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Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

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

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

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

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

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

To the Honorable Supreme Court of Texas:

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

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

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

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

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

Hotze’s latest Supreme Court gambit

He has nothing else to do, clearly.

A litigious conservative activist in Houston, the Harris County Republican party, and a number of Republican officials and candidates are asking the Texas Supreme Court to limit in-person and absentee voting options for Harris County voters during the pandemic.

The county, the state’s most populous and a major Democratic stronghold, began letting voters drop off absentee ballots Monday for the Nov. 3 general election at 11 annexes. In line with a directive from Republican Gov. Greg Abbott, the county also intends to begin in-person early voting Oct. 13.

Prominent activist Steve Hotze, as well as Wendell Champion, a Republican candidate for Congress; Sharon Hemphill, a Republican candidate for judge; and the local GOP chair, are suing to stop that, arguing Harris County Clerk Chris Hollins is overreaching the bounds of state election law. They’re asking the state’s highest civil court to order Harris County to not begin early voting until Oct. 19 — the date set by state law that Abbott extended by executive order, citing safety concerns — and not accept absentee ballots delivered in person until Nov. 3.

[…]

The conservative plaintiffs also argue that state law does not allow Hollins to permit voters to drop off their ballots at the 11 sites, a strategy they claim “creates an opportunity ripe for fraud.”

According to the Harris County clerk’s website, voters who complete absentee ballots may drop them off at any of 11 locations during specified hours, including 7 a.m. to 7 p.m. during the early voting period and on Election Day. Voters can deliver only their own ballots in person, and when they do they must present identification.

As the story notes, this is in addition to the mandamus request to halt the extra week of early voting statewide. I have a hard time imagining even this Supreme Court thinking that the law supports halting the extra week in only one county. The use of County Clerk annexes and locations like NRG Arena as mail ballot dropoff locations has been discussed for weeks and weeks, so you have to wonder why this is just being filed now. (It may be because it wasn’t an issue that could be litigated before now – the legal system can be funny that way.) Hotze of course was also the first to try to stop the sending out of mail ballot applications, for which there should be a SCOTX hearing on Wednesday. The other stuff, I have no idea. There’s nothing to indicate any action from SCOTX on the mandamus to halt the extra week of early voting, but I suppose that could happen out of the blue at any time between now and October 12, so who knows. Hotze is basically Pennywise without the makeup, but that doesn’t mean that SCOTX won’t join him down in the sewer.

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

Here we go again.

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

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

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

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

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

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

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

[…]

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

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

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

The Chron adds some detail.

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

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

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

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

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

Never stop never stopping, Stevie.

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

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

A matter of timing

That’s the stated reason why SCOTX overturned the earlier decision that booted three Green Party candidates off the ballot.

The Texas Supreme Court in a new opinion Friday explained its decision to reinstate to the November ballot Green Party candidates who did not pay their filing fees, saying lower courts denied them the chance to resolve the issue while there was still time under the law.

[…]

Justices acknowledged the strain that adding last-minute candidates may put on county elections officials, who were just days away from sending out their first rounds of ballots before the court’s order was announced on Tuesday. The high court did not publish its opinion in the matter until Friday.

“We recognize that changes to the ballot at this late point in the process will require extra time and resources to be expended by our local election officials,” the opinion read. “But a candidate’s access to the ballot is an important value to our democracy.”

[…]

In the unsigned opinion handed down Friday, justices said Democrats challenging the validity of Green Party candidates failed to prove that the election law requires party chairs to declare candidates ineligible when they don’t pay filing fees, and that the 2019 law doesn’t include a deadline for paying them.

Justices also say the Third Court of Appeals should have given Green Party candidates a chance to pay their fees before declaring ineligible and tossed from the ballot.

See here and here for the background. The opinion is here, and Michael Hurta continues his Twitter thread on this here, with some replies from me at the end. We’re going to need to delve into the opinion, because it’s more nuanced than what this story gives, and also clarifies something else that I hadn’t realized I was confused about.

First, in stating that RRC candidate Chrysta Castañeda “failed to prove the Election Code clearly spelled out the duty of the co-chairs to declare the Green Party candidates ineligible for their failure to pay the filing fee”, SCOTX clears up something from the legal challenge to the filing fees that I had missed.

The court explained that section 141.041 does not set a deadline for compliance but that the requirements apply only to the candidates actually nominated at a party’s nominating convention generally held in March or April of the election year. Id. at ___. Candidates who intend to seek a nomination at a convention must file a notarized application in December before the convention. Id. at ___ (citing TEX. ELEC. CODE §§ 141.031, 172.023(a), 181.031–.033). The advisory, by requiring payment of the filing fee before the nominating convention, expanded the requirements in 141.041 from all nominated candidates to all candidates seeking nomination. Id. at ___. The court ultimately held that payment of the filing fee under section 141.041 was still required, but the court affirmed the trial court’s order temporarily enjoining the Secretary of State from refusing to certify third-party nominees on the grounds that the nominees did not pay a filing fee at the time of filing. Id. at ___.

We agree with the Fourteenth Court of Appeals that under section 141.041 only a convention-nominated candidate is required to pay the filing fee. See TEX. ELEC. CODE §141.041(a) (“[A] candidate who is nominated by convention . . . must pay a filing fee . . . .”). Therefore, we also agree that the Secretary of State’s advisory requiring payment of the filing fee at the time of filing an application is not required by, and indeed conflicts with, the Election Code. See id. Section 141.041 does not include a deadline for compliance, but as we explained in In re Francis, when an Election Code provision does not provide explicit guidance, we apply a presumption against removing parties from the ballot. 186 S.W.3d at 542.

I had not understood the distinction between mandating that all candidates who compete for the nomination must pay the fee and just mandating that the candidates who actually receive the nomination must pay it. I’m fine with that. The key to the decision here is the question about deadlines, and how much time the Green Party and its candidates were supposed to have to fix their failure to pay these fees (which as we know they claim are unconstitutional).

Castañeda presented a public record to the co-chairs showing that as of August 17, the Green Party candidates had not paid the filing fee. As previously noted, section 141.041 requires the filing fee but contains no deadline for its payment, see TEX. ELEC. CODE § 141.041, and the only potential applicable deadline in the Secretary of State’s election advisory conflicts with that provision. Hughs, ___ S.W.3d at ___. Strictly construing these sections against ineligibility, we disagree that the public document demonstrating that the Green Party candidates had not paid the filing fee as of August 17 conclusively established that they were ineligible. To be “eligible to be placed on the ballot,” the Green Party Candidates were required to pay the filing fee or file signature petitions. TEX. ELEC. CODE § 141.041 (emphasis added). The co-chairs did not have a ministerial statutory duty to declare the candidates ineligible, as the law did not clearly spell out their duty on August 17 when the candidates had not yet paid the filing fee such that nothing was left to the exercise of their discretion. See In re Williams, 470 S.W.3d at 821.

The court of appeals ordered the co-chairs to declare the Green Party candidates ineligible and take necessary steps to ensure their names did not appear on the ballot. ___ S.W.3d at ___. But the court did not address a deadline for payment, nor did it otherwise allow for payment of the fee. And under In re Francis, an opportunity to cure should be provided when a candidate could still comply with Election Code requirements. 186 S.W.3d at 541–42 (noting that an opportunity to cure complies with the purposes of the Election Code and avoids potential constitutional problems that “might be implicated if access to the ballot was unnecessarily restricted”). “The public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default.” Id. at 542. In the absence of recognizing a deadline for paying the filing fee or giving the candidates an opportunity to comply, the court of appeals erred in ordering the Green Party candidates removed from the ballot on August 19.

Emphasis in the original. The opinion cited an earlier case of a candidate who had turned in petition signatures to be on a ballot but failed to correctly fill out all the petition pages with information about the office he sought, and was tossed from the ballot as a result. On appeal, he was restored on the grounds that he should have been given the chance to fix the error before having the axe fall on him. Much as I dislike this opinion, I agree with that principle, and I don’t have a problem with it being applied here, though of course we can argue about what a reasonable amount of time should be to allow for such a fix to be applied. SCOTX left that question open, so if the filing fees are still in place in 2022 and the Libertarians and Greens are still resisting it, look for some judges to have to determine what sort of schedule should be applied to non-fee-payers, in an attempt to follow this precedent.

As I said, I don’t like this decision, but I can accept it. It didn’t immediately make me want to crawl through the Internet and slap someone. But let’s be clear about something, if SCOTX is going to appeal to higher principles in cases like this, which just happen to also align with the desires of the Republican Party, then I’d like to see some evidence that they will err on the side of the voters in a case that doesn’t align with the GOP. Like, say, the Harris County mail ballot applications case. What are you going to do with that one, folks? And please note, the clock is ticking. A decision rendered for Chris Hollins in late October doesn’t exactly mean anything. Let’s see where the SCOTX justices really stand.

Appeals court sides with Hollins in mail ballot applications case

It’s up to SCOTX now.

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

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

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

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

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

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

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

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

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

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

In the legal fight to exclude minor party candidates from the November ballot, Republican Attorney General Ken Paxton took a flexible view of time and deadlines.

After the Texas GOP filed suit Aug. 21 to remove 44 Libertarians from the ballot for failure to pay a required candidate filing fee, Paxton told the Texas Supreme Court that there was plenty of time to pursue the challenge.

This week, however, Paxton told the same court that a Democratic bid to oust three Green Party candidates — filed four days before the unsuccessful GOP challenge — was begun much too late and needed to be overturned.

“The (Democrats’) dilatory conduct and unjustified delay in seeking relief imposed an undue burden on the Green Party officials,” Paxton told the court in a brief filed Monday.

[…]

[F]acing an Aug. 21 deadline to declare candidates ineligible, Democrats sued Aug. 17 to strike three Greens running for U.S. Senate, U.S. House and Railroad Commission.

The Austin-based 3rd Court of Appeals gave the Greens less than 48 hours to respond, then issued an Aug. 19 order declaring the three Green Party candidates ineligible for failure to pay the filing fee. The 2-1 ruling had two Democrats in the majority and one Republican dissenting.

The ruling drew the notice of Republican Party leaders, who quickly demanded that Libertarian leaders drop a long list of candidates for the same reason.

When those demands were rejected, Republican organizations and candidates asked the 3rd Court of Appeals to follow the precedent set in the Democratic challenge and order the Libertarians removed from the ballot.

But the GOP filed its challenge on Aug. 21, the deadline to declare candidates ineligible, and the appeals court tossed it out, ruling that there wasn’t time to hear from all parties and gather the necessary information before the deadline expired.

The GOP turned to the Texas Supreme Court, arguing that instead of challenging candidate eligibility under an expired deadline, it was challenging the Libertarians’ candidate applications as improper — giving them until Sept. 18 to seek court intervention.

Paxton, in a letter brief to the Supreme Court, agreed with the GOP interpretation of state election law.

“Under Texas law, there is still time for this Court to compel compliance,” Paxton told the court on Sept. 4.

The all-Republican Supreme Court disagreed, ruling Sept. 5 that the GOP and Paxton were looking at the wrong section of the Election Code on deadlines. The court concluded that the Libertarians could not be removed from the ballot because the GOP challenge was filed too late.

[…]

Then on Friday, the Green Party asked the Supreme Court to reinstate its three candidates, arguing that like the GOP, the Democrats relied on the wrong part of the Election Code, rendering their challenge void as well.

The court asked Paxton’s office for its opinion.

In Monday’s response, filed 10 days after arguing that the GOP had not acted too late in challenging Libertarian opponents, Paxton urged the court to reinstate the Green candidates because the Democrats waited too long to act and because the 3rd Court of Appeals engaged in a rushed process that didn’t give the Greens, other political parties and other candidates time to weigh in.

“The 3rd Court abused its discretion,” Paxton wrote.

The Supreme Court’s one-paragraph order to reinstate the Green candidates did not explain the court’s rationale.

See here for the background. We expect SCOTX to publish its opinion on this ruling today, so we may get some idea if it’s all a bunch of sophistry or if they can make a principled argument that the Greens were deprived of their right to respond to the Dems’ legal action in a timely manner, which was a part of the ruling against the GOP in the Libertarian purge attempt. That Ken Paxton was willing to be morally and conveniently flexible on the subject should come as no surprise, given everything we know about him and his character. The Republican Party of Texas has a longstanding willingness to help the Greens whenever they think it might benefit them. This time that support came from an elected official instead of a deep-pocketed donor. Whatever works.

There was a debate in the comments of the last post about ranked choice voting (RCV) being a solution to this kind of legal gamesmanship. The theory is that since the people who voted Green or Libertarian (or independent, or whatever else may have been on the ballot) would still be able to express their electoral support for whichever major party candidate they like as their backup selection, which in turn would reduce the incentive for the major parties to bump them off the ballot. The logic has merit, though the lack of RCV around the country means there’s no data to test that hypothesis.

In this case, the argument that had been made by both the Ds and the Rs is that the other parties’ candidates had violated the law by not paying the newly-mandated filing fees – you may note, the Dems did not challenge the three Greens who did pay their filing fees, just the three candidates who had not – and there is a long history of candidates being challenged because they failed to meet eligibility requirements. If the filing fee law continues to survive the lawsuits against it, and there are Greens and Libertarians who refuse to comply with it in 2022, I would fully expect them to be taken to court again, surely in a more expeditious fashion, and I would expect that even in an RCV-enabled world. This is a basic tool in the political toolbox, one that I would not expect to go away if the method of determining the winner of an election changes. That too is a testable question, and perhaps one day we’ll have an answer for it. For now, that’s how I see it.

Harris County preps to print mail ballots

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

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

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

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

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

[…]

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

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

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

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

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

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

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

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

The Texas Supreme Court has ordered three Green Party candidates to be restored to the November ballot after Democrats successfully sued to remove them.

Last month, a state appeals court sided with the Democrats, who were seeking to kick the candidates off the ballot because they had not paid filing fees. The three candidates are David Collins for U.S. Senate, Katija “Kat” Gruene for Railroad Commission and Tom Wakely for the 21st Congressional District.

The Texas Green Party appealed the decision to the state Supreme Court, which ruled Tuesday that the secretary of state “shall immediately take all necessary actions to ensure these candidates appear on the” November ballot. The Supreme Court did not give its rationale, but said a full opinion was forthcoming.

It is the latest development in a spate of legal battles over third parties on the November ballot. At issue is a new requirement that third parties pay filing fees like Democrats and Republicans do. The law, passed last year by the Legislature, is the subject of multiple legal challenges, and many third-party candidates had not paid filing fees amid the pending litigation.

A state appeals court upheld the 2019 law last week.

While the Democrats were initially successful in booting the three Green Party candidates off the ballot, Republicans more recently failed in their bid to remove 44 Libertarians from the ticket for a similar reason. In rejecting the GOP effort earlier this month, the Supreme Court said the party waited too long to raise the issue.

[…]

It is crunch time for finalizing ballots across the state, with a Saturday deadline for counties to mail overseas and military ballots. The state’s most populous county, Harris County, wrote to the Supreme Court on Monday saying that “it is too late to make changes,” even if the court acted that day.

In an email sent to county election officials shortly after the Supreme Court’s ruling, the Texas secretary of state indicated that counties that had already sent out mail ballots would need to send a corrected version “as soon as possible.”

“The Supreme Court’s ruling and ballot change will not be an acceptable excuse for missing the [Sept. 19] deadline,” wrote Keith Ingram, the state’s director of elections. “That deadline must still be met.”

State law requires corrected ballots to include both a written notice explaining the change and instructions to destroy “defective” ballots that have not yet been returned to a county. A defective ballot returned to the county will be counted if a corrected ballot is not returned in time.

See here and here for the background on the Dems’ effort to boot those three Green candidates, and see here and here for more on the Republicans’ failed effort to boot the Libertarians. A fourth Green candidate had withdrawn from the ballot before all this started because he had voted in the Democratic primary this year.

My first reaction on seeing this news was that it was awfully late in the game for further changes to the ballot. Looking at the case filings, the writ was filed by the Greens on September 11, the Dems had till the 14th to respond, and the ruling came down on the 15th. I’ll have an opinion on the ruling when it is available, but until then all I can do is shrug. It is what it is. You can read this Twitter thread, which began with the original rulings in the two cases, for some more context. The Chron has more.

SCOTX extends stay in Harris County vote by mail case

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

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

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

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

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

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

Hollins was not immediately available for comment.

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

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

Now we wait on SCOTX

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

Chris Hollins

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

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

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

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

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

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

County Clerk can send his vote by mail applications

Good.

Chris Hollins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They just don’t want you to vote by mail

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

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

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

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

[…]

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

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

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

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

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

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

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

When HEB is on your side

Who could be against you?

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

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

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

[…]

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

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

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

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

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

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

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

[…]

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

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

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

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

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

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

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

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

It’s mandamus time! Again.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

SOS objects to Hollins’ mail ballot application plan

I suppose this was inevitable.

In a letter dated Aug. 27, Keith Ingram, director of elections for the Texas secretary of state, told Harris County to “immediately halt” its plans to send every registered voter in the county an application for a mail-in ballot for the general election. Ingram demanded the county drop its plan by Monday to avoid legal action by the Texas attorney general.

Sending out the applications “would be contrary to our office’s guidance on this issue and an abuse of voters’ rights under Texas Election Code Section 31.005,” Ingram wrote, citing a provision of state law that gives the secretary of state’s office power to take such action to “protect the voting rights” of Texans from “abuse” by local officials responsible for administering elections.

[…]

“Providing more information and resources to voters is a good thing, not a bad thing,” Harris County Clerk Chris Hollins said in response to the state’s letter. “We have already responded to the Secretary of State’s Office offering to discuss the matter with them.”

[…]

The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older to avoid confusion about eligibility. But there appears to be no state law that specifically prohibits sending out applications to all voters.

On Friday, Harris said the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” While the Texas Supreme Court has ruled that a lack of immunity to the new coronavirus alone doesn’t qualify a voter for a mail-in ballot based on disability, a voter can consider it along with their medical history to decide if they meet the requirement. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without personal assistance or the “likelihood of injuring the voter’s health.”

“Voters will, of course, make their own decisions about if they qualify to vote by mail,” Hollins said.

In his letter, Ingram raises the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

In applying for a mail-in ballot, voters must check off which of the state’s eligibility criteria they meet. (The secretary of state allows any voter to request an application for a mail-in ballot through its online portal without asking whether the voter meets the eligibility requirements.)

See here for the background. As the Chron story notes, Ingram’s plan is to get Ken Paxton involved if Hollins doesn’t back down by Monday. The thing is, though, as both stories note, there’s no actual law that says what Hollins did was illegal. Remember what the State Supreme Court opinion said when the original TDP lawsuit that made the claim that the pandemic itself was a condition that qualified voters for the disability provision in the mail ballot law:

We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

If “the decision to apply to vote by mail based on a disability is the voter’s”, and “election officials have no responsibility to question or investigate a ballot application that is valid on its face”, then what exactly is the problem with an election official giving each voter the explicit opportunity to make that decision for themselves? If you think that the two sentences that wrap around the ones I quoted from make the whole paragraph somewhat contradictory, I understand. Perhaps the lawsuit Paxton is no doubt itching to file would clear that up. The point is, this is not at all clear as the law now stands.

I’ll be honest, it will be all right by me if Hollins does back down, and instead limit himself to sending mail ballot applications to everyone 65 and older, and everyone who applied for a mail ballot in either the March primary or the July runoff. I do think that his effort here has the chance to confuse some folks, and the plethora of voting locations as extended early voting hours goes a long way toward mitigating any concerns about coronavirus risk for in person voting. That said, Hollins has taken a strong stand for making it as easy and convenient to vote as possible for everyone, and it’s shocking how bold that actually is. How is it that such a stand represents so powerful a departure from the way things had always been done? I think from a purely strategic viewpoint, Hollins can walk this back, having made his point and laying down a marker for the next Democratic Legislature in Texas. If he refuses to back down from this very honorable and principled position, everything will be immediately cranked up to 11, and I fear that the distraction will do more harm than good. But whatever Hollins does choose to do next, he has shown us what voting in Harris County, and all of Texas, should look like. Let’s not forget that.

Republicans go to Supreme Court to remove Libertarian candidates

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

COVID executive order lawsuit update

Hard to keep track of all these, I know.

The state of Texas and Gov. Greg Abbott have denied a Dallas salon owner’s allegations that COVID-19 emergency orders suspending state laws are unconstitutional.

Abbott and the state specifically denied allegations that the Texas Disaster Act of 1975 “improperly delegates power to the governor and local executive officials,” said the defendants’ answer, filed Tuesday in Dallas County district court.

It’s a constitutional attack that the state of Texas is now defending in multiple courts, as business owners file lawsuits against the government over COVID-19 shutdown orders, or the definitions of essential versus nonessential businesses.

Litigants in multiple cases have gone to the Texas Supreme Court with disputes that arose because of the pandemic, but the high court hasn’t yet accepted an appeal to decide the dispute. But one justice, John Devine, signaled in a concurring opinion that Abbott’s practice of suspending Texas laws during the pandemic was a violation of the Texas Constitution.

“We are going to amend our claims to ask for a temporary injunction, which we are certain will be denied. Then we will start marching it up the ladder to the Texas Supreme Court,” said Warren Norred, who represents Shelley Luther, the Dallas salon owner. “All these cases that have hit the Supreme Court, the high court has said, ‘We’re waiting patiently for you guys to get us a case in the proper channels.’ … They’re watching, but they’ve been very reluctant to act, until we on the litigation side do it right.”

This particular case involves Luther, who made international headlines when she was jailed for contempt of court because she violated a judge’s temporary restraining order. Luther had opened her salon during a time a government shutdown order didn’t allow it, and so the city of Dallas sued her and won the order that said she had to close down again. When a Dallas district judge jailed her for violating his court order, she filed a writ of habeas corpus to the Supreme Court and won an emergency stay that released her from jail. Her habeas writ appeal is still pending.

Later in the litigation, Luther brought the state and Abbott into the case by filing a counterclaim. It alleged that the Texas Disaster Act of 1975, the law that underlies the Dallas emergency rules, is void because it unconstitutionally delegates legislative power that belongs to the governor, county judges and city mayors. She argued that the emergency rules violate separation of powers, are void for vagueness, violate due process and equal protection, and more.

Far as I can tell, the original lawsuit was filed in April. I didn’t blog about it at the time (though I have been following other litigation about coronavirus and executive power pretty closely), and Google searches for a lawsuit in Dallas County involving coronavirus and Greg Abbott run into a wall at May 7, when there were a million stories about Shelley Luther totally pwning Abbott and his shutdown order. Anyway, the state’s response is what you’d expect – the plaintiffs have no standing, the court has no jurisdiction, the law in question is totally legal, etc. This is just in the district court, and we all know it’s going to end up at the Supreme Court, so settle in and get comfortable. We’re just getting started, and there’s a long road ahead.

Further thoughts on the Dems defenestrating the Green candidates

But first, the Chron story about yesterday’s legal action.

An appellate court on Wednesday blocked three Green Party candidates from the November ballot because they failed to pay candidate filing fees.

The candidates are David Collins, who was running for Senate; Tom Wakely, who was running for the 21st Congressional District, and Katija “Kat” Gruene, who was running for the Railroad Commission. The legal challenge was filed by their Democratic opponents: MJ Hegar, Wendy Davis and Chrysta Castañeda, respectively.

Two members of a three-judge panel of the court sided with the Democrats late Wednesday.

In their majority opinion, Justice Thomas Baker wrote that Wakely, Gruene and Collins are ineligible to appear on the ballot and compelled the Green Party to “take all steps within their authority” to ensure they don’t appear on the ballot. Due to the time sensitivity, Baker said the court would not entertain motions for a rehearing.

Chief Justice Jeff Rose dissented, saying providing no other explanation than that relief was “not appropriate based on the record before us.”

[…]

Davis’ campaign declined to comment. Hegar’s campaign did not respond to a request for comment. Randy Howry, Hegar’s lawyer in the Travis County case, referred questions about the impetus for the suit to attorney Alexi Velez, who was not available for comment.

Castañeda said the suit was a matter of fairness and that the timing was “based on the fact that the Green Party tactics only recently came to light.”

“I and my fellow candidates worked very hard to get on the ballot, and the statute is clear for all of us,” she said, adding that if the candidates didn’t want to or couldn’t pay the fee, they “could have acquired the signatures to petition to be on the ballot but chose not to do so.”

[…]

Wakely said it was clear to him that the last-minute pile-on of lawsuits was a coordinated strategy to eliminate competition. He added that it was curious that Libertarian candidates, including the one in his 21st District race, Arthur DiBianca, who also did not pay fees, were facing similar scrutiny.

Gruene added that the last-minute nature of the case also seems to be part of the Democrats’ strategy, as it leaves the Green candidates without many options for relief.

Charles Waterbury, a lawyer for the Green Party candidates, agreed that the timing seemed like a tactic and said Democrats should have raised the issue sooner.

“The Democrats waited so long for what I would argue is kind of an artificial emergency,” Waterbury said. “If this is such a huge deal, if keeping the juggernaut that is the Green Party off the ballot is so important, this is something they should have filed way before. … They know the difficulty faced by a party like the Greens is basically insurmountable.”

Gruene said she views the suit against her in the same way as Wakely.

“It’s a way to siderail a campaign to shift into dealing with legal matters instead of campaigning,” Gruene said. “The Democratic Party has always seen the Green Party as their opposition, and they, from 2001 until today, have used lawsuits as a way to bankrupt candidates, bankrupt parties and prevent voters from having the choice of voting for Green Party candidates.”

See here and here for the background. Let me begin by saying that yes indeed, the Democratic Party and the Green Party are opponents, by definition. Only one candidate in a race can get elected, so by definition every candidate in a given race is an opponent to the others. I have no patience at all for the whining of these candidates about how mean the Democrats are being to them because I am old enough to remember the 2010 election, in which deep-pocketed Republican backers paid hundreds of thousands of dollars to help Green candidates get on that year’s ballot, an act of charity that the Green Party was only too happy to accept. Those Republicans did that with the intent of making it just a bit harder for Bill White to beat Rick Perry in the Governor’s race. It turned out they needn’t have bothered, but that wasn’t the point. So please spare me the hand-wringing, and pay the filing fee or collect the petition signatures as long as that is required by law, or face the consequences of your actions.

Along those same lines, I respectfully disagree with RG Ratcliffe:

I have never voted for the Green Party and never will, but it is really chickenshit of Texas Democrats to complain about voter suppression and then try to suppress the choices of voters who want to cast ballots for candidates of a party with ballot access over a filing fee the party candidates did not have to pay until this year. And this is about more than a few candidates, this is about denying the Greens ballot access in the future.

I don’t agree that challenging candidates who did not follow the law as written – and please note, a couple of the Green candidates did pay the filing fee, so it’s not that they all shared this principle or all lacked the ability to pay – is in the same universe as passing discriminatory voter ID laws, refusing to expand vote by mail in a pandemic, aggressively pursuing felony prosecutions against people who made honest mistakes (two words: Crystal Mason), but I’ll allow that filing these motions to oust the Greens is not exactly high-minded. To respond to that, let me bring in Evan Mintz:

Here’s an important lesson: Hypocrisy in politics isn’t a bug. It’s a feature. There is no grand umpire or arbiter who punishes elected officials for inconsistency (besides the voters, and they usually don’t mind). Politics isn’t about truth; it’s about power. If past positions get in the way, change them.

I’d say that’s a lesson they don’t teach you in school, but actually they do. Rice University graduate student Matt Lamb told me it’s the first thing he teaches students in his Introduction to American Politics class: “Politics is about power.”

It’s the power to implement an agenda, impose one’s own morality on others, or distribute resources. It’s the reason people try to get elected in the first place.

Texas Democrats must’ve missed that class, because for the past 30 years or so they’ve acted as if noble intentions alone are enough to merit statewide office. Uphold the process. Act professionally. Do the right thing. Party Chairman Gilberto Hinojosa said essentially that in a May conference call with journalists in response to the governor’s plan on ending COVID lockdowns. “The Democratic Party is not looking at the response through a political lens,” he said. “We’re looking at what is good for the public. If that costs us votes, so be it.”

There’s a slight flaw in Hinojosa’s plan: You can’t pursue the public good if you don’t get the public vote.

I’d say it’s clearly the case that the Democrats took legal action to remove these Green Party candidates from the ballot for the same reason why the Republicans paid money in 2010 to help put them on the ballot: They want to increase the chances that their candidates can win these elections. Obviously, there are limitations to this. One need only look at the utter degradation of the Republican Party and the principles it once held on subjects like free trade and personal morality under Donald Trump, where the only principle they now have is winning at all costs for the sake of holding onto power, to understand this. I’d like the Democratic candidates I support to hold principles that I support as well. But you also have to try your best to win elections, because as I’ve said way too many times over the past decade-plus, nothing will change in this state until the Dems start winning more elections. If that means I have to live with the knowledge that we booted some Green Party candidates off the ballot for the purpose of maybe upping our odds some small amount, I’ll do that. If you want to judge me for that, you are free to do so. I can live with that, too.

More challenges to Green Party candidates

From Patrick Svitek:

As we know, the Green Party candidate for Supreme Court Chief Justice withdrew following a challenge that alleged he had violated election law by voting in this year’s Democratic primary. The writ makes the following allegations:

1) The passage of HB2504, the same bill that lowered the statewide vote threshold from five percent to two percent for third parties to automatically qualify for the ballot also mandates a filing fee (or collection of petition signatures), with the same fees or petition requirements for third parties as for Dems and Republicans.

2) Candidates Wakely and Gruene did not pay the filing fees or collect the petition signatures, and the Green Party was aware of this. Indeed, the Green Party specifically stated in their April newsletter that some of their candidates did pay the filing fee while others (including Gruene, Wakely, the already-withdrawn Waterbury, and Senate candidate David Collins, who for whatever the reason was not named in this mandamus) did not.

3) Both the Greens and the Libertarians filed lawsuits alleging that the filing fee was illegal for them, since the idea of the fee was to help pay for the primary elections, which they don’t have. The Libertarians won a temporary injunction against the fee in December, but that was put on hold by the Fourteenth Court of Appeals, and as of today the filing fee is still in effect. (This had caused some confusion for the Ls and Gs, and I have no idea how many other candidates there may be in this particular boat.)

4) Because of all this, the Green Party was required to disqualify these candidates, and since they did not, the Dems are asking the Supreme Court to do so. They are asking via mandamus because Friday the 21st is the statutory deadline for candidates to be included or excluded from the November ballot.

So we’ll see what happens. In theory, I’ll have an update to this by the weekend. The Libertarians’ lawsuit over the legality of the filing fees is still ongoing, it just won’t be resolved in time for this election. Two side notes of interest that I discovered while writing this: One, Katija Gruene also tried to file for HD51, but was not allowed to file for two different offices by the SOS. Pretty sure it’s clear in state law that’s a no-no. Also, a candidate who had applied to run for HD45 was disqualified by the Greens at their convention because he had voted in the Dem primary. Just like Charles Waterbury, except I guess he was up front about it. So there you have it.

UPDATE: Apparently, there was more than one effort going on.

A Travis County judge issued an order Wednesday that temporarily blocked two Texas Green Party candidates for Congress from appearing on the November ballot.

The 14-day temporary restraining order was granted after Democratic Senate candidate MJ Hegar, joined by two national Democratic organizations, argued that her Green Party opponent, as well as a Green candidate opposing Democrat Wendy Davis, should not be placed on the ballot because they failed to pay a candidate filing fee as required by a new state law.

District Judge Jan Soifer’s order blocked the Texas secretary of state’s office from certifying David Collins, the Green candidate for U.S. Senate, and Tom Wakely, running for U.S. House District 21, to appear on the Nov. 3 ballot. Both candidates were “indisputably ineligible” to appear on the ballot, Soifer said.

Soifer, who was head of the Travis County Democratic Party before becoming a judge, also set an Aug. 26 hearing to determine if the Democrats’ request for an injunction should be granted.

[…]

Hegar’s challenge was one of two that Democrats had recently filed in state courts seeking to keep Green Party challengers off the ballot over failure to pay the fees.

Davis, running for the House seat held by U.S. Rep. Chip Roy, R-Hays County, and Chrysta Castañeda, running for the Railroad Commission, filed an emergency petition Monday asking the Austin-based 3rd Court of Appeals to issue an order blocking their Green Party opponents from the ballot.

Hegar, seeking to unseat U.S. Sen. John Cornyn, R-Texas, also joined that effort Wednesday. The appeals court has not yet ruled on the request.

Green Party candidates are generally believed to take votes that would otherwise go to Democrats.

The Green Party acknowledges that its candidates – Collins, Wakely and Katija Gruene for railroad commissioner – did not pay the filing fee or collect the needed number of petition signatures to avoid the fee.

But the party believes the fee, as it applies to third parties, is unconstitutional and improper, said Laura Palmer, Green Party co-chair.

Wow. I had wondered about Collins, given that he wasn’t mentioned in the mandamus request. If all of these motions succeed, the Greens will end up with no statewide candidates, one Congressional candidate (in CD36), one State Senate candidate (SD26), and two State House candidates (HDs 92 and 119). That’s not a lot, but even if the Greens prevail they’d still only have seven total candidates on the ballot. Seems like maybe there’s a bigger issue than the filing fee here, but maybe that’s just me.

UPDATE: And here’s a Trib story by Patrick Svitek with further information.

On Wednesday, both a Travis County district judge and a state appeals court blocked the Green Party nominees for U.S. Senate and the 21st Congressional District from appearing on the ballot. The Austin-based 3rd Court of Appeals additionally forced the Green Party nominee for railroad commissioner off the ballot.

Earlier this week, it surfaced that a Green Party contender for chief justice of the Texas Supreme Court had withdrawn after the Democratic nominee questioned his eligibility.

The Democrats are largely targeting Green Party candidates because they have not paid filing fees — a new requirement for third parties under a law passed by the Legislature last year. The filing fees were already required of Democratic and Republican candidates. The new law is being challenged by multiple lawsuits that remain pending, and the Green Party of Texas has been upfront that most of its candidates are not paying the fees while they await a resolution to the litigation.

[…]

The rulings Wednesday came in response to lawsuits in two different courts that involved some of the same candidates. The Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the Democratic nominee for U.S. Senate, MJ Hegar, had sued in Travis County district court to disqualify the Green Party nominees for U.S. Senate, David Collins, and for the 21st District, Tom Wakely. Meanwhile, Hegar had joined the Democratic nominees for the 21st District, Wendy Davis, and for railroad commissioner, Chrysta Castañeda, to seek an ineligibly ruling for their three respective Green Party candidates before the 3rd Court of Appeals.

In the appeals court’s opinion, Justice Thomas Baker ordered the Green Party of Texas to declare their three candidates ineligible and do all they can to make sure they do not appear on the ballot. Baker said the court would not accept motions for rehearing, citing the “time-sensitive nature of this matter.”

In the Travis County district court decision, Judge Jan Soifer said her order is in effect for the next two weeks. However, she scheduled a hearing for Aug. 26 — two days before the state’s ballot certification deadline — where she could reevaluate the decision.

Four things: One, as of these rulings we are now at the point I mentioned earlier, where there are no statewide Green candidates. Two, this may moot the mandamus request to the SCOTX. Three, apparently I was wrong earlier, because August 28 is the deadline for party nominees to be certified for the ballot. August 21 is the deadline to withdraw. And finally, that strategy of not paying the filing fees while the lawsuit over filing fees carries on, even though there is no injunction stopping the filing fees, sure does not appear to have worked out well for the Greens.

Green Party candidate for Supreme Court withdraws

It’s not an election without a bit of ballot drama.

Judge Amy Clark Meachum

Charles Waterbury, the Green Party candidate for Texas Supreme Court chief justice, has dropped out of the race after an opponent questioned his eligibility to run.

Waterbury’s withdrawal notice was submitted to the Texas secretary of state’s office Monday and notarized Friday, the same day his Democratic opponent, Amy Clark Meachum, sought a court order declaring his candidacy invalid.

Meachum’s emergency petition to the Supreme Court, the same body she hopes to join, argued that Waterbury is prohibited from appearing on the ballot as the Green Party nominee because he voted in the March 3 Democratic primary.

State law prohibits candidates for state or county office from representing one political party in the general election if they voted in another party’s primary in the same election cycle.

Laura Palmer, co-chair of the Green Party, criticized the petition, saying party officials were given only one day to respond to allegations that Waterbury was ineligible to run and that Waterbury decided to withdraw on Friday.

“The filing is moot, baseless and harassing,” Palmer said.

But Meachum’s lawyer, Brandi Voss, said Monday that the Supreme Court petition was filed because of tight election deadlines after Green Party officials did not respond by a 2 p.m. Friday deadline. A candidate’s name can be omitted from the ballot up to the 74th day before an election, which is this Friday for the Nov. 3 general election, according to Meachum’s petition.

I’m not sure what the timing of all this is. The Greens (and the Libertarians) nominate by convention, and Waterbury was not listed as a candidate as of April 18, when the party confirmed seven other nominees. He was listed on their July newsletter, so somewhere in there he must have been confirmed. Once he was known to be a candidate, someone had to notice that he had cast a Democratic primary vote, and then whatever correspondence leading up to the SCOTX emergency petition had to happen. It’s plausible this could have all taken place on a compressed timeline.

This is also one of those situations where I don’t have a whole lot of sympathy for the candidate who’s been booted off the ballot. Waterbury has run for statewide office before – he was a Green nominee for SCOTX in 2016 and 2014 and probably before that as well but I stopped looking – and so presumably had a passing familiarity with the rules. As with candidates who screw up their ballot applications, it’s not an onerous burden to get it right. All he had to do was not vote in another party’s primary, the same standard to which I as a precinct chair am held. He had one job, and he blew it.

The Libertarian Party has a full slate of candidates, including one for Chief Justice of the Supreme Court, if that sort of thing interests you. Losing Waterbury is a blow to the Greens as a whole, because they need to break two percent in a statewide race in order to ensure future ballot access, and with Waterbury out they only have two others running statewide, David Collins for Senate and Katija Gruene for Railroad Commissioner. With all due respect to Collins, that isn’t happening for them in the Senate race – I mean, the Green candidate for Senate in 2014 got all of 1.18%, and that was with a lousy Dem candidate and with the Green being a Latina (as I have noted before, Latinx third party candidates tend to do better than non-Latinx third party candidates). It is doable in the RRC race, as Martina Salinas cleared 2% in 2014 and 3% in 2016, though in that latter race the major party candidates were the unqualified hack Wayne Christian and perennial candidate Grady Yarbrough. It might be tougher this year, and with turnout expected to be a lot higher, the bar is raised further. It’s not that Waterbury was likely to meet this threshhold – he got 1.23% in 2016, and 0.75% in 2014 – but at least he represented another opportunity. So much for that.

Another lawsuit against Abbott over emergency orders

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.

SCOTX rejects multiple Hotze petitions

Some good news.

The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

See here for the background, and here for the one-line denial. This follows on the heels of an earlier denial over Abbott’s statewide mask order.

The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

See here for that background, and here for that denial. This recapitulates what I’ve been saying all along – there are serious questions to be asked about the Governor’s powers at this time and what the role of the Legislature should be, questions that I sincerely hope are addressed by the next Lege, but Steven Hotze and Jared Woodfill and their shambling evil Lawsuits R Us clown car is absolutely the wrong way to examine those questions. I would also add that SCOTX’s loopiest Justice John Devine is exactly the wrong person to be setting the outlines of this debate, but at least he did so in a concurring opinion. I’ll take what I can get at this point.

On a side note, in that first article Rice poli sci professor Mark Jones is quoted saying that in a 2015-2017 context, Greg Abbott very likely would have given more weight to the demands of the fringiest wingnuts in the Republican Party, because there would have been no political counterweight to them. But now, at a time when Donald Trump is at best running even with Joe Biden in the polls of Texas and the Democrats have a legitimate shot at taking the State House and knocking off a bunch of GOP members of Congress, some discretion on his part is the better part of valor. In other words, elections do have consequences.

Finally, since all news of bad things happening to Steven Hotze is good news, I was recently sent some relevant court documents by a very helpful reader that I will chare with you here. First, is this by a Harris County judge, issued on his own volition (the fancy Latin legal term for this is “sua sponte”), chiding Hotze and Woodfill for not properly serving all parties of his various lawsuits the relevant pleadings he’d been filing with SCOTX in a timely manner. Even more interesting is this one, filed by the Harris County Attorney on behalf of County Judge Lina Hidalgo and County Fire Marshal Laurie Christianson, accusing Hotze of filing multiple bullshit lawsuits against the county as a harassment tactic and asking for sanctions. Here’s a taste:

Hotze filed five lawsuits and two appeals against Judge Hidalgo in the last four months. Many of these cases are based on fabricated facts, and they all make identical constitutional challenges to the Texas Disaster Act. Based on Hotze’s own statements and actions, it is clear that he brought these duplicative suits for the improper purpose of harassing Judge Hidalgo.

Not only are these duplicative suits made for an improper purpose, but Hotze litigates them in a manner orchestrated to be as harassing as possible. Hotze presents all of his cases as urgent matters requiring emergency temporary restraining orders and emergency petitions for writ of mandamus to the Supreme Court. However, these cases are never urgent, have typically been pre-filed for days or weeks, are often set for hearing long after the orders they complain about have expired, and have nothing to do with science, liberty, or the Constitution. Their “urgency” is manufactured to deny Defendants due process by preventing them time to respond.

Hotze’s five lawsuits were designed to maximize delay and cost and create a never-ending conveyor belt of litigation using a six-step formula: (1) Hold a rally and generate negative media attention toward Judge Hidalgo, (2) solicit plaintiffs for a choose-your-own-adventure style lawsuit, (3) file a lawsuit, never serve it, then email opposing counsel about a hearing on a few hours’ notice, (4) make false claims, (5) amend, dismiss, or appeal before the court considers sanctions, and (6) start over with a new lawsuit and repeat the cycle.

It goes from there. It was filed in the 189th Civil Court, the same one whose judge issued that sua sponte order, and it requests “$10,000 in attorney’s fees and a conditional $10,000 in attorney’s fees if this matter is unsuccessfully appealed” on behalf of Hidalgo and Christianson in their official capacities. I have no idea what the odds of success of this motion are, but you do love to see it.

A slightly less rosy view of Democratic prospects

Here’s the latest race ratings from Texas Elects:

Texas Election Source has updated 27 race ratings based on the latest polling, July campaign finance reports and primary runoff results. Twenty of those races moved one column toward the Democrats’ advantage. Our complete ratings are located here. Thirteen Republican-held seats in the legislature or congressional delegation are rated Toss-up or Lean Democratic. No Democrat-held seat is rated below Lean Democratic after several seats formerly in the Toss-up column were shifted into the Lean Democratic column.

The most significant impact of the new ratings on our projections is in the Texas House. Democrats need a net of nine seats to retake a majority in the chamber. We project they will get six, up three from our April ratings, which would cut the Republicans’ advantage to 77-73 entering the 2021 legislative session. Seven more Republican-held seats are projected to be within 1.5 percentage points of the range we consider a toss-up race. Only two Democrat-held seats are projected to be within 1.5 percentage points of a toss-up.

Four Republican-held seats are rated Lean Democratic, listed from greatest to least lean:

  • HD134 – Rep. Sarah Davis (R-Houston) vs. Ann Johnson (D)
  • HD138 open – Lacey Hull (R) vs. Akilah Bacy (D)
  • HD108 – Rep. Morgan Meyer (R-Dallas) vs. Joanna Cattanach (D); and
  • HD66 – Rep. Matt Shaheen (R-Plano) vs. Sharon Hirsch (D).

Since 2010, the four House seats on the list have drifted an average of 7.3 percentage points bluer, relative to the state as a whole. Two seats in other chambers – CD23 and SD19 – are also rated Lean Democratic. They have gotten relatively redder but remained 3.9 and 9.1 percentage points bluer than the state as a whole in 2018. We are projecting SD19 to get another 1.4 percentage points redder, but even that keeps it just .07% from being labeled as Likely Democratic.

Incidentally, HD134 would rate as Likely Democratic but for Davis’s consistent over-performance of other Republicans in the district. In 2018, the average Democrat received 55% of the vote in her district measured head-to-head against the Republican, but Davis survived thanks to ticket-splitting voters. Longtime political observers will remember former Rep. Jim McReynolds (D-Lufkin) who held onto his district by finishing as much as 19 points better than the rest of the Democratic slate. He was overwhelmed by rising Republican leanings in 2010 but still over-performed the rest of the ticket by 12 points. We project Davis’s ability to win over ticket-splitting voters will not be enough this year.

Dallas Co. was the epicenter of the Democratic surge in 2018. Only two Republicans represent the county in the state House currently, and we project that number will be zero after November. Tarrant Co., home to five races rated Toss-up or Lean Republican, and Fort Bend Co., with three seats in the Lean and Likely Republican columns, are expected to be the chief battleground counties in the House this year.

There’s more, so go read the rest. Texas Elects has a lot of premium content, but the free stuff is worth checking regularly.

Unlike the exuberant Capitol Inside projections, Texas Elects has the Dems falling short of a majority in the House, though it does expect three Congressional seats and SD19 to flip, and it has all of the statewide races as “Lean Republican”. You might be wondering about the inclusion of some Dem-held seats on the table, but as noted before, HDs 31, 34, and 74 are three of the four most purple districts out there that were held by Dems prior to 2018. They could be vulnerable in a bad year for Dems, though I don’t think this is that kind of year. As for HD41 and HD144, I can’t say I’m worried about them.

As that Capitol Inside projection was ebullient for Dems, this one is more sober. It sounds a little crazy to say when you think of the decade in total, but a six-seat pickup by Dems in the Lege would feel disappointing. It’s well within the range of possibility, and if all we ever think about is the best case scenario we’re not being honest with ourselves. All projections are art as well as science, in that you have to decide which factors are the most important and by how much. Individual candidates and fundraising prowess mean a lot, but so does the national environment, and so do demographic trends.

As far as candidates mattering goes, read that analysis of the HD134 race carefully. I come back to this a lot, but the key thing that happened in HD134, and in CD07 (which includes almost all of HD134) is exactly that the Democratic shift from 2016 to 2018 went much deeper than the top of the ticket. The average Republican judicial candidate won CD07 by thirteen points in 2016, and won HD134 by eight. In 2018, the average Republican judicial candidate barely won CD07. I didn’t do the exact same analysis for the State House districts, because I spent so much time talking about straight tickets and undervoting, but in service of that analysis I did this sample of judicial races, and as you can see each Dem was over fifty percent in HD134, by varying amounts. The point is, the fundamental nature of HD134 has shifted from “a Republican district that will sometimes support specific Democrats” to “a Democratic district that has – at least till now – supported Sarah Davis”. That’s what she’s up against this year, not just her November opponent but the baggage of the entire Republican Party and the prospect of a Democratic Speaker. She could hang on, and for sure she should not be underestimated, but this year, for the first time, she’s the underdog.

Anyway. I love this kind of analysis because it makes me think about my own assumptions and expectations for the year. Go take a look and see what you think.

July 2020 campaign finance reports: State races, part 1

I’m going to take a look at the July finance reports from the various state races, which I will split into three parts. Part one will be statewide, SBOE, and State Senate, part two will be State House races from the Houston area, and part three will be State House races from elsewhere in the state. I’m not going to be doing every race of course, just the ones of interest. January reports for statewide candidates can be found here, and January reports for various SBOE and State Senate races can be found here.

Chrysta Castaneda, RRC
Jim Wright, RRC

Amy Clark Meachum, Supreme Court, Chief Justice
Nathan Hecht, Supreme Court, Chief Justice

Gisela Triana, Supreme Court, Place 8
Brett Busby, Supreme Court, Place 8

Kathy Cheng, Supreme Court, Place 6
Jane Bland, Supreme Court, Place 6

Staci Williams, Supreme Court, Place 7
Jeff Boyd, Supreme Court, Place 7

Rebecca Bell-Metereau, SBOE5
Lani Popp, SBOE5

Michelle Palmer, SBOE6
Will Hickman, SBOE6

Marsha Webster, SBOE10
Tom Maynard, SBOE10

Susan Criss, SD11
Larry Taylor, SD11

Roland Gutierrez, SD19
Pete Flores, SD19


Candidate   Office    Raised     Spent     Loan     On Hand
===========================================================
Castaneda      RRC    43,072    38,785   27,166      16,043
Wright         RRC   384,282    90,680   45,000     350,856

Meachum      SCOTX    51,093    44,271        0     132,303
Hecht        SCOTX   312,030   106,598        0     727,648

Triana       SCOTX    17,592     9,781        0     113,567
Busby        SCOTX   207,080   116,130        0     611,700

Cheng        SCOTX     7,637     4,033   90,174       9,292
Bland        SCOTX   264,370   106,000        0     417,335

Williams     SCOTX    14,135    47,262        0       7,466
Boyd         SCOTX   104,743   171,002        0     492,183

BellMetereau SBOE5    27,439     8,027    2,250      20,935
Popp         SBOE5    22,930    98,185   10,000      25,354

Palmer       SBOE6     6,873     9,134        0       6,076
Hickman      SBOE6     1,800     2,225    2,500       1,047

Webster     SBOE10     2,480     1,589       25       3,529
Maynard     SBOE10     3,170     1,103    5,000       4,216

Criss         SD11    22,586    14,071        0      13,644
Taylor        SD11    64,150   116,848        0   1,129,009

Gutierrez     SD19    60,074    99,208        0      11,309
Flores        SD19   295,760    65,577        0     563,459

I skipped the Court of Criminal Appeals races because no one raises any money in them. Jim Wright is the no-name Republican challenger who ousted incumbent Ryan Sitton in the GOP Railroad Commissioner primary, in an upset no one saw coming. He had $12K on hand in his eight-day report for the March primary. You can see where he is now, thanks to the Republican money machine including Tim Dunn (evil rich guy behind Empower Texans, $20K) and a slew of PACs. Ryan Sitton had $2.5 million in his account at the time of his defeat (all of which he can now donate to other campaigns, if he wants), so Wright isn’t in that league yet, but the point is that Wright wasn’t a no-name nobody for long. The establishment just moved over to his camp and did their thing. The Republican Party of Texas is currently a dumpster fire, and many of its county parties (see, in particular, Harris and Bexar) are even worse off, but the real power structure is still operating at peak efficiency.

The larger point I would make here, as we begin to see Joe Biden and Donald Trump ads on TV – I saw one of each while watching the Yankees-Nationals game on Saturday night – is that there’s more than one way to do a statewide campaign in Texas. For a million bucks or so, you could probably blanket local and cable TV in many of the media markets with ads for Chrysta Castaneda and the statewide Democratic judicial slate. I have seen my share of “vote for Republican judges” ads on my teevee, as recently as 2016 and 2018. Our Congressional candidates have shown there’s plenty of financial support out there for Democratic contenders, even those in odds-against races. There are many people who know enough to create a PAC, get some dough in the door, then cut an ad and buy some time for it. The numbers say this is the best chance we’ve had in a quarter century to win statewide. What are we going to do about that?

As for the Senate races, SD11 isn’t really competitive. It’s on the list of “races that may end up being closer than you might have thought because of prevailing conditions and recent political shifts”, but it’s too far out of reach to expect more than that. The thing I’d ponder is if the likes of Larry Taylor, and other Republican Senators in safe districts or not on the ballot this year, will put some of their spare cash towards helping their fellow partymates who are in tough races. I’m sure we can all think of a few of them. As for SD19, I’m not too worried about the current gap between Roland Gutierrez’s and Pete Flores’ cash on hand. I fully expect Gutierrez, the one Dem running in a truly flippable district, to have the resources he needs. But I’ll still check the 30-day report, because SD19 officially makes me nervous after the 2018 special election fiasco.

Nobody ever raises money in the SBOE races. It would have been fascinating to see what might have happened had cartoon character/performance artist Robert Morrow won that primary runoff, but alas. It’s just another boring contest between two normal people. Which, given the history of the SBOE, is actually quite comforting.

Why resign tomorrow when you can do it today?

News item:

After 15 years as a member of the Texas Supreme Court, Republican Justice Paul W. Green said he will retire in August — almost two and a half years before his term was set to end.

“I’m grateful to the people of Texas for electing me to the court three times, and it’s been a great honor and privilege to serve,” Green said in an interview. “It’s been a bittersweet kind of day.”

The San Antonio native is the court’s second in seniority, and Gov. Greg Abbott will choose his successor. All nine members are Republican and serve staggered six-year terms.

Green said that he is retiring early because it feels like the right time and to spend more time with his family.

“Well, I’m 68 years old, and there’s a lot of things I want to do still,” he said.

Green was reelected in 2016, and his term ends December 31, 2022.

There’s nothing unusual about this. Quite a few of our Supreme Court and Court of Criminal Appeals justices were originally appointed, following the resignation of a sitting Justice who still had time left in their term. But timing is everything, and that led the Texas Democratic Party to make an observation:

Today, Texas Supreme Court Justice Paul Green announced his plan to retire from the bench on August 31.

If Green follows through and resigns after August 24, his resignation will fail to trigger a special election, and failed Texas Republican Governor Greg Abbott will be able to choose his successor, who will be locked into a term ending in 2022.

However, if Green resigns immediately, it will allow the people of Texas to vote in a special election for the next justice on the Texas Supreme Court. There is an election coming up in November. With four other Supreme Court seats up in November, the people of Texas should be able to vote on Green’s successor and the entire composition of the court at that time.

The benefit to waiting till after August 24 is clear. Whoever gets appointed will have two full years as an incumbent, which certainly helps with fundraising, and will get to say “Re-elect” on their campaign literature in 2022. Also, if Justice Green were to resign now and open up his seat on the bench this November, that would put five of the nine seats on the ballot, the three that normally would come up plus Jane Bland, appointed earlier to fill an unexpired term for Place 6. This may be a remote concern, but having five seats up for election at once allows for the possibility that partisan control could flip, from 9-0 Republican to 5-4 Democratic. Scoff if you want, but that’s exactly what happened on several appeals courts in 2018, and with the state of the polls right now, it’s hardly out of the question.

You may say, partisan judicial elections are bad, we shouldn’t have the composition of a court flip because of a Presidential race, we need to move towards a merit-appointment-based system for picking judges, blah blah blah. We have this discussion every time Democrats win judicial elections in Texas. All I’m saying is that it Justice Green wants to call it a career, there’s no reason why he couldn’t step down on July 31, or August 15, instead of August 31. His choice of date is as much about partisan considerations as anything, and we should be honest about that.

We still need that equality bill in the Lege

That SCOTUS ruling was huge, but there’s still a lot of work to be done.

LGBTQ Texans marked a major victory Monday when the U.S. Supreme Court ruled that federal civil rights law prevents employment discrimination on the basis of sexual orientation or gender identity. But in Texas, which did not have such workplace safeguards, LGBTQ lawmakers and advocates say they are far from done fighting for other essential protections.

Employment discrimination protections, they say, are necessary but not sufficient for advancing the equal treatment of LGBTQ Texans. Thanks to Monday’s ruling, Texans can no longer be fired for their sexual orientation or gender identity, but there is no state law explicitly preventing landlords from refusing to rent homes to LGBTQ Texans, for example.

Members of the Texas House LGBTQ Caucus are setting their sights on a comprehensive set of nondiscrimination protections that would codify the employment protections in state law, as well as guarantee LGBTQ Texans equal access to housing, health care and other public accomodations.

It will not be an easy bill to pass.

[…]

“We can’t look at this as being a partisan or political issue — it’s a human issue,” said Democratic state Rep. Jessica González, vice chair of the LGBTQ Caucus. “And in order to create a change in mind, you need to create a change in heart.”

González announced in May that she would spearhead the fight for a comprehensive nondiscrimination bill during the next regular legislative session in 2021 with Republican state Reps. Sarah Davis of West University Place and Todd Hunter of Corpus Christi.

“We rolled it out early to start the conversation,” González said.

In pushing for comprehensive nondiscrimination protections, LGBTQ lawmakers and their allies are also making an economic case. Big businesses like Amazon and Google have been major advocates for LGBTQ Texans over the last few years, telling lawmakers that to attract the best talent to their Texas offices, they need to guarantee workers equal rights in their communities.

“It is the business community’s voice that has been one of the loudest and strongest advocates for the LGBT community over the years,” said Tina Cannon, executive director of the Austin LGBT Chamber of Commerce.

Still, advocates have acknowledged that Monday’s ruling, while exhilirating the LGBTQ community, may also stir up opposition.

“I do think this is going to galvanize the folks who don’t want us to be at the same level,” Shelly Skeen, a senior attorney with the LGBTQ rights group Lambda Legal, said during a virtual briefing after Monday’s ruling. “So we got even more work to do, but I think we got some great momentum behind us.”

LGBTQ Caucus members have already made major progress since 2017, when LGBTQ advocates spent much of the legislative session playing defense as they fought back a controversial “bathroom bill” that would have limited transgender Texans’ access to certain public spaces. It was championed by Lt. Gov. Dan Patrick and hardline conservative groups.

See here for more on that SCOTUS ruling, and here for more on the equality bill. Dems taking the House is probably the only path to this bill making it out of the lower chamber, where it will never get a hearing in the Senate. The best we can do is get everyone on the record, and fight like hell to elect more Democratic Senators in 2022, as well as un-electing Dan Patrick and Ken Paxton, by far the two biggest obstacles to getting a real equality bill enacted. Yeah, I’ve got Paxton there ahead of Greg Abbott, who I could sort of maybe imagine going with the flow if he gets enough pressure from business and the wingnut fringe has been somewhat neutered. Electing some Democrats to the State Supreme Court would also help, and that we can do this year as well. The things to remember are 1) this is going to take more than one session; 2) the more elections we win, the closer we will be able to get; and 3) we cannot ease up, not even a little, because it will always be possible to go backwards. Eyes on the prize, and get people elected to do the job. That’s what it is going to take.

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

Stay with me here, this will all make sense.

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

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

[…]

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

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

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

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

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

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

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

TDP appeals to SCOTUS on vote by mail

Here we go.

After a series of losses in state and federal courts, Texas Democrats are looking to the U.S. Supreme Court to expand voting by mail during the coronavirus pandemic.

The Texas Democratic Party on Tuesday asked the high court to immediately lift the U.S. 5th Circuit Court of Appeals’ block on a sweeping ruling that would allow all Texas voters who are seeking to avoid becoming infecting at in-person polling places to instead vote by mail. Early voting for the July 14 primary runoff election begins on June 29.

The fight to expand who can qualify for a ballot they can fill at home and mail in has been on a trajectory toward the Supreme Court since Texas Democrats, civil rights groups and individual voters first challenged the state’s rules months ago when the new coronavirus reached Texas. Under existing law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.

“Our constitution prevents our government from discriminating against voters due to age. Especially during this pandemic, why should we be penalized for being under age 65?” said Brenda Li Garcia, a registered nurse in San Antonio and plaintiff in the case, during a virtual press conference announcing the appeal to the Supreme Court. “To protect a certain group and to give only certain ages the right to vote by mail is arbitrary, discriminatory and unconstitutional.”

[…]

The effect of the Democrat’s request on the upcoming election is uncertain. In their appeal, the Democrats are asking Justice Samuel Alito — who oversees cases coming through the 5th Circuit — to undo the hold on Biery’s order while the runoffs move forward. Democrats are also asking the justices to take up the case on the claim that the state’s age restrictions for voting by mail violate the 26th Amendment’s protections against voting restrictions that discriminate based on age. If Alito does not immediately allow the lower court’s ruling to go into effect, the Democrats are asking the court for a full review of the case on an expedited timeline.

“Otherwise, millions of Texas voters will face the agonizing choice of either risking their health (and the health of others) to vote in person or relinquishing their right to cast a ballot in two critical elections,” the Democrats said in their filing.

The court is expected to soon go into recess until October.

In order for someone to vote by mail in the July 14 primary runoffs, counties must receive their application for a mail-in ballot by July 2. A favorable decision for Democrats by the Supreme Court by early October could still allow for a massive expansion in voting by mail during the November general election.

See here for the background. You know how I feel, about the merits of this case. The arguments for the state’s restrictions on voting by mail make no sense, not that that matters. I don’t know what effect, if any, this motion will have on the other lawsuits. I’m not going to make any predictions, or get my hopes up. Rick Hasen thinks this is a “risky” move that has the potential to make bad law. We’ll see what happens. The Chron has more.

Plaintiffs move for dismissal of state lawsuit over mail ballots

Not a surprise.

The fight over expanding voting by mail in Texas during the coronavirus pandemic appears to be coming to an end in state courts, but a lawsuit continues at the federal level.

Following a Texas Supreme Court ruling that closed the door to expanded mail-in voting, the individual voters, state Democrats and civic organizations that sued to expand voting by mail based on a lack of immunity to the new coronavirus asked a state appeals court on Tuesday evening to dismiss their case.

[…]

Legal challenges to the state’s voting by mail rules continue in federal courts though a panel of the U.S. 5th Circuit Court of Appeals last week extended its order blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic. The panel cited in part the proximity of the upcoming July primary runoffs. It’s possible the issue will end up before the U.S. Supreme Court after the runoffs.

This was more or less expected after that State Supreme Court ruling, which directly addressed the question of what the state law on “disability” meant in this context. At the federal level there remains the age discrimination lawsuit and the undue burdens lawsuit, neither of which has had a hearing yet, as well as the TDP/LULAC lawsuit for which there is a block of the lower court’s ruling in the plaintiffs’ favor. (This Daily Kos elections lawsuit tracker may be useful for you.) If there’s going to be any change in the status quo, it will be for the November election, though at this point I’m dubious even if the age discrimination claims have merit. Ultimately, the sure path forward is winning enough elections to change the state law. We’re talking 2023 at the earliest for that, so in the meantime this is where the fight is. It’s all up to the federal courts now.

Austin’s sick leave ordinance is officially dead

Killed by the State Supreme Court, which should come as a surprise to no one.

Austin still cannot enforce a mandatory paid sick leave ordinance its city council passed in February 2018 after the Texas Supreme Court on Friday declined to hear its case — during a pandemic that some policy experts argue has shown the need for such policies.

The ordinance — which required most private employers to allow workers to accrue 64 hours of paid sick leave per year — never went into effect, and has been in conservative crosshairs for more than two years. As soon as it was passed, Republican state lawmakers vowed that they would have it overturned with a state law. But so far, the death knell for the capital city’s policy, and similar policies in other major Texas cities, has come from the courts.

Represented by the conservative Texas Public Policy Foundation, a group of Austin businesses sued in 2018 to block it, arguing that the city ordinance was unconstitutional because it conflicted with the Texas Minimum Wage Act, which sets a statewide policy. Texas Attorney General Ken Paxton weighed in on the side of the businesses.

The Austin-based 3rd Court of Appeals, then dominated by Republicans, ruled in November 2018 that the ordinance was unconstitutional — a decision that will stand after the high court declined to hear Austin’s appeal this week. The court did not offer a reason for denying the appeal in a one-line order.

I never paid that much attention to the Austin ordinance or similar ones like it in San Antonio and Dallas because it was obvious from the jump how this was going to go. Republicans tried to pass a bill in the 2019 session that would have not only forbidden cities from passing sick leave ordinances but gone much farther than that, and only died because Dan Patrick tried to use it as a vehicle to overturn local non-discrimination ordinances, which after the 2018 election was a step too far. There has been some recent energy in Houston for passing a sick leave ordinance, but that is clearly a non-starter now. The only way this is happening is to pass such a bill in the Legislature, and that’s going to mean winning not only a majority in both legislative chambers but a bunch of statewide elections, too. On our side is the fact that paid sick leave polls well, and now is the best possible time to persuade people that forcing sick employees to go to work or lose pay is a Bad Idea. There’s a lot of work to be done to make this happen, but it’s doable.

Fifth Circuit extends block on vote by mail expansion

Not unexpected, unfortunately.

A three-judge panel of the U.S. 5th Circuit Court of Appeals extended its order Thursday blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

With early voting for the primary runoff elections starting later this month — and the Texas Supreme Court also blocking expanded voting by mail in a separate case —Thursday’s ruling effectively eliminates the possibility that Texas voters will be able to legally request mail-in ballots solely because they fear a lack of immunity to the new coronavirus will put them at risk if they vote in person.

The issue is likely headed to the U.S. Supreme Court.

U.S. District Judge Fred Biery issued a preliminary injunction in late May expanding mail-in voting, but the appellate panel almost immediately put it on administrative hold while awaiting legal briefings from both sides. Thursday’s ruling keeps Biery’s ruling on ice while Texas appeals it.

[…]

Siding with Paxton, the 5th Circuit panel in part found that requiring Texas officials to institute voting by mail for all against their will would present “significant, irreparable harm” to the state. The panel pointed to the U.S. Supreme Court’s standing that lower federal courts should “ordinarily not alter the election rules on the eve of an election.”

See here and here for the background. As noted in the State Supreme Court ruling, there’s still nothing to prevent someone from requesting and receiving a mail ballot if they claim a disability. It’s just the risk they take if someone like Ken Paxton or a GOP activist charges that their claim is illegal because it’s based on coronavirus concerns. It’s hard to assess that risk, but so far at least nearly all of the people who have requested a mail ballot so far in Harris County are people 65 years old and older.

Rick Hasen breaks down the ruling.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.

There are still the other two federal lawsuits in the works, one of which directly challenges the age restriction on 26th Amendment grounds. I don’t know where they are on the calendar and I’m not sure how to evaluate that bit in Judge Smith’s opinion that Hasen cites, but it’s probably irrelevant for these purposes anyway. We’re too close to the July election for the courts to allow a major change in procedure at this point. There may still be time for that for November, but every day that passes makes that schedule a little bit tighter. For now, proceed as you see fit. Mark Joseph Stern has more.