonably given these voters a chance to guard against perilous exposure in a manner consistent with this Court’s opinion and the Election Code.”

Butt previously has weighed in on political debates, and he is a top contributor during election cycles. His campaign contributions cross party lines.

That letter was being quote-tweeted all over the place on Wednesday. One could look at this and furrow one’s brow at the intervention by a wealthy individual, one who does play a fair amount in Texas politics, in a court case like this. One could also shrug one’s shoulders and say that this looks an awful lot like an amicus brief, except it was released on Twitter instead. I lean towards the latter, and given the overheated and frankly harmful rhetoric being unleashed by Trump and Paxton and the like, I’m glad that Charles Butt decided to speak up and inject a little sanity into the discourse. Your mileage may vary. Reform Austin has more.

Supreme Court issues possibly pointless stay in mail ballots case

This story doesn’t quite say what it seems to say, as we will see.

The Texas Supreme Court has temporarily blocked Harris County from sending mail-in ballot applications to all its voters for the November election.

The decision Wednesday came in response to a lawsuit filed days ago by Republicans in the state’s largest county. Attorney General Ken Paxton has since launched his own legal challenge to the plan.

Harris County Clerk Chris Hollins announced last month that the county would send applications to its more than 2.4 million registered voters, an effort to make it easier to participate in the election due to the coronavirus pandemic. After being sued by Paxton, Hollins said he would only send applications to voters 65 and older, who are eligible to vote by mail under state law, pending the litigation.

The Harris County GOP lawsuit alleges that Hollins is a “rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County.” The lawsuit was brought by the county party, conservative activist Steve Hotze and judicial candidate Sharon Hemphill.

See here and here for the background. Before we go on, let’s look at the actual order released by SCOTX:

The Emergency Motion for Temporary Relief is GRANTED in part. In conformance with the Rule 11 agreement in State of Texas v. Hollins (No. 2020-52383, 61st Judicial District Court, Harris County), Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins. The Real Party in Interest should inform the Court of any developments in State of Texas v. Hollins that may affect this order.

[Note: The petition for writ of mandamus remains pending before this Court.]

Emphasis mine. This is of course what Hollins had agreed to do, so functionally there are no changes since yesterday. The reason for this stay is that it came from the Hotze mandamus action, whereas Hollins’ agreement to suspend any mailings to under 65 voters came from the state lawsuit. Note also that this does not in any way affect the mandamus itself – as the Court says, that’s still pending. There should be a hearing on the state lawsuit early next week, which corresponds with the timeline for this order as well. Bottom line, nothing has changed here.

One more thing:

Amid the latest legal chapter Wednesday, Democrats called Republicans hypocrites for apparently sending out their own mail-in ballot applications while fighting Harris County’s plan in court. Hollins tweeted pictures from a mailer, paid for by the Texas GOP, that says President Donald Trump “is counting on you” and urges recipients to fill out an attached mail-in ballot application after confirming they are eligible.

“Much like Trump, Texas Republicans have been exposed as hypocrites to the highest degree,” state Democratic Party spokesperson Abhi Rahman said in a statement. “Voting by mail is safe, secure, and convenient.”

Remember how much the Republicans whined about straight-ticket voting in 2018, even as they were exhorting their own voters to vote a straight Republican ticket? It’s like that. Pay no attention to the noise machine.

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

Republican candidates and organizations are asking the Texas Supreme Court to remove 41 members of the Libertarian Party from the November ballots.

All of the Libertarians are ineligible to run, the GOP argues, because they failed to pay a newly created candidate filing fee or collect the necessary petition signatures to avoid the fee. But the Libertarian Party argues that the GOP, which could have challenged the candidates in December, waited too long to seek a court remedy.

“In the midst of pandemic, with life in general taking longer and facing more complications than usual, this Court should not exacerbate the problem by ordering counties across the state to stop preparing ballots so (the GOP) can strip Texas voters of their rights to vote for their chosen candidates,” the party’s leaders told the Supreme Court in a Tuesday filing.

[…]

The Republicans argued that they “fell in the trap” of challenging the eligibility of candidates, too late as it turned out, when they should have challenged the candidate applications as improper under a different section of the state’s election laws. Removing candidates based on improper applications can take place any time before Sept. 18, when ballots are mailed to members of the military serving overseas, the Republicans told the Texas Supreme Court.

Practically, however, the party acknowledged that the Texas secretary of state’s office has been arranging to print and distribute those ballots since Aug. 28, and its petition urged the Supreme Court to act as quickly as possible.

“Should this Court issue relief, the Secretary of State can take corrective action through early September,” said the petition, filed last Wednesday.

One day later, the court gave the Libertarian Party until 10 a.m. Tuesday to file a response. In that filing, party officials urged the court to avoid a rushed decision over a filing fee that many Libertarians see as an unconstitutional poll tax — particularly with two court challenges underway.

In the first, a state lawsuit filed by current and former party candidates in Harris County led to a court order blocking the fee as unconstitutional, though the ruling was halted by an appeals court that has yet to decide the case. The second involves a federal lawsuit by the party and several of its candidates that is set for trial next year.

“There are two constitutional challenges pending,” the Libertarians said. “In this context without the benefit of a more developed record, it would be difficult to say that ineligibility is conclusively established.”

See here for the background. My not-a-lawyer self thought the Republicans’ second attempt to knock off the Libertarians had some merit – certainly more than the clumsy and too late initial attempt had – but I also think the Libertarians make a good point in their response. The successful Democratic attempt to boot the Greens was based on well-established state law, and the facts were incontrovertible. The Republican challenge is novel, and the Libertarians are correct that the facts are still in dispute in this case. The ongoing federal litigation may sway the court as well, though that same appeal did not work for the Greens. We should get a ruling quickly, that much I feel confident saying.

County Clerk scales back mail ballot application sendout for now

Seems like a wise tactical move.

Chris Hollins

The Harris County clerk is holding off his plan to send ballot applications to every registered voter in Harris County.

County Clerk Chris Hollins said for now he is going to send ballot applications to everyone 65 and older.

Hollis added he will wait for the lawsuit filed by Texas Attorney General Ken Paxton to work its way through the court to see if he can send ballot applications to other people in the county.

Hollis also said he tried to discuss this with the Texas Secretary of State but a discussion did not take place. Then Paxton filed his lawsuit on Monday, according to a report from the Texas Tribune.

See here for the background. Sending an application to all the 65-and-over voters is what Clerk Hollins did for the primary runoffs, and no one raised a fuss about it. It seems clear that Hollins has the law on his side, as confirmed by Supreme Court Chief Justice Nathan Hecht in a recent chat with the Chron editorial board, but politics plays a role as well, and one could argue that turning down the heat a bit is in Hollins’ best interests. One could also argue that getting the state to do something stupid isn’t a bad idea either, but I’ll set that debate aside for now. For now, we wait for some action in the courtroom. The Chron and the Press have more.

(On a side note, Bexar County will be sending vote by mail applications to all of its 65-and-over voters as well. As I said before, this sort of thing should be the norm going forward.)