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Ken Paxton

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

When voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.

Fifth Circuit flips the switch

It’s what they do.

A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers if it will issue an injunction nullifying it during the entire appeals process.

Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.

[…]

In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail remained in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, Paxton argued that Biery’s injunction threatened “irreparable injury” to the state “by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections.”

The appeals court ordered the Democrats to file a response to the state’s request to block the ruling by Thursday afternoon.

See here for the background. I mean, this was to be expected, so let’s move on to the other thing that happened yesterday, also from this story.

In a virtual hearing Wednesday, the justices’ interrogations of Paxton’s lawyer and those representing the counties returned frequently to a gaping hole in Paxton’s request — when voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.

Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on their application that indicated they feared infection but were “otherwise healthy.”

Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.

“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.

Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require a voter to include information the nature of their disability in their applications — both of which would go beyond the Texas Election Code.

Still, the solicitor general asked the court to order election officials to abide by the state’s direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request a mail-in ballot on that basis.

Barbara Nichols, an attorney representing Dallas County, argued it was unnecessary for the Supreme Court to order anything of the county’s election administrator because she had not indicated she would go beyond existing laws for voting by mail.

“As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her,” Nichols said. “And the state cannot point to any such evidence in the record.”

See here for the previous update. Harris County was also a respondent in this hearing – I have a copy of their brief here. I mean, the law here is pretty clear, so much so that even the Solicitor General had to admit it. The question is, what will the Supreme Court do about it? I will note that this is a writ of mandamus, not an appellate action, so they could just swat it away and let the lower courts do their thing before they weigh in. Remember, the state lawsuit hasn’t even been heard yet, we’ve just had a ruling on the motion to allow people to apply for mail ballots while the litigation is in progress. Just take a pass, that’s all I’m saying. We’ll see what they say. The Chron and the Signal have more.

Federal court issues order to allow voting by mail

Here we go again.

A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.

Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.

Biery’s ruling covers Texas voters “who seek to vote by mail to avoid transmission of the virus.”

In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”

“Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions,” Biery wrote.

“There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill,” he said.

[…]

The Democrats argued that the age limitation violates the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed. Biery also found the plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.

“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said.

In ruling against the state, Biery cast aside arguments made by Paxton’s office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.

During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.

The attorney general’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.

“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.

In his ruling, Biery said the state had cited “little or no evidence” of widespread fraud in states where voting by mail is more widely used.

“The Court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience,” Biery said. “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”

See here, here, and here for the background. A copy of the order is here, and I recommend you read it, because the judge is clearly not having it with the state’s arguments. Let me just say, the hypocrisy of the state’s case, in particular their pathetic wails of “voter fraud!”, is truly rich. I for one am old enough to remember when Texas passed its heavily restrictive and burdensome voter ID law, in which voting by mail – which at the time was primarily the purview of Republicans – was specifically exempted, a fact noted by the various plaintiffs in the lengthy litigation against that odious law. The Republican argument at the time was that voter ID was needed to combat “voter fraud”, yet those same Republicans saw no need to include any similar requirement for those who voted by mail, presumably because they had no concerns about “fraud” from those voters. And now they want to claim voting by mail is a threat to election integrity? I’m sorry, but that’s all kinds of bullshit and it deserves to be labeled as such.

Now, none of this means that Paxton’s handmaidens at the Fifth Circuit will care about that. As nice as this ruling is, I figure we have a day, maybe two, before that cesspool rubber stamps an emergency petition from the AG to put this ruling on hold. I will of course be delighted to be proven wrong, but I know better than to invest any faith in the Fifth Circuit. So enjoy this for now, but don’t go counting any chickens just yet. The Chron has more.

UPDATE: Rick Hasen provides more objective reasons why the Fifth Circuit will likely put a hold on this order.

First federal vote by mail lawsuit hearing

One down, two to go.

U.S. District Judge Fred Biery heard arguments Friday in a federal lawsuit seeking to give all voters the option to vote by mail due to fears of catching or spreading the coronavirus.

[…]

During Friday’s federal court hearing, Texas Democratic Party General Counsel Chad Dunn argued that concerns about coronavirus should not disqualify someone from exercising their right to vote. Doing so discriminates against classes of voters, such as voters under the age of 65.

Requiring people under the age of 65 to vote in person creates a “survival of the fittest election,” Dunn said via videoconference, and an impossible choice between protecting their health and exercising their right to vote. In the meantime, voters will be left in a “twilight zone,” unclear if they can apply for a mail-in ballot or not, Dunn said.

The Texas Democratic Party named Gov. Greg Abbott, Secretary of State Ruth Hughs, Travis County Clerk Dana DeBeauvoir, and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants in the suit. Other plaintiffs include the League of United Latin American Citizens (LULAC) and other individual voters Joseph Daniel Cascino, Shandra Marie Sansing, and Brenda Li Garcia.

They are seeking a preliminary injunction for the finding that the current election conditions violate tenets of the First, 14th and 26th amendments as well as some provisions of the Voting Rights Act. The suit also requests that the defendants stop issuing threats of criminal or civil sanctions for helping voters vote by mail.

Biery said he could not estimate when he would issue a ruling in the case. “All I can tell you is it will be forthcoming,” he said. “No guarantee as to when.”

Robert Green, an attorney representing Bexar County and Callanen, said the county “is not here to take a position” on the various legal arguments presented by the Democratic Party or by the State. However, Green stated that counties have no mechanism or authority to investigate what “disability” a voter cites in an application for a mail-in ballot.

“A voter who believes that they are eligible … is permitted to indicate that solely by checking a box,” he said. “If a court were to order or if the Secretary of State were to issue guidance that local officials should reject certain disability applications if they’re premised on some COVID-related fear or lack of immunity, it’s not clear at all that local officials would be able to do that because the application does not allow voters” to explain their disability, he said.

Lack of immunity to COVID-19 is a physical condition, Green said. “A voter lacking that immunity is endangered by in-person voting. I think that that’s an inescapable reality.”

See here and here for the background. As the story notes, not long after this hearing came the State Supreme Court ruling that for now at least halted efforts to encourage people to apply for mail ballots. The people who have already asked for them and cited “disability” as the reason will presumably still receive them – as noted, there’s neither a process nor the authorization to check on that. The other two federal lawsuits are not on the calendar yet as far as I know. I have no idea if we’re going to have a clear ruling on this in time for the primary runoff. Of course, the question of what comes after that is even bigger, so this story is just getting underway. Stay tuned.

Supreme Court sticks its nose in

I suppose this was to be expected.

The Texas Supreme Court on Friday temporarily put on hold an expansion of voting by mail during the coronavirus pandemic.

Siding with Attorney General Ken Paxton, the Supreme Court blocked a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court’s order that would have allowed more people to qualify to vote by mail. The state’s Supreme Court has not weighed the merits of the case.

It’s the latest in an ongoing legal squabble that in the last three days has resulted in daily changes to who can qualify for a ballot they can fill out at home and mail in.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail as Democrats and voting rights groups ask courts to clarify whether lack of immunity to the coronavirus is a valid reason for people to request absentee ballots. A resolution to that question is gaining more urgency every day as the state approaches the July primary runoff elections.

[…]

The court also set oral arguments for May 20 on Paxton’s request for it to weigh in on whether the appeals court erred and abused its discretion when it allowed Sulak’s order to go into effect.

See here and here for the background. I just want to remind everyone, early voting for the July primary runoffs begins on June 29, and mail ballots are already being sent to voters who requested them. People are going to have to start making decisions about how they’re going to vote. And whatever the state courts ultimately say, there are those federal lawsuits out there as well. This is going to be a whirlwind of uncertainty for some time. The Chron has more.

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

A state appeals court upheld a temporary order Thursday from a state district judge that could greatly expand the number of voters who qualify for mail-in ballots during the coronavirus pandemic, rebuffing Attorney General Ken Paxton’s effort to have the ruling put on hold while he appeals it.

In a 2-1 split along party lines, a panel of the 14th Court of Appeals of Texas said it would let stand state District Judge Tim Sulak’s ruling from last month that susceptibility to the coronavirus counts as a disability under state election law and is a legally valid reason for voters to request absentee ballots. Paxton has been fighting that ruling and had argued that his pending appeal meant the lower court’s ruling was not in effect.

[…]

“Eligible voters can vote by mail during this pandemic,” Chad Dunn, the Texas Democratic Party’s general counsel, said in a statement Thursday. “It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

In response to the appeals court’s ruling, a spokesperson for Paxton said his office will “look forward to the Texas Supreme Court resolving this issue.”

See here, here, and here for the background. A copy of the court’s order is here, and of the dissent is here. If you believed that Paxton went to the Supreme Court even before the 14th Court ruled on this motion for the purpose of gaining political advantage, the 2-1 partisan split in this ruling is not going to dissuade you. The Supreme Court’s gonna do what the Supreme Court’s gonna do, but that seems to me to not be a great sign. Sorry to be a party pooper, but it’s hard to miss the symbolism of that. The Chron has more.

Speaking of the Supreme Court, they have requested a response from the counties named in Paxton’s writ of mandamus no later than 4 PM on Monday the 18th. I don’t think we’ll have to wait much longer to hear from them.

I should note that despite my pessimism in that first paragraph, there are some Republicans who are fine with pushing mail ballots to anyone who wants them. Like Kathaleen Wall, for example:

[Wall] has sent out mailers in recent weeks telling voters they have the “green light” to vote by mail and that the secretary of state has cleared them to do so if they are worried about contracting or spreading the virus by voting in person.

[…]

The controversy in the 22nd District has caught the attention of state officials. The secretary of state’s office says it “has been made aware of the mailings that have been sent out and have been in touch with representatives of the Wall campaign.”

“We have informed them that certain statements attributed to the Secretary of State’s office are categorically false, instructed them to update voters who have already been contacted, and to immediately cease further distribution,” a spokesman for the office, Stephen Chang, said in a statement.

Wall’s campaign says she is doing her best to keep voters up to date on the fast-changing developments around voting by mail, pointing to posts on her website and social media that have come in addition to the mailers. In a statement, the candidate defended sending out the vote-by-mail applications.

“I’ve distributed over 60,000 face masks to first responders and businesses in CD22 to make sure they have the tools they need to stay safe,” Wall said. “Sending out ballot by mail applications is the same thing. I’m making sure voters know they have options if they want to exercise it and meet the qualifications.”

However, Wall’s questionable vote-by-mail efforts go back to mid-April, when she sent out a mailer with the state seal telling the voters that they had received the “green light” to vote by mail and that their applications would be arriving soon. (Federal candidates are exempted from state law that prohibits the use of the state seal in political advertising.) The mailer also said, “Recently, the Texas Secretary of State ruled that voters’ concerns over contracting or spreading the COVID-19 virus and endangering their health by visiting a public polling place meet the election law requirements to be deemed eligible to vote absentee.”

Wall’s campaign used the same language in the subsequent mailer with the application, which featured the “Disability” box pre-checked.

As the story notes, that’s not exactly what the SOS said in that advisory, and indeed this is basically the Democratic plaintiffs’ position in the nine million current lawsuits that have been filed on the topic. Kathaleen Wall is an idiot who maybe doesn’t fully grasp the politics here. Or who knows, maybe this is a sincere statement of her beliefs, in which case all I can say is welcome aboard. I will admit, it’s still a little weird to me that this has become such a partisan issue, since one would think there are plenty of Republican voters who aren’t over 65 that might like to have this option as well. But here we are anyway, and now we have Kathaleen Wall on our side. Hooray?

Paxton tries a Supreme shortcut

They sure are keeping busy.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can’t, and Wednesday asked the state’s highest civil court to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.

[…]

The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in don’t have to provide any information beyond checking a box on the application form. Election officials can reject applications if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disability.

Paxton argued the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

This is of course in reference to the state lawsuit. As we know, Paxton had previously threatened county election officials who might be accommodating to people requesting mail ballots on the grounds that the original ruling only applied to Travis County and was stayed pending appeal. The TDP, the plaintiffs in the suit, filed a motion with the Third Court of Appeals opposing Paxton’s actions. I should note that this case has been transferred to the 14th Court of Appeals, which includes Harris County. The Trib story about the complaint filed against Paxton in Dallas County contains a reference to this. Here’s a copy of the briefing schedule for the 14th Court of Appeals, which looks to be set for a ruling in mid-June. Assuming the Supreme Court doesn’t take this out of their hands.

This is basically Paxton getting a second bite at the apple. It’s a writ of mandamus – you may remember, the thing that they acted on in 2015 when they ordered the city of Houston to allow the anti-HERO referendum to go forward – and not an appeal, since the appeals court hasn’t been heard from yet. They don’t have to do anything with this, they could just let the appellate court do its job. As the story notes, there’s no way for clerks to vet or verify anyone’s disability claim. I suppose either court could order clerks to shut up and not tell people that they have the right to ask for a mail ballot if they have a disability. I’m not exactly sure how that would work, but the law can be a funny thing. And of course, there are all those federal suits, over which the State Supreme Court has no jurisdiction. So who knows? I don’t know what else to say, we’ll just have to wait and see what they do. The Chron has more.

On picking a new County Clerk

Stace has some thoughts.

Diane Trautman

I’m of the opinion that the Democratic majority on the Commissioner’s Court should make a strong appointment of someone who will be the incumbent, making it clear that there is no need for a possible free-for-all at the precinct chair level.

We elected our County Judge and our Commissioners, while most of us cannot even find a link on the Party website to find our own precinct chair so that we can lobby for whom we want them to vote. Either process is hardly democratic as the voters are left out of the process. I’d rather go with whom our top leaders choose and have the precinct chairs basically ratify it so we can move forward. Wishful thinking? Maybe.

Some may opine that appointing as interim one of the professionals already in the County Clerk’s office to run the 2020 election and be a placeholder while allowing a candidate chosen by the precinct chairs to run full-time is the solution. And that’s a good argument. But I think we should have a candidate who can show that they can do the professional and the political work, simultaneously. I think it’s more of a confidence builder for us voters when we see that our candidates can walk and chew gum at the same time.

Either way, we’ll see what happens. I already see suggestions on my Facebook feeds about who should run and about diversity on the ballot. There’s nothing wrong with healthy debate, but these things can take a turn for the ugly real quick. And that’s another reason why I’d like to see the Judge and Commissioners lead on this one.

See here for the background. As a precinct chair who will be among those lucky duckies that gets to put a nominee on the ballot for 2020, let me say that I agree with Stace’s position that we should want a candidate who “can do the professional and the political work, simultaneously”. I hope to have a better feel for this once people start throwing their hats into the ring, but I agree that a Clerk who can plan for and run an election well and who is also able to tell Ken Paxton to get stuffed while giving clear direction on these matters to the Court, the County Attorney, and the government relations crew at the county, is someone I want to see in that job.

How we get there is of less importance. If Commissioners Court – specifically, Judge Hidalgo, Commissioner Ellis, and Commissioner Garcia; I don’t expect either of the other two to provide any productive input but will hear it out if they do – says that they just want someone who can carry out the necessary electoral duties for 2020 and leave the politics up to the political people, that’s fine by me. If instead they make a strong statement about wanting the same kind of qualities as discussed here in the next Clerk and appoint someone they believe embodies those qualities, I will be more than happy to endorse that selection for the November ballot, if I agree that they got it right. I’m happy to be led by them on this matter, as long as they do lead us in the right direction. I reserve the right as part of the body that makes this selection to maintain my own counsel.

To be sure, this kind of process can get ugly in a hurry. This may be the best chance any Democrat has to win one of these offices now that there are no more Republicans to oust and we have to fight among ourselves to win. Having the Democratic members of Commissioners Court come out in unison behind a well-qualified candidate that they would like to continue working with after this November would make this a lot easier. We’ll see what they decide to do.

Meanwhile, Campos has one piece of advice:

The Commissioners Court will pick an interim County Clerk and sometime this summer the Harris County Democratic Party Executive Committee will select a nominee to place on the November ballot. The Commissioners aren’t going to listen to Commentary, but I hope they pick a female. If they pick a male and the male ends up getting the Executive Committee’s nod, he will win this November but get knocked off in the 2022 Democratic Party Primary by a female sure enough. Dudes need not apply.

For sure, that can happen. I will just say, 2022 will be its own election, with a different context and likely smaller turnout due to the lack of a Presidential race. It’s certainly possible that the robust candidate we hope to pick this year will get knocked off in 2022 by someone no one has heard of today. I will just say that we are not completely powerless to prevent such an outcome – I’ve been talking about the need to do a better job of promoting quality candidates at the statewide level for a couple of cycles now, following recent debacles in various downballot low-profile primaries. The same prescription holds true here, with a combination of financial support to allow a visible campaign and visible support from the elected leaders who have as much of a vested interest in having the best person possible to run elections as the rest of us do. Pick the best possible person, then support that person going forward. It’s not that complicated.

Those are my thoughts at this time. Feel free to tell me whose name you are hearing for the job and how you think I should approach this when the precinct chairs get together (virtually, I assume) to formalize it.

Yet another lawsuit over voting by mail

Turns out there are a lot of obstacles to voting by mail in Texas, and so there are a lot of lawsuits being filed by various plaintiffs to rectify that.

A coalition of voters and civil rights groups opened a new front Monday in the legal wars over mail-in voting in Texas during the new coronavirus pandemic.

Several lawsuits already underway challenge state limits on who can vote by mail, but a lawsuit filed Monday dives into the mechanics of mail-in balloting, arguing that existing rules will deprive voters of their constitutional rights in the middle of a public health crisis. In the federal lawsuit filed in San Antonio, five Texas voters with medical conditions, Voto Latino, the NAACP Texas and the Texas Alliance for Retired Americans argue that four existing rules for absentee voting will place undue burdens on the right to vote, or risk disenfranchising Texans, during the pandemic.

First, they’re challenging a requirement that voters pay postage to return mail-in ballots, arguing that it amounts to a poll tax during a public health crisis. Second, they’re challenging a requirement that sets deadlines for when ballots must be postmarked and received, arguing that the window should be extended. Third, they object to a requirement for matching signatures on the flap of a ballot envelope and the signature used on an application to vote by mail, which they argue discriminates against voters with disabilities whose signatures may change. And fourth, they’re challenging restrictions on the assistance absentee voters can get to return a marked ballot.

Naming Texas Secretary of State Ruth Hughs as the defendant, they’re asking a federal judge to block the state from enforcing the provisions.

“Even if all registered voters are eligible to vote by mail in Texas in the November election, that would not be sufficient to prevent the serious risk of disenfranchisement and threats to public health that will occur if the Vote By Mail Restrictions remain in place in the pandemic,” the plaintiffs, who are backed by the National Redistricting Foundation, wrote in their complaint.

[…]

But the latest challenge brings in voters who already qualify to vote by mail based on their disabilities but who must navigate the provisions for absentee voting in question during the pandemic. Among the plaintiffs is George “Eddie” Morgan, a 63-year-old former nurse in Dallas who has a genetic lung disorder and has been in strict isolation during the coronavirus outbreak in his community.

Morgan receives $19 dollars a week in food stamps and relies on food banks. To obtain postage for a mail-in ballot online to remain in isolation, he would have to purchase an entire book of stamps for $11, according to the lawsuit.

“The Postage Tax’s burden on the right to vote is severe. At best, it requires Texans — millions of whom are vulnerable to severe complications from COVID-19 or have vulnerable loved ones — to pay to vote by mail so that they can avoid exposing themselves to the virus while exercising their right to vote,” the plaintiffs wrote. “At worst, it disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.”

To recap, we have the federal lawsuit filed by the TDP, which has its first hearing this Friday, which argues that the threat of coronavirus qualifies as a disability under the law for anyone who wants to request a mail ballot. We have the federal age discrimination lawsuit, which alleges that the 65-and-over provision for requesting a mail ballot violates the 26th Amendment. We have the state lawsuit, also filed by the TDP on the same grounds, for which a judge has issued an order allowing anyone to request a mail ballot for the July runoff, with a hearing set for later on the merits, which would allow the same for November and beyond. That order is being threatened by Ken Paxton, and the plaintiffs have filed a motion with the Third Court of Appeals to end those shenanigans. Oh, and now a couple of activists have filed a complaint in Dallas County alleging that Paxton’s communication to county election officials constitutes voter fraud on Paxton’s part. I believe that sums it all up.

This lawsuit goes in a slightly different direction. It argues that even if everyone were granted the ability to request a mail ballot today, there would still be problems. In a rational world, with a well-designed election system, of course mail ballots would be postage free for exactly the reasons cited by the plaintiffs, there would be no effort to criminalize helping someone who needs it to fill out their ballot, and signature matching would be done in a fair and efficient manner. We obviously do not live in that world, but maybe we can take a step towards it with this flurry of litigation. At the very least, I hope they’re all losing sleep in the Solicitor General’s office. The Chron has more.

Criminal complaint filed against AG Ken Paxton

I should say “another criminal complaint”, this one over his bullying tactics about vote by mail.

MOAR MUG SHOTS

Two voting rights advocates have filed a complaint with the Dallas County district attorney, alleging Attorney General Ken Paxton committed voter fraud in each of the state’s 254 counties by contradicting a judge’s order expanding the availability of mail-in voting during the pandemic.

“Attorney General Ken Paxton’s letter intentionally misled Texas elections officials about eligibility to vote by mail,” said Kendall Scudder, one of the complainants. “Mail-in ballots aren’t where the election fraud is happening, it’s happening in the office of our indicted attorney general.”

Travis County District Judge Tim Sulak on April 17 issued a temporary injunction stating that any voter concerned about exposure to the coronavirus can avoid in-person voting and request a mail-in ballot by claiming a disability.

Paxton, a Republican who has argued disability claims should be reserved only for those who currently fall under that category, wrote in a filing that same day that Sulak’s order was automatically stayed when he filed an appeal.

[…]

Two attorneys reached by Hearst Newspapers agreed with Paxton’s assessment that the April 17 order was stayed when Paxton appealed.

Any appeal of an order that grants a temporary injunction or denies a plea to the jurisdiction, both of which occurred in this case, places an immediate stay on that order, said Dallas appellate lawyer Chad Ruback. On top of that, the Attorney General’s office noted in its appeal that governmental entities are entitled to automatic stays in this situation, under Texas law.

In the Dallas County case, complainants Scudder and Woot Lervisit, who live and vote in the county, say that under the Texas election code, their complaint should trigger a criminal investigation of Paxton’s conduct.

See here and here for the background. You can see the press release relating to this action here, a copy of the complaint here, and a copy of the tweets submitted as supporting evidence here. This is another one of those times when I don’t feel qualified to evaluate the action, but if as the lawyers quoted in the story indicate, Paxton was correct to assert that the order was stayed, then I don’t know what the case is for action against him. I presume the Dallas County DA is better positioned to answer that question, and we’ll know his answer by the action he takes. In the meantime, it’s at least fun to note the irony of Ken Paxton being tripped up by a voter fraud charge. I don’t expect to get any more out of this than that, but we’ll see.

UPDATE: The DMN notes that Dallas County DA John Creuzot declined comment on the complaint. It also reports that Paxton has asked one of the Houston-area appeals courts to vacate the Sulak ruling. I don’t understand the jurisdiction there, given that the lawsuit originated in Travis County, but that’s all the story says.

TDP petitions appeals court to get Paxton to knock it off

Good.

The Texas Democratic Party has asked a court to order state officials not to interfere with a previous court order that opened up mail-in voting in the state.

In their filing Tuesday with the Third Court of Appeals, lawyers accused the state of thrusting voters and local election officials into “legal limbo” by contradicting the earlier ruling.

[…]

Earlier this month, Attorney General Ken Paxton accused local election officials of “misleading the public about their ability to vote by mail.”

“Fear of contracting COVID-19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualifies a voter to receive a ballot by mail,” Paxton said in a statement last week. ““My office will continue to defend the integrity of Texas’s election laws.”

In its filing, the Texas Democratic Party said the court needs to step in to ensure counties and voters do not fear applying for and processing vote-by-mail applications.

“The State has taken the extraordinary action of publicly disregarding an order from a coequal branch of the government, asserting that its view of the Texas Election Code, which was rejected by the trial court, is law of the land and threatening those who follow the trial court’s interpretation with prosecution,” lawyers wrote in their motion. “This includes calling into question the validity of the injunction within Travis County and intimidating Travis County voters.”

See here and here for the background, and here for the TDP’s motion. Here I am Not Being A Lawyer again, but it sure seems weird to me that Ken Paxton would simply announce what Judge Sulak’s ruling meant, when the 3rd Court is right there. I get that the AG’s job includes offering non-binding legal opinion about things, but he’s also a party in this lawsuit, so his opinion in this case is hardly disinterested. Anyway, we’ll see what the 3rd Court makes of all this.

First hearing for TDP federal vote by mail lawsuit set for next week

Here we go.

U.S. District Judge Fred Biery has ordered a hearing on expanding vote-by-mail to all Texas voters in advance of the July 14 Democratic Party runoff election. The hearing, set for 9 a.m. May 15, will allow only one lawyer and one staff person from each side of the case, essentially the Texas Democratic Party (TDP) vs. the State of Texas, to make their arguments.

Also because of the novel coronavirus pandemic, the public will not be allowed to attend and the number of journalists will be limited, though Biery’s order states that “to give due respect to our tradition of open courts and the public’s right to know, the Court will try to provide audio live streaming through the Court’s website.”

[…]

Biery’s order acknowledges that instituting statewide universal mail-in balloting might not be effective, given the likelihood that appeals in the case might take the final decision past the July 2 deadline for requesting mail-in ballots for the runoff.

That’s the only story I’ve seen so far, so those are all the details you get. As a reminder, this is about the TDP’s federal lawsuit to allow more people to request absentee ballots, at least for the July 14 primary runoffs and SD14 special election. The state lawsuit filed by the TDP, which AG Ken Paxton is currently throwing a hissy fit over, and the federal age discrimination lawsuit filed by a group of young voters, are separate actions. The TDP had filed a request for a ruling by May 15 that orders the state to allow anyone who wants one to request a mail ballot. As this is a morning hearing, and I presume both sides have filed their briefs, we could very well get some kind of order by the end of the day. Mark your calendars for next Friday the 15th.

You got to dance with them what brung ya

Kenny Boy Paxton is looking out for you. If you are one of his rich donors.

Best mugshot ever

When a small county in the Colorado mountains banished everyone but locals to blunt the spread of the coronavirus, an unlikely outsider raised a fuss: Texas Attorney General Ken Paxton, who called it an affront to Texans who own property there and pressed health officials to soften the rules.

“The banishment of nonresident Texas homeowners is entirely unconstitutional and unacceptable,” Paxton said in a news release April 9, when his office sent a letter asking authorities in Gunnison County to reverse course.

An Associated Press review of county and campaign finance records shows Paxton’s actions stood to benefit an exclusive group of Texans, including a Dallas donor and college classmate who helped Paxton launch his run for attorney general and had spent five days trying to get a waiver to remain in his $4 million lakeside home. Robert McCarter’s neighbors in the wealthy Colorado enclave of Crested Butte are also Paxton campaign contributors, including a Texas oilman who has given Paxton and his wife, state Sen. Angela Paxton, more than $252,000.

Less than three hours after Paxton announced the letter, Gunnison County granted McCarter an exemption to stay, according to documents obtained by AP. The county says the timing was coincidental.

The depth of Paxton’s connections in the heart of the Rocky Mountains, which were not previously known publicly, raise questions about Texas’ top law enforcement officer using his office to lean on a secluded Colorado county as it scrambled to keep COVID-19 at bay. Paxton has at least nine donors in Texas who own property in Gunnison County, and who collectively have given him and his wife nearly $2 million in political contributions. He sent the letter even as his own state was requiring people arriving from New Orleans and New York to self-quarantine for 14 days.

Paxton spokesman Marc Rylander said in an email that “it is a normal practice for the attorney general to speak with multiple constituents from around Texas about issues pertinent to Texas residents.” Asked whether Paxton had spoken to McCarter or other donors before getting involved in Gunnison County, another spokeswoman, Kayleigh Date, said they could not reveal specific homeowners.

Here’s the thing: It doesn’t matter what Gunnison County did, or if this was a wrong that needed to be righted. The Attorney General, like all public officials, has a limited amount of time and resources to accomplish the things they want to accomplish. Do you think this was a good use of Ken Paxton’s time? Do you think it was an issue that was pertinent to the people of Texas? Lots of politicians do favors for friends. It’s the nature of politics and the nature of friendship. You can call it whatever you want, but the facts speak for themselves.

Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

The TDP motion for a fast ruling in their federal vote by mail lawsuit

I mentioned this in passing in yesterday’s post, so here are some more details.

Updating an ongoing lawsuit, the Texas Democratic Party on Wednesday asked a federal judge in San Antonio to issue an order by May 15 requiring state officials to expand vote-by-mail opportunities in upcoming elections.

The motion also asked U.S. District Judge Fred Biery to block Texas Attorney General Ken Paxton “from threatening voters with criminal or civil sanctions” if they vote by mail over fears of contracting the coronavirus at polling places.

The fast deadline is required, the petition argued, because county election officials need clarity as they prepare for primary runoff elections and a special election to fill the seat of retiring state Sen. Kirk Watson, D-Austin — both set for July 14.

[…]

On April 15, state District Judge Tim Sulak ordered expanded ballot access due to coronavirus concerns, a ruling that Paxton has appealed. That same day, Paxton issued a statement saying that fear of contracting COVID-19 is not a legitimate excuse under state law.

“While the state Court has ruled that under age 65 voters can use the disability exemption to vote absentee, the Attorney General has threatened to prosecute those who engage in this activity,” the updated federal lawsuit said.

“Texas’ law discriminates on its face against younger voters by creating two classes of voters: those 65 or older and are able to access absentee ballots and those under 65, who generally cannot,” the lawsuit argued. “When in-person voting becomes physically dangerous, age-based restrictions on mail ballot eligibility become constitutionally unsound.”

See here, here, and here for the background. I presume the state will file its response shortly. There really is a compressed schedule here, because the more mail ballots that will need to be sent out, the more time election administrators will need to handle the requests. I’ll keep an eye on this.

Harris County preps for more mail ballots

Good.

Harris County Commissioners Court on Tuesday voted to spend up to $12 million for an expected uptick in requests for mail-in ballots in the July primary runoff and November general election from voters concerned about contracting the novel coronavirus at polling places.

The three Democrats on the five-member court voted to give County Clerk Diane Trautman enough to send a mail-in ballot to every registered voter in the county over the objections of the two Republican members who said the clerk failed to justify the expense.

Trautman said her office is planning for any outcome in a lawsuit filed by Democrats and voting rights advocates seeking to force the Texas secretary of state to allow any resident to request a mail ballot.

“No matter what the courts and the state decide for the July and November elections, we must be prepared for an increase in mail ballots, which we are already seeing,” Trautman said.

[…]

Trautman said her office “can’t turn on a dime” and must begin preparing to accommodate more mail ballots, which are more expensive to process than votes cast at electronic voting machines because they would require more equipment and staff, as well as the cost of postage.

She outlined the costs of an expanded mail voting program: about $3 million for 700,000 ballots; $8 million for 1.2 million ballots; and $12 million for all 2.4 million ballots. The Democratic majority — County Judge Lina Hidalgo and commissioners Rodney Ellis and Adrian Garcia — opted for the full sum, noting the county clerk may end up spending only a portion of the funds.

“We want to make sure, with the possibility of a record turnout, we’re giving… the support they need,” Ellis said. “I want us to do what we can to improve the percentage of people who vote in this county, because it’s embarrassing.”

Hidalgo urged Trautman to keep the court and the county health department apprised of her plans to ensure upcoming balloting is safe for voters.

Whatever happens in the lawsuits, we should expect an increase in people voting by mail this fall. I mean, plenty of regular voters are over the age of 65, and all of them are eligible to receive a mail ballot. There were over 100K mail ballots returned in the 2016 election. That number could easily double or triple without any objection from Ken Paxton. Just preparing for that is going to take time and money, and that’e before any consideration of the possibility that a whole lot more people will be allowed to receive a mail ballot. It would be negligent in the extreme to not address this ahead of time.

One more thing:

Alan Vera, chairman of the Harris County Republican Party’s ballot security committee, warned that expanding mail voting would be a “logistical nightmare” that would render the county clerk unable to count all votes on election night.

Vera said Harris County should instead adopt an in-person voting system similar to South Korea, which held a national election in mid-April. Election workers in that nation sanitized polling stations and took the temperature of each voter. Residents with confirmed coronavirus cases still could vote by mail.

Trautman said her office already has ordered sanitation supplies for poll workers, including masks, gloves and face shields.

Okay first, as we know, all early mail and in person ballots are counted and the results published on Election Day when the polls close. You also have to get your ballot in by Election Day. I see no reason why the Clerk could not produce an up-to-date set of results on Election Day evening. I agree that the final count would be later, but most results would be clear by then. Second, because Diane Trautman is not an idiot and we are all aware of the courthouse situation, they are planning for extra safety and cleanliness measures as well. Finally, you do know that Republicans vote with mail ballots, too, right? Making it harder to vote in Harris County is going to hurt y’all as well. I can’t believe I have to tell the Harris County Republican Party that, but here we are.

The fight over sick leave has to be at the state level

I get this, but it’s not going to work.

Mayor Sylvester Turner

The coronavirus outbreak is sparking a debate over paid sick leave in Houston, the largest U.S. city without a law requiring businesses to provide paid time off for workers who fall ill.

Labor leaders say the COVID-19 pandemic has bolstered their argument for a paid leave mandate, arguing such a policy would slow community spread of the disease here.

Mayor Sylvester Turner largely has ignored the push, making clear he will not take action on paid sick leave while the health and economic crisis continues to play out.

“Right now, the private sector is hurting, just like the public sector is hurting,” Turner said in an interview. “Businesses are taking it on the chin, and that’s been across the board: small, medium-sized, large. So, let’s get past this crisis, and then we’ll have an opportunity to have a robust discussion on the other side.”

As Houston and Harris County residents pass a month of stay-at-home restrictions to prevent local hospitals from becoming overwhelmed with patients, Turner and County Judge Lina Hidalgo are coming under intensifying pressure from business owners on the one hand who say they cannot survive more weeks of forced closures, and health officials on the other who say coronavirus testing remains too scarce to drop the restrictions.

Labor advocates and health experts have warned that many employees who lack paid sick leave will skirt federal guidelines and show up to work when they are ill because they cannot afford the lost wages from missing even a few days of work. Without a paid sick leave mandate, they say, “essential” Houston workers remain uncovered if their employers do not offer it and are exempted from a federal coronavirus paid leave package that contains broad loopholes.

“There is clear evidence from states and cities across the country that when workers have access to paid sick days, they’re more likely to stay home and take care of themselves,” said Vicki Shabo, a senior fellow for paid leave policy at the Washington, D.C., think tank New America.

[…]

Austin, Dallas and San Antonio have passed ordinances mandating paid sick leave, and each has been blocked or delayed by legal challenges that allege Texas’ minimum wage law preempts the ordinances.

Dallas’ paid sick leave policy, which would require employers to grant one hour of paid leave for every 30 hours an employee works, was halted by a federal judge March 30, two days before penalties for non-compliant businesses would have taken effect.

I’m sympathetic to the argument that now is a bad time for businesses to be asked to bear an extra expense. I’m even more sympathetic to the argument that now is a really really bad time to incentivize sick people to go to work. The problem is that as things stand now, there’s nothing the city of Houston can do about it. We could pass a sick leave ordinance, either by Council action or by referendum, and it would be immediately blocked by the courts, as it has been in those other cities. The only way forward is to change the state minimum wage law that is being interpreted by the courts as forbidding local sick leave measures. That’s not something that can be done in the short term. A Democratic-led House could pass such a bill next year, but as long as Greg Abbott and Dan Patrick and Ken Paxton are in office, it won’t go any farther than that.

So, as unsatisfying as it is to say, we have to win some more elections first before we can make this happen. The good news is that this is the best time imaginable to make the argument in favor of paid sick leave. The case for having sick workers stay home rather than infecting everyone they encounter has never been more clear, and likely will never be better received by the voters. Let the Republicans defend that position. There’s very much a fight to be had, and that’s where we need to have it.

Abortion clinics say “ban’s over, we’re back”

I’m sure this will be left alone.

Right there with them

Texas clinics resumed offering abortions Wednesday after a strict bar on nonessential medical procedures was loosened at midnight.

The ban on nearly all abortions in Texas has been the subject of weeks of litigation — starting in late March when the governor postponed all surgeries not “immediately medically necessary” to preserve medical resources for coronavirus patients. Attorney General Ken Paxton said the ban extends to abortions, and the politically conservative 5th U.S. Circuit Court of Appeals has largely sided with state officials.

The legal fight is ongoing. Abortion providers have accused state officials of political opportunism, saying abortions rarely result in hospitalization and require little or no protective equipment.

A new order from Republican Gov. Greg Abbott that took effect Wednesday allows more procedures to resume in health care facilities that agree to reserve a certain number of beds for coronavirus patients and to refrain from seeking scarce protective equipment from public sources.

Abbott demurred when asked last week if abortions could proceed under his latest directive, saying it was a decision for the courts and “not part of this order.”

But abortion providers said Wednesday that they meet the criteria he laid out.

See here and here for the background. I assume this will wind up in court again, and the main question will be what ridiculous justifications the Fifth Circuit will come up with to agree with the state’s position. Until then, this is where we are today.

UPDATE: It appears that the state has agreed that the expiration of the order means that there is no further restriction on abortions. So that’s a relief.

How do you conduct an election in a pandemic?

We’re about to find out, one way or another.

There will be an election in Texas in mid-July, apparently with polling sites, election workers and voting machines in place so people can cast their ballots in person. How many voters might be willing to risk a trip to the polls during a pandemic, though, remains unknown.

As Texas Republicans work to block the expansion of mail-in balloting during the new coronavirus crisis, local election administrators across the state are deciphering how to safely host voters for the July 14 primary runoff elections — and eventually the November general election — under circumstances unseen by even the most veteran among them.

Looking to expand curbside voting, some election officials are considering re-tooling parking garages or shuttered banks with drive-thru lanes. Rethinking contact during a process that requires close proximity, others are toying with the idea of buying hundreds of thousands of pencils that voters would take home after using the eraser end to mark their ballots on touch screen voting machines.

Many are scrambling to add sanitizing and protective gear to the long list of equipment needed to pull off a safe election. Plexiglass or plastic shields, like those now common at grocery store registers, could make an appearance at polling place check-in stations.

One huge unknown hangs over all the planning — whether there will be a surge of mail-in voting that creates a whole new sphere of logistical challenges.

“It’s almost like you’re preparing for two elections rather than one,” said Lisa Wise, the elections administrator in El Paso County. “That’s just part of what we’re in right now.”

[…]

Operating polling places during a pandemic creates another set of safety challenges as voters must check in, sign poll books and stand in lines.

Election administrators recently shared among themselves a poll that offered insight into how people feel about voting in person during a pandemic — 66% of Americans said they would feel uncomfortable going to a polling place now.

In Aransas County, elections administrator Michele Carew is considering whether she should establish a pop-up voting center in a tent in a parking lot. Because the county is small, her office warehouse typically serves as the only early voting site in the county. But with social distancing rules in place, she’d only be able to fit five voting machines instead of the 10 that normally run. That would be particularly unworkable for the high turnout expected for the November election, she said.

Other election administrations are exchanging messages about whether reducing polling locations would allow them to get a better handle on the situation; others are responding with suggestions about doubling the number of locations so they can space out voters and machines.

But those conversations often dovetail into another crucial consideration — there’s no way to know if they’ll have enough poll workers to staff their voting sites.

“Sixty percent of my election officials are over 65 so obviously they need to be replaced or a vast majority of them need to be replaced,” said Jacque Callanen, the Bexar County elections administrator. She’s considering turning to a pool of county workers who she can train up for the election, but the coronavirus will also get in the way of that.

Typically, she’d be able to cram 80 people into her training room, but she’ll be down to 20 at a time with social distancing requirements.

At this point, though, Callanen isn’t even certain how many poll workers she’ll need. A majority of the county’s polling sites would be propped up in public schools, but she’s not sure if they’ll be able to open up those sites to the public during an outbreak.

This is all a big fricking mess, with the huge uncertainties of where we will be with the virus, whether or not expanded vote-by-mail will be allowed, what sites will be available and practical to use, who will be willing to staff them, and so on and so forth. It’s on thing to say “this is the way it is and these are the parameters you have to work with” and ask election officials to plan for that, and another entirely to say “we have no idea what the conditions will be so plan for every possible scenario”, which is where we are right now. We could at least try to settle the vote by mail question, but as is so often the case our wishy-washy Governor has yet to articulate a position on the matter, leaving it up to the courts and his nihilistic Attorney General to sort it out. The good news, if you want to look at it that way, is that the July primary runoffs, plus the SD14 special election, are going to be pretty low turnout overall. As such, we can probably cobble together something that will more or less work. November is an entirely different story. Remember those pictures from Wisconsin? As the Fort Bend elections administrator says, if we don’t figure this out we’re gonna be Wisconsin times ten. The clock is ticking.

Fifth Circuit flips off abortion rights again

I’m so sick of this shit.

Right there with them

A federal appeals court has again banned most abortions in Texas amid the coronavirus pandemic, though the ruling will only be in effect for two days.

The ruling on Monday by the Fifth Circuit Court of Appeals prohibits medication and surgical abortions for nearly all women except those nearing the state’s 22-week legal gestational limit to obtain one. The court had ruled last week that medication abortions could proceed.

But the court’s ruling will expire Tuesday night.

Republican Gov. Greg Abbott issued a new order loosening restrictions on nonessential surgical procedures — presumably including abortions — starting Wednesday, though neither he nor Attorney General Ken Paxton have clarified how abortions will be impacted.

Abbott’s original order restricted procedures to only those that require “immediate” response to protect a life or serious adverse medical outcome. The new order replaces “immediate” with “timely.” Physicians are left to determine whether the criteria is met.

Paxton has no plans to clarify how the new order applies to abortions, according to a spokeswoman. He has previously threatened criminal action against doctors who perform them during the ban.

In its ruling, the Fifth Circuit said medication abortions use masks and other critical protective gear needed for frontline doctors to respond to the coronavirus crisis. Abortion providers are required to meet with patients before and after providing them pills to terminate a pregnancy, the court wrote, and should be wearing protective gear during those visits.

“The question, then, is not whether medication abortions consume (personal protective equipment) in normal times, but whether they consume PPE during a public health emergency involving a spreading contagion that places severe strains on medical resources,” it wrote.

It was one week ago that the court allowed medical abortions to continue, so if you’re feeling some whiplash, you’re not alone. It boggles my mind that restrictions could be re-imposed by the court at a time when they are being eased up by the state, but that’s Fifth Circuit logic for you. What happens tomorrow when this order expires? Who the hell knows? It’s been bullshit from beginning to end. If we ever want to get off this demonic roller coaster, it’s going to require a new Governor and a new Attorney General, at the very least. The Trib has more.

Abbott and Paxton continue to play politics with abortion

This is exactly the problem with that Fifth Circuit ruling.

Right there with them

Though Gov. Greg Abbott loosened a ban on nonessential surgeries, he said Friday it would be up to courts to decide if his order restores access to abortions — the subject of a weekslong legal brawl — as the state continues to combat the coronavirus pandemic.

“Ultimately, obviously that will be a decision for courts to make,” Abbott said, adding, that an allowance for abortion is “not part of this order. The way that the order is written is in terms of what doctors write about the type of treatment that is provided.”

The Republican governor issued an order last month barring medical procedures that are not “immediately medically necessary” to preserve protective equipment and hospital beds for coronavirus patients. His directive extends through April 21 and Abbott said Friday the restrictions would be relaxed starting April 22.

But Attorney General Ken Paxton has declared Abbott’s first order applies to all abortions except those needed to protect the life or health of the woman. The near-total ban prompted a lawsuit from abortion providers, who accused state officials of political opportunism and argued the procedure does not usually require hospitalization nor extensive protective gear.

See here for the last entry. This is exactly what I meant when I said that if all it takes is a declaration of an emergency for the state to shutter abortion clinics, then there is no right to abortion in Texas and the law as it now exists is a sham. Abbott is on the one hand saying that we can start easing up on shutdown orders and we have plenty of hospital capacity (not that abortion has anything but a negligible effect on that), but hey, it’s not up to him to decide whether any of this means that reproductive health care can go back to its usual business even if other medical services that are deemed “non-essential” can resume. It’s cynical and chickenshit on his part, and it again shows that there has to be some kind of consistency. And it again shows why the Fifth Circuit sucks.

Here’s the official order in the TDP vote by mail lawsuit

Round One went to the plaintiffs. From there, who knows.

A Texas state district judge on Friday issued an order allowing voters to use the coronavirus as a reason to vote by mail for as long as the pandemic lasts — an early victory for the Texas Democratic Party and civil rights groups seeking to expand mail-in voting, though the ruling is almost certain to be quickly appealed by the state.

Judge Tim Sulak’s temporary injunction says the state can’t stop voters from voting by mail based on disability “as a result of the COVID-19 pandemic,” and it stops the state from “taking actions” preventing county elections officials from accepting and counting mail-in ballots from those voters.

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

Democrats and voting rights groups, who have sued in both state and federal court, argued the disability clause should cover voters who are worried about showing up to a polling place during a pandemic. But Republican Attorney General Ken Paxton has said fear of the coronavirus is not an acceptable excuse to claim disability to vote by mail.

The order was expected after Sulak said during a court hearing earlier this week he was inclined to issue it.

See here for the background, and here for a copy of the order. I don’t believe an appeal has been filed or even formally announced yet, but it’s 100% there will be one, and this won’t be settled as a matter of state litigation till the Supreme Court rules. As noted, there is also a federal lawsuit out there, so all sorts of things can happen. Also, so far this ruling just affects the primary runoffs in July. There will be another hearing in August on the merits of the case to determine whether this should be extended to the November election. Assuming that other rulings haven’t made this all moot by then, of course.

In the meantime, here’s another look from Vox’s Ian Millhiser, who had done an earlier analysis that outlined the cruz of the dispute. This article in Slate also provides a useful way of thinking about this case.

The election law in question says a person can only vote by mail if the would-be voter “has a sickness or physical condition that prevents the voter from appearing at the polling place on Election Day without a likelihood of needing personal assistance or of injuring the voter’s health.” On one hand, Paxton’s claim that being sick means actually being physically ill is plausible. The rule, he says, is about sick people who can’t get to the polls because they are sick, or who might get sicker if they had to vote in person. It is not about non-sick people afraid of getting sick if they go to the polls.

As the ACLU stated it in its motion in the case, though, it’s arguable that everyone now has a “physical condition” that increases the “likelihood” that going to the polls might “injure[] the voter’s health.” (New Hampshire has interpreted its analogous “physical disability” provision in precisely this way) Paxton’s construction of the statute, meanwhile, also might mean that someone who actually tests positive for COVID-19 but is asymptomatic may not qualify for an absentee ballot, which seems absurd. As Vox’s Ian Millhiser wrote: “Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate.”

This is where Texas’ judges should turn to the so-called “democracy canon,” a method of interpreting statutes that is tailor-made for cases like this one. In his 2009 Stanford Law Review article about the method, University of California, Irvine law professor Richard Hasen offered a case citation that perfectly captures the heart of the democracy canon: “[a]ll statutes tending to limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.” In other words, when there is a “tie” in how to interpret the statute, the tie goes to the voter.

The case Hasen cited—Owens v. State ex rel. Jennett—was, in fact, a Texas Supreme Court case. Indeed, Texas historically adopted a fairly strong version of what Hasen called the democracy canon. In one appeals court case from the 1950s on the very subject of absentee ballots, Sanchez v. Bravo, a Texas court established a “clear statement” rule regarding restrictions on the right to vote. If a state is going to prevent someone from voting, the court ruled, they have to say so in “clear and unmistakable terms.” Otherwise, courts must read the law in a way that promotes “the right of the citizen to cast his ballot and thus participate in the selection of those who control his government.”

Finally, there is a related issue about the good faith of the voters who’ve decided they want to vote absentee by mail. If the Texas Supreme Court eventually comes down on the side of a narrow reading of the law—turning its back on the democracy canon and an older body of the court’s own jurisprudence—this could be made up by voting officials and lower courts generously construing on a case-by-case basis voters’ reasons why they chose to vote absentee. It is here that Paxton’s veiled warning in the letter that those who obtain ballots by “false pretenses” can be prosecuted sounds a sour note. It is one thing to proclaim a general election rule regarding sickness and disability. It is a separate and more ominous thing for the state of Texas to threaten voters who understandably want to have it both ways: to stay safe in the middle of a pandemic and exercise their right to vote.

Again, nothing really matters in this lawsuit except what five or more members of the state Supreme Court say, but it’s good to have a way to make a coherent argument for the plaintiffs. And by the way, if you’d like to see that ambiguous language in the state law replaced by something that unambiguously allows for more people to vote by mail, that starts with electing more Democrats to office, most especially in the Attorney General’s office.

What’s weird in all of this is that voting by mail has long been a Republican asset, though admittedly in this state for a very small number of voters. I agree with Campos, Republican voters themselves like voting by mail. I’m old enough to remember that vote by mail is exempt from the state’s ridiculously strict voter ID law, in large part because the Republicans who passed our voter ID law recognized that vote by mail was their bread and butter. That appears to have been replaced by a larger fear of anything that might make voting easier for the general public, which for sure is what everyone from Trump on down is trumpeting. But be careful what you wish for, because the recent Wisconsin experience suggests that Democrats may be better equipped to overcome barriers to voting than Republicans are, since Democrats by now have so much more experience in having to overcome obstacles. Maybe – I know this is crazy talk, but hear me out – if the Republicans spent a bit more time persuading people to vote for them rather than making it harder for anyone to vote, they might be better off in the end.

Hotze sues Abbott and Paxton

Just another day at the office for this guy.

A group of conservative activists and pastors that’s challenging Harris County’s stay-at-home order is now also suing Gov. Greg Abbott, claiming his recent executive order to stem the spread of Covid-19 infringes on their constitutional rights.

In a suit filed in Travis County on Thursday, Steve Hotze , a longtime conservative activist, and multiple Houston-area pastors accuse the governor of “imposing draconian, unconstitutional requirements” on Texans. Attorney General Ken Paxton is also a defendant in the suit.

“Once government and its constituents start operating on the basis of fear rather than facts, they are willing to take whatever medicine is prescribed, no matter how harmful the side effects may be,” the suit says. “Churches and small businesses are shut down, and Texans right to move about freely is restricted. For all practical purposes, the governor’s executive orders constitutes a ‘lock-down.’”

[…]

Multiple legal experts said that the order struck a fine balance between public health concerns and religious liberties, and many congregations said they would continue meeting online .

Jared Woodfill, the former Harris County GOP chairman who is representing the plaintiffs, said that Abbott’s order did not go far enough.

“I don’t think the governor has a right to say when people can worship or the manner in which they can worship,” Woodfill said.

The new suit also challenges the authority granted to Texas governors or local authorities under the state’s disaster act. Woodfill accused Abbott and local leaders of “suspending” laws and thus setting a poor precedent for future disasters.

“Think about the authority that this one statute gives to so many individuals,” Woodfill said. “…They can effectively do what they’ve done: Destroy an economy.”

See here and here for the background. The first couple of pages of the lawsuit can be seen in this Jasper Scherer tweet, but it’s all preamble and background, and cuts off before it gets to the actual allegations about what actions or laws they claim are illegal. I Am Not A Lawyer, but it is my understanding that governors in general do have fairly broad powers in times of emergency, as we saw recently following Hurricane Harvey. This particular emergency/disaster is quantitatively different than the usual weather-based disasters we’re used to, and as such we’ve never seen an invocation of powers like this before. For sure, there has been overstep by Abbott, with the backdoor abortion ban (that was somewhat curtailed) and the assault on bail reform, which remains unsettled. I’m certainly open to the idea that these powers are perhaps too broad, that they have been applied in inconsistent or unjust ways, and that there needs to be some check on them to ensure that “emergencies” are not declared on a whim or extended well past reasonable deadlines.

That said, this is not a good faith attempt to define reasonable limits or find a better balance between public safety and executive authority. The only thing Steven Hotze cares about is himself, and the only principle at stake here is his own belief that “your laws don’t apply to me”. Hotze’s argument is that he and people like him represent a special protected class that gets to do what they want without legal constraint, and without any concern about the effect on the health, safety, or rights of anyone else. I’m sure you can tell from my description how I feel about this, but I really want to underline how corrosive this is to society as a whole, especially in times of crisis. The only tool we have right now for mitigating this virus is collective action that puts the health and wellbeing of others ahead of our own personal interests. Your actions benefit everyone else, and everyone else’s actions benefit you. We don’t need to do this forever, but the better we are about doing it now, the sooner we can get back to behaving normally. The main threat to this is exactly what Hotze is doing, elevating his own interests and actions above everyone else’s, because if that guy gets to do whatever he wants to do, why can’t the rest of us? It’s a short step from there to back where we were in early March, when the baseline “if we do nothing” models for coronavirus predicted upwards of two million deaths. I know we all have short attention spans, but I’d hope we still remember that.

In the meantime, we’ll see what the courts make of this. I’ll be very interested to see what kind of response Abbott and Paxton make to this complaint. I don’t expect Hotze to get a favorable ruling at the district court level, but I do expect him to push this all the way to the Supreme Court, no matter how long it takes. Any lawyers out there who have an opinion on the merits of this petition, please leave a comment.

TDP gets initial win in vote by mail lawsuit

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: More from Texas Lawyer:

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

Fifth Circuit allows medical abortions to proceed

Well, this is a pleasant surprise.

Right there with them

A federal appeals court on Monday blocked Texas from enforcing a ban on medication-induced abortions as part of the state’s curbs on certain medical procedures during the coronavirus pandemic.

As a result of fast-moving litigation over Texas’s abortion restrictions, women seeking to terminate an unwanted pregnancy may do so through the use of medicine, but only women nearing their 22nd week of pregnancy may undergo a surgical abortion.

In its Monday ruling, the 5th Circuit Court of Appeals said it sided against Texas because it was unclear if the state’s public health order halting nonessential medical procedures applied to medication-induced abortions.

“[Abortion providers] argue that medication abortions are not covered by [the order] because neither dispensing medication nor ancillary diagnostic elements, such as a physical examination or ultrasound, qualify as ‘procedures,’” the three-judge panel wrote.

“Given the ambiguity in the record, we conclude on the briefing and record before us that [Texas officials] have not made the requisite strong showing [necessary for] relief,” the panel said.

The panel’s decision partially reinstates a lower court ruling that limited the Texas health order’s impact on abortions.

Following the 5th Circuit’s ruling, abortion providers on Tuesday withdrew an application submitted to the Supreme Court over the weekend that had asked the justices to intervene.

See here and here for the background. It’s still far less than great, in that it accepts the premise that abortions aren’t essential health care and can be routinely delayed for political reasons, but at least it recognizes that dispensing medication is in no way a threat to the supply of PPEs. From this godforsaken court, that counts as a ringing victory. SCOTUSBlog and the Trib have more.

And so we go to SCOTUS

Pardon me while I gird my loins for whatever happens next.

Right there with them

Texas abortion providers have taken a back-and-forth legal battle with the state of Texas over its temporary ban on the procedure to the U.S. Supreme Court.

The groups on Saturday requested an emergency stay from the high court, asking that it overturn a federal appeals court decision and allow medication-induced abortion services, and surgical abortions in limited circumstances, while the case proceeds.

The request comes amid the longest period that women in the state have ever been without access to abortion since the landmark 1973 Roe v. Wade case that legalized the procedure, as the more than two-weeklong legal saga continues.

The battle began when Gov. Greg Abbott on March 22 banned elective surgeries during the coronavirus state of disaster in a move intended to conserve personal protective equipment needed to fight the pandemic, and the groups quickly filed suit. The Texas Attorney General Ken Paxton, who is representing the state, did not immediately respond to a request for comment Saturday.

The state has argued that personal protective equipment would still be needed with medication abortions and that those could even require hospitalizations if complications followed. Paxton said in an interview with CBS on Wednesday that he figured that the case would rise to the nation’s highest court.

Legal battles are brewing in several other states where abortion rights groups have sued over similar bans, including Alabama, Ohio and Oklahoma, but Texas’ case is the first to reach the Supreme Court.

See here for the previous update. It’s possible that SCOTUS will react the way they did following the recent Louisiana case where that state passed an anti-abortion law nearly identical to the one SCOTUS had struck down from Texas in the Whole Women’s Health decision, with the message going to the Fifth Circuit that “you don’t get to overturn Roe v Wade, only we get to do that” (hat tip to Dahlia Lithwick for the concept). If that’s the case, they’ll allow the hold on the executive order to stay in place until they can rule on the issue, in which case they have whatever rein they want to restrict abortions. I mean, let’s be clear, if all it takes to shut down clinics across the state is for the governor to declare a state of emergency, then what’s stopping him from declaring a permanent state of emergency? Or at least saying that until there’s a broad-based coronavirus vaccine that meets whatever arbitrary standard of effectiveness that Texas would choose, all such restrictions must stay in place? A right is not a right if it can be revoked on a whim, and there has to be some clear and compelling reason for it to be restricted in the first place. We’ll see what SCOTUS makes of this, but we need to be prepared for some bad news.

Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

Do I need to tell you that the Fifth Circuit did it again?

I’m going to tell you anyway, because it’s what happened.

Right there with them

In the latest turn of a whiplash-inducing federal court battle over Texas GOP officials’ near-total ban on abortion during the novel coronavirus outbreak, a federal appeals court on Friday once again lent support to state officials and prohibited the procedure under all but a few narrow circumstances.

For now, the higher court said, the only patients who may terminate their pregnancies in Texas are those who would pass the legal gestational limit for abortions while a gubernatorial emergency order barring elective medical procedures remains in place. The news comes just a day after a federal district judge in Austin ordered that those patients, as well as others planning to undergo “medication abortions,” which involve ingesting pills, should be permitted to terminate their pregnancies as planned.

Texans bans abortions starting 22 weeks after a patient’s last menstrual period, meaning some patients would have been unable to terminate their pregnancies at all.

Providers said the newest order from the federal appeals court makes abortion “largely inaccessible” and said they will weigh every legal option — including seeking emergency relief from the U.S. Supreme Court.

“The court is unjustifiably forcing women to wait until the 11th hour to get the time-sensitive, essential healthcare that they are constitutionally guaranteed,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “We will pursue all legal options to ensure no women are left behind.”

Already, hundreds of patients have seen their planned abortions disrupted, and providers have been thrust into uncertainty as the legal status of the procedures they perform has changed as many as three times during a single week.

The litigation is far from complete, with deadlines as soon this weekend for attorneys on both sides of the case to make more arguments before the court.

See here for the previous update. Someone whose galaxy brain is bigger than mine is going to have to explain to me the rationale for banning medication abortions, since as far as I can tell that imposes no burden on the healthcare system. I don’t know what else there is to say. The Chron has more.

Ridiculous Hotze lawsuit now in district court

We are all dumber by the mere existence of this.

The Texas Supreme Court has dismissed a lawsuit challenging the constitutionality of Harris County’s stay-at-home order, though the legal fight is set to continue in state district court.

The Wednesday ruling came at the request of the suit’s plaintiffs, including longtime conservative activist Steve Hotze and the pastors of three Houston-area churches.

Earlier this week, Jared Woodfill, the group’s attorney, filed a new case in Harris County that similarly claims County Judge Lina Hidalgo’s stay-at-home order violates the plaintiffs’ First Amendment rights because it allegedly continues to restrict church services even after Hidalgo revised it to align with Gov. Greg Abbott’s executive order deeming churches “essential businesses.”

The governor’s March 31 directive, akin to the stay-at-home orders issued by counties across Texas, came one day after anti-LGBTQ Republican activist Hotze and pastors Juan Bustamante, George Garcia and David Valdez filed a petition arguing that Harris County’s order violates the Constitution by ordering the closure of churches and failing to define gun shops as “essential” businesses.

The four original plaintiffs remain on the new lawsuit, and they are joined by Tom DeLay, the former House Majority Leader who represented a district in the Houston area until 2006. The plaintiffs also have challenged Montgomery County’s stay-at-home order in a different state district court.

[…]

Last Friday, Hidalgo revised her order to “permit in-person religious services that comply with the CDC’s guidelines,” according to a court filing by the county attorney’s office. The plaintiffs are continuing to challenge Hidalgo’s order in state district court, Woodfill said, in part because it imposes penalties — up to 180 days in jail and a $1,000 fine — that Abbott’s does not.

Hidalgo’s amended order says: “Per the Texas Attorney General’s guidance on this topic, if religious services cannot be conducted from home or through remote services, then religious services may be conducted in churches, congregations and houses of worship.”

Woodfill said he interprets that language to bar most churches from meeting in person, because most are capable of holding services remotely.

“Just about every church has the ability to do that,” Woodfill said. “Maybe there are some small churches that don’t. That doesn’t mean your parishioners have internet or the ability to access the service. We think that’s clearly government coming in to the church and issuing edicts and mandates that are an infringement on religious liberties.”

See here for the background. All this and Tom DeLay, too, because you can’t spell “stupid, evil, and corrupt” without Tom DeLay. Bear in mind, Hotze got what he wanted from Abbott’s executive order. It’s just that he’s special, so very special, and the rules of law and man don’t apply to him. I could sit here and spew invective at him all day, but what’s the point? He’s a sociopath, and this is what he does. If you get hurt as a result, that’s not his problem.

Abortion ban partially lifted

Here we go again.

Right there with them

In a second rebuke to Texas GOP officials who have said a ban on nearly all abortions is essential as the state battles the novel coronavirus, a federal judge in Austin ruled Thursday that some abortions may proceed.

U.S. District Judge Lee Yeakel narrowed Texas’ prohibition to allow certain abortions to proceed while a gubernatorial emergency order barring medical procedures that are not “immediately medically necessary” still stands. The ruling will allow Texas abortion providers to proceed with medication abortions — which involve patients ingesting pills and do not consume scarce medical protective equipment — as well as procedural abortions for patients who risk meeting the state’s gestational age cutoff for abortions before Gov. Greg Abbott’s emergency order is lifted.

[…]

Abbott’s emergency order is set to expire later this month, but it may be extended as the state prepares for a peak in coronavirus cases that may not come for weeks. In Texas, abortions are prohibited starting 22 weeks after a patient’s last menstrual period — meaning even if Abbott’s order lifts in April, patients who wait might not have the opportunity to obtain a legal abortion in Texas at all.

U.S. 5th Circuit Judge Kyle Duncan had said the order was best understood not as an “absolute ban” but as a “temporary postponement” in line with delays for many medical procedures, like colonoscopies. But Yeakel argued that because abortions, unlike colonoscopies, are time-limited, “to women in these categories, the executive order is an absolute ban on abortion.”

See here for the last update. If you’re feeling a little whiplashed, I understand. I also caution you to hold on, because this revised restraining order is headed right back to the Fifth Circuit, where we will see if this is what they had in mind, or if they move the goalposts again. I’m not making any predictions. The Chron has more.

The Fifth Circuit sticks the shiv the rest of the way in

The worst court in the country does its thing again.

Right there with them

A New Orleans-based federal appeals court will, for now, allow Texas to enforce a ban on almost all abortions as the state battles the coronavirus pandemic.

Overturning the decision of a lower court, a three-judge panel on the politically conservative U.S. 5th Circuit Court of Appeals ruled Tuesday that the state may continue to prohibit all abortions except those for patients whose pregnancies threaten their lives or health — a restriction GOP state officials have insisted is necessary for preserving scarce hospital resources for COVID-19 patients.

Citing precedent from the U.S. Supreme Court, U.S. Circuit Judge Kyle Duncan, an appointee of President Donald Trump, wrote that “individual rights secured by the Constitution do not disappear during a public health crisis, but … Rights could be reasonably restricted during those times.”

“When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law,’” he wrote.

U.S. Circuit Judge James Dennis, appointed to the court by Bill Clinton, dissented.

Abortion providers have characterized the state’s lawsuit as political opportunism. Most abortions do not take place in hospitals, and according to providers, they generally do not require extensive personal protective equipment, like the masks and gloves in short supply for doctors and nurses fighting COVID-19.

[…]

Duncan said Yeakel was wrong to characterize Abbott’s order as an outright ban on abortions.

“Properly understood,” he wrote, the executive order is a “temporary postponement” of many procedures, like colonoscopies.

But Texas bans abortions after 20 weeks, meaning prohibiting the procedure for any length of time leaves many patients unable to terminate their pregnancies at all. Abbott’s order is set to expire April 21 but can be extended.

The case now heads back to federal court in Austin, where a hearing is scheduled next week. The 5th Circuit had already paused Yeakel’s order blocking the ban, but Tuesday’s opinion threw it out entirely.

Further litigation is all but guaranteed. States including Ohio, Oklahoma and Alabama have imposed bans similar to Texas’, and similar lawsuits are playing out across the country.

See here for the background. I don’t know why there’s any pretense that the Fifth Circuit is an unbiased arbiter of the law. They rubber-stamp these appeals on the flimsiest of pretexts. I don’t know if they honestly believe there’s no difference between an abortion and a colonoscopy or if they just think we’re too stupid to understand the difference. The sheer arrogance of it is breathtaking. If Democrats manage to beat Trump and take the Senate in November, I’d be in favor of appointing about a hundred new judges to this court, to ensure as best as possible there’s never another Republican majority on any three-judge panel. This crap cannot continue.

The Fifth Circuit does what the Fifth Circuit always does

The fix, as ever, is in.

Right there with them

A federal appeals court on Tuesday temporarily reinstated Texas’s ban on abortions amid the coronavirus outbreak, saying it needs time to review arguments about its impact.

The ruling is the latest in a ricocheting legal battle that began last week after the governor postponed non-essential surgeries, and the attorney general declared abortions to be included.

The Republican-led state is one of several that have moved to block abortions, arguing that providers are draining critical medical supplies that could be used to respond to the coronavirus pandemic.

Two of the conservative justices on the Fifth Circuit Court of Appeals issued the ruling, and gave both sides until Friday to respond, meaning the ban will remain in effect at least through this week.

In a dissent, Circuit Judge James Dennis noted that a federal judge in Austin had declared a day earlier that “irreparable harm would flow from allowing the (governor’s) order to prohibit abortions during this critical time.”

See here for the background. I wish these predictions weren’t so easy to make, but this is literally what the Fifth Circuit does. I’m going to go walk my dog and hurl curses in their direction. You go read Mark Joseph Stern and Mother Jones for more details about this.

More on Abbott’s stay-in-jail order

Here’s that more detailed Chron story I referenced yesterday. I’m just going to quote the newer information about Greg Abbott’s executive order that attempts to basically stop most releases of inmates from the jail regardless of the coronavirus situation.

The newly appointed monitor over Harris County’s misdemeanor bail protocol, Duke law professor Brandon Garrett, said the decree violated “many state and federal constitutional provisions.”

Alec Karakatsanis, a civil rights attorney who represents thousands of indigent defendants awaiting trial at the lockup on felony charges, called the governor’s stance illegal and perilous.

“The edict is dangerous, unprecedented, chaotic, and a flagrantly unconstitutional attempt to infringe fundamental constitutional rights,” he said. “If enforced it would have catastrophic public health consequences.”

[…]

The governor’s order suspends portions of the Texas Code of Criminal Procedure and statues related to personal bonds, barring any personal bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He also outlawed releasing inmates with prior violent convictions on electronic monitoring.

In a barely veiled reference to the preparations taking place by Harris County Judge Lina Hidalgo, the governor suspended portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. He said criminal court judges who handle misdemeanor and felony cases may still consider such releases on an individualized basis for health or medical reasons proper notice to prosecutors.

Among prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.

Multiple plans for lowering the jail population have evolved in the past two weeks, including an executive order by Hidalgo that never came to fruition and a request by the lawyers who sued the county over its bail practices. District Attorney Kim Ogg also entered the discussion, telling the sheriff and presiding district judge that she wanted to weigh in and expedite releases of low-risk inmates in the “high likelihood” of a federal court order dictating either substantive bail hearings or outright release on personal bonds.

“As the legal representatives of the State of Texas, we also have the duty to be advocates for victims and the community in a full and fair bail hearing related to the proposed release of individuals who do pose a substantial risk to public safety,” Ogg wrote, in the letter obtained by the Houston Chronicle.

Hours before Abbott’s announcement, Chief U.S. District Judge Lee H. Rosenthal convened an emergency hearing by phone to address incomplete plans by plaintiffs in a federal civil rights case to craft the a release order for people accused of some nonviolent offenses, along with lawyers for the sheriff and the county judge.

An official from Attorney General Ken Paxton’s office told the federal judge that Paxton was poised to appeal any order by Rosenthal that called for blanket releases of inmates.

See here for the previous post. The Trib adds on.

Abbott’s order applies to inmates who have been accused or convicted of “a crime that involves physical violence or the threat of physical violence,” which defense attorneys called a vague and subjective standard. Abbott’s directive also appears to apply to inmates with any history of violent offenses — meaning a person arrested on a nonviolent drug charge last week could be held if he had a decades-old conviction of a violent offense.

Though the order bans release of inmates on no-cost, personal bonds, it does not set a standard for how high a bail amount must be. Presumably, judges could still release inmates on bonds of $1, defense attorneys said.

Legal experts questioned the order’s validity, and it drew immediate rebukes from Democrats and bail reform advocates, who argued the order discriminates against poor people. Several Texas counties, including Harris and Dallas, have in recent years had their bail practices deemed unconstitutional for discriminating against poor defendants.

“It is a dangerous, unprecedented, chaotic and flagrantly unconstitutional edict that if enforced would expose many people around the state of Texas to a public health catastrophe,” said Alec Karakatsanis, executive director of the Civil Rights Corp, which has been at the helm of Harris County’s federal bail lawsuits.

El Paso Democrat Joe Moody, a state representative and former prosecutor and defense attorney, said “if followed, this order will see jails bursting at the seams [with] minor drug offenders, homeless people whose most recent ‘crime’ was something like simple trespass & everyday citizens picked up on the flimsiest of allegations.”

According to Abbott’s order, a judge may consider a defendant’s release for health or medical reasons, after the district attorney is notified and there is an opportunity for a hearing.

You can see the executive order here, and a brief analysis of why it doesn’t pass constitutional muster here. Rep. Gene Wu was on a call with Abbott and reports that the Governor is either misinformed or not telling the truth about his own order. The ACLU of Texas has responded to Abbott’s order, and I presume we’ll have some action in the federal court today. I should note that Ken Paxton jumped out in front of this parade ahead of Abbott’s order, which prompted a couple of folks to observe that Ken Paxton is himself under a felony indictment and out free on bail. Hey, irony went into hospice care sometime back in 2002, so just keep swimming. The Texas Observer has more.

Latest abortion ban halted for now

We follow the script.

Right there with them

A federal judge on Monday temporarily blocked Texas’ ban on abortions, a prohibition state officials said was necessary to preserve medical resources during the coronavirus pandemic.

The ruling came less than a week after Texas abortion providers announced a lawsuit against top state officials, challenging Attorney General Ken Paxton’s assertion that Gov. Greg Abbott’s executive order banning all procedures deemed to be not medically necessary should be interpreted to include abortions.

The court granted the abortion providers’ motion to temporarily block the state from enforcing the order, which was set to expire April 21, as it relates to abortions. The temporary restraining order will expire April 13.

“Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly,” wrote U.S. District Judge Lee Yeakel. “There can be no outright ban on such a procedure.”

Yeakel also wrote that people seeking abortions would “suffer serious and irreparable harm” if the ban were allowed and that temporarily blocking the executive order “will not disserve the public interest.”

“The attorney general’s interpretation of the Executive Order prevents Texas women from exercising what the Supreme Court has declared is their fundamental constitutional right to terminate a pregnancy before a fetus is viable,” Yeakel wrote.

See here for the background. The next page of this script is the state appealing to the Fifth Circuit, and the Fifth Circuit inventing some reason to give the state what it asked for. After that it gets a little murky, but by then it almost doesn’t matter because the state gets to do what it wants in the interim. In theory, once the emergency order is lifted then the justification for this ban goes away, but if you don’t think there’s some way that Abbott and Paxton might try to work around that, you’re not thinking hard enough. The Current and Slate have more.