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How bad will the attack on voting be this session?

Jan 14th, 2021
by Charles Kuffner.
6 comments

Hard to say, but there’s no reason to be particularly optimistic.

As the country’s political polarization reaches a boiling point — illustrated vividly Wednesday by the violent takeover of the U.S. Capitol by supporters of the president who believed his false claims that the election was stolen — Texas Republicans are seeking to make some of the nation’s strictest voting laws even stricter.

They say the unrest sparked by the events Wednesday is likely to invigorate discussions over the matter in the state Legislature, where the 2021 session will begin Tuesday.

Several election-related bills have been filed by lawmakers on both sides of the aisle — though their aims are in direct opposition, with Democrats looking to ease up laws they see as suppressing the vote and Republicans trying to curb the opportunities for the fraud they say plagued the 2020 election.

Democrats have filed about two-thirds of the election-related bills, with the other third coming from Republicans.

“If this week has highlighted anything, it’s that we need to protect and encourage democracy and that it’s fragile,” said Rep. John Bucy III, an Austin Democrat who sits on the House Elections Committee. “And so these types of bills are worth the investment.”

Election integrity was voted one of the Texas GOP’s top eight legislative priorities in 2020 by its members. Republican bills include measures to tighten mail voting restrictions and stop governors from changing election laws during disasters, two concerns that President Donald Trump raised in his election challenges.

[…]

State Sen. Paul Bettencourt, R-Houston, filed legislation that would codify a Texas Supreme Court decision that blocked Harris County from sending mail ballot applications to every registered voter in the county ahead of the November election. Texas is one of 16 states that require voters to have an excuse to vote by mail.

Bettencourt said Harris County’s move to mail the applications “would have certainly caused more voter confusion” because most recipients would not have been eligible for an absentee ballot. The state Supreme Court ruled last year that voters’ lack of immunity to the coronavirus alone does not qualify as a disability that makes them eligible to vote by mail, but could be one of several factors a voter may consider.

Other bills filed by Republican lawmakers aim to correct the voter rolls, such as one filed by newly elected Sen. Drew Springer that would require voter registrars to do various checks for changes in address on an annual basis.

Springer said the bill was inspired by an Ohio law that the U.S. Supreme Court in 2018 upheld that allows the state to purge voters from the registration rolls if they do not return a mailed address confirmation form or don’t vote for two federal election cycles. The Texas bill would require registrars to use data from the U.S. Postal Service and property records for inactive voters to identify possible changes of address, then to send the notice requesting confirmation of their current residence.

The Bettencourt bill, as described, doesn’t concern me much. Even in 2020, and even with all of the COVID-driven changes to election procedures, not that many people voted by mail, and the vast majority of those who did were over 65. Those folks will get their vote by mail applications one way or another. Unless there’s more to this, this bill is all show.

The Springer bill is potentially more concerning, but the devil will be in the details. I continue to have hope for a revamped federal law that will do a lot to protect voting rights that will blunt the effect of efforts like these, but it’s very much early days and there’s no guarantees of anything yet.

I did not excerpt a section of the story in which Rep. Steve Toth will propose a constitutional amendment that would require a special session of the Legislature in order to renew a state of disaster or emergency declaration past 30 days. It’s presented as a voting rights-adjacent measure, prompted in part by Greg Abbott’s extension of the early voting period, but as we discussed many times last year, there’s a lot of merit in asserting the role of the Legislature in these matters. I don’t trust Steve Toth any more than I trust Steven Hotze, but on its face this idea is worth discussing. It also would require a substantial number of Dems to support it, so there’s room for it to be a positive force. We’ll see.

There are bills put forth by Dems for obvious things like online voter registration, same day registration, no excuses absentee balloting, and so forth, all of which have little to no chance of being adopted. I’ve said before that I think people like voting to be easy and convenient for themselves and that Democrats should campaign on that (among other things), so I’m delighted to see these bills. I just know they’re not happening this session.

Beyond that, I’m sure there will be worse bills filed than what we’ve seen here. I won’t be surprised if there’s a push to amend the voter ID law to include absentee ballots, now that those are no longer seen as Republican assets. I’m sure there will be a bill officially limiting mail ballot dropoff locations, and maybe one to limit early voting hours. For sure, there’s a significant contingent of Republicans that would like to make voting extra super inconvenient for everyone, as well as make the penalties for whatever minor offense Ken Paxton can find to charge someone with as harsh as possible:

Laugh at the lunacy that is Allen West all you like, the man is in a position of influence. Note also the attack on drive-through voting, which is another likely target even without this hysteria. I don’t know how far the Republicans will go, but they’ll do something. We can do what we can to stop them, and after that it’s all about winning more elections. It’s not going to get any easier.

So now we start to prep for redistricting

Nov 29th, 2020
by Charles Kuffner.
5 comments

It’s gonna make for a long session, or more likely sessions.

Wielding the map-drawing power will not be entirely painless for Republicans, who have seen their grip on dozens of state and federal districts erode since the last round of redistricting. Though Democrats failed to flip any of their targeted congressional seats in 2020 and fared about as poorly in state House contests, their single-digit defeats in once ruby red districts point to Democrats’ growing advantages in urban and suburban counties, even as Republicans retain an overwhelming advantage in rural Texas.

Republicans, then, will have to decide how aggressive they want to be in redrawing political boundaries to their benefit, balancing the need to fortify their numbers in battleground districts with the opportunity to flip back some of the districts they lost in 2018, when Democrats picked up 12 seats.

“I see this redistricting opportunity for Republicans as more of a defensive play than an offensive play,” said Texas Republican strategist Matt Mackowiak. “This is one of the tough things when you’re engaging in redistricting if you’re the party in power, because you can be sort of allured by the short-term potential to win an extra seat or two. But you can take two steps forward to eventually take three steps back if you’re not thinking about demographic changes over a 10-year period.”

For now, the looming redistricting fight is far from the minds of most state lawmakers. Though the U.S. Census Bureau is supposed to deliver updated population data to states by April 1 next year, the agency suspended field operations for the 2020 Census due to the COVID-19 pandemic and wrapped up the count in October, well after the original July 31 deadline. Bureau officials also sought to push back the deadline for sending data to the states until July 2021, prompting speculation that Texas may not get the census numbers until after the Legislature gavels out in late May.

“If the data is not delivered during the regular session, it creates a whole set of cascading problems that impact the drawing of lines, even down to the county and municipal levels, because everyone is going to be put on an even greater time crunch,” said Eric Opiela, an attorney and former executive director of the Texas Republican Party who has worked on prior redistricting efforts.

During normal times, officials might already be using population data from the Census Bureau’s annual American Community Survey (ACS) to strategize or even draw up preliminary maps. But the pandemic has forced census workers to adopt unconventional survey tactics and generated unprecedented population shifts due to the rise in remote working, factors that make any pre-2020 population data highly unreliable, Opiela said.

“Those (ACS) projections can be used to allow you to do things like work through scenarios before the official data comes, and it’s actually fairly accurate,” Opiela said. “I don’t know that that’s going to be the case this time. I think it’s going to be very important to wait until the official data is received to draw any conclusions as to where Texans live.”

It’s not just the uncertain timeline. Even if the Census data arrived on time, COVID-19 would likely hamper redistricting efforts by forcing lawmakers to prioritize filling the state’s pandemic-inflicted budget gap and perhaps providing economic and medical relief to COVID-19 victims.

“The challenge with redistricting is it’s such a naturally partisan issue that it’s really hard to sort of box half the day and then be ballet dancers the other half of the day,” Mackowiak said. “It’s hard to be bipartisan on other issues but then super, super partisan during redistricting. So, having a special session just related to redistricting after the major issues are taken care of seems to me to be the smartest pathway.”

See here for the most recent news on the Census situation. I think it’s very likely that we don’t get the data in time for the regular session, in which case redistricting will be done in a special session later in the year. Depending on how late that is, and on how long it takes to hammer out maps, and whether any initial court challenges result in temporary restraining orders, we could see the 2022 primaries get pushed back. The filing period begins in mid-November, after all, so there’s a non-zero chance of it being affected by how this plays out.

It’s worth remembering that if the Dems had managed to win the State House, they still would have had limited influence over redistricting. As the story correctly notes, the Legislative Redistricting Board, a five-member panel that would have had only one Democrat (the House Speaker, in this hypothetical), would draw the State House, State Senate, and SBOE maps if the House and Senate had been unable to agree on them. The Congressional maps would go to a federal court, however, and that’s where the Dems might have had some influence. If Republicans didn’t want to take the chance of putting map-drawing power in a third party like that, they might have been open to some compromises on the other maps. We’ll never know now, but that was the basic idea.

As it is, how this goes with Republicans once again in full control will come down to how they answer a few key questions. (For the purposes of this post, I’m focusing on the State House. The issue are mostly similar for Congress and the State Senate, but my examples will come from House elections.) Will they be constrained by established rules like the county line rule, which puts only whole House seats in sufficiently large counties (this is why all Harris County State House seats are entirely within Harris County), or do they change that? How constrained do they feel by the Voting Rights Act, and by other established redistricting precedents – in other words, do they bet big on the courts overturning past rulings so that they can more or less do whatever they want, or do they pull it in so as not to risk losing in court?

Most of all, what do they consider a “safe” seat to be? Look at it this way: In 2012, Republicans won 16 of the 95 seats they took with less than 60% of the vote. Of those, only five were decided by fewer than ten points:

HD43 – Won in 2010 by then-Democrat JM Lozano, who subsequently switched parties.
HD105 – Barely won by the GOP in 2008, by less than 20 votes.
HD107 – Won by a Dem in 2008, it became the first Republican-held seat to flip in this decade, won by Victoria Neave in 2016.
HD114 – Nothing special, it was won by eight points in 2012.
HD134 – The perennial swing district.

Note that four of those five are now Democratic. Other “less than 60%” seats from 2012 now held by Dems include HDs 45, 47, 65, 102, 115, and 136. (*) The point is, that looks like an extremely durable majority, with enough 60%+ seats on their own to ensure a mostly Republican House. And indeed it was for the first three elections of the decade. There will be books written about why all of a sudden it became precarious, but you’d be hard pressed to do a better job than the Republicans did in 2011.

But as noted, things look different now. In 2020, Republicans won 26 of the 87 seats they took with less than 60% of the vote. Of those, seventeen were won by less than ten points:

HD26, HD54, HD64, HD66, HD67, HD92, HD93, HD94, HD96, HD97, HD108, HD112, HD121, HD126, HD132, HD138

We can talk all we want about how things might have gone differently in 2020, but the fact remains that it wouldn’t have taken much to change many of those outcomes. How many Republican incumbents will insist on a 55%+ district for themselves? Whatever assumptions you make about the 2020 electorate and what it means for the future, that’s going to be a tall order in some parts of the state.

This more than anything will drive their decision-making, and may well be the single biggest source of friction on their side. Who is willing to accept a 51% Republican district, and who will have to take one for the team? In 2011, Republicans were coming off an election that they had won by more than 20 points statewide. This year they won at the Presidential level by less than six points, and at the Senate level by less than ten. They have a smaller piece of the pie to cut up. They have full control over how they do it, but the pie isn’t as big as it used to be. What are they going to do about that?

(*) In 2012, Cindy Burkett had no Democratic opponent in HD113, and Gary Elkins was re-elected in HD135 with 60.36% of the vote. Both of those districts are now held by Democrats. Always in motion, the future is.

On executive power and the role of the Legislature

Oct 9th, 2020
by Charles Kuffner.
3 comments

Just a few thoughts from recent events relating to Greg Abbott, COVID-19, vote access and suppression, local control, all those Hotze lawsuits, and so forth.

1. I think most of us would agree that however we assess Greg Abbott’s performance in response to the COVID pandemic, we need to have a conversation about the extent of the Governor’s executive powers and the role that the Legislature should have when laws are being amended or suspended on the fly in response to crisis situations. The lack of any input from the Legislature in all these COVID actions, from mask and shutdown orders and the subsequent reopening orders to expanding and contracting early voting and voting by mail, is a direct result of the system we have where the Legislature only meets once every other year, unless called into session by the Governor. All Abbott needs to do to keep the Lege at arm’s length is to not call a special session, which has been his response numerous times going back to the Hurricane Harvey aftermath. It may be time to admit that our quaint little system of “citizen legislators” who leave the farm every other year to handle The People’s Business in Austin just doesn’t work in the 21st century. If we don’t want Greg Abbott or any other Governor to be the sole authority on these matters, then we need to have a Lege that meets more often, and to have a Lege that meets more often means we need to accept the idea of legislating as a profession and adjust the compensation accordingly. I recognize that this is a thing that will almost certainly never happen, but I’m putting it on the table because we’re kidding ourselves otherwise.

2. A somewhat less foundation-shifting response would be to pass laws that mandate an expiration date on all emergency-response executive orders, which can only be renewed with the approval of the legislature. Put in a provision that allows the Lege to convene and vote on such things remotely, which bypasses the need for a special session and also allows for the Lege to operate in the context of a pandemic or other condition that would prevent them from meeting in person at the Capitol. Another possibility, which need not be mutually exclusive, is to mandate some conditions under which a special session must be called, say after an emergency declaration that has lasted for a certain duration or has resulted in some set of actions on the Governor’s part. It is within the Lege’s power to force itself into this conversation.

3. I would argue that when the Lege takes up the Disaster Act, or whatever other response it makes to review and revise executive authority in the wake of a declared disaster, it should clarify what kind of actions the Governor can take. Specifically, any action by the Governor must be taken in the service of containing, mitigating, or recovering from the disaster in question. As I said before, in the context of early voting and voting by mail, extending early voting and expanding vote by mail and allowing for mail ballots to be dropped off during early voting all served the purpose of mitigating the spread of coronavirus, but limiting the number of mail ballot dropoff locations did not, in the same way that limiting the number of food distribution locations following a hurricane would not count as hurricane/flood relief. I say that should make Abbott’s order illegal under the Disaster Act, and whatever the courts ultimately rule about that, the law should be changed to reflect that viewpoint.

4. The law could also be amended to limit litigation that would contravene this goal of mitigating the declared disaster. What is the law here for, and why should we let some cranks make technical (and let’s face it, mostly ridiculous) arguments that would worsen the disaster for some number of people?

5. If the Republican Party still had some affinity for local control, instead of putting all its chips on limiting what local officials they don’t like are allowed to do, then codifying the powers of county officials in response to a disaster might be worthwhile. I have some sympathy for Abbott’s stated impulse to not put a burden on smaller rural counties when it’s the more heavily populated ones that needed shutdown orders, but that sympathy only extends to the limit of what Abbott was willing to let the county judges of those more populated places do. I want to be careful here because a wacko county judge like the guy in Montgomery could easily have a negative effect on his neighbors like Harris if granted too much discretion, but I think if we stick to the mantra of everything needing to be in the service of mitigating and recovering from the disaster in order to be legal and valid, we can work this out.

6. Some of what I’m talking about here will split along partisan lines, but not all of it will. Clearly, there is some appetite among Republicans to limit executive power, though not in a way that I would endorse, but that is not universal. It’s clear from the Paxton brief in response to the latest Hotze mandamus that our AG at least believes in a strong executive, and I believe that feeling extends to other Republicans. Democrats can likely drive some of this discussion, especially if they are a majority in the House, but they will want to be careful as well, lest they wind up clipping the wings of (say) Governor Julian Castro in 2023. This is a multi-dimensional problem, that’s all I’m saying.

(Oh, and any Republican coalition in favor of a strong executive will of course evaporate the minute there is a Democratic Governor. I mean, obviously.)

I’m sure there are other aspects to this that I am not thinking of. My point is that this is a topic the Lege can and should take up, even if any bill they pass is likely to run into a veto. I just wanted to lay out what I think the parameters of the discussion are, or at least what I’d like them to be. Who knows what actually will happen – the election will shape it in some ways – but I hope this serves as a starting point for us to think about.

Win one, lose one at SCOTX

Oct 8th, 2020
by Charles Kuffner.
6 comments

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.

Paxton opposes Hotze mandamus to curb early voting

Sep 30th, 2020
by Charles Kuffner.
6 comments

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

Sep 24th, 2020
by Charles Kuffner.
9 comments

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.

Another lawsuit against Abbott over emergency orders

Aug 6th, 2020
by Charles Kuffner.
2 comments

This one is a bit more serious due to the lack of Hotze and Woodfill, but it’s still not a great way to have the debate about this issue.

Five Republican Texas lawmakers are suing Gov. Greg Abbott over the state’s $295 million COVID-19 contact tracing contract to a small, little-known company, alleging the agreement is unconstitutional because it wasn’t competitively bid and because the funds should have been appropriated by the Legislature in a special session.

In the Travis Country district court suit filed Monday, State Reps. Mike Lang, Kyle Biederman, William Zedler, Steve Toth and state Sen. Bob Hall named as defendants Abbott, the Texas Department of State Health Services and the company awarded the contract, the Frisco-based MTX Group.

Abbott and Attorney General Ken Paxton have defended the contract. Abbott did not immediately respond to a request for comment.

The lawmakers are seeking a court order voiding the contract for lack of statutory authorization and deeming unconstitutional the governor’s application of the Texas Disaster Act of 1975, which gives him broad powers in the case of an emergency, in granting the contract.

“The Texas Constitution requires a separation of powers, and that separation leaves policy-making decisions with the Texas Legislature,” the lawsuit states. “These decisions are not changed by pandemics.”

Abbott has declined to convene a special session since March when the coronavirus pandemic began, instead leaning on his emergency powers to issue a series of sweeping executive orders governing what businesses can open, where people can gather in public, and mandating safety measures including wearing face coverings in public.

While the law has been used by governors for years, the time span of the coronavirus-related orders is unprecedented and raises questions about the durability of that legal justification.

As the story notes, the Supreme Court just rejected several Hotze lawsuits relating to executive emergency powers, saying he lacked standing. I don’t know if that is likely to be an issue in this case or not. I still agree with the basic premise that we need to have a robust debate about the parameters of the Texas Disaster Act, including when the Governor should be compelled to call a special session so that the Lege can be involved in the decision-making process. I also still think that this is a lousy way to have that debate, and while these five legislators have more gravitas than Hotze, that’s a low bar to clear. To put it another way, the anti-face mask and quarantine lobby still isn’t sending their best.

There’s no doubt that the contact tracng deal was a boondoggle, and I welcome all scrutiny on it. And I have to admit, as queasy as I am with settling these big questions about emergency powers by litigation, there isn’t much legislators can do on their own, given that they’re not in session and can’t be in session before January unless Abbott calls them into a session. I’m not sure what the right process for this should have been, given the speed and urgency of the crisis. The Lege very much needs to address these matters in the spring, but I’m leery of making any drastic changes to the status quo before then. In some ways, this is the best argument I’ve seen against our tradition of having a Legislature that only meets every two years. Some things just can’t wait, and we shouldn’t have to depend on the judgment of the Governor to fill in the gaps. I hope some of the brighter lights in our Legislature are thinking about all this. The Trib has more.

What a Democratic House means for redistricting

Jul 28th, 2020
by Charles Kuffner.
3 comments

Rick Casey makes a point about what a Democratic-majority State House will and won’t be able to do in 2021, in particular with redistricting.

I would put the Democrats’ chances of taking back the State House of Representatives as better than the fulfillment of either of their two other dreams — beating President Donald Trump and U.S. Sen. John Cornyn — though recent polls show Trump and Democrat Joe Biden running even and a large “undecided” cohort in the Senate race.

But what if the Democrats win the Texas House? How much difference would it make?

One of the points I’ve seen made in the national media is that it would prevent the Republicans from gerrymandering legislative and congressional districts in the wake of the 2020 census. But that is wrong.

The Texas Constitution includes a provision, passed in 1951, for what happens if the Senate and House of Representatives can’t agree on lines for legislative seats. The lines are then drawn by the Legislative Redistricting Board which includes the lieutenant governor, the speaker of the House, the attorney general, the comptroller, and the commissioner of the General Land Office. Since the only office in play this November is the speaker, he or she would have little impact on the likes of Republicans Dan Patrick, Ken Paxton, Glenn Hegar, and George P. Bush.

[State Rep. Trey] Martinez Fischer, however, thinks it may be possible for the Legislature to agree on lines.

“Lawmakers are probably not as trusting for a third party to draw their districts,” he said, suggesting that a Democratic House and a Republican Senate might compromise by agreeing to the plans each came up for their own members.

I’m skeptical. I think there would be a strong temptation for Republican leaders to try to take back the House through creative redistricting.

And no matter what plan the Legislature or the redistricting board come up with it will almost certainly end up in federal court. There, the U.S. Supreme Court has made clear, severe gerrymandering for political (as distinct from racial) purposes is perfectly acceptable. Martinez Fischer suggests, however, that a Democratic House could, through witnesses at hearings and floor debate, build a record that would make lawsuits more feasible.

The Constitutional provision Casey references is here. Note, though, that it only applies to the legislature itself, the House and the Senate. It does not apply to the apportionment of Congressional districts. That job, if the 2021 Lege is unable to draw a map that passes both chambers, will fall to the federal courts. That’s exactly what happened in 2001. The fact that a court had drawn the Congressional map in 2001 was cited by Tom DeLay as a justification for his 2003 re-redistricting effort – he insisted that the Congressional map needed to be drawn by the Lege, and if that couldn’t happen in 2001 it could happen in 2003. (The fact that both chambers were now Republican-controlled was a happy coincidence, of course.)

My point here is that while Republicans would have a backstop for legislative redistricting, they would have much less control over Congressional redistricting in this scenario. I don’t know what court would get this assignment – maybe they’ll get a panel with a majority of Trump-appointed judges, who knows – but it’s a roll of the dice. The members themselves would likely prefer to avoid that outcome,. In addition, if Democrats do pick up a boatload of Congressional seats – or, you know, if Joe Biden carries Texas – the argument that the Congressional map should strongly favor Republicans kind of falls apart. Doesn’t mean Republicans couldn’t take a crack at it again in 2023 if they take back the State House in 2022, but that’s a lot of uncertainty. It’s not crazy to think that some kind of compromise, in which each side gets a few concessions in all of the maps, could be reached. No guarantee, of course, and again the Republicans would very much want to maximize their chances of having full control in 2023 to clean up anything they don’t like, but having that lever of control is worth something. Not as much as the national media might portray, I agree, but not nothing. Just having a seat at the table means something.

(Also, too, Democratic control of the House means things like the budget can’t get passed without Democratic input and assent. Redistricting would be done in a special session thanks to the later completion date for the Census, but this is still influence for the Dems. Even if it’s not directly influential on redistricting, it’s a pretty big deal in its own right, especially in a session where revenue is scarce and cuts will be on the table. Anyone who remembers the bloodbath of 2011 knows what that would mean.)

So yes, while taking the State House isn’t the be-all and end-all, it’s a mighty fine goal with lots of ways to pay off. Twitter user Kafka provides an intro to the Democratic candidates in most of the districts of interest, and you can learn more at FLIP The Texas House. If you’re wondering how best to spend your campaign donation dollars this cycle, find a State House candidate or three and toss a few bucks in their direction. This is a great opportunity, and we need to maximize it.

Censuring Abbott

Jul 17th, 2020
by Charles Kuffner.
1 comment

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.

Who wants to enforce Greg Abbott’s mask order?

Jul 12th, 2020
by Charles Kuffner.
2 comments

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

Jul 11th, 2020
by Charles Kuffner.
8 comments

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.

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

Jul 7th, 2020
by Charles Kuffner.
8 comments

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.

State Supreme Court is skeptical of stay-at-home orders

May 7th, 2020
by Charles Kuffner.
2 comments

They’re not ready to act yet, though.

In turning down a case challenging Gov. Greg Abbott’s order allowing certain Texas businesses to reopen, the Texas Supreme Court hinted Tuesday that it is sympathetic to constitutionality concerns raised by coronavirus restrictions.

The state’s highest civil court declined to take the case —spearheaded by a Dallas salon owner whose decision to open in defiance of the order prompted demonstrations and TV spots over the past few weeks — saying lower courts should first consider whether the restrictions should stand. The Texas Supreme Court is generally the “court of last resort.”

Justice James D. Blacklock wrote in the opinion Tuesday that during a public health emergency, the onus is on the government to explain why its measures are necessary and why other less restrictive measures would not adequately address the threat. District courts will need to decide how to judge whether that’s been accomplished, he wrote.

“When the present crisis began, perhaps not enough was known about the virus to second-guess the worst-case projections motivating the lockdowns,” Blacklock wrote. “As more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, continued burdens on constitutional liberties may not survive judicial scrutiny.”

[…]

The businesses argue in their suit that local authorities do not have the power to close businesses or threaten fines or jail time. The suit says that local stay-at-home orders mandating closures of certain, but not all businesses, are unconstitutional. Instead the governor should have convened a special legislative session as the Texas Constitution allows in the case of a “disease threat,” it says.

Business owners across Texas “are having their legal and constitutional rights, and the constitutional rights of their businesses, continuously infringed as long as these authorities are allowed to enforce executive orders, and particularly so when the executive orders are enforced arbitrarily,” the suit states.

They are seeking a court order to block enforcement of all local orders and had hoped to skip over district courts by going straight to the state high court.

I have to say, I don’t have any particular problem with this. They were right to send this back to the lower courts, which is where the facts can and should be established. They are right that local and state government must adequately justify their actions and not go overboard. There’s certainly a case to be made that Greg Abbott is doing way too much on his own, without involving or even informing legislators of his actions. Calling a special session to get things done takes time, which isn’t always in abundance, and we are in a place where no one really knows what is the optimal thing to do so we had been fairly cautious up till now. We will hopefully have a much better idea how to react – and have a federal government that is capable of responding to events like these – the next time we have to. In the meantime, it’s good and right to have a thorough discussion about what we should be doing and how we should be doing it, and making sure the government is accountable for its decisions.

More on the potential delay of redistricting

Apr 16th, 2020
by Charles Kuffner.
Comments are off for this post

Some further details from the Statesman.

On Monday, Commerce Secretary Wilbur Ross announced that, as a result of the coronavirus pandemic, all Census Bureau field operations would be canceled until June 1, and the agency would not be able to complete the count until Oct. 31.

Ross wants Congress to enact legislation delaying the deadline for delivering apportionment counts to President Donald Trump from Dec. 31 to April 30, 2021, and for delivering redistricting data to the states from March 31, 2021, to July 31, 2021. Ross said he couldn’t rule out further delays.

That would mean that Texas lawmakers would not have the numbers they need to redraw political districts in the upcoming 140-day regular session, which ends on May 31, 2021.

The Texas Constitution requires that the Legislature redraw state Senate and House maps “at its first regular session after the publication of each United States decennial census.”

But, with the delay, that would not be until 2023, too late for the 2022 elections.

“Texas will have to have a special session to do redistricting,” said Michael Li, the former Dallas attorney who is now senior counsel at the Brennan Center for Justice at New York University, where his work focuses on redistricting, voting rights and elections.

Depending on the census count, Texas is expected to add three seats to the 36 it already has in the U.S. House. Li said that, under federal election law, if new maps have not been drawn in time for the 2022 election, any new seats would be elected at-large.

“Or alternatively, a court might draw maps,” Li said.

The same likely would be true if the Legislature fails to draw state House and Senate districts in time for the 2022 election.

[…]

[If] the Legislature were able to take up redistricting in the 2021 session, Republicans would be well situated even if the House and Senate were unable to pass a state legislative redistricting plan that was signed by the governor, because responsibility for devising a plan would then fall on the Legislative Redistricting Board made up of the lieutenant governor, the speaker of the House, the Texas attorney general, the state comptroller and the land commissioner. Unless Democrats take control of the Texas House in 2020 and elect a Democratic speaker, all those officials are Republicans.

That Legislative Redistricting Board provision does not apply in a special session.

The provision in the Texas Constitution means that even if the Legislature, meeting in special session, drew new state legislative lines in 2021, it would have to repeat the process when it convenes in regular session in 2023, said Eric Opiela, an election lawyer and former executive director and associate general counsel to the Texas Republican Party, with long experience in redistricting.

That means that Democrats, who have made flipping the Texas House the centerpiece of their 2020 campaign, “might have two bites at the apple” — the 2020 and 2022 elections — to gain control of the House in time for the last word on redistricting, he said.

The 120-day delay makes redistricting in time for the March 2022 primary, “tough but still manageable, but if there are further delays, then you start bumping into the filing period for candidates and potentially the primary,” Li said.

“The extension is in everyone’s interest, however,” Li said. “Texas is behind in census responses, and it’s important from the standpoint of Texans that the bureau have the time to get the census as right as possible.”

See here for the background. The relevant Constitutional amendment is this one. The 2013 Legislature did indeed revisit the House and Senate maps following the 2011 special session that drew them, but that was also for the purpose of amending the maps to conform with the interim districts the federal court had already drawn for the 2012 election. There are two scenarios where Dems have real leverage. One is in 2021 with a Dem majority in the House. The Legislative Redistricting Board can draw most maps if there’s no agreement between the House and the Senate, but it can’t draw a new Congressional map. That would go to a three-judge panel if all else failed, and it’s not hard to imagine the Republicans not wanting to roll the dice on that. In that situation, there would be lots of room for some horse trading, with legislative maps and a Congressional map that all cater to incumbent protection over maximal partisan gain. I’m not saying this would happen, but it could.

Alternately, Democrats could win or maintain the House in 2022 and win enough statewide offices, including Governor, to force a redraw in 2023 or direct it if a redraw is mandated because the previous exercise had been done in a special session. It should be noted that the same opportunity exists for Republicans, who start out in a much stronger position to make it happen – they would just need to take back the House (this situation only applies if they didn’t have control of the House in 2021) and re-elect Greg Abbott. I definitely have some fear of this scenario playing out, as it is not at all far-fetched, and the 2003 experience shows that they have no shyness when it comes to a bit of mid-decade map-drawing.

All this is getting way ahead of ourselves. For now, the main point is that any delay in the Census has a big ripple effect in Texas, thanks to the legislative calendar and our early-in-the-year primaries. Such a delay is almost certainly necessary to get an accurate count, but it doesn’t happen in a vacuum, and we need to be aware of what would happen as a result. This is a subject we will come back to again and again between now and January.

Coronavirus and redistricting

Apr 15th, 2020
by Charles Kuffner.
1 comment

Big surprise.

A delay in census counting because of the coronavirus pandemic could push Texas redistricting into legislative overtime next summer.

Trump administration officials on Monday proposed delaying reapportionment counts and the distribution of redistricting data by four months, which would kick the delivery of data Texas lawmakers need to redraw political districts from March 2021 to July. That puts it past the end of the next scheduled legislative session.

The proposal must be approved by Congress. Under that plan, census counting would extend to October 31.

[…]

The Texas Legislature meets once every two years from January to late May. Under the bureau’s proposal, the redistricting data would come “no later than July 31,” meaning Gov. Greg Abbott may have to call lawmakers back for a special legislative session to redraw congressional and legislative maps.

It was not immediately clear what this would mean for the involvement of the Legislative Redistricting Board, a five-member board that steps in to redraw state Senate and House maps if lawmakers fail to redraw them during the regular legislative session following “the publication of the decennial census.”

No one could have seen this coming. In truth, I’m kind of glad to see it. I’d much rather have a delayed redistricting process than one based on a rushed and surely inaccurate Census. We all know the Census cannot proceed normally now. By far the best thing to do is give it some extra time (and money) so we can get the best count we can. Delaying the redistricting process by a couple of months, which in turn may force the 2022 primaries to be later in the year as they were in 2012, is a small price to pay for it.

That said, there must be heavy oversight of any changes to the process.

The bureau’s plans were first made public Monday by Rep. Carolyn Maloney (D-N.Y.), who chairs the House Oversight and Reform Committee.

In a press release describing a phone call Ross held with some members of Congress about the plans, Maloney says the committee “will carefully examine” the request to change the census deadlines, while also criticizing the administration for not providing more information and not allowing Dillingham, the bureau’s director, to brief the committee about its plans in response to the pandemic.

“If the Administration is trying to avoid the perception of politicizing the Census, preventing the Census Director from briefing the Committee and then excluding him from a call organized by the White House are not encouraging moves,” Maloney said in the written statement. “The Constitution charges Congress with determining how the Census is conducted, so we need the Administration to cooperate with our requests so we can make informed decisions on behalf of the American people.”

According to the House oversight committee’s press release, Ross “acknowledged that the Administration had not sought input from Congress about this request in advance of this call because of concerns about leaks to the press.”

Asked by NPR why no Census Bureau officials participated in the call, Cook responded in an email that Dillingham now plans to speak with members of Congress “as soon as possible,” noting: “The Secretary of Commerce is statutorily delegated responsibility to conduct the decennial census and took the role of calling key congressional leaders to continue the consultation process.”

The bureau’s changes for the 2020 census were supported by Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, one of the main groups advocating for participation in the count.

“If it’s not safe to have census takers visiting people’s homes by June, then Congress has an obligation to consider other options to protect census workers and the communities they serve, and to ensure an equitable count,” Gupta said in a statement. “We cannot afford to compromise the health of our communities or the fairness and accuracy of the census.”

I agree with Vanita Gupta that this is the right thing to do. But I also agree with Stacey Abrams that we cannot trust the Trump administration to have good intentions, and we need to watch them like a hawk to make sure they are doing what they are legally obligated to do. Anything else would be just as bad an outcome.

Coronavirus and the state budget

Mar 27th, 2020
by Charles Kuffner.
2 comments

Ain’t gonna be great. How bad, we don’t yet know.

Comptroller Glenn Hegar briefed Texas House members on the state’s economy and budget Sunday night, saying that while it was too soon for specific forecasts, both are expected to take potentially massive hits in the wake of the new coronavirus pandemic, according to multiple people who were on the conference call.

The members-only call, led by House Speaker Dennis Bonnen, R-Angleton, was one of state lawmakers’ first glimpses of the impact the virus is expected to have on multiple industries, state finances and Texas’ largely oil-fed savings account, known as the Economic Stabilization Fund or the rainy day fund.

Hegar, who referred to the state of the economy as “the current recession,” according to multiple people on the roughly hourlong call, predicted both the general revenue for the state budget and the savings account balance will be drastically lower — possibly by billions of dollars — when he makes a revised fiscal forecast. He said that update could happen in July.

Later Sunday, the comptroller’s office said that unless the Legislature spent money out of the savings account before July, the balance for the fund would be revised down, but not by more than $1 billion.

In October 2019, Hegar estimated that the state budget would have a nearly $3 billion balance for the fiscal 2020-21 biennium. The balance of the Economic Stabilization Fund, Hegar announced at the time, would be around $9.3 billion by the end of the 2021 fiscal year in August of that year.

[…]

Abbott, for his part, noted last week that he and the Legislature can tap into the state’s disaster relief fund immediately to help respond to the virus. He also said that the Economic Stabilization Fund could be used “at the appropriate time,” which he said would happen when state leaders “know the full extent of the challenge we’re dealing with.”

Before the stabilization fund could be used, Abbott would need to summon state lawmakers back to Austin for a special session before the Legislature reconvenes in January 2021. When asked at a town hall about the possibility for calling such a session, Abbott said “every option remains on the table,” while noting that there would not be any need for such an action if every Texan followed guidance to help curb the virus.

Obviously, the crash in oil prices doesn’t help the state’s financial picture, either. It’s sales tax collection that will really suffer, and that pain will be spread to the cities and counties as well. As always, the big picture here is “how long will this take” and “how many businesses and jobs will be lost in the interim”, and right now we don’t know.

I will say, situations like this are among the reasons why balanced budget requirements are such a bad idea. Let the state – and the cities – run a deficit for a year or two, rather than cut a bunch of programs and lay off a bunch of employees, both of which will exacerbate the effect of the overall downturn. I assure you, society will not crumble around us if we do that. We will see plenty of shenanigans pulled by legislators to worm their way around the balanced budget requirement, as we have always done. So why not be honest about it and just admit that the whole thing is a sham and we should just not worry about it, at least for this cycle? We can always get back to it next time. Much easier said than done of course – constitutions and charters can’t be so easily cast aside, which again goes to my point about why these things are stupid – but in a world where everything has been thrown into chaos, this just makes sense. Same for revenue caps as well – if the revenue for the state, or the city of Houston, falls ten percent this year, it will take three years under the existing 3.5% revenue cap just to get revenue back to existing levels, while forcing needless cuts in the meantime. It’s all a sham, we should seize the moment to recognize it for the sham that it is, and free ourselves once and for all from its ridiculous shackles. Won’t happen happen, but I’ll never stop pointing it out.

Another review of Judge Hidalgo’s first year

Mar 22nd, 2020
by Charles Kuffner.
7 comments

Though, oddly enough in a story about Harris County Judge Lina Hidalgo’s first year in office, most of the text is about outgoing Commissioner Steve Radack and the two-year-long temper tantrum he’s been throwing.

Judge Lina Hidalgo

For many years, the Harris County Commissioners’ Court, which oversees the third most populous county in the country and one of its most diverse, had been a place of easy consensus. At the time of Radack’s outburst, four of the five members of the commissioners’ court were white Republican men. They included county judge Ed Emmett, a popular moderate in a party running out of them. Most sessions passed by with the placidity of a koi pond. By cheering activists who sued the county and asserting that commissioners were supporting a racist policy while simultaneously trying to join their ranks, [Commissioner Rodney] Ellis was cannonballing into the water.

Three years later, in July of 2019, Radack looked considerably more chastened when the newly elected Ellis and the rest of the commissioners’ court met to vote on a settlement to the lawsuit—a sweeping $100 million overhaul that largely abolished the practice of jailing misdemeanor defendants who can’t afford cash bail. Reformers across the country hailed it as a major step toward making the criminal justice system fundamentally more equitable. The settlement was possible only because, just eight months before, Harris County voters had handed control of the commissioners’ court to Democrats for the first time since 1990. Radack and Jack Cagle were now the only two Republicans left on the court. Most astonishingly, voters had seen fit to replace Emmett, the beating heart of the county’s political establishment for more than a decade, with Lina Hidalgo, a 27-year-old Latina who had moved back to Houston to run against the 69-year-old Emmett. She was the first woman and Latino to lead Harris County.

Now Hidalgo and the other two Democrats—Ellis and former Harris County sheriff Adrian Garcia—ran things. For years, meetings had rarely lasted an hour. Under the new management they felt like committee hearings in the state legislature, often going for more than five hours and sometimes as long as nine, as the new majority pushed to enact its agenda—criminal justice reform, bringing transparency to county government, and improving flood planning—while members of the public came to support, oppose, and debate.

At the July meeting, Hidalgo beamed as she introduced the bail-reform settlement to the court. “This is a proud beginning,” she said, in the fight to build a criminal justice system in which “fairness and justice are preeminent.” She quoted from Martin Luther King Jr.’s 1963 address on the National Mall. She exuded, as members of her generation would say, good vibes only.

Ellis, a political operator who served 27 years in the Texas Senate, spoke glowingly too, calling the settlement, somewhat hyperbolically, “just as big as” Brown v. Board of Education. But the most dramatic moment came when he moved closer to his mic and stared at the side of the room where Radack and Cagle sat. “A very oppressive system has existed for decades,” he said. “And I don’t point an accusative finger at anyone, but it did, I think, indicate a certain blind indifference to what was going on. I think it’s incumbent on us to admit that,” he said, slowing for emphasis.

When it was his turn to speak, Radack turned to address the packed chamber, where during the period of public comments, most had spoken in support of the settlement. He understood that there were racial injustices in the system, he said.

But then he began pounding his palms on the wood in front of him. “This is a public table,” he said, his voice rising to a shout. Issues such as bail reform were supposed to be discussed in public, “not [by] a few people from the commissioners’ offices and whomever, behind closed doors . . . sitting there and discussing what they’re going to do for all of us.” He stood up, getting angrier and flipping through the lengthy settlement for the audience. “Every single page says ‘Draft,’ ‘Confidential,’ ” he said. “I think that sucks!”

Hidalgo politely noted that the text of the settlement had been made available to the commissioners three days earlier. “And let’s be careful with the public table,” she said. Radack was learning something Ellis knew very well: It’s not fun to be in the minority in a lawmaking body. “There are consequences to elections,” Ellis added calmly. At the end of the year, Radack announced he was retiring, boosting Democrats’ chances of electing the fourth Democrat to the commissioners’ court this November—and giving them the same level of dominance Republicans enjoyed just a few years ago.

[…]

Now in the minority, Radack and his fellow Republicans have found other ways to show their displeasure. For one, they’ve made a lot of noise. At one meeting regarding transportation funding, Cagle brought copies of George Orwell’s dystopian novel 1984 to distribute to the audience, accusing Hidalgo’s court of engaging in doublespeak.

But the most important scuffle came in October. The commissioners met to pass a tax hike that would increase the county’s revenue by 8 percent before an annual deadline, citing the need to raise money before new laws passed by the state legislature went into effect that would restrict their ability to do so in the future. Cagle and Radack didn’t show up—depriving the court of a quorum and preventing a vote. (State law requires that four of the five members of county commissioners’ courts be present to vote on tax increases.) Hidalgo says the consequences of that missing revenue will hurt the county in the long run. “You won’t see a huge difference from one year to the next,” she said, “but it will compound over time.”

That anti-majoritarian maneuver is one reason why many Republicans in Austin are closely watching what’s happening in Harris County. Never huge fans of cities and counties to begin with, GOP lawmakers, led by several Houston-area Republicans, cracked down hard on local government during the 2019 session.

Now imagine if the Democrats tighten their grip on Harris County, finally flip Fort Worth’s Tarrant County (the last urban Republican holdout), and take over quickly growing suburban counties like Hays (south of Austin) and Fort Bend (southwest of Houston). Then they draw new county commissioner precincts to solidify their control. In this dark future for conservatives, Republicans in the Legislature work even harder to rein in Hidalgo and her colleagues across the state.

If Democrats can pick up Radack’s seat, only one Republican would remain on the commissioners’ court, which would prevent that Republican from breaking the quorum again. But what if the Legislature, learning from Radack’s example, changed the law to require all five members of the commissioners’ court to be present? Many blue counties, even the big Democratic ones like Dallas and Travis, have at least one Republican commissioner who could, if the law were changed, nullify the wishes of the other four and hold one-person veto power over budgetary matters, with huge consequences for local governments across the board. “That would be a pretty major thing,” said Radack, who’s given the issue a good deal of thought. “Probably one of the most major pieces of legislation to come around in a long time.”

I should note, this story was written, and I wrote my draft post of it, before coronavirus took over all of our lives. It should be clear that every politician going forward will be judged on how they performed during this particular crisis. I think Judge Hidalgo is doing quite well on that score so far, but we still have a long way to go. Now here’s what I wrote when I first blogged about this.

Putting Radack’s jackassery aside, I’ve been thinking a lot about what might happen in the near future as Republicans continue to lose their grip on the larger counties and maybe possibly could lose control at the state level. We saw what they did on the way out the door in states like Wisconsin and North Carolina, after all. Imagine if Dems do take over the State House this November. Would Greg Abbott call a special session to get one last shot at passing bills in a full-GOP-control environment? Maybe even take some action to clip a future Democratic Governor’s wings? He’d want to act now and not wait till his hypothetical loss in the 2022 election, because if there’s a Dem-majority House, he’s out of luck. For sure, the assault on cities and counties will be much harder to pull off without a Republican monopoly. The good news for us Dems is that it would be hard for Republicans here to make like their counterparts in WI and NC, but not impossible. We need to be thinking about this, and have some strategies prepared for just in case.

Anyway. To reiterate what I said before, I think Judge Hidalgo has done a very good job, and has positioned herself and the Court to do a lot more good this year. It’s not necessary to trade out Radack for a better model – that 3-2 majority is fine almost all the time – but it would help. And Lord knows, the man has had more than enough time in the spotlight. Move along, already.

(By the way, Fort Bend has already flipped. In the same way that Harris did, by Dems winning one Commissioner’s Court seat and the County Judge’s office, to go from 4-1 GOP to 3-2 Dem. And as with Harris, Fort Bend Dems have a chance to win a Republican-leaning set this year to get to 4-1 in their favor.)

All mail ballots for the primary runoffs are being discussed

Mar 17th, 2020
by Charles Kuffner.
5 comments

This is a pleasant surprise.

Texas is not making any moves to delay the May 26 primary runoff as of now, even as other states have opted to postpone elections.
But election officials have had preliminary conversations about the potential of doing vote-by-mail ballots only for the runoffs, which would be a first in Texas history.
“It’s a possible solution,” state Sen. Paul Bettencourt, R-Houston, said Monday.

He said the idea has been kicked around and could work because of how low the turnout typically is for runoffs in Texas. As a former elections official, he said he has no doubt Texas counties could get ballots to voters who wanted to vote by mail rather than risk going to large polling sites.

The Texas Secretary of State’s Office, which oversees elections, would not confirm that it is exploring that possibility, only saying a lot of options are on the table.

[…]

Other states have postponed primaries entirely. In Louisiana, election day has been moved from April 4 to June 20. In Georgia, the March 24 primary is now on May 19.

Absentee voting by mail is allowed in Texas for some people but isn’t very popular. In the March 4 primary, just 52,000 of 516,000 voters in Harris County cast ballots by mail.

In order to vote by mail in the May 26 runoff, voters must submit an application by May 15 to their county elections office.

See here for the background. It’s not clear to me how this could be accomplished without a special session of the Legislature, but perhaps Greg Abbott has the authority to order the SOS to come up with a plan for this based on the declared state of emergency. I’ll want to see an explanation of that, but even if it is a special session that is needed, that should be doable. The bigger question, as I discussed in my post, is whether everyone would have to apply for a mail ballot, or whether one would just be mailed to everyone who cast a primary vote. One can reasonably argue for either – I prefer the latter approach, as noted – and one can also point out that either approach has its share of logistical challenges. Which means that if we’re serious about this and not just dicking around, we need to get a proposal on the table and have at it.

One other issue to contend with:

Voting rights advocacy groups have been leery of Texas pushing vote-by-mail too far because its system makes it too easy for voters’ ballots to be thrown out if elections officials decide a signature on a returned ballot doesn’t look right.

The Texas Civil Rights Project has warned that the ballots are not reviewed by experts but instead by everyday eligible voters who just eyeball signatures for irregularities. Those decisions are final and give voters no chance to prove a ballot was properly signed. The group has pushed for Texas to allow voters a chance to contest ballots rejected for a signature match issue.

That’s a very legitimate concern, and one that needs to be addressed if this moves forward. Plenty of other states do a lot more voting by mail than Texas does, so I’m sure there are ways to handle this, it just needs to be an actual priority and not something left up to individual elections administrators. Again, if we are serious about this, we need to be talking details as soon as possible. We’ll see about that.

The Texas Democratic Party has called for all mail ballots for both the May primary runoffs and the regular May 2 election. I have no idea what is on the ballot on May 2 – as I said in the comments on my earlier post, there are no elections handled by the Harris County Clerk in May of even-numbered years. I’m fine with the concept, but it’s a whole ‘nother kettle of fish. The possibility of doing more vote by mail in November is also an entirely separate issue, one for which I’ve got a post in the works. For now, I think the primary runoffs are the main concern.

What should we do about the runoffs?

Mar 13th, 2020
by Charles Kuffner.
12 comments

With coronavirus concerns now shutting down all kinds of public events and other large gatherings, it’s more than fair to wonder what the risks are of conducting the primary runoffs in the usual fashion. This post on Indivisible Houston suggests a path forward.

Runoff elections are coming soon, and while I understand commercial events being cancelled, I am absolutely opposed to the cancellation of democracy. Unfortunately, if people are stuck inside for the next month or two, we may have either public health issues or fear weighing down voter turnout by keeping people from going to the polls unless they are eligible to vote by mail.

One approach we may be able to take as a state to ensure people can vote is to demand access to vote by mail for all residents. The Governor of Texas can likely make that happen by a state of emergency or special session. Harris County and other counties can also advocate for such a solution or similar solutions; our county clerk, county attorney, and commissioners court are capable of coming up with a game plan, too.

I understand this is not the foremost concern for everyone in the county because we’re all trying to make sure our county is healthy and that people have their basic needs met. But I also think it’s important to protect democracy. The ballot is too important to be denied, even amidst chaos.

If you agree with me, please call the Governor’s office, your state rep, and your county level officials to demand a solution to the issue.
Below is a script and some of their information. You can call, email, tweet, or preferably do two or all three.

“Hello, my name is ________. I am a constituent and I want to encourage you to find solutions for our May runoff election that would allow all voters to vote by mail and otherwise ensure access to the polls in a way that accounts for the public health crisis.

Please tally my opinion.

Thank you.”

-Governor Greg Abbott – (512) 463-2000
https://gov.texas.gov/apps/contact/opinion.aspx
@gregabbott_tx

-Harris County Judge Lina Hidalgo
713-274-7000
Twitter: @Lina4HC

-Harris County Precinct 1 Commissioner Rodney Ellis
713-274-1000
@RodneyEllis

-Harris County Precinct 2 Commissioner Adrian Garcia
713-755-6220
@adriangarciahtx

-Harris County Precinct 3 Commissioner Steve Radack
713-755-6306

-Harris County Precinct 4 Commissioner R. Jack Cagle
713-755-6444

-Harris County Clerk Diane Trautman
713-274-8600
@dtrautman

Find your state rep and senator here and call them.

I should note up front that primary runoffs have much, much lower turnout (see item 4) than regular primaries. There won’t be any lines to vote in the runoffs. You’ll breeze in and out and may not see anyone but the election workers. That said, those election workers will see and interact with plenty of people over the course of the day, and of course we’ll all be using the same voting machines. Neither of those is a great idea in the time of pandemic, and it’s not at all hard to imagine that turnout could be suppressed even more than usual just from people’s natural fear of going to the polling places.

So given all that, switching to an all vote-by-mail primary runoff seems like an excellent way to mitigate the risk. Greg Abbott would have to call a special session to amend the existing law to allow for this, and I would hope that would be a notion that anyone could get behind. I mean, these are primary runoffs, so there’s no question of partisan advantage, just of public health. As a practical matter, this would have to be done by April 11, as that day is the deadline for sending out mail ballots to overseas voters. There’s time, but let’s not dilly-dally.

(And yes, there would be legit health concerns about getting all 181 legislators plus their staff and journalists and whoever else into the Capitol at this time. I don’t know what they can do to mitigate that. At least they can minimize the amount of time they’d have to all be in one room.)

Assuming that could be done, the next question would be how to get the mail ballots out. Normally, people have to request a mail ballot, if they are eligible. Both parties have programs to help people with that, but this is a much bigger scope, and also a more complex one since anyone who voted in March can only vote in the same party’s runoff. I would advocate that this law mandate that anyone who voted in Round One automatically be sent a mail ballot for the runoff, with anyone who didn’t vote in Round One being eligible to request whichever ballot they might want (as they are allowed to do). That would likely serve as an experiment in how much an all-vote-by-mail election would affect turnout, because I’d expect a lot of people who otherwise might have ignored the runoff would fill in their ballot and send it back. That might cause some heartburn in the Lege, especially (but maybe not exclusively) on the Republican side, and would likely be the biggest point of contention other than whether or not to do this at all. Also, counties might reasonably ask for some funding to cover all those mail ballots, as they would be expected to send out far more than they normally would, and someone has to pay for the postage and handling. I would argue the state should at least kick something in for that – there’s plenty of money available – but again, this would surely be a sore point for some.

(It may not be entirely up to us. Oregon Sen. Ron Wyden has introduced a bill that would require all states to offer voters a vote-by-mail option, or to allow for the drop-off of hand-marked paper ballots, once 25 percent of states and/or territories declare a state of emergency related to the coronavirus. The bill would kick in $500 million in federal funding to help states make this happen. It likely has no chance of passing, though, and even if it did it’s hard to imagine it happening in time for our May 26 runoff. But at least someone else is thinking about it.)

Anyway. I’m convinced this is a good option – you should feel free to tell me in the comments why I’m wrong about that – and should at least be up for discussion, if not action. And I agree, if you think this is a good idea, now would be the time to make some calls and express that opinion to Abbott and your legislators. Time is short, so get to it now or forever lose the chance.

Abbott’s gun suggestions

Sep 16th, 2019
by Charles Kuffner.
Comments are off for this post

Weak leader makes timid proposals. Film at 11.

Gov. Greg Abbott called for the Texas Legislature to consider laws that would make it easier for private gun sellers to perform voluntary background checks on buyers — declining to go as far as other Republicans in backing mandatory ones — in one of a series of recommendations released Thursday.

The safety action report, which comes after a town hall Abbott convened last month to discuss possible solutions in the wake of recent mass shootings in El Paso and Odessa, contains nearly a dozen recommendations to the Legislature, which won’t meet again until 2021 — after the next election.

Select committees in the Texas House and Senate will meet to review and discuss the recommendations in the meantime. It remains to be seen what kind of legislation could come from the report.

Abbott has indicated he has no plans to call a special session, despite calls from a growing chorus of Democratic lawmakers, saying he wants to avoid “hastily” called votes that split along party lines. Instead, earlier this month, he issued a handful of executive orders meant to strengthen the statewide suspicious activity reporting system.

[…]

The 13-page report recommends laws that would speed up the reporting of criminal convictions, crack down on people who illegally buy or possess guns and impose a lifetime ban on convicted felons purchasing firearms.

But the report makes no mention of background checks for private sales between strangers, as Lt. Gov Dan Patrick suggested last week when he side-stepped traditional party lines and the National Rifle Association.

Texas has faced five major mass shootings in the past three years — including two last month. In early August, 22 people were killed by a lone gunman who drove hours to at an El Paso Walmart. At the end of the month, seven died when a shooter went on a spree as he drove through Odessa and Midland.

Ed Scruggs, president of the board of directors for Texas Gun Sense, said it’s “mystifying” how few of Abbott’s recommendations relate to what happened in those shootings.

“The failure to strongly support closing the private sales loophole is mystifying because both the governor and lieutenant governor expressed discomfort what that hole in the system and speculated about how it could be abused,” Scruggs said. “We saw how it was abused in Odessa, so I am really surprised we didn’t see anything more direct on that.”

Here’s the report. It’s not that these are bad ideas, but most of them are reactive – stiffer penalties, better reporting of criminal convictions – and the more proactive ones are presented as things the Lege “may want to consider” rather than as priorities Abbott himself wants to see get done. I mean, unless Abbott calls a special session, as only he can do, the next time any of this will be relevant will be a year and a half from now, and who knows what might be going on then. Not taking immediate action is wiggle room for Abbott and Dan Patrick to let everyone else get distracted and lose focus. Abbott doesn’t want to take real action. He’ll do what he thinks he needs to do to take the heat off, and then he’ll be on to the things he actually wants to do. That’s what this is about. The Trib has more.

Dan Patrick says he’s for slightly expanded background checks

Sep 7th, 2019
by Charles Kuffner.
Comments are off for this post

It’s a start.

Lt. Gov. Dan Patrick says he’s “willing to take an arrow” and defy the National Rifle Association by pressing Texas to close one loophole in gun-purchaser background checks.

On Friday, Patrick said it’s “common sense” to tighten background-check laws because in many instances, stranger-to-stranger sales now are exempt from the requirement that buyers be vetted through a federal database of people not eligible to purchase firearms.

Patrick wants to protect transfers among family members from triggering a check. He’d also continue to exempt friends, though he acknowledged that could be abused. Patrick, who presides over the Texas Senate, said he’s willing to accede to the preferences of senators on whether to maintain that loophole — and if so, exactly how.

But he said Texas must strongly discourage selling guns to strangers without a background check.

“That gap of stranger to stranger we have to close, in my view,” Patrick, a staunchly conservative Republican and avid gun-rights advocate, said in an interview with The Dallas Morning News.

“When I talk to gun owners, NRA members and voters, people don’t understand why we allow strangers to sell guns to total strangers when they have no idea if the person they’re selling the gun to could be a felon, could be someone who’s getting a gun to go commit a crime or could be a potential mass shooter or someone who has serious mental issues.”

“Look, I’m a solid NRA guy,” he said, “but not expanding the background check to eliminate the stranger to stranger sale makes no sense to me and … most folks.”

You can add in the Abbott executive orders that won’t do much but do help give the impression that they’re doing something, or are at least in favor of doing something. Patrick’s idea would be something, though it’s not clear to me how much of something. Does this also close the gun show loophole, or is that outside the scope? If it does include gun show sales, then I’d call it a real step forward, and I will admit to being pleasantly surprised. If not, it’s still not nothing, but it’s also not much. Until we see a bill, and until the Lege is in session to take action on that bill, it’s hard to say. And even if something does get introduced, there will continue to be resistance to it getting passed in any meaningful form. But I’ve been saying that Republicans will take no action, and this is the first indication that I could be wrong about that. We’ll see.

UPDATE: The Texas Signal is also skeptical.

Greg Abbott is not going to take action on gun violence

Sep 5th, 2019
by Charles Kuffner.
4 comments

Why would he? It’s not who he is.

When Gov. Greg Abbott first convened the new Texas Safety Commission last month after the El Paso shooting, he brought with him a stack of papers and wasted little time directing the media’s attention to it.

“In the aftermath of the horrific shooting in Santa Fe, we had discussions just like what we are having today,” Abbott said, holding up thick, paper-clipped packets for the cameras. “Those discussions weren’t just for show and for people to go off into the sunset and do nothing. They led to more than 20 laws being signed by me to make sure that the state of Texas was a better, safer place, including our schools for our children.”

The intended message was clear: He had been here before, and it led to results. But over a year later — with two more mass shootings rocking the state just weeks apart — the pressure that the second-term Republican governor faces to do more to keep Texans safe is higher than ever. And the political divisions are just as intense, as Abbott seeks to navigate between an increasingly influential gun control movement and those in his own party who demand that he hold the line on gun rights.

“My impression is the governor’s in a tight spot … because the majority legislative coalition doesn’t really give anyone on that side a chance to move on this,” said Ed Scruggs, the board vice chair of Texas Gun Sense who has participated in both the post-Santa Fe and post-El Paso roundtables. “They’ve been absolutists for so long that it’s very, very difficult. I really can tell you that the governor wants to do something to prevent this, but politically what is possible — he may be the only one who knows that.”

[…]

However, with Abbott’s response to the shootings still in the roundtable phase, skepticism runs amok. In addition to leaving a trail of gleeful social media posts about Texas gun culture in recent years — tweets that have routinely resurfaced after recent mass shootings in the state — Abbott has overseen a dramatic expansion of gun rights in Texas, from an open carry law in 2016 to the slew of new laws that went into effect Sunday loosening firearms restrictions. And for gun control advocates, the memory is still fresh of Abbott asking lawmakers after the Santa Fe shooting to consider a “red flag” law that would allow local officials to take guns away from people if a judge declares them a danger — only to back away from the idea amid an intraparty backlash.

“I would say I am more cynical about Greg Abbott’s leadership than I am optimistic,” said Peter Ambler, executive director of the gun control group Giffords, who participated in the safety commission meeting in El Paso. “However, I do think there’s a path forward on gun safety legislation. I think that means that Abbott is gonna have to get out of the NRA’s box and take a leadership position that is basically a repudiation of what he’s done in the past and where he’s been in the past.”

Remember first and foremost that the Legislature is not in session, and barring the very unlikely calling of a special session, there’s nothing that can be done in Texas except talk and study until 2021. But look, Greg Abbott believes in more guns and fewer restrictions on them. That’s what he has pushed for, that’s what he advocates, that’s what he is. He may be feeling some political pressure to Do Something about gun violence now, though I’d say that’s more a concern for Republican legislators and Congressfolk losing races than for his own political fortunes, but he also feels a lot of pressure to hold fast against such action. Why would he go along with what Democrats want? It makes no sense, and it collides with everything Abbott has done as a politician. When that changes (spoiler alert: it won’t), let me know. The Chron, the Chron editorial board, Erica Greider, Texas Monthly, the Texas Signal, and the Observer have more.

The Lege will not take any action on guns

Sep 2nd, 2019
by Charles Kuffner.
23 comments

By all means, keep calling for a special session to address the issue. Just do keep in mind who holds all the cards.

At least 17 Texas state lawmakers are asking Gov. Greg Abbott to call a special session to address gun violence following a mass shooting in El Paso that left 22 dead and dozens injured.

The list includes four state representatives from San Antonio, including Roland Gutierrez, Diego Bernal, Leo Pacheco and Ina Minjarez.

“Our state leadership has failed to be proactive and adopt laws that would allow gun safety,” said Gutierrez, who has secured more than 500 signatures in a related online petition. “All Texans should feel safe in their communities. Every year we lose too many to gun violence. Over 3,353 gun-related deaths occur in Texas each year. One death is too many – time for change.”

Others on the list are: state Rep. Shawn Thierry, D-Houston; state Rep. Donna Howard, D-Austin; state Rep. Michelle Beckley, D-Carrollton; state Rep. Nicole Collier, D-Fort Worth; state Rep. Gene Wu, D-Houston; state Rep. Victoria Neave, D-Dallas; state Rep. Gina Hinojosa, D-Austin; state Rep. Erin Zwiener, D-Driftwood; state Rep. Ron Reynolds, D-Missouri City; state Rep. Vikki Goodwin, D-Austin; state Rep. Richard Peña Raymond, D-Laredo; state Sen. Beverly Powell, D-Fort Worth and state Sen. Carol Alvarado, D-Houston.

In case you didn’t read through that whole list, none of the legislators in question are Republicans. That tells you everything you need to know.

(To be fair, there are other political reasons why there won’t be a special session.)

After the massacre of 22 people at an El Paso Walmart by an attacker with a military-style rifle, Texas’ Republican leadership is still unlikely to push for gun restrictions in a state that has long embraced firearms and has nearly 1.4 million handgun license holders, experts and advocates on both sides of the gun issue say. The shooting comes nearly 21 months after the Sutherland Springs massacre that killed more than two dozen people and more than a year after the Santa Fe shooting that killed 10.

“When Texas Republicans look at these massacres, they don’t blame guns, or gun laws. They blame people. They may blame institutions, schools, families, mental health, but not guns,” said Mark Jones, political science professor at Rice University. “If a school massacre and a church massacre didn’t change people’s opinion, the El Paso massacre isn’t going to.”

[…]

Abbott met last week with Democratic lawmakers from El Paso who have pushed for gun control and said he wants to keep guns away from “deranged killers.” Abbott said the state should battle hate, racism and terrorism, but made no mention of gun restrictions.

“Our job is to keep Texans safe,” Abbott said. “We take that job seriously. We will act swiftly and aggressively to address it.”

Abbott said he will meet with experts this month to discuss how Texas can respond – much as he did after shootings in Sutherland Springs and Santa Fe.

Those meetings resulted in Abbott issuing a 43-page report with proposals for more armed guards in schools, boosting mental health screenings, new restrictions on home gun storage, and consideration of red flag laws.

Gun rights supporters immediately pushed back on anything that could be interpreted as restricting gun ownership, and the Legislature’s Republican majority pivoted to expanding run rights. The only victory gun control supporters could claim was a small item in a $250 billion state budget: $1 million for a public awareness campaign on safe gun storage at home.

“They made things worse,” said Gyl Switzer, executive director of Texas Gun Sense. “I went naively into the session thinking ‘Progress here we come.’ But we ran head on into this idea that more guns make us safer.”

Well, more armed guards in schools, in churches, at WalMart, and now after Midland/Odessa, in cars and on the roads. Maybe if we station an armed guard on every street corner, inside every shop and restaurant, and on every floor of every office building in America, we’ll finally be safe from gun violence. We won’t have time to do anything else because we’ll need literally everyone to serve as all those armed guards, but hey, at least we’ll have done something that the Greg Abbotts and Matt Schaefers of the world can abide. Alternately, we can vote them out and elect people who want to do more rational, sensible, and effective things to curb gun violence. Decisions, decisions.

Sometimes, bad bills do die

May 21st, 2019
by Charles Kuffner.
Comments are off for this post

The calendar giveth, and the calendar taketh away.

One of the the biggest priorities for Texas Republicans this session appears to be on the verge of legislative death. A series of bills that would broadly prohibit local governments from regulating employee benefits in the private sector died quietly in the House this week.

The business lobby has long been used to getting what it wants from the Republican-controlled Legislature, but now it’s waving the white flag. “It is dead. … The discussion got completely derailed,” lamented Annie Spilman, lobbyist for the Texas chapter of the National Federation of Independent Business, in an interview with the Observer. The group is one of the lead advocates for the preemption bills. “They really haven’t left us with any hope at all.”

Senate Bill 15 started as a straightforward measure to stomp out a broad swath of emerging local labor policies, like mandatory paid sick leave, in cities including Austin, San Antonio and Dallas. But it ended in the political gutter after Lieutenant Governor Dan Patrick insisted on removing language that explicitly protected local nondiscrimination ordinances (NDOs) for LGBTQ Texans in several cities. Patrick’s move was reportedly made at the behest of Texas Values, the state’s leading social conservative pressure group.

With the high-profile failure of Patrick’s 2017 bathroom bill and now the fight over NDOs, Texas businesses are growing increasingly furious that the lieutenant governor appears unable to stop poisoning their political agenda with right-wing social warfare.

Spilman said she sees it as another example of Patrick putting the priorities of the religious right before businesses. “I don’t think the lieutenant governor has listened to the business community in quite a while,” she said. “Our No. 1 priority was this preemption legislation to stop cities from overreaching, and despite our efforts to compromise with everyone involved, at the end of the day we were ignored and set aside.”

[…]

The House calendars committee finalized the House’s remaining floor agenda Sunday evening, meaning anything that wasn’t placed on the calendar is all but certain to be dead. The preemption bills were not on the list.

It’s suspected that part of the reason the bills died is that Patrick refused to consider any sort of NDO protection language in a compromise bill, according to conversations with multiple sources. Patrick’s office did not respond to requests for comment.

“I think the lieutenant governor was holding a firm line against that,” state Representative Eddie Rodriguez, D-Austin, told the Observer. But Rodriguez also attributes the preemption bills’ procedural defeat to Democrats’ willingness to hold together. “One of the calculations was about is the juice worth the squeeze. What would happen on the floor? We Democrats were holding a firm line of opposition … and [willing to] do whatever to kill them.”

See here, here, and here for some background. The NFIB can go pound sand as far as I’m concerned; they’re a bunch of ideologues who deserve to taste some bitter defeat. The best thing they can do for the state of Texas is get into a fanatical pissing contest with Dan Patrick. They’re now lobbying Greg Abbott for a special session, which is something I’m a little worried about anyway, if some other Republican priorities like the vote suppression bill don’t get passes. I can’t control that, so I’m just going to enjoy this moment, and you should too.

SB9 clears House committee

May 18th, 2019
by Charles Kuffner.
5 comments

Let the stalling tactics begin!

Still the only voter ID anyone should need

The House Elections Committee voted Friday to advance a controversial election bill, setting up a race to get it onto the full chamber’s agenda ahead of bill-killing deadlines that start this weekend.

The committee approved Senate Bill 9 by Republican state Sen. Bryan Hughes on a 5-4 party-line vote during a short meeting on the House floor called two days after the panel heard hours of public testimony — a vast majority in opposition of the bill — during a marathon hearing that ran past midnight.

SB 9 is a wide-ranging bill that makes more than two dozen changes to election practices. Among the provisions are one to make it a felony for Texans who vote when they’re ineligible — even if they do so unknowingly — and another to allow partisan poll watchers or election officials to be present at a voting station if a voter is getting help from someone who isn’t a relative. Those individuals would then be allowed to examine the voter’s ballot before it’s submitted to determine whether it was filled out “in accordance with the voter’s wishes.”

The legislation also grants the state attorney general direct access to the voter rolls and essentially allows Texas to participate in a controversial, Kansas-based voter verification program that has proved to be unreliable and riddled with cybersecurity weaknesses.

[…]

The bill now heads to the House Calendars Committee, which sets the full chamber’s agenda. If it makes it onto the House calendar, the chamber will need to approve it before a midnight deadline Tuesday. Already running against the clock, the House Elections Committee delayed a vote on the bill twice, canceling a Thursday vote when too few Republicans would be in the room to get it out of committee.

See here for the background. AT this point, there are two main questions. First, can the Democrats do enough to delay this bill from getting to the House floor? (Assuming it gets on the calendar, which I figure it will.) And second, if the Dems manage to delay it to death, does Greg Abbott call a special session to revive it? My best guesses are Yes for the first, and Too Soon To Tell for the second. Let’s take it one step at a time and see where we go. In the meantime, keep calling your legislators to let them know that SB9 is a bad bill. The Observer has more.

So what’s happening with SB9, the vote suppression bill?

May 17th, 2019
by Charles Kuffner.
7 comments

The big House committee hearing was on Wednesday.

Still the only voter ID anyone should need

Filed in early March, Senate Bill 9 by Republican state Sen. Bryan Hughes emerged as a priority for Senate leadership and first appeared to seize on bipartisan support for modernizing outdated voting equipment and enhancing election security.

In opening his pitch on the Senate floor in mid-April, Hughes said the “heart of SB 9” was a provision requiring counties to use voting machines by the 2024 general election that provide an auditable paper trail that can be verified by voters.

“It’s our responsibility on behalf of the people of Texas to make sure each county is conducting elections in the most secure way possible or practicable and that voters can truly trust the results,” Hughes said. “This shift to systems with a paper component, with those audits that will follow, will give certainty to every Texan that their vote will be counted fairly.”

The Senate signed off on the measure on a party-line vote. But when it made it to the House Elections Committee on Wednesday, state Rep. Stephanie Klick, a Fort Worth Republican and the panel’s chair, offered a substitute version of the bill that stripped the voting machine language altogether.

The most recent version of SB 9 still makes more than two dozen changes to election practices that proponents have generally described as election security and integrity measures meant to zero in on wrongdoers, not legitimate voters. Hughes previously chalked the other changes up to an attempt to address problems he had heard about from election administrators, district attorneys and the attorney general’s office.

But those changes — many of which election administrators actually oppose — are extensive and significant. To name a few:

The legislation would make it a state jail felony for Texans to vote when they’re ineligible even if they did so unknowingly, elevating that offense from a Class B misdemeanor to include possible jail time and a fine of up to $10,000. Although federal law generally allows a voter to receive assistance in filling out a ballot by the person of their choice, SB 9 would authorize partisan poll watchers or election officials to be present at a voting station if a voter is getting help from someone who isn’t a relative. Those individuals would then be allowed to examine the voter’s ballot before it’s submitted to determine whether it was filled out “in accordance with the voter’s wishes.”

SB 9 would require people who drive at least three voters to whom they’re not related to the polls at the same time for curbside voting — popular among the elderly and people with disabilities — to sign a sworn statement affirming those voters are physically unable to enter the polling place without personal assistance or health risks.

And the legislation grants the state attorney general direct access to the voter rolls and essentially allows Texas to participate in a controversial, Kansas-based voter verification program that’s intended to allow states to compare voter rolls to find people registered in multiple states. It has proved to be ineffective, inaccurate and mired in cybersecurity weaknesses.

Laying out SB 9 before a packed committee room Wednesday morning, Klick told her colleagues the intent of her version of the bill was “neither voter suppression nor to enable voter fraud.”

“Ultimately, the intent of SB 9 is to strengthen election integrity and make sure all votes cast are legitimate votes and no legal voter is inhibited from casting their ballot,” Klick said.

But most of the individuals who testified before the committee countered that.

You should read the rest. Suffice it to say that volunteer deputy registrars and county election administrators like Harris County Clerk Diane Trautman were among the many who opposed SB9. Testimony went well into the night, and in the end the bill was left pending, to be taken up on Thursday and voted out on party lines.

But then a funny thing happened.

Representative Valoree Swanson had a strange day. The backbencher from Spring was absent from the Legislature most of the day with an illness, putting a highly contentious voting bill in jeopardy. Yet somehow, Capitol wags noted, she was voting on other legislation. To move Senate Bill 9 out of committee in these waning days of the legislative session, Swanson was needed in the House Elections Committee, which is split between five Republicans and four Democrats. A 4-4 tie would mean the legislation wouldn’t advance. But Swanson was apparently ailing somewhere away from the Capitol. Until she returned, SB 9 was stuck. Yet meanwhile the massive vote tally boards located at the front the House chamber showed her voting on other legislation.

“Ghost voting”—where lawmakers vote for their colleagues on the House floor for usually innocent reasons—is not really controversial at the Capitol. But being AWOL on legislation desperately wanted by top Republicans is. Her absence left Democrats cheerful, if apprehensive, that they could run out the clock on legislation they see as yet another voter suppression bill aimed at discouraging the elderly and people of color from voting. (SB 9 would, among other things, make it a felony to vote if ineligible, even unwittingly, allow poll watchers to inspect the ballots of disabled people who use non-relatives to help them vote, and require registration of volunteers who drive three or more disabled voters to polling places.)

Even though Swanson showed up mid-afternoon, the House adjourned for the day without setting a hearing for the bill in committee. Though a hearing could still be set, its prospects dim by the hour.

[…]

Instead of voting on the bill late Wednesday, Klick delayed the vote until Thursday morning. As members began to assemble for the committee hearing they learned she had cancelled the meeting because of Swanson’s absence. When Swanson showed up in the House chamber just before 2:30 p.m. (theatrically coughing in the direction of the press), the chairman told another committee member that she had not decided when she might reschedule a vote.

The decision comes at a critical moment for the Texas Legislature as the legislative session draws to a close on Memorial Day. Saturday is the last day for House committees to vote out Senate bills; Tuesday is the last day for the House to consider any Senate bills on the House floor. Given the complexity of the voter bill, one Democrat said it would be easy to load it up with a lot of amendments, which could delay passage of the legislation and endanger other legislation. For now, Swanson’s cough might be enough to kill SB 9.

That would be outstanding. One cannot rule out the possibility of a special session for the purpose of passing SB9 – Greg Abbott has had no qualms about doing that sort of thing in the past – but for today at least, there’s hope.

Did Greg Abbott oppose the bathroom bill?

Mar 15th, 2018
by Charles Kuffner.
1 comment

Color me skeptical.

Gov. Greg Abbott himself was opposed to the controversial “bathroom bill” that dominated debate at the Texas Capitol for much of 2017, according to a state representative involved in keeping the legislation from passing the Texas House.

State Rep. Byron Cook, R-Corsicana, the chairman of the House State Affairs committee that blocked the bill from reaching the House floor for a full vote, said Tuesday that Abbott “did not want that bill on his desk.”

Cook’s comments on the bill, which would have restricted the use of certain public facilities for transgender Texans, came alongside the long-awaited release Tuesday of a report from the House Select Committee on Economic Competitiveness. After months of discussion, a public squabble and several hours-long hearings, most committee members came to the conclusion many had anticipated: the “bathroom bill” is bad for business.

“Future legislators should focus on [low taxes, limited regulation and local control] to maintain a predictable and reliable business climate, avoiding legislation that distracts from critical priorities and is viewed by many as enabling discrimination against certain groups or classes of Texans,” says the committee’s report. “Texas policymakers must acknowledge warnings from leaders in the business community, academicians and law enforcement officials about the consequences of such discriminatory legislation to avoid endangering the state’s successful economy.”

Two of the committee’s Republican members, state Reps. Angie Chen Button of Richardson and Charlie Geren of Fort Worth, didn’t sign the final report. Neither Abbott, Button nor Geren immediately returned a request for comment Tuesday.

Lt. Gov. Dan Patrick first unveiled a “bathroom bill” in January 2017, and for the first several months of debate, Abbott remained largely silent even as some cautioned that it would be bad for business. When an alternative form of the bill emerged in the Texas House in April, Abbott called it a “thoughtful proposal.” But he didn’t give the policy his clear support until later that spring, when he endorsed it as a legislative priority.

No bathroom bill made it to Abbott’s desk by the end of the legislative session in May — a block largely credited to Straus and Cook, who said in a hearing that “there’s no information” supporting the need for such a bill. But Abbott revived the controversial legislation in June, when he put it on his 20-item call for the summer’s month-long special session.

After that, he struck a delicate balance on the thorny issue, calling on legislators to pass all of his special session priorities but taking care not to emphasize the “bathroom bill” individually. Many observers speculated that Abbott was happy to stay out of the fight, letting Straus take the heat for keeping the bill from the floor.

The rest of the story is about that report, which looks like it says more or less what you’d expect it to. I guess the best argument for what Rep. Cook says to be true is basically that Abbott was too scared of getting primaried by Dan Patrick to say anything against a bathroom bill. He’s a weak leader, and I can believe he’d let Joe Straus take all the bullets for him on this, so I can’t completely dismiss Rep. Cook’s words. But how big a wuss does he have to be to put the bathroom bill on the call for the special session if he didn’t want a bill to be sent to him? There’s just no bottom to his fecklessness. The Chron has more.

The Harvey effect on the state budget

Dec 10th, 2017
by Charles Kuffner.
Comments are off for this post

You know what the solution to this is, right?

Senate leaders warned Tuesday that Hurricane Harvey could put a billion-dollar hole in Texas’ budget, an ever-growing number that could affect how much money is available for other state programs.

Only $20 million remains in the state disaster-assistance fund, Senate Finance Committee Chair Jane Nelson said at a public hearing Tuesday on the status of hurricane recovery efforts.

“Our state costs are escalating,” said Nelson, R-Flower Mound. “We need to be judicious. … If we, God forbid, had another disaster in the next 18 months, where would we get the money?”

The Legislature will not convene in a regular session until January 2019.

The state has spent more than $1.7 billion so far in state funds, along with billions in federal assistance, according to updated numbers provided to the committee on Tuesday. Legislative Budget Board officials said as much as $2 billion in additional state funds may be needed in 2019 to cover hurricane-related school costs.

[…]

[Land Commissioner George P.] Bush said that $1 billion in immediate state funding would allow temporary housing assistance to be speeded up. Those funds could be fully reimbursed later by the federal government, he said.

State Sen. Royce West, D-Dallas, suggested those funds could be borrowed quickly from the state’s Rainy Day Fund – a savings account – to expedite the housing recovery for thousands of Texans, some of whom are living in tents.

“We’d need to have a special session” to approve that borrowing, West said, drawing silence from other committee members.

Yes, that is what the Rainy Day fund is for. Not specifically for disaster recovery – that was the bogus justification invented by Rick Perry in 2011 as an excuse for not alleviating cuts to the public education budget – but to help cover budget shortfalls in bad times. The choice is pretty simple, either we draw money from the Rainy Day fund to help the thousands of people who remain displaced by Harvey, or we decide they’re not worth our time and compassion. No wonder Sen. West got no response when he brought it up.

Abbott says he wants a list from Turner

Sep 29th, 2017
by Charles Kuffner.
2 comments

A list of funding priorities, he says. Because he’s passive like that.

Answering Houston’s latest complaints over funding for Hurricane Harvey recovery efforts, Gov. Greg Abbott on Wednesday told Mayor Sylvester Turner the state can step up with more money as soon as the city gets a list of its top needs to the state.

Let’s meet quickly, Abbott said, as the deadline for an initial wave of federal funding is Friday.

After some verbal back-and-forth between the two leaders in recent days over funding for debris removal among other costs, Abbott wrote a four-page letter to Turner late Tuesday outlining seven different federal programs under which Houston will qualify for additional hurricane relief — from small-business disaster loans to special unemployment assistance to funding to help with food and housing needs.

[…]

“The Economic Stabilization Fund (the official name of the Rainy Day Fund) is a limited resource, and so it is imperative we understand the statewide financial situation before draining the fund only to learn of more financial obligations,” Abbott said in his letter.

“As of now it would be impossible to determine the highest and best use of ESF, because we do not yet know the extent of the losses . . . Texas should first use the full array of state financial resources and federal resources already available already available to us to respond to our current needs.

“Those tools should sufficient to respond to our needs, and Texans’ needs, until the next (legislative) session at which time a supplemental budget can be passed to pay for the expenses Texas has incurred. That supplemental budget will almost assuredly require using money from the Rainy Day Fund.”

See here for the background. I have no idea if Abbott felt a sensation akin to “shame” or “political pressure”, or if this story follows on the heels of the other one simply because there was information made available subsequently that added to the original picture. Be that as may, to address the substance of Abbott’s letter, let me first point you to this story in the Press:

Turner did give Abbott at least three specific examples of how Houston could use the Rainy Day Fund money in his letter Monday. For one, debris removal is projected to cost Houston $25 million, since FEMA is picking up 90 percent of the projected $250 debris removal tab. Turner has said structural damage to city buildings is now in the ballpark of $175 million — but meanwhile, the city’s flood insurance plan capped out at $100 million. In order to extend the plan through April 2018, so that the city still has flood insurance should another tropical storm make landfall this year, that’ll cost $10 million. The city must also pay a $15 million insurance deductible to recover on damages.

The mayor’s spokesman, Alan Bernstein, said that if the state were to hand over the $50 million to cover these insurance and debris removal costs, that is all the city is asking for and there will be no need to raise taxes.

$50 million is less than half of a percent of the total fund.

Is that list-y enough for you, Greg? Author Megan Flynn did a nice job of talking to some fiscal conservative types, none of whom could think of a good reason not to tap into the Rainy Day Fund for this. Note also that allocating $50 million from the $10 billion fund would “drain” it in the same way that spending a nickel on a piece of gum would “drain” a $10 bill.

The Chron editorial board, which reaches back to the 70s for a good analogy, also has a few minor corrections for our only Governor.

The governor rejected Turner’s request. He and Lt. Gov. Dan Patrick, another Houstonian, have said the mayor can use funds held by Tax Increment Reinvestment Zones for Harvey cleanup and recovery efforts. They’re mistaken. TIRZ bond funds are legally restricted to the use for which they were issued.

The governor has said the mayor’s request is unprecedented. Again, he’s mistaken. In 2013, the Legislature tapped into the Rainy Day Fund to help the Bastrop area recover from devastating wildfires. Bastrop County residents will tell you those fires were bad, but they didn’t cause damage expected to top $150 billion. That’s the toll Harvey wrought.

The governor has said the state has given Houston money. Again, he’s mistaken. The money that’s come our way is FEMA money destined for Houston and passed through the state, which keeps more than 3 percent for administrative costs. No state money has been allocated to the city for Harvey recovery.

Other than the folly of calling either Abbott of Patrick a “Houstonian” – Abbott has lived in Austin for all 20+ years of his political career, while Patrick is a “Houstonian” in the way all rich old white guys in the far flung master-planned communities and who think all cities are cesspools of crime and corruption because they don’t have enough rich old white guys like them living in them – I agree. What Abbott wants more than anything is a pretext to not do anything. If these falsehoods don’t work, I’m sure he’ll have others at the ready. The Observer has more.

Abbott has no interest in helping Houston

Sep 27th, 2017
by Charles Kuffner.
5 comments

So much for that.

If the state taps into the Rainy Day Fund to help with recovery following Hurricane Harvey, it won’t be until the next legislative session, Gov. Greg Abbott said during a news conference Tuesday.

Abbott’s announcement comes after Houston Mayor Sylvester Turner wrote to the governor asking the state to use the $10 billion fund. Turner said without significant state help, Houston will be forced to raise property taxes for one year to bring in $50 million for recovery efforts, which would cost the owner of an average Houston house $48.

Turner said he would not have proposed the tax hike had the governor called a special session to tap into the fund.

Abbott, who has said the state has enough resources to address Harvey-related needs between now and the next legislative session, added Tuesday that the state has already granted Houston almost $100 million for debris removal and established an “accelerated reimbursement program” for recovery efforts.

Abbott said he would pay any invoice the city submits to the state within 10 days.

Turner “has all the money that he needs,” Abbott said. “He just needs to tap into it,” referring to money in Tax Increment Reinvestment Zones.

In an emailed statement Tuesday, Turner spokesman Alan Bernstein said Houston “cannot raid funds that the state has indicated cannot be raided – and which are largely for drainage projects to prevent future flooding anyway.”

Remember when we were talking about how Harvey has changed things in the state? Boy, those were the days. I believe this should settle once and for all what the Rainy Day Fund is for: Absolutely nothing. It’s an illusion. We should take all the money in this fund, convert it to gold bullion, and bury it in Greg Abbott’s backyard, perhaps next to one of the wells he had drilled to water his lawn during droughts. That would do us as much good as the fund actually does now. Maybe this might inspire someone to run against Abbott. It’s as easy an issue as you’ll get to run on. In any event, we’re on our own, because special sessions are for potties but not hurricane recovery. Thanks, Abbott!

UPDATE: Also, too, other parts of the state are in really bad shape. Sure, there’s insurance and FEMA and charity and volunteers, and all of those things should be utilized to the maximum. But does that mean the state gets off the hook, or that it just gets to sit back and wait to see what’s left over, which it then may get around to helping out with if it feels like it and if it doesn’t feel “blackmailed” by local officials who are trying to do their jobs? The lack of leadership here is as deep and pervasive as the rainfall was a month ago.

Has Harvey changed anything politically?

Sep 25th, 2017
by Charles Kuffner.
2 comments

You’d think it would, but it remains to be seen as far as I’m concerned.

A month to the day after Hurricane Harvey made landfall in Texas, the reality of the storm was beginning to sink in on the minds of politicians, policy makers and advocates bracing for a long recovery.

In short, any political plans people had pre-Harvey are now moot.

“Whatever any of us thought or hoped that the agenda for the next session would be, it is going to be overtaken by mother nature,” House Speaker Joe Straus told a full auditorium at the University of Texas Saturday. “It’s going to the biggest challenge that we face.”

[…]

Politicians said it’s still too soon to know exactly what the state needs to do to help the areas slammed by the storm cover, such as how much money it will cost to fix schools and roads and invest in such infrastructure to guard against future storms.

What policy experts and politicians across the board do know is it could take years for the state to recover.

The storm may provide an opportunity for a special legislative session for lawmakers to rethink the state’s school funding formula given property taxes, which schools depend on for funding, are expected to tank in storm-ravaged areas, said state Rep. Dan Huberty, R-Humble.

“I don’t believe 1 million children are going anywhere, but their homes have been destroyed,” he said, noting his home sustained $50,000 in damage from Harvey. “I just don’t see any path to victory for the schools if we don’t take this very seriously going forward.”

Huberty wants lawmakers to return to Austin for a special legislative session focused on storm relief. In that conversation, they could rehab the state’s school funding formula to level out funding for districts that stand to lose property tax revenue from the storm.

[…]

Education Commissioner Mike Morath said he’s still undecided about whether to cancel, delay or ease how the state grades schools based on the tests. However, his tone changed from last week when he told the State Board of Education it was unlikely Texas would tinker with the STAAR.

That will be worth keeping an eye on. I’ve been thinking about what would have to happen for me to accept that “things have changed” in a substantive fashion. Two possibilities come to mind:

1. A special session to address school finance. This can’t be just to make payments to districts to cover Harvey costs that insurance and the feds won’t pay, though that absolutely needs to happen, and it can’t be something that waits till 2019 and is the initiative of the House Education Committee and Speaker Straus, because we already know they’re on board for this. It also can’t be used as a vehicle for pushing through the usual hobbyhorses like vouchers or the new obsessions like bathroom bills. The call would have to include both addressing disaster funding and more importantly the overall inequities of the system. The reason why this would be a change would be that it would demonstrate for the first time that Greg Abbott wants to fix this problem, and it would provide him with the chance to separate himself from Dan Patrick. For a variety of what should be obvious reasons, I don’t expect this to happen, but if it does it will be a real change.

2. Someone loses an election as a result of being unwilling to take positive action to abet recovery. I don’t think this will happen because right now the main obstacle to getting things done is Paul Bettencourt, and he’s not in any position to lose a race. The members of Congress who voted against Harvey aid, whatever their reasons for doing so, are all well outside the affected area. If a special session does happen, then that would create opportunities for people to say and do potentially costly things, but in the absence of such, I any current officeholder has much to worry about at this time.

I’m sure there are other possibilities, but these are what come to my mind. Everything else feels like normal business to me. Maybe if the state winds up doing nothing to help cities and school districts cover costs, despite the $10 billion-plus in the Rainy Day Fund, that would count as something having changed, though that’s clearly not what the story is about. I’m open to the idea that “things” will “change” after Harvey, but I’m going to wait until I see it happen before I believe it.

More post-Harvey ideas

Sep 12th, 2017
by Charles Kuffner.
9 comments

From the Chron, which likens this moment to what Galveston faced after the great hurricane of 1900:

1. Establish a regional flood control authority

Floodwaters ignore city-limit signs and county-line markers. We can’t adequately address drainage issues with a mélange of municipal efforts and flood control districts split between local jurisdictions. Instead of dividing these disaster-prevention efforts into provincial fiefdoms, we need a single authority with the power to levy taxes that will take charge of all of our area’s drainage issues. Gov. Abbott should call a special session of the Legislature and set up such an authority.

Although we are skeptical about whether lawmakers obsessed with divisive social issues can turn their attention to urgent needs, establishing this authority requires action from Austin. Our governor and our Legislature need to get this done immediately.

2. Build a third reservoir

Addicks and Barker dams, reservoirs and spillways, constructed more than 60 years ago, are dangerously inadequate. The U.S. Corps of Engineers rated both as “extremely high-risk” infrastructure years before Harvey. Houston environmental attorney Jim Blackburn maintains that at least one new reservoir should be constructed in northwest Harris County that can help flooding along Cypress Creek, Bear Creek and Buffalo Bayou. He urges the construction of additional upstream locations on virtually every stream in our region.

Harvey shoved us uncomfortably close to catastrophe. We need a third reservoir, and probably more, to avoid unimaginable consequences the next time. Some experts estimate this could be a half-billion-dollar infrastructure project. It is a small price to pay to avoid catastrophe and should be part of any federal relief plan.

[…]

5. Approve new funding streams

We need money. A lot of it. Current local budgets are inadequate to cover the costs of the massive infrastructure investment we’ll need to keep this region safe from floods. The Harris County Flood Control District has a capital improvement budget of $60 million per year. Mike Talbott, the district’s former executive director, estimated that we need about $26 billion for necessary infrastructure updates.

That third one is the key, of course. A lot of what the Chron suggests requires at least some input from the Legislature. Given everything we know about this Lege and this Governor and the recent anti-local control obsession, what do you think are the odds of that?

By the way, the Chron also mentions ReBuild Houston and its associated drainage fee. It sure would make some sense to have a dedicated fund like that for all of Harris County, and perhaps for Fort Bend and Brazoria and Galveston too. I’m going to ask again – what exactly is the argument for continuing the lawsuit over the 2010 referendum, and what would be the argument against re-approving this fund if it has to be voted on again?

From The Conversation:

Proactive maintenance first. In 2017, U.S. infrastructure was given a D+ by the American Society for Civil Engineering Infrastructure Report Card. The bill to repair all those deteriorating roads, bridges and dams would tally $210 billion by 2020, and $520 billion in 2040. For example, the US Army Corps of Engineers estimates there are 15,460 dams in the U.S. with “high” hazard ratings.

Yet, when our cities and states spend on infrastructure, it is too often on new infrastructure projects. And new infrastructure tend to emulate the models, designs and standards that we’ve used for decades – for instance, more highway capacity or new pipelines.

Meanwhile, resources for long-term maintenance are often lacking, resulting in a race to scrape together funding to keep systems running. If we want to get serious about avoiding disasters in a rapidly changing world, we must get serious about the maintenance of existing infrastructure.

Invest in and redesign institutions, not just infrastructure. When analyzing breakdowns in infrastructure, it is tempting to blame the technical design. Yet design parameters are set by institutions and shaped by politics, financing and policy goals.

So failures in infrastructure are not just technical failures; they are institutional ones as well. They are failures in “knowledge systems,” or the ability to generate, communicate and utilize knowledge within and across institutions.

For example, the levee failures during Hurricane Katrina are often interpreted as technical failures. They were, but we also knew the levees would fail in a storm as powerful as Katrina. And so the levee failureswere also failures in institutional design – the information about the weakness of the levees was not utilized in part because the Hurricane Protection System was poorly funded and lacked the necessary institutional and political power to force action.

In the wake of Harvey, basic design and floodplain development parameters, like the 100-year flood, are being acknowledged as fundamentally flawed. Our ability to design more resilient infrastructure will depend on our ability to design more effective institutions to manage these complex problems, learn from failures and adapt.

On that first point, the Addicks and Barker dams both need some fixing up. Let’s not forget that sort of thing.

Finally, from Mimi Swartz, in Texas Monthly:

Yet if dirty air and dirty water and flooded, congested streets all sound a little familiar, there’s a reason. As Ginny Goldman, a longtime organizer who is currently chairing the Harvey Community Relief Fund, said to me, “There are often these problems in a city of any size, but here, where we haven’t done enough to deal with affordable housing and transportation access and income inequality, and where the state has blocked public disclosure of hazardous chemicals in neighborhoods, then a natural disaster hits and we pull the curtain back and it’s all on full display.”

Just after Harvey started pounding Houston with what looked to be never-ending rainfall, I got an email from an old friend who was lucky enough to be out of town for the main event. Sanford Criner is an inordinately successful member of Houston’s developer class, a vice chairman of CBRE Group, the largest commercial real estate and investment firm in the world. He is also a native Houstonian, and like so many of us here, he was already thinking about what was coming next. (Yes, it’s a Houston thing.) “Either we are committed to a future in which we collectively work for the good of the whole,” Criner wrote, “or we decide we’re all committed only to our individual success (even perhaps assuming that that will somehow lead to the common good). I think our story now is either: (i) Houston is the new Netherlands, using our technological genius to develop sophisticated answers to the most challenging global problems of the twenty-first century, or (ii) we are the little Dutch boy, who pokes his finger in the dike, solving the problems of the twenty-five people in his neighborhood. How we respond to this will determine into which of those categories we fit and will define Houston’s future.”

“I’m hopeful. But scared,” he added, neatly summing up the stakes moving forward.

In the past few decades, even as Houston was making its mark on the global economy, building gleaming towers designed by world-class architects and mansions the size of Middle Eastern embassies, as we were hosting world premieres of radically new operas and ballets and coming up with those crazy Asian-Cajun fusion dishes to die for—even as we really were and are optimistic, innovative, entrepreneurial, pretty tolerant, and all that other good stuff—we were doing so selectively. That instinct for the quick fix, or no fix at all, has been with us since the city started expanding in the sixties and seventies and is still a part of the Houston way. In reality, we keep dragging our dark side forward, a shadow sewn to our heels with the strongest surgical wire.

So now the question we face is this: Will Houston become a model for flood relief and disaster recovery, or just another once grand city sinking into mediocrity? In other words, can we be true to our reputation for innovation and aim for something higher than the status quo? The answer depends on which aspects of our culture wind up dominating the search for solutions.

That’s more of a high-level view than a specific suggestion, but it sums up the issue concisely. It’s important to realize that none of the things that many people have been saying we should do are impossible. They are all within our capabilities, if we want to do them. The choice is ours, and if the politicians we elect aren’t on board with it, then we need to elect new leaders. It’s as simple as that.

The case for calling a Harvey special session

Sep 5th, 2017
by Charles Kuffner.
4 comments

Rep. Gene Wu disagrees with Greg Abbott’s decision.

Rep. Gene Wu

The historic level of damage and suffering caused by Harvey requires that we tap into our state’s Rainy Day Fund. Gov. Greg Abbott’s decision to not call a special session of the Texas Legislature to access emergency funding will worsen the long-term economic effects of one of the most powerful storms to ever land on our shores.

Abbott has stated that there is no need for a special session, implicitly saying that there is no need to tap into the Economic Stabilization Fund — our state’s savings account, commonly known as the Rainy Day Fund — and that existing resources are sufficient to deal with the widespread devastation caused by Harvey.

However, if there has been one lesson that I’ve learned in my three terms in the Legislature, it’s that existing resources are never adequate in Texas. Our schools continue to be some of the worst funded in the nation, half of our rural hospitals are on the verge of closing, and we barely maintain our existing infrastructure. Texas mostly skates by on a combination of luck and creative accounting. But more importantly, what we have budgeted for are common occurrences and normal disasters. The historic level of damage from Harvey is anything but common.

[…]

The Rainy Day Fund is available right now. The Texas Legislature needs to only meet for a few days and send a bill to the governor to access the funds. There is strong bipartisan support because members understand the desperate need for a quick response. In this past legislative session, conservative members argued that the fund should not be used for “reoccurring” expenses because we needed to save it for one-time emergencies. This is that emergency.

The state could provide immediate, low-interest or no-interest small loans to help businesses rebuild quickly. The money could go to help Houston ISD to repair the more than 200 schools that suffered flood damage, including 53 with critical damage. Harris County could use the funds to expedite repairs so that courts and the jury assembly center are not closed for the next three months. Outside of the Houston area, entire cities need to be rebuilt. Simply leaving local counties and municipalities on their own to rebuild means a slower recovery — possibly causing businesses to close or leave our state, and taking jobs with them.

See here for the background. I guess I’m not fully clear on what the Legislative Budget Board can and cannot do, and what gaps there would be if only the LBB gets to act. I do think Rep. Wu is right on about appropriating money to the schools and school districts that have been heavily damaged by Harvey. I can’t think of a better use of Rainy Day Fund money than to make schools safe and available for students again. Again, if the LBB can do this, great. It will be a lot less messy that way – I mean, if you think the jackasses of the Freedom Caucus won’t try to screw with an emergency appropriations bill for school repairs, I have to ask what Legislature you’ve been watching – but if the LBB can’t do that, then a special session it needs to be.

No special session needed to address Harvey flooding

Sep 2nd, 2017
by Charles Kuffner.
2 comments

So says Greg Abbott.

Gov. Greg Abbott said Friday another special session of the Texas Legislature won’t be necessary to deal with the response to Hurricane Harvey.

“We won’t need a special session for this,” Abbott told reporters, noting that the state has enough resources to “address the needs between now and the next session.”

[…]

In recent days, some members of the Texas Legislature have speculated that a special session to address the recovery seemed likely. They included state Sen. Paul Bettencourt, R-Houston, an ally of Lt. Gov. Dan Patrick and the chairman of the Senate GOP caucus.

“My personal assumption right now is that we will probably be back in Austin at work no later than January,” Bettencourt told the Houston Chronicle on Thursday.

Here’s that Chron story. A few details from it to help clarify:

“My personal assumption right now is that we will probably be back in Austin at work no later than January,” said Senate Republican Caucus Chair Paul Bettencourt, R-Houston, echoing the sentiments of other House and Senate members.

“The governor and the Legislative Budget Board have the ability to move around quite a bit of money in current appropriations, but it probably won’t be enough when all the bills come in. This storm is going to cost more than (hurricanes) Katrina and Sandy put together, and I’m thinking we’ll be breaking the $200 billion mark before this over.”

While the state would be liable for only a fraction of that amount, after insurance and federal payments come in, but whatever that (remaining) amount is will be something the Legislature will probably have to address.”

That, say other lawmakers, will most likely involve a politically charged debate over tapping the state’s so-called Rainy Day Fund — a $10 billion account officially known as the Economic Stabilization Fund — to pay for some of the storm-damage tab.

[…]

In a Thursday letter to House members, House Speaker Joe Straus said he will be issuing selective interim charges — directives for legislative recommendations — “in the near future to address these challenges” resulting from the massive destruction caused by Harvey, especially to schools.

“The House Appropriations Committee will identify state resources that can be applied toward the recovery and relief efforts being incurred today, as well as long-term investments the state can make to minimize future storms,” the San Antonio Republican said in his letter. “When the appropriate time comes, other committees will review the state’s response and delivery of services.”

The Legislative Budget Board, jointly headed by Lt. Gov. Dan Patrick and Straus, can make key decisions on reallocating state funds to meet emergency needs — up to a point, officials said. Half of its members — three senators and two House members — represent areas devastated by Harvey.

My guess is that Abbott is probably right and the LBB can cover this for now. Tapping the Rainy Day Fund, which I will point out again was created for the purpose of helping to cover budget shortfalls in times of economic downturn before being bizarrely recast as in-case-of-disaster savings by Rick Perry in 2011, may require the Lege, but that may be done in a way as to defer that action until 2019. My wonk skillz are limited in this particular area. Point being, if Congress can manage to allocate relief funding without tripping over their ideologies, there shouldn’t be that much for the state to have to pick up. We’ll see.

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