Off the Kuff Rotating Header Image

Republican Party

SCOTX rejects challenges to drive-through voting

Halle-fricking-lujah.

Voters in the state’s most populous county can continue casting their ballots for the fall election at 10 drive-thru polling places after the Texas Supreme Court Thursday rejected a last-minute challenge by the Texas and Harris County Republican parties, one of many lawsuits in an election season ripe with litigation over voting access.

The court rejected the challenge without an order or opinion, though Justice John Devine dissented from the decision.

[…]

Though the program was publicized for months before the ongoing election, it was not until hours before early voting started last week that the Texas Republican Party and a voter challenged the move in a state appeals court, arguing that drive-thru votes would be illegal. They claimed drive-thru voting is an expansion of curbside voting, and therefore should only be available for disabled voters.

Curbside voting, a long-available option under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The lawsuit also asked the court to further restrict curbside voting by requiring that voters first fill out applications citing a disability. Such applications are required for mail-in ballots, but voting rights advocates and the Harris County Clerk said they have never been a part of curbside voting.

The Harris County clerk argued its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore available to all voters. The clerk’s filing to the Supreme Court also said the Texas secretary of state’s Office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

See here, here, and here for the background, and here for County Clerk Chris Hollins’ attempt to get the Secretary of State on record about this. The decision came down a couple of hours after County Judge Lina Hidalgo (among others) called on Greg Abbott to do the same. This would have been a monumental middle finger to the voters of Harris County, and an utter disgrace for the Supreme Court, had they upheld the Republican challenge. I don’t know what took them so long, but if they’re going to be slow about it, they’d better get it right, and this time they did. Exhale, everyone.

We shouldn’t leave this item without giving Hollins the victory lap he deserves:

There’s a bit more on Hollins’ Twitter feed. When he says that every county should do it like this, he’s absolutely right. You can see all the SCOTX denials here, and the Chron has more.

(Oh, and let’s please do remember this when John Devine is up for election next. The rest of the court may have done the right thing, but that guy has truly got to go.)

Keep fighting, fellas

Primal scream time.

Two of Texas’ top Republicans took part [last] Saturday in a protest of Gov. Greg Abbott’s coronavirus restrictions outside the Governor’s Mansion, a striking display of intraparty defiance three days before early voting begins for a momentous November election.

The “Free Texas” rally featured speeches from Texas GOP Chair Allen West and Agriculture Commissioner Sid Miller, both of whom invoked the governor critically. At one point, Miller turned toward the mansion with a message for Abbott.

“Quite frankly, governor, your cure is worse than the disease,” Miller said.

West, who took over the party in July and has been an open critic of some of Abbott’s coronavirus decisions, read a resolution that the State Republican Executive Committee passed last month. The resolution tells Abbott: “No Exceptions, No Delays….Open Texas NOW.”

“We call upon the governor to do what is right by the people of the great state of Texas so that Texas can continue to be a leader,” West added. “And if the governor did not get this resolution, I’m gonna leave it right here, at the gates of the Governor’s Mansion.”

The protest drew at least 200 people, a virtually maskless crowd, to a parking lot steps away from the Governor’s Mansion in downtown Austin. After hearing from a lineup of speakers that also included state Sen. Bob Hall, R-Edgewood, the group marched on the streets and sidewalks surrounding the mansion, chanting, “Open Texas now!”

The audience was filled with signs expressing disgust at Abbott’s decisions to institute a statewide mask mandate and shut down certain businesses throughout the pandemic. One sign called Abbott the “#1 Job Killer in Texas,” while another called to “IMPEACH ABBOTT THE RHINO.”

I’ve been sitting on this for a few days in part because there’s so damn much other news that I’ve not been able to fit it in, and in part because it’s hard to add anything to “IMPEACH ABBOTT THE RHINO”. But we carry on.

West’s criticism of Abbott’s pandemic decisions has fueled speculation that he could run against the governor in 2022. As West prepared to start speaking at the rally, there were a couple chants of “West for governor!” which he sought to brush off, saying, “Oh, stop it, stop it, stop it.” Then there was another chant that drew cheers, prompting West to shake his head lightheartedly.

“Paid political announcement by a bunch of knuckleheads,” he said jokingly.

The idea of a carpetbagger like Allen West being a serious primary challenger to Greg Abbott is bizarre, to say the least, but we live in strange times. I do at this point believe someone will challenge Abbott in the primary, but who that might be and how seriously it will be taken remains unclear. Maybe this was Sid Miller’s audition for the job – he’s dumb enough to think he can do it, and clownish enough to appeal anyone who might think Allen West is some kind of savior. There’s plenty of room for this to get dumber, of that I’m certain. Dan Patrick as ever is the wild card, and likely the one Republican than Abbott actually fears. I don’t have any predictions – even if I did, it would be ridiculous to make them this far in advance – but I sure am interested in seeing how this plays out. We have a super consequential legislative session coming up, with redistricting and coronavirus and executive power and who knows what else that will dominate. How much does this kind of dissension affect Republican plans, or can they pull it together enough to support the things they all are supposed to like? Would a Dem Speaker remind them all of their real opponent? I don’t know, but these are the things I’ll be thinking about.

And it’s off to SCOTX for the Republicans who want to stop drive-through voting

It was inevitable.

State and local Republicans have taken their challenge of drive-thru voting in Harris County to the Texas Supreme Court.

In separate petitions, the Texas and Harris County GOP are asking the state’s highest court to limit drive-thru voting, which Clerk Christopher Hollins opened this year at 10 sites and made available to all voters.

The GOP argues the new practice is a form of curbside voting, which only is allowed for people who are sick at the time, have a physical condition that requires personal assistance or are at risk of injured health if they venture inside a polling location.

[…]

“The aforementioned criteria for curbside voting is equally applicable to ballots by mail voting,” the petition said. “With respect to ballot by mail voting, the Texas Supreme Court has already held that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code, and therefore, is not a sufficient basis to permit a voter to validly vote by mail.”

The county argues its drive-thru sites are not a form of curbside voting. The 10 sites are contained within a parking garage or tent facilities, a quality attorneys argue satisfies the criteria to be polling sites in their own right.

“The basic requirement for polling places is that it’s in a building,” Assistant County Attorney Doug Ray said. “We’re interpreting that as long as we have a permanent or temporary structure,” it’s OK.

Even if it were curbside voting, Ray argued, it is up to the voter to decide whether he or she has a disability. The county does not have the legal authority to question disability claims, he said.

It is not clear how the votes already cast at drive-thru sites would be handled if the Supreme Court were to side with the plaintiffs.

The state GOP’s petition asks for a ruling forcing Hollins to “reject any curbside voting efforts” that do not comply with its interpretation of the law.

See here and here for the background, and here for both of the plaintiffs’ petitions. I have no idea how quickly the Supreme Court might move on this, but we’ve had three full days of drive-through voting so far, and going by the daily report, thousands of people have used it. I can’t imagine any ruling for the plaintiffs that wouldn’t be deeply disruptive, and that’s exactly the sort of thing that’s not supposed to happen with court rulings close to an election. But like I’ve said, the Supreme Court’s gonna do what the Supreme Court’s gonna do, and all we can do is adjust when they do it. Stay tuned.

Petition to stop drive-through voting dismissed

That was quick.

Drive-thru and curbside voting programs in Harris County can continue after a state appeals court Wednesday quickly threw out a last-minute lawsuit filed by the Texas Republican Party challenging the county’s efforts to provide more voting options during the coronavirus pandemic. The state GOP had filed suit Monday night asking the court to place limits on curbside voting and halt drive-thru voting.

The appellate judges said the party and a voter who filed the suit did so too late, and did not show how they specifically might be injured by the voting practices. The lawsuit was filed just hours before early voting polls opened and more than a month after the Harris County Clerk announced his plan for drive-thru voting.

“The election is currently in progress and the relators delayed filing this mandamus until over a month after learning of the actions of the Harris County Clerk’s Office,” the panel of three judges on Texas’ 14th Court of Appeals wrote in their ruling dismissing the case.

A Texas Republican Party spokesperson said it plans to appeal Wednesday’s ruling to the Texas Supreme Court “to ensure that no illegal votes would be cast and counted in this election.” In an unrelated recent voting lawsuit, the state’s high court ruled against another voting challenge because it was filed too late, saying changes during an ongoing election could cause voter confusion.

See here for the background, and here for the 14th Court’s ruling. It should be noted that the court dismissed the petition “sua sponte”, which is the fancy Latin phrase for “on its own initiative”. In other words, the court didn’t ask for the defendants to submit a response – the petition didn’t meet the bar for having a claim to be decided. That’s a pretty strong statement.

A bit from the ruing makes it clear what the problem was, and it wasn’t just the timing. The first two issues the court addressed were the standing of the plaintiffs to bring this challenge:

To have standing under section 273.061, a party must demonstrate that it “possesses an interest in a conflict distinct from that of the general public, such that the defendant’s actions have caused the plaintiff some particular injury.” In re Kherkher, 604 S.W.3d 548, 553 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (quoting Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001)).The claimant must show a particularized injury beyond that of the general public. Id. “Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). “No Texas court has ever recognized that a plaintiff’s status as a voter, without more, confers standing to challenge the lawfulness of governmental acts.” Id. For example, a voter lacks standing to seek the removal of an ineligible candidate from the ballot because the voter has no special interest. See, e.g., Clifton v. Walters, 308 S.W.3d 94, 99 (Tex. App.—Fort Worth 2010, pet. denied); Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.).

Standing requires “a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman, 369 S.W.3d at 154. Texas has adopted the federal courts’ standing doctrine to determine the constitutional jurisdiction of state courts. Id. To maintain standing, petitioners must show: (1) an “injury in fact” that is both “concrete and particularized” and “actual or imminent”; (2) that the injury is “fairly traceable” to the defendant’s challenged actions; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ and that the injury will be ‘redressed by a favorable decision.’” Id. at 154–55 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

RELATORS’ FAILURE TO SHOW STANDING

Pichardo argues that he has standing to obtain mandamus relief under Election Code section 273.061 because, unless Hollins is compelled to enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting, Pichardo is at risk of having his vote canceled out by an ineligible vote. But that alleged harm is true of every member of the general public who is registered to vote. Pichardo lacks standing because he has not shown that he has an interest or a particularized injury that is distinct from that of the general public. See, e.g., Brown, 53 S.W.3d at 302; In re Kherkher, 604 S.W.3d at 553; In re Pichardo, No. 14-20-00685-CV, 2020 WL 5950178, at *2 (Tex. App.—Houston [14th Dist.] Oct. 8, 2020, orig. proceeding) (per curiam) (mem. op.).

The Republican Party of Texas argues that Hollins’s alleged intent to not enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting will harm its mission and purpose of advancing limited government, lower taxes, less spending, and individual liberty and promoting compliance with state election statutes. The Republican Party of Texas lacks standing because it has not shown that it has an interest or a particularized injury that is distinct from that of the general public. See, e.g., In re Kherkher, 604 S.W.3d at 553. The Republican Party of Texas cites no authority that supports its standing argument.

In other words, neither the voter they dragged up to be a plaintiff, nor the Republican Party of Texas itself, can claim any injury that a court would recognize. Their complaint basically amounts to “but some people might vote in a way we don’t like”, and the court has no time for that. At least, this court had no time for it. I suppose SCOTX could do something different, but that’s always the risk. The fact that voting has in fact already started should also be a barrier to entry, but again, we’ll see.

Three minor points of note: One, the GOP was represented by our old buddy Andy Taylor – just search the archives for that name, and you’ll see why I’m laughing. Two, this ruling also cited the 2008 lawsuit brought by supporters of then-Sen. Kim Brimer in their attempt to knock Wendy Davis off the ballot, before she successfully knocked Brimer out of the Senate. And three, based on that “In re Pichardo” footnote, this particular plaintiff has served that role for whichever Republican group is seeking to stop some form of voting in court before, during this cycle. Put that name on your watch list for the future, these guys get around. The Chron has more.

State GOP files suit to stop curbside voting in Harris County

Honesty, it feels like they’re just trolling now.

Hours before early voting began, the Texas Republican Party filed a new lawsuit Monday night challenging Harris County’s efforts to provide more voting options during the coronavirus pandemic, this time asking a court to limit curbside voting and halt the county’s drive-thru voting programs.

State election law has long allowed voters with medical conditions to vote curbside. After they arrive at a polling location, a ballot is brought outside to them in their vehicle by an election worker. In addition to urging qualified voters to use the curbside option this year, Harris County also opened designated “drive-thru” polling locations for all voters, where poll workers hand people a voting machine through their car window after checking their photo identification.

The state GOP’s lawsuit, filed in a state appeals court in Houston, seeks to halt the drive-thru voting program and limit curbside voting to those who have submitted sworn applications saying they qualify for it. Glenn Smith, a senior strategist with Progress Texas, said Tuesday he could find nothing in the law requiring an application to vote curbside. Texas election law instructs election officers to deliver an on-site curbside ballot if a voter is “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.”

“Unless stopped, each of these instances of illegal voting will cast a cloud over the results of the General Election,” the lawsuit states.

Chris Hollins, the Harris County Clerk, said the latest lawsuit is in line with the Republican Party “feverishly” using resources to limit people’s right to vote.

“This lawsuit is not only frivolous, but it’s also a gross misrepresentation of the differences between curbside voting — for voters with disabilities, including illness — and drive-thru voting, which is available for all voters who want to vote from the safety and convenience of their vehicle,” he said in a statement Tuesday.

[…]

The Republicans argue that fear of contracting the coronavirus isn’t enough under state election law to qualify for curbside voting. Their point is bolstered by a May ruling from the all-Republican state Supreme Court which said a lack of immunity to the coronavirus is not a disability that qualifies Texans to vote by mail. But Texas law differentiates between mail-in ballots — which must be requested ahead of time through an application under strict qualifications, like a disability — and curbside voting, which is requested onsite.

The Texas secretary of state’s office has repeatedly said this year that those who have symptoms or signs of the new coronavirus should use curbside voting. The office has provided placards for county election officials to use at polling locations that urge curbside voting for sick people or those who can’t enter a polling place without the “likelihood of injuring your health.”

[…]

Voters must provide photo identification, then will be handed a portable voting machine in their car, according to the website. The clerk’s office notes drive-thru voting is open to all voters, as opposed to curbside voting which is applicable for those with a disability.

The lawsuit filed Monday says drive-thru voting is an expansion of curbside voting, and therefore can’t be available to all voters. The Republican Party also notes that election law states polling places must be located inside a building, and the county’s promotional video for drive-thru voting is in an outdoor parking lot.

I will admit that I have generally not distinguished between curbside and drive-through voting. I’d not given any thought to the difference, or even that there was a difference. I will point out here that this drive-through method was piloted for the primary runoffs, and formally announced as part of the county’s overall election plan in August. I will also note that Bexar County had announced their own plans for drive-though voting even earlier in August. This once again raises the question of “if you’re gonna sue about this, why is it taking you so long?”

The Chron has some more details.

In a petition filed late Monday in Texas’ 14th Court of Appeals, the Texas Republican Party contended the Texas Election Code limits curbside voting, including drive-thru voting, to voters who are sick or disabled, or if voting inside the polling location “would create a likelihood of injuring the voter’s health.” Those provisions do not apply to the coronavirus pandemic, the party argued in its filing.

“Chris Hollins is telling all Harris County residents that they are eligible for curbside voting when he knows that is not the case,” the party said in a statement. “Any voter that does not qualify to vote curbside under narrow statutory language would be voting illegally if allowed to vote drive-through.”

[…]

Assistant County Attorney Douglas Ray said county officials are comfortable with the legality of drive-thru voting because they do not consider it to be a form of curbside voting. The drive-thru locations, he noted, are all inside buildings, such as garages and temporary structures, which he said prevents them from being curbside under Texas law.

“We looked at this carefully before we decided to do it and feel that it’s within the boundaries of the law,” Ray said. “It’s disingenuous on their part to try to classify drive-thru as curbside, because that is not what we’re doing.”

This was filed with the 14th Court of Appeals, so I presume it’s a writ of mandamus. (I couldn’t find any filings when I searched the 14th Court website, but maybe I was just searching wrong.) I presume also that the 14th Court is under no obligation to issue a ruling in a timely manner – I’d say sitting on this one, then dismissing it as moot is the fate it deserves, but then I’m both petty and Not A Lawyer, so don’t pay too much attention to that. We all understand what this is about, and we all understand the motivation for it. The courts are gonna do what they’re gonna do, and we’ll go from there. Let’s not give this any more thought than that.

Win one, lose one at SCOTX

The win:

Early voting in Texas can begin Oct. 13, following the timeline the governor laid out months ago, the Texas Supreme Court ruled Wednesday, rejecting a request from several top Texas Republicans to limit the timeframe for voters to cast their ballots.

In July, Gov. Greg Abbott ordered that early voting for the general election in Texas begin nearly a week earlier than usual, a response to the coronavirus pandemic. But a number of prominent Republicans, including state party Chair Allen West, Agriculture Commissioner Sid Miller and several members of the Texas Legislature, challenged that timeframe in September, arguing that Abbott defied state election law, which dictates that early voting typically begins on the 17th day before an election — this year, Oct. 19.

Abbott added six days to the early voting period through an executive order, an exercise of the emergency powers he has leaned into during the virus crisis. The Republicans who sued him argued this was an overreach.

The state’s highest civil court, which is entirely held by Republicans, ruled that the GOP officials who sued challenging Abbott’s extension waited until the last minute to do so, when he had already extended early voting in the primary election and announced he would do the same for the general months ago. Chief Justice Nathan Hecht noted also that the election is already underway.

“To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion,” he wrote in the opinion.

See here and here for some background, and here for the opinion. After noting that Abbott has “issued a long series of proclamations invoking the Act as authority to address the impact of the COVID-19 pandemic on a wide range of activities in the State” since his disaster declaration in March, the Court notes that the relators (the fancy legal name for “plaintiffs” in this kind of case) took their sweet time complaining about it:

Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor’s authority under the Act for the many other actions he has taken over the past six months. Relators’ delay precludes the consideration their claims require.

The dissent argues that relators acted diligently because they filed their petition in this Court four days after they received an email confirming that the Harris County Clerk intended to comply with the Governor’s July 27 proclamation. But relators’ challenge is to the validity of the proclamation, not the Clerk’s compliance.16 Relators could have asserted their challenge at any time in the past ten weeks. The dissent also argues that the Court has granted relief after similar delays. But none of the cases the dissent cites bears out its argument.17

Moreover, the election is already underway. The Harris County Clerk has represented to the Court that his office would accept mailed-in ballots beginning September 24. To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.

[…]

Mandamus is an “extraordinary” remedy that is “available only in limited circumstances.”20 When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.21 The record here reflects no justification for relators’ lengthy delay.

The “dissent” refers to the dissenting opinion written by Justice John Devine, who was all along the biggest cheerleader for the vote suppressors. I have no particular quibble with this opinion, which seems correct and appropriate to me, but the grounds on which the mandamus is denied are awfully narrow, which gives me some concern. The Court may merely be recognizing the fact that there are several outstanding challenges to Abbott’s authority to use his executive powers in this fashion, relating to mask and shutdown orders as well as election issues, and they may simply want to leave that all undisturbed until the lower courts start to make their rulings. That too is fine and appropriate, but I can’t help but feel a little disquieted at the thought that maybe these guys could have succeeded if the timing (and their lawyering) had been better.

That ruling also settled the question of counties being able to accept mail ballots at dropoff locations during the early voting process – the relators had demanded that mail ballot dropoff be limited to Election Day only. None of this is related to the issue of how many dropoff locations there may be, which is being litigated in multiple other lawsuits, four now as of last report. We are still waiting on action from those cases.

On the negative side, SCOTX put the kibosh on County Clerk Chris Hollins’ plan to send out mail ballot applications to all registered voters in Harris County.

The state’s highest civil court ruled Wednesday that Hollins may not put the applications in the mail. The documents can be accessed online, and are often distributed by political campaigns, parties and other private organizations. But for a government official to proactively send them oversteps his authority, the court ruled.

“We conclude that the Election Code does not authorize the mailing proposed by the Harris County Clerk,” the court wrote in an unsigned per curiam opinion.

The Republican justices sent the case back to a lower court in Harris County to issue an injunction blocking Hollins from sending the mailers.

The county has already distributed the applications to voters who are at least 65, who automatically qualify for absentee ballots, and has also begun sending out the applications to other voters who requested them. An attorney for Hollins estimated last week that the county would send out about 1.7 million more applications if the court allowed.

See here and here for some background, here for a statement from Hollins, and here for the unanimous opinion, which is longer than the one in the first case. The Court goes into the many ways in which the Legislature has expressed its intent that most people should vote in person, and then sums up its view Clerks getting creative:

Hollins’ mass mailing of ballot applications would undercut the Secretary’s statutory duty to “maintain uniformity” in Texas’ elections, the Legislature’s “very deliberate[]” decision to authorize only discrete categories of Texans to vote by mail, and its intent that submission of an application be an action with legal gravity.43

Authority for Hollins’ proposed mass mailing can be implied from the Election Code only if it is necessarily part of an express grant—not simply convenient, but indispensable. Any reasonable doubt must be resolved against an implied grant of authority. Mass-mailing unsolicited ballot applications to voters ineligible to vote by mail cannot be said to be necessary or indispensable to the conduct of early voting. Even if it could be, doubt on the matter is certainly reasonable and must be resolved against recognizing implied authority. We hold that an early voting clerk lacks authority under the Election Code to mass-mail applications to vote by mail. The State has demonstrated success on the merits of its ultra vires claim.

I’ve discussed my views on this before, when the appeals court upheld the original order, and I don’t have anything to add to that. I agree with Michael Hurta that this case will be cited in future litigation that aims to limit what Texas localities can do to innovate, which is what Hollins was doing here. It’s basically another attack on local control, and as I replied to that tweet, it’s another item to the Democrats’ to do list when they are in a position to pass some laws.

I hate this ruling for a lot of reasons, but that right there is at the top of the list. The Court based its ruling in part on the fact that Hollins was doing something no one else had thought to try – “all election officials other than Hollins are discharging this duty in the way that they always have”, they say as part of their reasoning to slap Hollins down” – and while I can see the logic and reason in that, we’re in the middle of a fucking pandemic, and sometimes you have to step outside the box a bit to get things done in a manner that is safe and effective. I get where the Court is coming from, and I admit that allowing County Clerks to experiment and freelance has the potential to cause problems, but it sure would have been nice for the Court to at least recognize that Hollins’ actions, however unorthodox they may have been, did not come out of a vacuum. Clearly, the fact that the arguments in this case were heard via Zoom didn’t sink in with anyone.

On a practical level, I don’t know how many people would have voted via absentee ballot who would not have otherwise participated. Some number, to be sure, but I really don’t think it’s all that much. It’s the principle here, one part making it harder to vote and one part keeping the locals in line, that bothers me. As has been the case so many times, we’re going to have to win more elections and then change the laws if we want some progress. You know what to do. The Chron has more.

When Republicans fight

Such a sight to see.

Gov. Greg Abbott’s most exasperating allies sure chose an awkward time to act up.

In the face of a momentous election, with an array of issues that includes the pandemic, the recession, climate change, racial justice, law enforcement and the next appointment to the U.S. Supreme Court, the chairman of the Texas GOP and a gang of lawmakers and activists have instead picked a fight with Abbott, who isn’t even on the ballot, over his response to the pandemic.

On the surface, they’re asking the courts to tell the governor that adding six more days of early voting to the calendar was outside of his powers. Abbott made the move under emergency powers he has claimed during the pandemic — the same powers he has used at various times to shut down schools, limit crowd sizes and limit how many customers businesses can serve at a time, or in some cases, to close businesses altogether.

The timing is connected to the Nov. 3 general election; even with the arguments over emergency powers, opponents of the governor’s action would be expected to grab for a remedy before early voting starts on Oct. 13. One might say the same about other lawsuits challenging the governor’s orders — that they’re tied not to politics, but to current events. Bar owners want to open their bars, for instance, and are not in the financial condition or the mood to stay closed until after the elections just to make the current set of incumbents look good.

What’s unusual is to see so many prominent Republican names on the top of a lawsuit against the Republican governor of Texas this close to an election.

In a gentler time, that might be called unseemly or distracting. Speaking ill of another Republican was considered out of bounds for a while there. Those days are over. What’s happening in Texas illustrates how the pandemic, the economy and other issues have shaken political norms.

As the story notes, this is also playing out in the SD30 special election, where Shelley Luther – supported by a million dollars from one of the Empower Texans moneybags – is busy calling Abbott a “tyrant”. There’s talk of various potential primary challengers to Abbott in 2022 – see the comments to this post for a couple of names – but I don’t see any serious threat to him as yet. If Dan Patrick decides he wants a promotion, then we’ve got something. Until then, it’s all talk.

But let me float an alternate scenario by you. What if the nihilist billionaires behind Empower Texans decide that Abbott and the Republican Party have totally sold out on them, and instead of finding someone to take Abbott out in a primary, they bankroll a petition drive to put some pet wingnut on the November ballot, as an independent or the nominee of some new party they just invented? It’s crazy and almost certain to hand the Governor’s mansion over to the Democratic nominee, but no one ever said these guys were strategic geniuses. It’s been said that there are three real political parties in Texas – the Democrats, the establishment Republicans, and the far right whackadoo Republicans. This would arguably be an outgrowth of that, and in what we all hope is a post-Trump world, there may be similar splits happening elsewhere.

How likely is this? As I said, it makes no sense in the abstract. It’s nearly impossible to see a path to victory for either Abbott or the appointed anti-Abbott. It’s instructive to compare to 2006, where Carole Keeton Strayhorn and Kinky Friedman were taking votes away from both Rick Perry and Chris Bell. Nobody who considers themselves remotely a Democrat is going to be wooed by whoever Empower Texans could vomit onto the ballot. Maybe they would consider a victory by Julian Castro or whichever Dem to be preferable to another Abbott term, in their own version of “the two parties are the same, we must burn down the duopoly to get everything we want”. Just because it makes no sense doesn’t mean it can’t happen. For now, if I had to bet, my money would be on some token but not completely obscure challenger to Abbott in the primary – think Steve Stockman against John Cornyn in 2014, something like that. But a lot can happen in a year, and if the Dems do well this November, that could add to the pressure against Abbott. Who knows? Just another bubbling plot line to keep an eye on.

Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

In a brief filed with the Texas Supreme Court, Texas Attorney General Ken Paxton argues that the GOP group suing Gov. Greg Abbott to prevent him from extending early voting for the November election has no standing and has failed to prove any harm.

Conservative activist Steve Hotze and a long list of high-profile Texas Republicans claim Abbott is violating Texas election law and overstepping his authority without first consulting with the Texas Legislature.

Paxton counters that delegation of powers is both necessary and proper in certain circumstances.

“The Legislature properly exercised its delegation power when it enacted the Disaster Act because it contains adequate standards to guide its exercise,” Paxton’s brief reads. “It sets parameters for what constitutes a disaster, provides a standard for how the governor is to declare one, places limits on his emergency powers, and specifies when the disaster ends.”

See here for the background. A copy of the Paxton brief is here. The introduction is worth a read:

To the Honorable Supreme Court of Texas:

Relators direct their petition at the Secretary of State, even though they do not allege that she has undertaken or threatened to undertake any unlawful action. Neither the Governor’s July 27 proclamation (“the Proclamation”) nor the Election Code imposes any ministerial duty on the Secretary. And the provisions of the Election Code concerning early voting are administered by county election officials, not the Secretary of State. Although the Election Code designates the Secretary as Texas’s “chief election officer,” this Court has long held that does not give her generalized enforcement power over every provision of the Election Code. Moreover, the Proclamation independently binds each county’s early-voting clerk, so any mandamus issued against the Secretary would not remedy Relators’ grievances. Indeed, granting the relief Relators seek would have no impact at all—which makes this petition nothing more than a request for an advisory opinion.

Relators’ merits arguments are similarly misguided. They raise multiple constitutional challenges to the Disaster Act, but none is properly before this Court because the Disaster Act delegates no power to the Secretary. And in any event, the Governor’s discretion and authority under the Disaster Act are cabined by reasonable standards, so it is a lawful delegation of legislative power, and the July 27 Proclamation is a proper exercise of that delegated power.

Relators waited two months to file this mandamus petition, yet they ask this Court to “alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). They are not entitled to relief.

Well, now we know where Ken Paxton’s line in the sand is: He’ll value the Governor’s executive power over a challenge to voting rights. Well, he’ll value this Governor’s executive power over a challenge to this Governor’s use of that executive power to enhance voting rights. Good enough for these purposes, I suppose.

Other court documents related to this writ are here. There are now documents available relating to the latest Harris County writ as well, which you can find here. Responses to that are due today at 4 PM. Have I mentioned lately that I will be happy to ease up on all the legal blogging? Please get me past this election, that’s all I ask.

Hotze and crew appeal to SCOTX to stop the extra week of early voting

Here we go again.

Republican Gov. Greg Abbott is facing a lawsuit over his extension of early voting for the November election from prominent members of his own party — including state party Chairman Allen West, Agriculture Commissioner Sid Miller and members of the Texas Legislature.

In July, Abbott added six days to the early voting period, moving the start date up to Oct. 13 from Oct. 19, citing the coronavirus pandemic. In the lawsuit, filed Wednesday with the state Supreme Court, Abbott’s intra-party critics say the move defied election law that requires early voting to start on the 17th day before the election.

It is the latest legal challenge to Abbott’s emergency powers, which he has wielded aggressively in dealing with the pandemic.

“Governor Abbott seems to have forgotten that the Texas Constitution is not a document that he consults at his convenience,” Jared Woodfill, a lawyer for the plaintiffs, said in a statement. “It is an uninterrupted charter of governmental structure that limits the Governor Abbott’s ability to act as a king.”

The plaintiffs argue Abbott needs to consult the Legislature before making such decisions and that “if ever a special session was justified, now is the time.”

One of the plaintiffs is Steve Hotze, the Houston conservative activist who has launched several lawsuits against Abbott’s coronavirus response that has seen minimal success so far. But in the latest lawsuit, he is joined by not only West and Miller, but also three state senators and four state representatives, as well as the chairman of the Harris County party, Keith Nielsen, and the Republican National Committeeman from Texas, Robin Armstrong.

West, who took over the state party this summer, has openly expressed disagreement with aspects of Abbott’s coronavirus handling, including his statewide mask mandate and the early voting extension. West seemed to telegraph the lawsuit Tuesday, saying in a statement that he would be partnering with Hotze to make election integrity a “top priority.” West said in the same statement that he opposes the “extension of early voting through the decree of a single executive instead of through the legislative process.”

[…]

In addition to making the early voting period longer for the November election, Abbott gave voters more time to turn in their mail-in ballots in person if they choose to do so. Usually those voters are permitted to submit their ballots to the early voting clerk’s office in person instead of mailing them in — but only while polls are open on Election Day. Abbott’s expanded that option to the entire early voting period.

The lawsuit filed Wednesday additionally seeks to stop the extended period for submitting mail ballots in person, also calling the move inconsistent with the election code.

Before we go on, I should note that what was filed was not a lawsuit but a writ of mandamus. Hotze and a smaller crew of jackals had already filed a lawsuit in Travis County district court about a month ago. I presume this writ was filed because they weren’t going to get a ruling in time, and everything is an emergency as far as Hotze is concerned.

The Chron adds some detail.

In the 40-page petition filed Wednesday, the Republicans wrote that the extension was unlawful because the Texas Election Code defines the early voting periods as “the 17th day before election day … through the fourth day before election day,” and the time for in-person submission of mail-in ballots as “only while the polls are open on election day.” The petition seeks to force Secretary of State Ruth Hughs to stick to the timelines in the law.

Hotze has filed a number of lawsuits aimed at Abbott’s COVID-19 emergency orders; in the early voting suit, he again alleges that Abbott does not have the authority, even during a disaster, to suspend laws through executive order. Instead, he says, Abbott should have convened the Legislature.

“If ever a special session was justified, now is the time,” the petition states. “Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections. As long as this Court allows it to occur, one person will continue to unilaterally make these decisions under the guise of an unconstitutional statute.”

The lawmakers involved in the suit are state Sens. Charles Perry, Donna Campbell and Pat Fallon and state Reps. Bill Zedler, Cecil Bell, Jr., Steve Toth and Dan Flynn. Additional relators include former state Reps. Matt Rinaldi, Rick Green and Molly White; Harris County Republican Party Chair Keith Nielson; and several other candidates and Republican group leaders.

This story notes the earlier lawsuit. Of interest is the larger group of legislators that have joined in, which distinguishes this action from earlier Hotze/Woodfill joints. Perhaps the election of Allen West, who is as bananas as Hotze, has lent an imprimatur of establishment approval to this kind of rogue action. That said, this is the Hotze clown car we’re talking about, so of course there’s some unintentional comedy involved:

Never stop never stopping, Stevie.

Anyway. You know my opinion on all this – there are some legitimate questions buried under the mountains of palaver, but they are being asked by the worst possible people. I think there’s a strong case to be made that the very nature of our biennial legislature, which is not paid as an occupation but as a temp gig, makes this claim about calling special sessions impossible. It’s just not something that the system is designed to accommodate. My guess is that SCOTX will give this the same reception as they’ve given all of Hotze’s other writs and motions during the COVID times, but you just never know. And I can’t wait to see how Ken Paxton responds to this.

On a side note, this comes as Steve Toth, yet another froth-at-the-mouth type, officially announced that he is unfriending Abbott, which by itself isn’t that interesting but lends some fuel to the speculation that Abbott is going to get a challenger from the far wingnut right in 2022. All I can say to that is that we damn well better have a good candidate ready and waiting for whoever survives that mud fight.

They just don’t want you to vote by mail

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

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

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

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

[…]

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

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

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

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

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

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

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

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

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

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

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

[…]

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

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

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

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

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

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

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

Hotze and the Harris County GOP try to stop the Clerk from sending out mail ballot applications

It’s mandamus time! Again.

The Harris County Republican Party on Monday joined a lawsuit asking the Texas Supreme Court to halt the county clerk’s plan to send mail ballot applications to all 2.4 million registered voters.

The lawsuit accuses County Clerk Christopher Hollins of ignoring the court’s June ruling on mail ballots and misreading the Texas Election Code.

“Harris County has a rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County,” the suit states. The other plaintiffs in are conservative activist Dr. Steven Hotze, and Sharon Hemphill, a Republican running for judge in the 80th Judicial District Court.

[…]

The suit argues that the Election Code states residents must request a mail ballot application, and that absentee voting in Texas is reserved for a small group of voters. Since the code does not specifically permit a county clerk or elections administrator to send mail ballot applications to residents who do not request them, the suit claims this practice is illegal.

Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice, told the Houston Chronicle on Friday that nothing in the Texas Election Code prohibits Harris County from mailing applications to whomever the clerk chooses.

The plaintiffs also claim Hollins disregarded the Supreme Court’s June ruling, which held that lack of immunity to COVID-19 alone did not qualify voters for a “disability,” one of three conditions that permit a resident to vote by mail in Texas.

Hollins and the Harris County Attorney’s Office have interpreted the ruling to mean that fear of the virus can constitute one of several factors to meet the disability standard. Since the county clerk has no duty to challenge mail ballot applications, this effectively leaves voters to decide for themselves where they qualify.

See here and here for the background. This mandamus makes two arguments, both of which seem incredibly thin to me. One is a rehash of the state Supreme Court opinion in the earlier lawsuit by the TDP to expand vote by mail, in which SCOTX agreed with the state that “lack of immunity to COVID-19” did not qualify as a “disability” under the law that defined vote by mail eligibility. That opinion also concluded that it was up to the voter to determine whether or not they met the definition of “disability” under this law, and that local election administrators have “no responsibility to question or investigate a ballot application that is valid on its face”. Their claim is that this means that it’s illegal to send people who may not qualify for a mail ballot an application for a mail ballot, which sure looks to me like an enormous leap. I can certainly imagine SCOTX taking an opportunity to clarify their earlier ruling, but I would hope they’d prefer to do it after a case has been argued and facts established by a lower court.

The other argument is an even bigger head-scratcher. Allow me to quote:

III. State Law Requires Voters to Request an Application to Vote by Mail

The Texas Election Code § 84.012 states: CLERK TO MAIL APPLICATION FORM ON REQUEST. The early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.

Limitations on voting by mail and fraud related to the voting by mail process has been the subject of “intense political debate, in this State and throughout the country.” In re State, 602 S.W.3d 549, 550 (Tex. 2020). This Court has not taken “a side in that debate,” and has left the decisions regarding voting by mail “to legislators and others.” Id.

The issue before this Court is not whether the application process for voting by mail is a better policy or worse, but what the Legislature has enacted. It is purely a question of law. This Court’s “authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent.” Id.

Here’s the law in question. I Am Not A Lawyer, but I am capable of reading an English-language sentence and inferring its meaning. I say the plain meaning of this text is that the intent of the Legislature was to mandate that County Clerks send a mail ballot application to anyone who requests one. The purpose of this law is to remove any discretion from the Clerk’s procedure – in other words, to forbid a Clerk from deciding not to send someone a mail ballot application because the Clerk thinks that person is ineligible or whatever else. I’m hard-pressed to see how this could be interpreted any other way.

The law, as written, does not specify that the Clerk may not send an application to anyone who did not specifically ask for one. Nor does it say that they Clerk may only send an application to those who do. It just says that if a Clerk gets a request for a mail ballot application, the Clerk must send the mail ballot application. What else would it mean?

The relators elaborate on their argument a couple of paragraphs later, and it’s almost as if they’re trying to make my argument:

A. The plain language of Texas Election Code § 84.012 prohibits Respondent from sending applications to all registered voters.

Texas statutes are to be interpreted based on their plain language. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). The Court presumes the Legislature included each word for a purpose and that words not included were purposefully omitted. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). It also presumes the Legislature understood and followed the rules of English grammar. Tex. Gov’t Code § 311.011; See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (describing the presumption as “unshakeable”).

[…]

The plain language of the statute makes it clear that the clerk shall mail the appropriate official application form for early voting only to “applicant[s] requesting the clerk to send the application form.” Id. The Texas Election Code § 84.012 does not allow for the clerk to send applications to all registered voters.

The Legislature’s refusal to add such language is consistent with the Legislature’s desire to curtail fraud associated with voting by mail. If the Legislature had wanted to require the clerk to send the application to vote early to all registered voters, they could have done so. Additionally, if they wanted the clerk to have this option, they could have provided it in the language of the statute. Instead, the Legislature limited the mandate to provide the application only to those who request it.

Emphasis in the original. Note how the word “only” in the penultimate paragraph is not included in the quote from the law. That’s because that word was not included in the law. Like I said, it’s almost as if they agree with me.

I would also point out that if the Legislature really did intend to “limit the mandate to provide the application only to those who request it”, then campaigns and political parties have been violating this law with impunity for decades. I myself would have violated it in 2018 when I participated in HCDP phone banks to remind voters that the HCDP had already sent mail ballot applications to complete them and mail them in. Remember how the TDP recently boasted about sending out zillions of mail ballot applications to voters this year? Or for that matter how County Clerk Hollins sent mail ballot applications to all registered voters 65 and over for the primary runoffs? No one filed any mandamuses over those actions. That’s because the law does not forbid them. Capische?

Now again, the relators here are trying to wedge the door open to allow SCOTX to revisit its opinion from that earlier suit and clarify that no, actually, only people who are Legitimately Disabled (whatever that means) can get mail ballots. That would mean not only making up a new law on the spot but also defining how to enforce it, and while I would not put it past the Supreme Court to try and pull such a stunt, it would be a big goddamn mess if they did so. I don’t think they have it in them, but we’ll see.

One more thing: Do go and give this mandamus a scan – the link from above is to a Quorum Report post, and the mandamus filing is there as a downloadable PDF. Look at how much of the language in this filing is about buzzwords and slogans – fraud! rogue! more fraud! – and how little refers to actual law and precedent. Now compare it to the mandamus writ in the attempt to knock Libertarian candidates off the ballot, which whatever you may think of it is sober, to the point, and full of citations. Maybe it’s just me, but the former comes off as desperate, while the latter has some faith in its arguments. Campos has more.

Republicans go to Supreme Court to remove Libertarian candidates

If at first you don’t succeed, make up a new statutory deadline that you claim is the real date that matters.

About a week after Texas Democrats took several Green Party candidates to court and had them knocked off the ballot for failing to pay candidate filing fees, state and national Republicans are taking a similar case to the state’s highest civil court.

The Third Court of Appeals ruled against three Green Party candidates, but in the case of the Libertarians, the court dismissed the case as moot, saying it was no longer timely because the Aug. 21 deadline to declare a candidate ineligible had passed. The Republicans’ petition was filed Aug. 21.

This latest lawsuit filed by the Republicans names 40 Libertarian candidates, including two candidates for Texas Supreme Court, three for Texas Senate, 10 for Texas House and 25 for Congress.

The high court doesn’t have much time to take action: Friday was the deadline for the Secretary of State to certify candidates for the ballot.

“It’s a last-ditch effort on their part,” said Libertarian Party of Texas Chair Whitney Bilyeu. “They’re clearly desperate to do everything they can to remove voter choice at the polls to continue to have a one-party state here in Texas.”

The Libertarians say their candidates chose not to pay the fee for various reasons: some were taking a personal stand against a law they believe to be unconstitutional, some filed with the Secretary of State during a window of time when a judge had temporarily blocked the law, and others simply did not have the funds.

The filing fees in Texas are $3,125 for the U.S. House, $1,250 for Texas Senate and $750 for Texas House. Fifty-three of 70 Libertarian candidates paid theirs, state data shows.

Lawyers for the Republicans wrote that “timing is of the utmost importance” because “each day closer to September 19 — the date ballots are mailed — makes relief less practical.”

[…]

At the Texas Supreme Court, the Texas House Republican Caucus PAC and National Republican Congressional Committee, as well as 27 of their candidates and the GOP parties in Harris, Travis and Tarrant counties, are arguing that while the deadline to challenge eligibility may have passed, the deadline to challenge a candidates’ application is Sept. 18, the day before any mail-in ballots are sent out.

See here for the background. Patrick Svitek has a copy of the writ of mandamus, and honestly the “Relief Requested” section of the document, starting on page 18, explains why this is different in a fairly clear manner:

When a candidate fails to submit the required filing fee, there is confusion whether the appropriate challenge is to the application, under Chapter 141 or the eligibility under Chapter 145. The statute is less than crystal clear on this point, providing that “To be eligible to be placed on the ballot for the general election . . . a candidate must” pay a filing fee or submit a petition in lieu of a filing fee. TEX. ELEC. CODE § 141.041(a) (emph. added). At the same time, Chapter 141 provides that a challenge under this section, to provide the application, is not “a determination of a candidate’s eligibility.” TEX. ELEC. CODE § 141.034(b).

Adding to the confusion, courts and parties have intermingled these two challenges. See In re Davis. No. 03-20-00414-CV, 2020 Tex. App. Lexis 6663 (Tex. App.—Austin, Aug. 19, 2020, orig. proceeding) (granting mandamus relief challenging a minor candidate’s eligibility under Chapter 145 based on a candidate’s failure to pay the required filing fee).

Candidly, in the tight window to seek mandamus relief, many of the Relators fell in the same trap last week when they challenged certain Libertarian candidates eligibility under Chapter 145. The Third Court of Appeals denied that relief, finding it untimely.

But, as an analysis of the statutory scheme and case law bear out, a challenge to a candidate’s failure to submit the application with the required filing fee is a challenge arising under Chapter 141.

This distinction is important because challenges to application— versus eligibility—have different timing requirements. The Third Court of Appeals concluded that a challenge to eligibility must be completed by the 74th day preceding the election. On the other hand, a party can challenge a candidate’s application, including the failure to pay the filing fee “the day before any ballot to be voted early by mail is mailed . . .” TEX. ELEC. CODE § 141.032. That date is September 18.

Relators institute this new original proceeding under Texas Election Code Section 273.061, challenging the candidates’ ability to appear on the general election ballot for failure to submit the required filing fee under Chapter 141. As this is a new action, requesting new relief, this is an appropriate original jurisdiction proceeding before this Court. In this action, Relators ask the Court to compel the Libertarian Party of Texas and its Chair to comply with their statutory duty to reject these applications and to notify the Secretary of State of the rejection. If the Secretary of State is made aware of the rejection, it can take appropriate corrective action.

There is no question of timeliness in this challenge, as it can occur at any time prior to September 18. Practically, though, after August 28, the Secretary of State will begin to make arrangements to print and distribute ballots. Thus, timing is of the utmost importance. Should this Court issue relief, the Secretary of State can take corrective action through early September. However, each day closer to September 19—the date ballots are mailed—makes relief less practical.

Basically, what this claims is that the challenge that the Third Court rejected was made under the wrong law, given the timing. This challenge is made under a different law, where the timing is not an issue, at least not yet. Will it fly? I have no idea, but points for effort.

Two other items of interest here. One is that the long list of relators (again, that’s what you call a plaintiff in a case like this) here includes multiple Republican candidates, presumably all of whom have a Libertarian opponent. You may recall from the previous challenge that the absence of Republican candidates in affected races raised the question of standing. The Third Court did not address that issue because they ruled that the motion was moot, but the Supreme Court would surely have to address it in any race where the candidate was not among the relators. Two, the story says that 53 of 70 Libertarian candidates did in fact pay the filing fee, but the Republicans named 40 of them in this writ and claimed none of them paid the fee. Both of these facts can’t be true, so we’ll see what the court says. My guess is we’ll get an answer in short order.

Let the sun shine in

Make ’em disclose.

Empower Texans, the deep-pocketed conservative advocacy group, is well-known for its heavy hand in steering the Texas GOP further to the right and for its shadowy setup that hides its funding sources from the public.

But a court case seeking to force the group’s leader to register as a lobbyist could reveal more about the inner workings of the organization — and others like it in Texas — than ever known before, after the Texas Supreme Court last month ruled that it must divulge communications and financial records to the state ethics commission.

Empower Texans CEO Michael Quinn Sullivan, through his dark money group — made up of a web of political action committees and of nonprofits that aren’t required to report donors — has made $9.5 million in political contributions since 2007, state records show. All the while, Sullivan has been able to keep secret even basic information such as his own compensation, which a Hearst Newspapers analysis found was hundreds of thousands of dollars more than the salary reported on tax forms.

[…]

The suit stems from a 2014 fine the Texas Ethics Commission assessed against Sullivan for failing to register as a lobbyist starting in 2010. Sullivan appealed, and a series of delays have held up the case from going to trial, including a fight over the county where it should be held and attempts by Sullivan to have it dismissed.

Sullivan and his attorney, Tony McDonald, did not respond to requests for comment.

In a parallel court case, Sullivan is trying to gut the state agency, alleging that the Texas Ethics Commission does not have the legal authority to carry out actions such as levying fines for campaign finance law violations, saying only an executive branch agency, not a legislative branch agency, can enforce laws.

That suit, which is before the 8th Court of Appeals in El Paso, also has the potential to reorganize the ethics commission, which already has some of the weakest enforcement capabilities in the country.

But in a testament to the political influence of Empower Texans in Republican circles, Attorney General Ken Paxton has declined to defend the Ethics Commission in that suit.

Instead, Paxton, who has received more than $400,000 in campaign contributions from Empower Texans since 2009, has sided with Sullivan — saying he agrees with the group’s legal stand and has a “duty to uphold the Constitution,” despite his obligation by statute to defend challenges to state laws, state agencies and state employees.

The ethics commission has hired its own lawyers in the case.

I probably have some posts about this case in the archives, but I didn’t feel like spelunking for them. You already know everything you need to know about Empower Texans and MQS, truly the scum of Texas politics. The bottom line for me is that I do not understand the argument that this organization somehow deserves to be exempted from disclosure laws. Every single thing they do is for the purpose of influencing our government. The rest of us have a right to know who’s paying for that. It’s all just sophistry and special pleading after that.

Your Harris County Republican Party

What can one possibly say?

Keith Nielsen has taken office as the chairman of the Harris County GOP, despite saying he would not do so earlier this summer after facing backlash to an image he posted on Facebook juxtaposing a Martin Luther King Jr. quote with a banana.

Nielsen, elected in March, was set to automatically take over as the party leader in Texas’ biggest county, home to Houston, at 12 a.m. Monday. To forfeit the office, he would have had to notify the party secretary prior to midnight, which he did not do, according to party spokeswoman Genevieve Carter.

By Sunday night, over 120 precinct chairs had signed on to a statement reminding Nielsen of his early June “declination to take the office.”

In recent weeks, all signs pointed to Nielsen reneging on his promise to not take office. He showed up to a meeting with state Senate district chairs last month and left the impression that he was reversing himself, and last week, he announced an Aug. 18 meeting with precinct chairs in an email that he signed as the “chairman-elect.”

Nielsen never publicly confirmed his intentions as questions mounted about whether he was going back on his word. Meanwhile, some of the prominent GOP officials who had initially pressured him to step aside reiterated their calls. The group included Lt. Gov. Dan Patrick and U.S. Rep. Kevin Brady, of Conroe.

“A bigot whose word is no good,” Brady tweeted Tuesday. “This is not what the party of Lincoln stands for. He needs to be removed. Now.”

It was not immediately clear how Nielsen could be ousted.

See here for some background. As a reminder, there were quite a few other GOP county party chairs who said nasty racist things on Facebook following the George Floyd murder, and they’re still in their positions. Plus, you know, Sid Miller. Good luck sorting this all out, y’all.

State GOP wraps up its historic convention

And what a convention it was.

Allen West, the firebrand former Florida congressman, has defeated Texas GOP Chairman James Dickey to lead the country’s largest state Republican Party.

West claimed victory shortly before 3:30 a.m. Monday, while Dickey conceded about an hour later. The developments came during an early morning round of voting among state Senate district caucuses at the party’s virtual convention.

“I wish Lt. Col. West the very best in this role,” Dickey, who had been running for a second full term, wrote on Facebook. “Thank you for the honor of serving as your Chair. Let’s win in November.”

West moved to Texas several years ago and became politically active here. His victory means an abrupt change in party leadership with less than four months until one of the most challenging elections that Texas Republicans are facing in a long time.

West’s campaign said Monday morning he would “immediately resume the responsibilities of the role and begin to implement his strategy to hold Texas.”

“I am honored and privileged that Republicans of Texas have selected me to Chair their party and to be at the helm during this coming election cycle,” West said in a statement. “We need to focus on maintaining the conservative policies that made Texas strong and drive voter outreach across the state.”

Yeah, that Alan West. Let’s just say that any hope the Texas GOP might eventually stumble their way towards a higher level of rationality and engagement with the 21st century will need to be reassessed.

West brought a high profile to the race and huge financial advantage, vastly out raising and outspending Dickey. While West stumped on building a more ambitious Texas GOP, he also courted support from some in the party who believe Dickey had grown too unwilling to stand up to state leaders when it came to the party’s legislative priorities and the scandal last year that forced House Speaker Dennis Bonnen into retirement.

But no issue overshadowed the closing weeks of the race like the party’s insistence on conducting an in-person convention in Houston despite the coronavirus pandemic. After the convention center operator nixed the party’s contract earlier this month, the party launched a legal battle to continue with an in-person convention. The party lost in the courts shortly before the convention was set to begin, leaving it with a short period to transition to a virtual gathering.

Despite promises that the party had a virtual backup plan all along, the convention opened Thursday with almost immediate technical problems, and the State Republican Executive Committee voted that night to pause the event for a day Friday to resolve the issues. When the convention came back Saturday, things were still rocky — delegates complained they had still not received credentials, committees took much longer than scheduled and livestreaming problems ruined speeches by some of the state’s top elected officials.

West largely stayed out of the convention debate until recent days, when he criticized Dickey for not having an adequate backup plan and questioned the voting technology for the virtual gathering. On Saturday afternoon, he joined calls for Dickey to halt the convention until every delegate could be credentialed.

There were issues, to be sure (more here). I actually think it’s a little bit unfair to blame them all on James Dickey – it was the party faithful that voted to have this thing in person, despite common sense and an eventual Supreme Court ruling – but the buck stops at the top, and there’s no excuse for not having a viable backup plan in place. I’m just saying I wouldn’t expect much better from the Allen West regime. Not my problem, obviously. Have fun sorting it all out, guys. The Statesman and Mother Jones have more.

Federal judge rules GOP can have its in person convention

Unbelievable.

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

[…]

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

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

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

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

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

Censuring Abbott

An amusing sideline, if nothing else.

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

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

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

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

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

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

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

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

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

The GOP convention is off to a great start

Ain’t technology great?

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

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

The frustration was evident in the social media comments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State Supreme Court denies GOP effort to force convention to happen

Denied.

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

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

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

[…]

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

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

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

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

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

AG sides with Mayor Turner in GOP convention litigation

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

Mayor Sylvester Turner

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

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

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

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

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

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

Who wants to enforce Greg Abbott’s mask order?

Anyone? Anyone? Bueller?

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

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

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

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

It’s more than just a few.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Greg Abbott has no one to blame but himself

Let’s be very clear about this.

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

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

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

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

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

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

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

[…]

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

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

I have many thoughts about this.

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

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

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

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

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

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

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

Dems ask some Supreme Court justices to recuse themselves from convention appeal

Stay with me here, this will all make sense.

The Texas Democratic Party on Friday called for four of the state’s nine Supreme Court justices to recuse themselves from a case involving the Texas Republican Party’s in-person convention, claiming each had a conflict of interest.

The campaigns of Chief Justice Nathan Hecht and Justices Jane Bland, Jeffrey Boyd and Brett Busby each sponsored the convention, according to an archived list of sponsors that since has been removed from the Texas GOP’s website.

[…]

Texas GOP officials are seeking a writ of mandamus from the court that would block Turner from canceling the convention, a day after a Harris County judge denied the party’s attempt to do so in state district court.

Democratic Party Chairman Gilberto Hinojosa said the four justices, each of whom is up for re-election in November, are “faced with an obligation to do the right thing and choose the law over political allegiance.”

“A justice who funds a dangerous convention should not judicially decide the fate of that same convention,” Hinojosa said in a statement. “All four have interests in the case coming before them and all four should recuse.”

See here for the background. The allegation is that by sponsoring the convention and being on the November ballot, these judges have a conflict of interest. A press release from the TDP provided the following justification for the petition:

Canon 3(B)(1) of the Texas Code of Judicial Conduct provides that Texas judges “shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”

Texas Rule of Civil Procedure 18(b) requires a judge to recuse themself from a case when “(1) the judge’s impartiality might reasonably be questioned” or “(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”

I’m not qualified to assess this claim, but I will note that if the four Justices do recuse themselves, there’s still enough justices left to issue a ruling, and since all nine are Republicans it doesn’t change the dynamic. Given the compressed timeline for this litigation, I presume we’ll get an answer quickly.

GOP sues over cancelled convention

As the night follows the day.

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

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

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

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

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

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

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

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

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

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

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

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

Seems like a match made in heaven to me.

City cancels Republican convention

Game on.

Mayor Sylvester Turner

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

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

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

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

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

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

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

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

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

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

UPDATE: Right on schedule:

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

GOP declines Turner’s invitation to cancel their convention

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So how’s Greg Abbott doing post-mask order?

Greg Abbott consistently polls as the politician with the highest approval rating in the state. He was basking in adulation a few weeks ago when things were reopening and the coronavirus numbers still looked good. How are things going for him now that he’s had to shut down the bars and require masks and we’re all worried about the hospitals overflowing? Well, there’s this:

The Montgomery County Sheriff’s Office says it will not enforce Gov. Greg Abbott’s order requiring most Texans to wear masks when they’re in public.

In a statement, the agency said it “will take NO actions to enforce” the order, arguing that it is unenforceable because it doesn’t allow law enforcement to detain, arrest or jail violators.

“This language strips law enforcement of the necessary tools to enforce compliance with the law,” the agency said.

[…]

The sheriff’s office argued the order could subject it to civil liability if deputies stop someone for failing to wear a mask and it is misconstrued as a detention. The agency said “holding someone for the purpose of issuing a citation related to a fine is a legally defined detention under current Texas law.”

“We are in a public health crisis and we will use this opportunity to educate our community while still respecting individual liberties,” the sheriff’s office said.

They did say they would respond to a call from a business who had a customer who refused to wear a mask upon entering. Sheriffs from a couple of other Republican counties have made similar statements as well. I mean, I can kind of see their point here, and as we know Greg Abbott basically destroyed the legitimacy of any kind of enforcement mechanism for mask and stay-at-home orders in the Shelley Luther debacle. It’s still a bit stunning to see a Republican sheriff say publicly that they won’t do what Abbott wants them to do. They appear to have no fear of political blowback.

Which leads us to this:

The Ector County Republican Party voted Saturday to censure Gov. Greg Abbott, accusing him of overstepping his authority in responding to the coronavirus pandemic, while state Sen. Charles Perry, R-Lubbock, called for a special session so lawmakers could have a say in how Texas proceeds amid soaring caseloads.

The party executive committee in Ector County, home to Odessa, passed the censure resolution 10-1, with one abstention and three voting members who were not present, according to the chairperson, Tisha Crow. She said she was among those who supported the resolution, which accuses Abbott of violating five party principles related to his exercise of executive power during the pandemic.

While the resolution asks that delegates to the state convention later this month consider — and affirm — Ector County’s action, Crow said consideration is “not guaranteed,” and one precinct chair, Aubrey Mayberry, said the resolution “doesn’t have any teeth” for now — but that it was important to send a message about what they consider Abbott’s overreach.

Mayberry, who voted for the resolution, said he was working with precinct chairs in other Texas counties to get similar resolutions passed ahead of the convention.

That’s a pretty direct slap in the face, and with the state GOP convention almost upon us, the potential for this to become A Thing is substantial. Will that represent some steam that has been blown off, or will it be the first step towards a serious rebellion? That’s an excellent question.

[State Sen. Charles] Perry wrote Saturday on Facebook that he is “deeply concerned about the unilateral power being used with no end in sight.”

“This is why I urge Governor Abbott to convene a special session to allow the legislature to pass legislation and hold hearings regarding the COVID-19 response,” Perry said. “It should not be the sole responsibility of one person to manage all of the issues related to a disaster that has no end in sight.”

In the upper chamber, state Sen. Bob Hall, R-Edgewood, has also called for a special session, as have several House Republicans.

State Rep. Trey Martinez Fischer had previously called on Abbott to work with the Legislature on COVID response instead of acting so unilaterally, though he’s a Democrat and I didn’t see the words “special session” in that article. As I have said repeatedly, the extent of the Governor’s emergency powers is a subject that really demands further discussion, and so far all we’ve gotten is a bunch of Hotze/Woodfill lawsuits, which is the worst possible way to come to a decision about what Abbott and whoever succeeds him can and cannot do. Among other things, I think this is exposing a real weakness in our 20-weeks-every-other-year legislative calendar, precisely because there’s a lot of things that the Lege can and should be doing right now, but is unable to because they’re not in session. The same was true in 2017 following Hurricane Harvey, though at least there everyone understood what the emergency actions were for and there was a clearer metric for when they would be lifted.

I would argue that legislators need to think about proposing some constitutional amendments to 1) more clearly define the parameters of the Governor’s executive power, and 2) maybe automatically trigger a special session under certain crisis conditions. I obviously haven’t thought this all through, and I don’t want to see legislators rushing forth with half-baked ideas, but I am serious that we need to take a look at this. The current model of “Governor hands down orders from on high that no one knew were coming and then gets sued by a couple of crackpots from Houston so that the courts can eventually sort it all out” doesn’t seem like it’s sustainable.

Mayor Turner asks GOP to not hold its convention

Good luck with that.

The city of Houston will deploy health inspectors to enforce COVID-19 restrictions at the Texas Republican Convention, and potentially shut down the event if guidelines aren’t followed, Mayor Sylvester Turner said Monday.

In a letter to Texas GOP executive director Kyle Whatley, Turner on Monday laid out a series of conditions the party would have to follow if it proceeds with an in-person convention at the George R. Brown Convention Center from July 16 to 18. The guidelines are aimed at limiting the transmission of COVID when an anticipated 6,000 people descend on the convention center.

Those conditions, according to Turner’s office, include denying entry to anyone who has tested positive for COVID or come in contact with a COVID patient between July 2 and July 15, requiring attendees to wear masks, and providing touchless hand sanitizing stations throughout the convention center.

Party officials also must limit attendance and seating capacity “or host smaller events in larger rooms,” and modify room layouts to “promote social distance of at least 6 feet.” The mayor’s letter did not include a specific cap on how many people can attend the convention.

Turner also said he is “strongly encouraging” the Texas GOP to call off the in-person convention, which he said is the only conference or convention in Houston that has not been canceled or rescheduled for next year.

“I believe canceling the in-person convention is the responsible action to take while we are in a critical moment in our battle against the COVID-19 pandemic,” Turner said. “I’ve not yet talked to a medical professional who has said that this is a good idea to hold this convention at this time.”

Echoing Turner’s message, Houston public health authority David Persse said “the wise, prudent thing to do would be for the Texas GOP to reconsider their position” to hold the event in person.

See here for the background, and here for a thread from the official Twitter account of the Mayor’s office that makes things a bit more explicit. I have a hard time believing that the health department will actually step in and order the convention closed because it would be one hell of a political bombshell to do that, but it’s not out of the question. The Trib adds some details.

According to the Houston Chronicle, Turner recently removed language from an executive order and effectively took away his own authority to cancel the convention.

Turner also called on event sponsors to push the party to move the event online, tweeting that all other conferences had already been rescheduled or canceled for the rest of the year. The Texas Medical Association, the state’s largest medical group, has called on the party to follow suit and withdrew as a convention advertiser.

“With or without masks, an indoor gathering of thousands of people from all around the state in a city with tens of thousands of active COVID-19 cases poses a significant health risk to conventiongoers, convention workers, health care workers, and the residents of Houston,” Dr. Diana Fite, TMA’s president, said in a statement.

Meanwhile, various other indoor conventions across the state have recently been canceled or moved online. The Texas High School Coaches Association announced Monday it is canceling its in-person, indoor convention scheduled for July 19 to 21 in San Antonio. The THSCA conference was expected to draw 5,000 attendees who would not have been required to wear face masks, according to the association’s rules.

“It was a tough call to make but in our efforts to support the preventative protocols set forth by our Texas school administrators, the UIL [University Interscholastic League] Executive Staff and governing authorities at both state and local levels, we are choosing to prioritize health and safety first,” the THSCA wrote in a press release.

The Texas Girls Coaches Association also canceled their convention for this week. The state GOP really is alone in their push to gather thousands of people into an interior space like this. I don’t fully understand why Mayor Turner amended his executive order removing his own authority to shut down a gathering like this convention, but my guess would be he was advised it would put the city in a precarious legal position to do so – basically, we’d get our butts sued for it and probably lose. Certainly, in every possible way, the cleanest solution here is for the GOP to decide on its own to cancel and hold their convention online instead. I don’t have any reason to think they’ll do that, but I’ll be happy to be proven wrong.

State GOP will have its convention

I hope they don’t kill any convention or hotel workers as a result. Beyond that, I don’t know what to say.

The Texas GOP’s executive committee voted Thursday night to proceed with plans to hold the party’s in-person convention in Houston later this month.

The State Republican Executive Committee, a 64-member body that serves as the governing board of the state party, voted 40-20 to approve the resolution supporting the in-person gathering. Thursday’s vote comes as the state grapples with a surge of coronavirus cases, with Houston serving as one of the country’s hot spots for the virus.

The SREC is scheduled to meet again Sunday to consider changing the party’s rules. Those rules will include a tweak that allows the party to act on an “emergency fallback contingency plan,” if necessary, to hold a virtual convention, party Chair James Dickey told members as he kicked off Thursday’s virtual meeting.

The convention, scheduled for July 16-18, will be held at the George R. Brown Convention Center, where roughly 6,000 people are expected to attend.

[…]

Over the past week, demands have mounted for the party to cancel plans for an in-person convention, with some Republicans stating they would not attend such an event due to safety concerns. Others have also cited concerns about the optics of attending a large gathering while small businesses in their districts remain shuttered under the governor’s orders.

Meanwhile, a faction of activists has argued that canceling an event focused on selecting delegates for the national convention and voting on the party’s platform, among other things, would not reflect well on a party that dubs itself the party of personal responsibility. Some have also suggested that a virtual convention could disenfranchise certain delegates.

On Tuesday, the party’s plans for an in-person convention looked increasingly uncertain, when the Texas Medical Association, the state’s largest medical group, called on the party to cancel the event, a reversal that came just one day after The Texas Tribune reported on TMA’s sponsorship of the convention.

After Thursday night’s vote, TMA announced it had withdrawn as an advertiser to the convention, arguing that face masks alone at such a large gathering were not enough.

“With or without masks, an indoor gathering of thousands of people from all around the state in a city with tens of thousands of active COVID-19 cases poses a significant health risk to conventiongoers, convention workers, health care workers, and the residents of Houston,” Diana Fite, the group’s president, said in a statement. “We are concerned not only for the City of Houston but also for the communities to which the delegates will return, giving the virus easy transportation to parts of Texas that have far fewer cases.”

See here and here for the background. Kudos to the TMA for backing out as sponsors, which they had initially said they would not do because of their need to engage with (read: lobby) Republicans directly. As noted, all this occurred on the same day as Greg Abbott’s mask order, which at least will mostly require attendees to wear them. Abbott’s order banned outdoor public gatherings of more than 100 people but had no effect on the much more hazardous indoor public gatherings. In typically wishy-washy fashion, Abbott expressed no opinion about whether or not this convention should be held in person or online.

There’s nothing we can do about the state GOP’s decision. They’re gonna do what they’re gonna do. But we can and should make sure that Houston First, the entity that owns the George R. Brown and the nearby Hilton Hotel, extends full health insurance coverage to all their workers who have to be there for this. If the Republicans insist on risking their own health, that’s one thing. But no one else should be made to suffer for it. The Chron has more.

Maybe that Republican convention won’t happen after all

First, there was this.

The Texas Medical Association is encouraging Texans to practice social distancing, stay home when possible and wear masks to slow the spread of the new coronavirus. But despite the potential mixed message it may send, the state’s largest medical organization said Monday it is not reconsidering its sponsorship of the Texas Republican convention next month. Some 6,000 people from across the state are expected to gather indoors without a mask mandate at the convention in Houston, one of the nation’s fastest-growing COVID-19 hot spots.

A spokesperson for TMA, which represents more than 53,000 Texas physicians and medical students, told The Texas Tribune that it will honor its commitment to the event.

“The agreement will not be revisited,” Brent Annear said in an email Monday.

He added that despite the fact that the GOP organizers won’t require attendees to wear masks, TMA “encourages everyone who goes anywhere to wear masks.”

“To our Republican friends — and our Democrat friends (and independents and those of other parties) — we say wear a mask, wash your hands, stay socially distant if you must be in groups, and stay home if you can,” Annear said.

[…]

Annear said TMA’s agreement with the Republican Party of Texas was set in stone “before the pandemic was a major issue here — before we hit any stay-home suggestions or mandates, mask policies or anything like that.”

And because the group signed on to the sponsorship before the pandemic began and “no conditions like that were discussed,” it will not back out of the agreement, he said.

“This low-rung sponsorship entitles TMA to have a brief video play for the conventiongoers that reminds them that Texas physicians are here to care for Texas patients,” Annear said. “We paid the same low-level sponsor amount to the Democrats for their convention, and we had a video play during their virtual convention with essentially the same message.”

Dr. Diana Fite, the president of the Texas Medical Association, wrote in an online letter to Texas physicians that they should encourage patients, friends and family members to “for your sake, for your neighbors’ sake, for my sake, and for your grandma’s sake, wear a mask, Texas.”

Earlier this spring, TMA canceled its own annual conference, TexMed 2020, which was scheduled to take place from May 1-2 in Fort Worth, and suspended the 2020 TMA House of Delegates meeting both in-person and online “until the crisis has subsided.”

See here for the background. I get the rationale for participating in the convention and have no quarrel with that. But my goodness, this is not a great look for the TMA. It’s really hard to make the case for wearing face masks, social distancing, avoiding risky behavior, etc etc etc, when you’re hanging out at a crowded indoor venue with a bunch of people who thinks mask wearing is a commie plot meant to bring down the President. It’s exactly this kind of mixed message that has gotten us into the trouble we’re in now. And boy, that’s some weak justification by the TMA.

But it turns out, there was another option. And so on Tuesday, we got this.

The Texas Medical Association on Tuesday called on the Republican Party of Texas to cancel its in-person July convention scheduled to take place in Houston, one of the country’s fastest growing coronavirus hot spots.

The latest development comes one day after The Texas Tribune reported on the Texas Medical Association’s sponsorship of the convention, an indoor gathering that is not requiring masks of the 6,000 people expected to attend. On Monday, TMA told the Tribune that it would not rescind its sponsorship. But at the time TMA had not yet called on the Republican Party to cancel its convention.

In an open letter to party leadership Tuesday, Dr. Diana Fite, TMA president, cited the growing number of coronavirus cases and hospitalizations in Harris County as a reason for the Texas Republican Party to cancel its Houston convention. The county has the highest number of cases and deaths in the state.

“The daily chart of active cases in Harris County has been nearly a straight line upward for the past two weeks,” Fite wrote. “As an emergency physician in Houston treating patients with COVID-19, I speak from firsthand experience: It would be best for the health of your conventiongoers and the residents of Houston for the RPT not to hold its biennial convention there as planned.”

TMA said it made $5,000 contributions to both the Republican Party of Texas and the Texas Democratic Party in exchange for a brief video advertising TMA’s mission at each convention.

“Our staff reassured RPT staff that TMA would advertise in a virtual gathering, but asked that if an in-person meeting would occur to please utilize CDC, state and local guidelines for social distancing and wearing masks,” Fite wrote Tuesday.

In an interview Tuesday, Fite said a variety of factors influenced TMA’s decision to send a letter to the Republican Party of Texas, including pressure from members after The Tribune’s story published.

“We were hearing from a lot of members and some of our board members were concerned,” she said. “And so we definitely want to discuss that situation. We had just heard very recently that the event was going to be held in Houston.”

[…]

Fite’s letter mentioned that TMA previously canceled its own in-person convention in May, stating that “like the RPT, a sizeable fraction of the TMA annual convention consists of longtime activists and leaders — men and women who are now at that age where they are particularly susceptible to the worst that a case of COVID-19 can deliver.”

Protecting the group’s elderly members was “among the reasons” TMA canceled its May convention, Fite said, and is urging the Texas GOP to do the same.

“This is just not the time to bring thousands of the party faithful from around the state to an indoor meeting in a county that, as I write, reports more than 18,000 active COVID-19 cases,” Fite said.

You can see a copy of the letter here. I mean, yeah. Anyone can see the logic in Dr. Fite’s argument. As the story notes, the RPT is actually thinking about it. Scott Braddock is on the spot.

I’ll post an update when I see one. This is clearly the right answer. It may be difficult for the GOP to switch to a virtual convention now, given that the real thing was scheduled to start July 16, but that’s on them. The risk/reward calculation is clear. They just have to recognize it.

UPDATE: Still in wait-and-see mode:

The Texas GOP’s plan for an in-person convention next month in Houston is looking increasingly uncertain as criticism mounts over plans to host thousands of people indoors as the new coronavirus surges across the state.

Party Chair James Dickey said Tuesday that the State Republican Executive Committee will meet Thursday to consider options for the future of the event, which he assured includes an “ultimate contingency plan” to move the event online.

“We have prepared for an online convention as the ultimate contingency plan if we are forced by a government order at any level and not able to hold our convention in person,” Dickey said during a livestreamed announcement Tuesday evening. “We’ve had that plan in place since the beginning of the pandemic so that we can be fully prepared for any turn of events.”

The State Republican Executive Committee, a 64-member body including Dickey and Vice Chair Alma Jackson, could take action ranging from mandating masks at what is expected to be a roughly 6,000-person event to relocating it to another city or moving the convention online.

[…]

State Rep. Sarah Davis, a Houston-area Republican, said it seemed “incredibly irresponsible” to hold such a large gathering and said she does not plan to attend this year’s event.

“I think it’s a horrible idea to proceed with holding the in-person convention,” Davis told the Tribune on Tuesday. “Houston is the last place we need to have a crowd of 6,000 gathering, given our COVID-19 positivity rate increases.”

Other Republicans, such as state Sen. Bob Hall of Edgewood, have brushed aside such concerns, arguing instead that Texans should return to some sense of normal in an effort to prevent further damage to the economy.

“Canceling the convention sends the exact opposite message that Republicans should be sending,” Hall said in a statement Tuesday. “There is no reason to cancel a gathering that will help unite Republicans behind a limited government platform.”

Well, good luck unifying your factions. We’ll see what they decide tomorrow night.

Is this convention really necessary?

Seriously. I know they don’t care about anyone else, but maybe the state GOP might think about the health and well-being of their own people?

As the coronavirus pandemic engulfs Texas’ metropolitan areas, Republican Gov. Greg Abbott has left the door open for massive indoor gatherings. And organizers are moving forward with some big ones, including the Texas Republican party’s upcoming convention in Houston.

Harris County, where Houston is located, has the highest number of coronavirus cases and deaths in the state, but the Texas GOP plans to press forward with plans to hold an in-person convention from July 16-18 in the city’s George R. Brown Convention Center.

“All systems are go, folks. This is happening,” Kyle Whatley, the party’s executive director, said Tuesday during a tele-town hall, noting the convention program is already being printed.

On Tuesday, Abbott granted local officials the power to restrict outdoor gatherings of more than 100 people, but made no mention of indoor gatherings. The Texas GOP convention is expected to draw about 6,000 attendees, roughly half of what it would expect for such a convention in normal times, according to Whatley. The party’s website brands its annual convention as the “largest political gathering in the free world.”

Whatley said registrations are “increasing exponentially” as the convention nears.

David Lakey, the former commissioner of the Texas Department of State Health Services, said he believes large indoor gatherings of more than 100 people are not advisable at this time.

“I think, right now, I wouldn’t hold a group larger than 100 individuals,” he said. “I think people need to be very cautious about making — especially in the month of July — any plans for a big conference.”

The party does not plan to require masks at the convention, though chairman James Dickey acknowledged Tuesday that Harris County is currently under an order mandating that businesses require customers to wear masks.

“The Republican Party isn’t considered a commercial entity so they themselves are not required to comply with the mask order,” said Melissa Arredondo, a spokesperson for the office of Harris County Judge Lina Hidalgo, who issued the mask order.

That order expires Tuesday, and Dickey said the party will “revisit” the mask issue during another tele-town hall next month before the convention.

Maybe read the story of Bill Baker, and then rethink this? Just a suggestion. And it truly is ridiculous to be allowed to ban outdoor gatherings of more than 100 people while being forced to allow a much riskier indoor event of thousands of people. I’m sure someone pointed out to Abbott that if he did the sensible thing and allowed all gatherings of large sizes to be banned by local officials, the GOP convention would be immediately canceled. It’s still ridiculous.

And look, if this were only a bunch of Republican activists putting themselves at risk, I’d shrug my shoulders and let them enjoy their “freedom”, for whatever it was worth. But of course, they’re not just putting their own health and safety on the line, they’re endangering everyone who will be working at the convention as well. Those folks deserve better.

The situation has created what union leaders say is a potentially perilous situation for workers at the Hilton Americas-Houston hotel, which is connected to the convention center and expects to see an uptick in guests during the convention. Officials from Unite Here Local 23, the union that represents hotel and other hospitality workers, say health insurance benefits are set to expire for Hilton workers at the end of the month, since many of them were laid off at the beginning of the coronavirus pandemic, leaving them short of the hours needed to qualify for coverage.

Houston First Corp., the city’s convention arm, owns the Hilton Americas-Houston and operates the George R. Brown Convention Center.

Houston First Chairman David Mincberg disputed the union’s claim, saying in a statement to the Chronicle that all Houston First and Hilton employees “will have health insurance coverage (except those who have opted out) while working at the George R. Brown Convention Center or the Hilton” during the convention. Mincberg also said Houston First officials “do not anticipate any part-time workers being utilized.”

Hilton employees are set to lose their health coverage at the end of July if they do not work enough hours in June to qualify for coverage, while those laid off earlier will lose it by June 30. Union officials said nearly 450 employees have been laid off by the Hilton since February, accounting for about 95 percent of the hotel’s employees.

Bo Delp, senior political organizer for Unite Here Local 23, questioned how the Hilton could adequately staff the convention if only 5 percent of its employees are set to qualify for health coverage through the end of July.

“Houston First has made a decision that during a global pandemic, it is going to continue to host events,” Delp said. “The minute they made that decision, from our perspective, they had a moral and public health obligation to make sure that the workers who are coming in as a result of their decision to host events, that they are healthy and safe.”

Mincberg said Houston First lacks the ability to cancel the event or require convention guests to wear masks, even if conditions worsen before mid-July.

“(Houston First) does not have the authority to require safety measures, unless included in the original license agreement. Since this agreement was issued prior to the pandemic, no such provision was included,” Mincberg said.

Catherine Troisi, an epidemiologist at UTHealth School of Public Health in Houston, urged Houston First officials to provide health coverage for hospitality workers and “institute preventive activities” to limit the spread of COVID-19 during large gatherings at the convention center.

“We know that closed spaces, crowded conditions, close contact, and duration of contact all enhance transmission of this virus,” Troisi wrote in a letter to Mincberg on Tuesday. “This convention space includes all of these risk factors and particularly without mandatory masking, transmission of the virus is almost inevitable, both to convention attendees and to hospitality employees.”

Every employee who works this dumb convention should have full health care coverage. Whatever it takes to give that to them, make it happen. And in the future, all contracts for conventions in Houston facilities should include clauses about pandemics and requirements for face masks and following county health mandates. The very least we can do from this experience is learn from it.

Just a reminder, you can get a mail ballot if you need one

No one is going to stop you.

As Democrats and civil rights groups sue to expand mail-in voting during the pandemic, a recent decision by the Texas Supreme Court has left it up to voters to decide for themselves whether they qualify for vote-by-mail.

In its decision in late May, the highest civil court in the state ruled that lack of immunity to COVID-19 alone does not constitute a disability that would allow those under 65 years old to vote by mail rather than at the polls, under the Texas election codes.

But it added — which legal experts say is crucial — that a voter can take the possibility of being infected into consideration along with his or her “health” and “health history” to determine whether he or she needs to vote by mail under the ‘disability’ provisions in the law.

“I think really the story here is that it’s going to be up to individual voters to decide whether they fit this definition or not,” said Joseph Fishkin, a University of Texas professor who studies election law and has closely followed the cases.

[…]

Assistant County Attorney Douglas Ray has said Harris is relying on the Supreme Court decision to bolster its recommendation that voters request a ballot if they believe they are eligible.

“If it’s checked disabled, we’ll just send the ballot,” Ray said. “We don’t question that. We don’t have the authority or ability to investigate that.”

In Bexar County, the commissioners court last month passed a resolution supporting access to mail-in ballots for voters afraid of contracting COVID-19 at polling place, but the county has not made any recommendations to voters since.

Bexar County Judge Nelson Wolff said Monday that such a public notice is on the way.

The Bexar commissioners last week directed the county attorney to help craft language for voter guidance, citing the Texas Supreme Court decision, and requesting for the election administrator, Jacque Callanen, to consider publishing it. Callanen did not respond to a request for comment.

“We’ve asked her to make it clear to voters that it’s up to them to determine whether they have a health condition or a physical condition” that qualifies them to vote by mail, Wolff said. “It’s their decision, not the state’s decision.”

Well, we know what Harris County has done. (Note: That was mail ballot applications the Clerk sent to all over-65 voters, not actual mail ballots.) We’ll see what the demand looks like in November. I would still advise, in my extremely I Am Not A Lawyer way, that there is some risk in applying for a mail ballot under the disability provision. How much there is I can’t say, but given the times and the apparent determination of the Republican Party to salt the earth, it’s definitely greater than zero. Make the best decision for yourself. Campos has more.