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Dan Patrick gets all hysterical about voting by mail

Poor Dan. You know how emotional he gets. Could someone get him a nice cup of chamomile tea, to help him calm down a bit? Thanks.

Lt. Gov. Dan Patrick on Friday said that efforts to expand mail-in voting during the coronavirus amount to a “scam by Democrats to steal the election” and claimed that people under 65 are at more risk of dying in a car wreck on the way to vote than they are from dying from the coronavirus because they voted in person.

“There is no reason — capital N, capital O — no reason that anyone under 65 should be able to say I am afraid to go vote,” Patrick, a Republican, said in an interview with Fox News. “Have they been to a grocery store? Have they been to Walmart? Have they been to Lowe’s? Have they been to Home Depot? Have they been anywhere? Have they been afraid to go out of their house? This is a scam by the Democrats to steal the election.”

Texas has been locked in a legal fight over whether it has to expand who is eligible to vote by mail during the coronavirus pandemic. Multiple groups have sued the state, saying it’s dangerous to require people to wait in line and cast ballots on machines shared with other voters while the virus is spreading. GOP state officials have opposed the effort, however, saying that mail-in voting is vulnerable to fraud.

Patrick repeated those worries about fraud on Friday, while also dismissing any fears people might have about going to the polls if they aren’t eligible for a mail-in ballot. Patrick noted that the vast majority of people dying from the virus are older. Currently in Texas, anyone 65 or older or with a disability is eligible for a ballot.

“This idea that we want to give you a disability claim because I am afraid to go vote — if you are under 65 — is laughable,” Patrick said. “You have more chance of being in a serious auto accident if you are under 65 on the way to vote than you do from catching the virus and dying from it on the way to voting. This is the greatest scam ever.”

Texas does not have complete data for the ages of the 1,440 people who have died in the state from the virus. But the state has completed fatality investigations for 489 of those deaths, and about 29% of those were people confirmed to be under 65.

In addition, public health experts are encouraging people of all ages to limit their social interactions. While older people are generally at more risk of dying from the virus, young people can transmit it and endanger people of all ages.

You may recall, Dan Patrick said there were more important things than living and that senior citizens should be willing to die for the economy. So maybe he’s not the best judge of what one’s risk appetite should be.

It’s easy to mock Dan “Menace II Grandma” Patrick, and we all should do it on a regular basis because he is ridiculous. But we should also look at his words and try to understand what he’s really saying. Whether he meant to or not, there are three things that he made clear from this little outburst.

First, there’s no actual justification for the 65-and-over qualification. It’s completely arbitrary, and Patrick doesn’t even try to defend it. It’s there because that’s the number lawmakers picked when they wrote the law. If someone did press Patrick on this point, I’m sure he’d have little to offer beyond some form of “that’s just the way it is”. The federal age-discrimination lawsuit hasn’t had a response from the state yet, and I’ll be very interested to see what justification they come up with. My guess is they won’t bother to try to justify it, they’ll instead simply claim that having an age limit isn’t discriminatory. My point here is that Dan Patrick can’t defend this provision in the law, he can only hide behind it.

Second, there’s the “vote fraud” shibboleth. Forget for a minute that there’s a trivially small amount of actual vote fraud in the system, since statistics and logic mean nothing in this context. I’m old enough to remember when the voter ID bill was passed and the litigation was filed against it. One of the many points of contention over this odious law was the fact that it only applied to in person voting. Voting by mail, which was a smaller component of turnout than it is now and which was much more Republican than it is now (look at the absentee ballot totals for Harris County from 2008 and 2012, for example), was exempted in part because the Republicans who passed the law did not want to burden their own voters, but also because they professed no concerns at all vote vote by mail fraud, even as Democratic legislators and people who testified at the hearings pointed out that most of the handful of vote fraud examples we had centered on mail ballots. The only reason why Republicans are trotting out their “vote fraud!” wolf cries now is because Democrats have gotten better at using vote by mail. That’s what they’re actually afraid of.

And that brings us to point three. The Republicans know they are losing the argument. There was a time when Republicans didn’t care about who was showing up to vote, because they were confident they were going to win all of the elections they wanted to win. They had the lion’s share of the vote – George W. Bush won re-election as Governor in 1998 with 68% of the vote, and he got 62% of the vote as President in 2004 – and they knew it. They have no such assurance today, and they know that, too. All of the big urban counties (save for Tarrant, which is headed that way) are hopelessly Democratic, and now the big suburban counties are slipping away from them. They see their lack of popularity with younger voters and people of color. They’re not going to change what they stand for, so Plan B is to make it harder on all the people they don’t like to vote. This isn’t a revelation, and yes I know what Paul Weyrich was saying back in the 1980s. The difference now is that they really are saying it out loud. They don’t want to make it easier for people to vote, because they fear – with justification – they will lose too many elections if they do. They know people aren’t buying what they’re selling, so they’re trying to restrict the marketplace.

So yes, please do continue mocking Dan “Triggered By Sandra Bullock” Patrick. It’s fun, and he deserves it. But listen to what he’s saying, because he’s telling us what he’s afraid of. Let’s make sure we’re paying close attention to that.

That’s not how you test

Oops.

Texas health officials made a key change Thursday to how they report data about the coronavirus, distinguishing antibody tests from standard viral tests and prompting slight increases in the state’s oft-cited daily statistic known as the positivity rate.

The positivity rate is the ratio of the confirmed cases to total tests, presented by the state as a seven-day rolling average. The Texas Department State of Health Services disclosed for the first time Thursday that as of a day earlier, it had counted 49,313 antibody tests as as part of its “total tests” tally. That represents 6.4% of the 770,241 total tests that the state had reported through Wednesday.

Health experts have warned against conflating the tests because they are distinctly different. Antibody tests detect whether someone was previously infected, while standard viral tests determine whether someone currently has the virus.

Now that DSHS is reporting the number of antibody tests, it has recalculated its daily positivity rates starting Tuesday to exclude such tests. That led to a 0.41 percentage-point increase in Tuesday’s rate and a 0.55 point increase in Wednesday’s rate, according to DSHS calculations.

DSHS acknowledged last week that it was reporting an unknown quantity of antibody tests as part of the “total tests” figure. Despite that, Gov. Greg Abbott incorrectly claimed Monday that the state was not “commingling” the numbers while promising the state would soon break out the antibody test count.

[…]

When public health agencies combine antibody testing figures with viral testing figures, “I want to scream,” said Seema Yasmin, an epidemiologist and director of the Stanford Health Communications Initiative.

Viral tests, usually taken from nasal swabs, can detect an active coronavirus infection. If a person’s biological sample is found to have traces of the virus’s genetic material, public health workers can order them to self-isolate and track down any of their contacts who may have been exposed.

Antibody tests “are like looking in the rearview mirror,” Yasmin said, because they may show if a person has recovered from a coronavirus infection. That can be useful for public health surveillance, but it does not offer much insight about where the virus is currently spreading. Another issue is that many antibody tests have been shown to have high rates of inaccuracy, she said.

“As an epidemiologist, this level of messiness in the data makes your job so much more difficult, and it misleads the public about what’s really happening,” Yasmin said. “We’ve been talking about the capacity for testing increasing over the last few weeks, but now we might have to tell the public that might not be true.”

And dumping antibody testing data into the pool of viral testing data brings the overall positivity rate down, reflecting “a deceptive misuse of the data,” analysts for the COVID Tracking Project wrote last week. That’s because the numbers may make it seem like the state has grown its testing capacity even if a state’s viral testing capacity remains flat.

“This is crucial as we need increased capacity for viral testing before reopening to identify active infections even in the pre-symptomatic or asymptomatic stages,” the analysts wrote.

To be fair, Texas is not the only state to have done this. Florida and Georgia have been accused of manipulating their data in other ways as well. The bottom line here is that we’ll never get our arms around this pandemic if we don’t have good data. The data is messy enough as it is, we surely don’t need to be making it worse.

The NBA inches closer to a return

We’ll know more soon.

NBA teams are expecting the league office will issue guidelines around June 1 that will allow franchises to start recalling players who’ve left their markets as a first step toward a formal ramp-up for the season’s resumption, sources told ESPN.

Teams expect a similar timeline from the league on when they’ll be allowed to expand individual workouts already underway with in-market players to include more team personnel, sources said.

The NBA suspended the 2019-20 season on March 11 because of the coronavirus pandemic. The league is discussing a step-by-step plan for a resumption of the season that includes an initial two-week recall of players into team marketplaces for a period of quarantine, one to two weeks of individual workouts at team facilities, and a two- to three-week formal training camp, sources told ESPN.

Barring an unforeseen turn of events, many NBA owners, executives and National Basketball Players Association elders believe commissioner Adam Silver will green-light the return to play in June — with games expected to resume sometime before the end of July, sources said.

The NBA is still considering a two-site format for the return of the season, including Orlando’s Walt Disney World and Las Vegas, sources said.

See here for some background. That story was from Thursday. As of Saturday, things had progressed a bit further.

The NBA is going to Disneyworld. Or at least, it hopes to save its season and declare a champion in a single-site scenario outside of Orlando.

In the most public sign yet that the NBA is hopeful that it can resume its 2019-20 season amid the coronavirus pandemic, NBA spokesman Mike Bass said the league has begun exploratory talks with the Walt Disney Company about using its venue in central Florida to hold practices and games without fans present.

“The NBA, in conjunction with the National Basketball Players Association, is engaged in exploratory conversations with The Walt Disney Company about restarting the 2019-20 NBA season in late July at Disney’s ESPN Wide World of Sports Complex in Florida as a single site for an NBA campus for games, practices and housing,” Bass said in a statement.

“Our priority continues to be the health and safety of all involved, and we are working with public health experts and government officials on a comprehensive set of guidelines to ensure that appropriate medical protocols and protections are in place.”

The MLS is also looking at Orlando, at the ESPN Wide World of Sports facility. I don’t know how much that might complicate the logistics, but one presumes they will figure it out. The Chron had reported earlier in the week that the Toyota Center in Houston had been in the discussion as a potential venue, but that is apparently no longer in play. It’s possible the NBA will go straight into a playoff system, or it may play some more regular season games but eliminate the teams with the worst records to limit the number of people required to be there. I guess we’ll find out soon enough.

As you know, Major League Baseball has also been working on a season-starting proposal, though in typical fashion the owners are making up claims about financial losses in an attempt to back out of the previous agreement with the players and squeeze them on salaries. I suspect this will get resolved at some point, in which case we may suddenly have a lot of sports coming back to us. Assuming, of course, that there isn’t a big post-reopening spike in infections or other insurmountable obstacle. But if things go as the optimists hope, we could go from no sports to a fairly full slate in a hurry. We’ll see.

Hidalgo extends stay-at-home order

Well, sort of.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Thursday issued new guidelines urging residents to stay home when possible, even as Gov. Greg Abbott reopens most businesses.

The extended Stay Home, Work Safe order is in effect through June 10, though it bears little resemblance to the original directive in March that closed most businesses and ordered residents to remain at home.

San Antonio and Bexar County extended their own stay-home guidelines through June 4.

Abbott’s orders reopening Texas businesses override any rules from local officials. The governor also barred cities and counties from enforcing facemask requirements, as Hidalgo had attempted.

The county judge said her order reminds residents to keep practicing social distancing.

“I don’t want the community to get the message that we’re done,” Hidalgo said. “We may well be in the eye of the hurricane. There’s still no cure, no vaccine.”

[…]

Hidalgo on Thursday also unveiled a series of guidelines meant to protect employees returning to their jobs and help businesses create safe workplaces. They include staggering shifts to avoid congregating workers, taking employees’ temperatures, providing face coverings and never requiring anyone to come to work if they feel ill.

Retail firms should clean and disinfect shops before reopening and give employees a break every hour so they may wash their hands or take other safety precautions, she said. Employers also should keep attendance of all workers on-site each day, so contract tracing can easily occur in the event of an outbreak.

State Rep. Armando Walle, whom Hidalgo appointed the county’s coronavirus recovery czar, said it is hoped the worker guidelines will prevent outbreaks like those discovered at meatpacking plants in the Texas Panhandle.

You can see the amended order here. It heavily references the most recent gubernatorial executive order, and encourages everyone to continue social distancing. The fact of the matter is that while the daily new case average is holding steady, that means it isn’t decreasing. We’re not getting any closer to having no new cases. That means that another increase in the new case rate could still happen, because the disease hasn’t gone away. If we don’t want a spike to happen and we do want to reopen, we have to keep being careful and keep exercising caution. We’re not past this, we’re choosing to live with it. It’s up to us to make sure we don’t regret that choice.

Are we headed towards a coronavirus spike?

One set of researchers thinks we may be.

Houston is one of several cities in the South that could see spikes in COVID-19 cases over the next four weeks as restrictions are eased, according to new research that uses cellphone data to track how well people are social distancing.

The updated projection, from PolicyLab at Children’s Hospital of Philadelphia, found that traffic to non-essential businesses has jumped especially in Texas and Florida, which have moved aggressively to reopen.

In Harris County, the model predicts the outbreak will grow from about 200 new cases per day to more than 2,000 over the next month.

“Some areas—particularly in the south—that have moved more quickly to reopen are showing a higher risk for resurgence,” the researchers wrote in a blog post. “If people in Houston and Palm Beach, Fla., for example, aren’t being cautious with masking in indoor crowded locations and with hygiene and disinfection, local governments may need to intervene again should they lose control of the epidemic.”

[…]

The PolicyLab research is tracking 389 large counties across the country with active outbreaks. It found that projections are best in places that are relaxing restrictions selectively in areas with fewer cases and less transmission.

“Given these cautious actions by our governments, we have already seen that the predicted resurgence has not occurred in most places that are beginning to reopen—rather, daily cases are either plateauing or falling,” the researchers wrote. “But the picture our models are painting for Texas and Florida provide ample evidence to others who would choose to move too quickly. We see these concerns even as we adjust for additional testing capacity that might have inflated our forecasts.”

See here and here for more on the predictions, and here for an earlier press release about their model. As far as I can tell, their model depends on “social distancing measures, defined by travel to non-essential businesses”. They say their data comes from a variety of publicly-available sources, but that’s about as much detail as I can find. I’m not an expert in any way, so I’m in no position to critique this. Fortunately, Dr. Peter Hotez is an expert, and he shared some thoughts about this in Friday’s Chron.

I understand the importance of opening up the economy. The worry that I have is that we haven’t put in place a public health system — the testing, the contact tracing — that’s commensurate to sustain the economy.

Some models show fairly dire predictions for Houston. I’m referring to the Children’s Hospital of Philadelphia model that shows that by the summer, if we’re only at about 50% of the social distancing, we’re doing now, Harris County could see a steep surge in the number of patients coming into the hospitals and intensive care units.

It’s a model. It’s only as good as the assumptions that it’s based on, and we know the assumptions are not robust. But it gives me pause for concern that unless we have that health system in place, we could be looking at an epidemic that’s far greater than the one we’ve gone through.

Let’s say we’re opening up as as we are now. The way a surge works is, it’s not as if we’re going to see a gradual increase in cases. The models say things will look good for weeks. At first, it’s a flat curve, then it’s flat, it’s flat, and only after all that do you start seeing a steep, steep increase.

That’s what worries me. In those flat weeks we’ll get this sense of complacency, and then people are going to start going into the bars. Forget about one quarter occupancy in the bars. Poison Girl, on Westheimer, is going to be full. And so are all the other places all across Houston.

So: How do we fix that? I think it’s having a health system that’s larger and more extensive than what’s being proposed. We’re going to have to do extensive testing in the workplace so that you’d know if your colleagues have COVID-19 — especially asymptomatic COVID-19.

The number of contact tracers has to be far greater than the numbers that I’m seeing. Gov. Abbott says that Texas has around 2,000 and plans to hire 2,000 more. But consider that Gov. Cuomo in New York State is hiring 17,000 contact tracers. A state that’s quite a bit smaller is hiring a much larger number.

We also still don’t have that syndromic-monitoring system in place that you and I have talked about — an app that would allow Houstonians to report how they’re feeling, or that would track temperatures, like the Kinsa electronic thermometer app.

We should be bringing in our best engineering minds out of the oil and gas industry, out of NASA, out of the Texas Medical Center to put in place an app-based system — maybe make a hybrid between the kinds of things being put out there by Apple or Google or Kinsa, or the kinds of things they’re doing in Australia. We can design one that works for our culture, works for our system. But we’re not assembling the engineers to put that in place.

We don’t even have an epidemiological model for the city of Houston. There’s one for Dallas, put out by UT Southwestern and the University of Texas. Austin’s put out one. But I haven’t seen one for Houston.

So I’m worried that if people are going to start piling into bars and restaurants, and we don’t see the numbers going up, within a couple of weeks from now, it’ll be business as usual. Everybody will feel good, will be saying, “Hey, I’m not seeing the cases go up.”

And it’s going to really accelerate starting in the fall. This is not only true of Houston; it’s true of cities across the U.S. It would happen right before the 2020 election, so I worry about a lot of instability and how we mitigate that.

So there you have it. Keep it up with the social distancing and staying at home, avoid crowds, and wear a mask. We all have a role to play.

Another profile of Judge Hidalgo

It’s good, and she deserves the attention she’s getting, but there’s something about this that bugs me a little, and I’m trying to put my finger on it.

Judge Lina Hidalgo

On March 1, before Harris County reported its first confirmed case of the coronavirus but as the disease was already infiltrating America’s biggest cities, Harris County Judge Lina Hidalgo made a call to ground zero.

It was Dow Constantine, her counterpart in Washington state’s King County, who picked up. At the time, he was responding to what was believed to be the first coronavirus death in the United States.

Hidalgo believed Texas had the benefit of precious time, and she wanted Constantine’s advice to make sure she didn’t squander it. What did he wish he had known two weeks ago? How could Washington have been more prepared?

“I sat down with my team and said, ‘Guys, this is coming.’ It’s a bit like a hurricane in that we see it coming, but with this one we had more time,” Hidalgo said in an interview with The Texas Tribune. “There was no excuse to be caught flat-footed.” (Constantine told the Tribune that Hidalgo was the only county official who took the initiative to reach out for advice in the early days of the crisis.)

Harris County, the state’s largest, leads Texas in coronavirus cases and deaths, but the area has largely avoided the fates of the hardest-hit regions like Washington state, New York and Louisiana, where a surge of patients overwhelmed hospital systems. While the daily number of new cases reported in Texas continues to climb, the Houston area’s numbers have plateaued at a number far below their peak last month. The result is that Hidalgo, a first-term political figure, has been thrust into the spotlight.

Hidalgo, who took office in the aftermath of Hurricane Harvey, came into the job knowing she would have to prepare for disasters. “This is a huge county, and when you have landmass the size of Rhode Island and around 5 million people, things are bound to happen,” she said.

What she was not prepared for was the acrid backlash that would follow.

It goes from there, and it’s a good recap of what has happened so far and who (Republicans) has been vocally (and often insultingly) critical of Hidalgo, along with some biography that we should be reasonably familiar with by now. Like I said, there’s something about this that nags at me, and I have a hard time pinning it down. Part of me wishes that the main loudmouth critics in this story, like State Sen. Paul Bettencourt, would be made to answer just exactly what they would have done in her position. That can be satisfying to consider, but in reality they’d just come up with their own alternate history where everything they did turned out even better, and that accomplishes nothing. We can run a gazillion simulations of the pandemic based on whatever conditions we want to apply, but we only get to live it once, and we can never say for sure what might have been.

Perhaps another way to do this kind of story is to ignore the political critics and focus instead on the people who are front and center at dealing with the pandemic and its effects, and get their view on how various decisions and policies have helped or hindered them. The problem there is that people often don’t know or can’t isolate a particular action taken by one branch of government, and so what you get is a mix of their own interpretations and competing factors. How exactly do you distinguish between the feds, the state, and the locals have done if you’re a critical care doctor or nurse, or a grocery story employee? So I don’t know what that accomplishes, either.

So I don’t know that there’s a better way to tell this story than what we have here, which perhaps frustrates a close observer like myself but is more useful to someone who doesn’t spend as much time on this kind of minutia. I at least can always talk to my fellow nerds and get the unreported gossip, which is as much what I want as anything else. What do you want from stories like this?

Coronavirus and the State Supreme Court

Just a reminder, nearly half of the State Supreme Court is up for election this November. You know, in case you had opinions about their recent opinions.

Typically not top of mind for voters, the nine Republican justices of the Texas Supreme Court have come under the spotlight during the coronavirus pandemic with a slate of high-profile and controversy-generating moves.

Actions on bailevictions, debt collections, vote-by-mail and a Dallas salon owner named Shelley Luther have foregrounded the court in a year when four incumbent justices face reelection — making it easier, Democratic challengers say, to make the case against them.

Last week, the high court lifted its coronavirus ban on evictions and debt collections, put in place in March as the economy shut down and hundreds of thousands were added to the unemployment rolls. And the justices temporarily put on hold a lower court ruling that expanded vote-by-mail access during the pandemic. Both decisions have infuriated some voters and energized the Democratic Party.

This month, the court ordered the release of Luther, who was jailed for contempt of court after refusing to shutter her salon under coronavirus orders; earlier this spring, it sided with state officials in limiting how many inmates could be released from county jails, which have become hotspots for disease.

Democrats, who have not won a seat on the state’s highest civil court in more than two decades, have reclassified the typically sleepy races as a “top-tier priority,” a designation party officials said comes with digital ad spending. And some candidates have already begun to speak out publicly against high court decisions they say disenfranchise voters and risk their safety.

“I think people’s eyes are opening up,” said 3rd Court of Appeals Justice Gisela Triana, one of the four women running for Supreme Court on the Democratic ticket this year. “What has been the sleepy branch of government … has woken up.”

There’s more and you should read the rest. For obvious reasons, these races are largely going to be determined by the Presidential race – if Joe Biden can run even with or ahead of Donald Trump, one or more of the Democratic candidates can break through. It surely wouldn’t hurt for their to be some money spent on these races, in part just to make sure voters are aware of them and in part to highlight some of the decisions that are not exactly in line with public preferences, but there’s only so much the individual candidates can do about that. In case you’re wondering, I have one Q&A from a Democratic candidate for Supreme Court from the primaries, from Judge Amy Clark Meachum.

On a more sobering note:

Justice Debra Lehrmann

One day after presiding over a hearing on the state’s mail-in ballot controversy via videoconference, Texas Supreme Court Justice Debra Lehrmann says she and her husband have tested positive for COVID-19.

“We began to exhibit symptoms last week, despite diligently complying with stay-at-home rules,” Lehrmann wrote on Twitter on Thursday. “Thankfully, this has not interfered with #SCOTX work, as the Court is working remotely. We are grateful for your thoughts & prayers.”

Her diagnosis marks the first known coronavirus case of a top state official. The justice did not immediately respond to requests for an interview but told the Dallas Morning News that she and her husband Greg had fevers and body aches early last week before getting tested at an Austin drive-thru testing center.

She also told The News that their Houston lawyer son, Jonathan, his wife Sarah and their six-month-old son Jack, who had been visiting them every other week, stopped and are believed to also be infected.

Her tweet is here. I wish Justice Lehrmann and her husband all the best for a swift recovery. (She is not on the 2020 ballot, in case you were wondering.)

Fifth Circuit flips the switch

It’s what they do.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Federal court issues order to allow voting by mail

Here we go again.

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

We still don’t know what the upcoming school year will look like

Lots of possibilities, no clear answer yet.

Houston ISD officials are planning for the possibility that some — if not all — students will continue to take virtual classes at home to start the upcoming school year, Interim Superintendent Grenita Lathan said Friday.

Leaders of the state’s largest school district are preparing multiple contingency plans for August, many of which involve a continuation of online learning, amid uncertainty about their ability to safely re-open campuses as the novel coronavirus pandemic lingers.

District administrators remain weeks away from finalizing key decisions about the upcoming school year, but Lathan said during a wide-ranging press conference that she hopes to announce within the next month whether some form of in-person classes can resume by August.

Under one potential plan floated Friday by Lathan, some or all of the district’s 209,000 students would spend part of the school week on campus and the remainder of the week in online classes — a method aimed at increasing social distancing in crowded buildings. Numerous education leaders across the state and country have suggested similar structure in recent weeks.

“We’re also looking at some students being virtually online the entire first semester or, possibly, the entire school year,” Lathan said.

Superintendents across Texas are grappling with how to structure their school calendars and daily schedules to best accommodate students while balancing public health concerns. Although children suffer medical complications from COVID-19 at far lower rates than adults, public health officials remain concerned about their ability to spread the virus to school staff and family members at home.

[…]

Beyond this summer, superintendents and school boards are evaluating major changes for the 2020-21 school year given the ongoing threat of COVID-19 and the need to support students falling behind during the current shutdown.

In HISD, administrators are starting to discuss with staff and families whether to start the school year earlier and build in longer breaks that could be used as make-up days if in-person classes are canceled due to COVID-19. Texas Education Agency officials are pushing the benefits of this model across the state, though decisions about academic calendars rest with local school boards.

HISD officials also are evaluating whether to extend the school day by 30 minutes, giving teachers and staff more time to help students recover from the disruptions. Lathan said such a move would come with additional pay for employees and could involve structural changes to campus operations.

“We have to look at the emotional toll it’s taken on our teachers to prepare and keep students engaged,” Lathan said.

See here, here, and here for some background. There are just too many variables to say with any confidence what may happen, so just try to keep up with the possibilities so you can make plans. We’ll be fine no matter what – both of us can work from home as needed – but a lot of people will have it much harder. None of this is easy. The best we can hope for is a treatment regimen for COVID-19, and eventually a vaccine. If we’re really lucky, we’ll have a better President next year and can maybe finally get a halfway decent federal response to this mess. In the meantime, this is where we are.

TxDOT hit with ransomware

Not great.

Texas’ transportation agency has become the second part of the state government to be hit by a ransomware attack in recent days.

On Thursday, someone hacked into the Texas Department of Transportation’s network in a “ransomware event,” according to a statement the department posted on social media Friday.

The departments’ website says some features are unavailable due to technical difficulties, but it is not clear what functions were affected by the attack. Agency officials did not respond to emailed questions Sunday.

[…]

Upon detecting the hack, staff at the transportation department “immediately” isolated the affected parts of the network and “shut down further unauthorized access,” according to the statement. James Bass, the department’s executive director, said his staff is “working to ensure critical operations continue during this interruption.″ The hacks follow a ransomware attack of unprecedented size that hit more than 20 local governments in Texas last summer.

See here for more on the attack on the court system’s website. In 2019, there was a coordinated attack on the systems of multiple small cities and counties.

I can’t find much in the way of news on this, so here’s TxDOT’s statement, via Twitter:

Maybe these two attacks are unconnected – there’s not enough information, such as what type of ransomware was involved and what the vector for it was, for me to take a guess – but the fact that there were two such attacks in a short period of time on two state systems sure seems suspicious to me. If I were at the state Department of Information Resources, I would be very busy, and more than a little concerned, right now. KXAN, CBS DFW, and Bleeping Computer have more.

More reopening

Onward we go, whether wise or not.

Gov. Greg Abbott on Monday announced his next wave of reopenings designed to restart the Texas economy during the coronavirus pandemic, saying child care facilities can reopen immediately, bars can open Friday with limited capacity and sporting events can return without fans at the end of the month.

Abbott also said he would permit restaurants to operate at 50% capacity starting Friday, up from 25% that’s allowed now.

At the same time, Abbott exempted two hotspot regions — Amarillo and El Paso — from his latest decisions, saying they would need to wait a week — until May 29 — while the state’s surge response teams work to contain outbreaks in each area.

Abbott’s news conference came 18 days after he began a phased reopening of the state, starting with letting restaurants, stores, movie theaters and malls open up at 25% capacity. He then allowed barbershops and salons to reopen May 8 under certain restrictions. Monday was the first day gyms were allowed to open up, also under restrictions.

Previously, child care was only available to workers deemed essential by the state. Abbott’s announcement Monday allows child care centers to reopen to help all workers returning to their jobs.

In addition to bars, Abbott is letting a host of other establishments reopen Friday, including bowling alleys, bingo halls, skating rinks, rodeos, zoos and aquariums. In the lead-up to Monday, however, the fate of bars had drawn the most attention, especially after Abbott began allowing restaurants to reopen May 1. All the businesses opening Friday will only be allowed to operate at 25% capacity.

For bars that reopen Friday, the state is recommending that customers remain seated at tables of no more than six people, among other restrictions. Dancing is discouraged.

Insert Baptist joke here. On the one hand, the daily case numbers keep rising, with no clear indication that we were approaching a peak even before we started loosening things up, and without achieving the Abbott-stated benchmark of 30,000 tests per day. It’s not that we’re reopening per se, it’s that Abbott himself laid out conditions and requirements and penalties for people who failed to comply, then dropped it all like a hot rock the minute some grifter hairstylist in Dallas threw a hissy fit. It just doesn’t inspire confidence that Abbott has any idea what he’s doing or any plan to retreat if things start to get worse. That said, the rate of growth in the state is fairly slow, hospital capacity is in good shape – both of these are no doubt helped by the solid results in Harris County, for which Abbott owes Lina Hidalgo a big thank you – and to his credit Abbott paid attention to the places that needed and asked to be excluded from this round of reopenings.

The next round of reopenings will come May 31, when Abbott allow permit summer youth camps to reopen — as well as let certain professional sports to resume without spectators. The sports include basketball, baseball, car racing, football, golf, softball and tennis. Leagues will first have to apply to — and receive approval from — the Texas Department of State Health Services.

[…]

Notably, Monday marked the first time that Abbott singled out specific regions as not ready to take part in the latest reopenings.

Amarillo has been a hotspot due to outbreaks at its meatpacking plants, and earlier this month, the state dispatched one of its Surge Response Teams to the city to try to get things under control. Of the 1,801 new cases that Texas reported Saturday, over 700 were linked to the Amarillo meatpacking plants, according to Abbott’s office.

In El Paso, the situation has deteriorated enough that the county judge, Ricardo Samaniego, and other local officials asked Abbott last week to exempt the county from the next reopenings until the county sees a two-week downward trend in the number of positive cases or positive test rate. Abbott said Monday that El Paso’s hospital capacity is “too close for comfort at this particular time.”

The one-week delay “will give those communities and our surge team response the time needed to slow the spread and maintain hospital capacity,” Abbott said. “It will ensure those communities safely move into phase 2.”

The counties subject to the delay are El Paso, Randall, Potter, Moore and Deaf Smith. The latter four are all in the Amarillo region.

I have my doubts that the Abbott Strike Force will make any difference in these places, unless they find the will to shut down the meatpacking plants that have been such hotspots, but at least he’s not ignoring reality, unlike some other state officials I could name. He’s still wishy-washy, and in the end if this works out reasonably well I’ll believe it’s because he was more lucky than smart, but it could be worse. In this state, that’s often the best you can hope for. The Chron, the Press, the Current, the Rivard Report, and the Dallas Observer have more.

Biden campaign says it will compete in Texas

That is what we want to hear.

Former vice president Joe Biden is planning to compete against President Trump in traditionally Republican states such as Arizona, Texas and Georgia as his campaign bulks up in size and turns to a general election made highly unpredictable by the coronavirus.

“We believe that there will be battleground states that have never been battleground states before,” said Jennifer O’Malley Dillon, Biden’s campaign manager, on a call with reporters Friday. “We feel like the map is really favoring us if you look to recent polling.”

Biden’s campaign said it will also compete in other states such as Iowa and Ohio that Hillary Clinton lost by large margins in 2016.

The campaign’s public announcement of targets — which some Democrats feel are overly ambitious — is driven by what it sees as weaknesses for Trump that have been magnified by his response to the virus. It comes after weeks of criticism from Democrats, who worry Biden isn’t being aggressive enough.

[…]

Biden’s staff, on the call with reporters Friday, frequently pointed to national polling and surveys in battleground states that give Biden an edge. Recent public polls in Arizona, Florida, Michigan and Wisconsin show Biden leading. Trump is beating Biden by small margins in Iowa and Texas.

The FiveThirtyEight average of the four polls of Texas post-primary have Trump leading Biden by two in Texas. That can change, of course, and there are a whole host of other factors to consider, from fundraising to organization to how the election will be conducted, but it’s hard to see Texas as un-competitive right now. It’s true that if Biden does actually win Texas he’s almost certainly run up the score to such an extent that he surely didn’t need to win Texas, but there are plenty of other considerations as well, from a US Senate race to multiple potential Congressional pickups to winning the State House and having a voice in the 2021 redistricting process. The Chron covers some of this ground:

In the 1990s, Bill Clinton came within 5 percentage points of winning Texas in both 1992 and 1996, but both those races had eccentric Texas tycoon H. Ross Perot taking voters from the Republican nominees. Minus those races, Hillary Clinton coming within 9 percentage points of beating Trump in 2016 is the closest a Democrat has come to winning Texas since Jimmy Carter won the state in his first election in 1976.

The chairman of the Texas Republican Party James Dickey has been warning the party faithful that Democrats are energized and are going to put a lot more money into Texas to try to flip it and Republicans need to be prepared. He’s been touring the state since last year outlining how the party is more aggressively fundraising, hiring field staff and registering voters than in past cycles. While he dismisses the state being a blue state, he has been emphatic that “Texas is on Red Alert” for 2020.

But while Republicans scoff at the idea of Texas turning blue, Trump has already spent more time and money in Texas than many past Republican presidential contenders.

Before the pandemic had even hit, Trump had made 14 trips to Texas since he was inaugurated. That is more than three times as many visits as President Barack Obama made during his first term in office. And with a big financial advantage over the Democrats, Trump has been able to do more to shore up Texas, rather than just focusing on traditional battle grounds in Pennsylvania, Florida and Wisconsin.

It is not hard to imagine a race that is decided by 5 percentage points or less in Texas, said Jillson, the SMU political science professor. But Jillson said if Trump struggles to hold Texas, it would be a sign of a bigger problem nationwide.

“If Texas is in play, it probably means Joe Biden has won 40 other states,” Jillson said.

Forty is an overstatement. If you think I’m being pedantic, go ahead and list the nine states Trump would definitely still win in the event Biden carried Texas. I feel pretty confident saying you’d be leaving off a few obviously red states in such an exercise, all of which would be a much bigger shift towards the Democrats than Texas would, and without the corresponding poll numbers to suggest it. Here’s an illustration of this:

That’s not intended to be a rigorous predictive model, just as noted a simple way of viewing the state of play right now. Point being, Texas really has shifted, and it’s time to think about in those terms. How much of an investment it merits from a Presidential campaign perspective is open to debate, but the fact that it is competitive is not.

We don’t know enough about what’s happening at nursing homes

We’ve talked before about two of the main coronavirus hotspot types in Texas, prisons and meat processing plants. Now we’re going to talk about that third type, nursing homes.

As the death toll grows at Texas nursing homes, so has the number of requests for information kept by state health officials that would reveal which long-term care facilities have suffered coronavirus outbreaks during the worst pandemic in generations.

But the Texas Health and Human Services Commission, which regulates nursing homes and assisted living facilities, is attempting to keep its records secret, despite calls for more transparency from open-government advocates, some Texas lawmakers and family members worried about vulnerable residents.

“The public is being left in the dark, and we’re losing control of our ability to oversee the operations of our government,” said Joe Larsen, a lawyer with the Freedom of Information Foundation of Texas, which published an open letter last month urging the health commission to release its records on nursing home infections.

In a May 4 letter to the Texas Attorney General’s Office, Carey Smith, a lawyer representing the health commission, said the agency has received more than two dozen public records requests for nursing home data about coronavirus infections, but that federal and state laws prohibit the release of the information because it might identify infected residents and violate their privacy.

However, Texas legislators who wrote one of the laws cited by Smith said it doesn’t prohibit officials from releasing statistical information about COVID-19 in nursing homes.

“The statute was not intended to create a blanket protection for all health-related information,” said former Sen. Kirk Watson, D-Austin, who authored the bill in the Texas Senate last year.

The sponsor of the bill in the Texas House, Rep. Giovanni Capriglione, R-Southlake, said releasing statistical data from nursing homes could benefit both consumers and government authorities. And, like Watson, he said the bill they passed doesn’t prevent state officials from releasing that information.

“So long as you can’t get personal identifying information I don’t see why the current rules and statutes that we have don’t already allow that information to be released,” Capriglione said.

[…]

After facing criticism from families and advocates of nursing home residents, Texas began releasing statewide statistics that show the total number of coronavirus deaths at nursing homes, which provide round-the-clock care, and assisted living facilities, which are less intensive.

As of [May 1], 478 COVID-19 deaths — nearly half of the 1,042 reported in Texas — were at nursing homes or assisted living centers, records show.

But state health officials haven’t disclosed infection rates for each location, which has stymied families trying to protect their relatives. The lack of information also leaves hospice workers and other contract caregivers in the dark.

That story was from early May. Since then, we have gotten more numbers from the state.

More than 3,000 Texas nursing home residents have tested positive for the new coronavirus, as well as nearly 400 assisted living facility residents, according to data released Friday by the Texas Department of State Health Services.

Among the reported 311 nursing homes with confirmed cases, 3,011 residents have tested positive and 490 have died. Another 494 residents have recovered, according to the data. At 112 assisted living facilities in Texas with at least one confirmed coronavirus case, 382 residents have tested positive for the virus, and 95 have died.

Statewide, 1,272 people have died, but it was unclear late Friday if all of the long-term care facility patients’ deaths were included in that larger figure.

The state had previously released only the number of nursing homes with confirmed cases and fatalities, not the number of people who have tested positive.

The state is still not releasing the names of nursing homes with COVID-19 cases. Many families remain in the dark about whether their loved ones in nursing homes are at risk of exposure.

There are a lot of reasons why we need more and better reporting of this data. For one, just so that the people who have family and friends that live or work at these places can know what’s going on with them. For two, to better identify the places that are not up to standard on health and safety. For three, so we can learn from the places that are doing well as well as the places that are doing poorly, so the overall level of safety and care can be improved. This is not hard to understand, and at least it looks like there’s bipartisan agreement that the existing laws need to be upgraded for the future. Put that on the ever-lengthening to do list for the 2021 Lege.

More runoff debates

In case you had not seen this, as I myself had not before Sunday.

Watch Democratic Candidate Debates Here!

Every Tuesday and Thursday in May, join us for our debate series:

Debate Schedule:
Tuesday, May 5 – Harris County Precinct 3 Commissioner
Thursday, May 7 – Texas State House District 138
Tuesday, May 12 – Texas State House District 142
Thursday, May 14 – Texas State House District 148
Tuesday, May 19 – US Congressional District 10
Thursday, May 21 – Texas State Board of Education Position 6
Tuesday, May 26 – Texas Railroad Commission
Thursday, May 28 – United States Senate

Video of past debates are on the page, so for example if you want to hear Anna Eastman and Penny Shaw, go here. In some cases, one of the candidates in the runoff has declined or not responded, but in most cases you can hear both candidates. Early voting begins June 29, so remind yourself of who’s on your ballot and start making up your mind.

Primary precinct analysis: Where a man can still win

Judge Gisela Triana

As previously discussed, female candidates in Democratic judicial primaries kicked a whole lot of ass this year. The four statewide races that featured one female candidates against one male candidate were shockingly not close – Amy Clark Meachum and Tina Clinton both topped 80%, while Kathy Cheng and Gisela Triana were both over 70%.

I’ve said before that blowout elections usually don’t yield anything interesting to see when you take a closer look at them. When a candidate wins by a dominant margin, that dominance tends to be ubiquitous. Still, I wondered, given that Texas is such a mix of counties – large, medium, small; urban, suburban, rural; Anglo and Hispanic; Republican and Democratic – that I wondered if that might still be true in these judicial primaries.

So, I picked the closest of the four race, Gisela Triana versus Peter Kelly, which was a 73-27 win by Triana, and looked at the county by county canvass. Behold, here is every county in Texas in which Peter Kelly won or tied:


County      Kelly   Triana
==========================
Borden          4        2
Briscoe        16       15
Burleson      340      292
Carson         59       56
Coke           33       28
Collingsworth  25       17
Fisher         79       20
Glasscock       7        5
Hall           33       30
Hansford       11        8
Hardeman       53       41
Hartley        32       29
Haskell        83       59
Hudspeth      143      143
Jack           72       70
Jasper        551      494
Kent           21       12
King            2        0
Lavaca        257      213
Limestone     340      308
Loving          4        1
Madison       132      111
Morris        345      274
Motley          5        5
Newton        160      134
Oldham         18       18
Red River     208      191
Roberts         5        4
Rusk          861      776
San Augustine 219      172
Shelby        187      182
Stonewall      35       19
Wilbarger     130      129

So there you have it. Congratulations to Fisher County, in what I would call the southern end of the panhandle, for being the most pro-dude part of the state, and to Rusk County in East Texas for being the largest pro-dude county. There were two counties in which each candidate got at least a thousand votes that were fairly close:


County      Kelly   Triana
==========================
Gregg       2,028    2,159
Harrison    1,182    1,484

I did not check the other races, on the assumption that there would be fewer such examples in those less-close contests. None of this is intended as a comment on the quality of the candidates – the Dems had a robust lineup of well-qualified contenders this cycle. I don’t think that this kind of “analysis”, if one can call it that, tells us anything useful, but I do think there’s value in examining the silly side of politics now and then. I’ve also had this sitting in my drafts since mid-March and felt like it was finally time to publish it. I hope you enjoyed this little exercise in said silliness.

First federal vote by mail lawsuit hearing

One down, two to go.

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

[…]

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

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

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

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

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

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

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

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

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

When is a strip club not a strip club?

When it’s a restaurant, with no strippers. What, did you think that was a trick question?

A week after a temporary court order allowed a Houston strip club to resume operations, a federal judge has ruled that the club’s owner must operate as just a restaurant – no dancers allowed.

Houston police raided Onyx Club just after midnight on May 1, insisting the business did not qualify to reopen under Gov. Greg Abbott’s guidelines for phased reopenings. Officers threatened to arrest owner Eric Langan, who defied orders until 4 a.m., when he shut down the club.

Langan’s business, Trumps Inc., filed a federal lawsuit calling the club a restaurant, and alleging that the police raid and closure violated his civil rights.

U.S. District Judge Vanessa D. Gilmore granted Langan and Onyx Club a temporary injunction on May 1 that let the club resume operations, but said at a Friday hearing that the business may not offer any services that go beyond those specifically allowed in the new guidance.

“Sexually oriented businesses may only offer restaurant services and are prohibited from providing any other service,” Gilmore wrote in the ruling.

Onyx Club is allowed to reopen as a restaurant so long as it only serves food, but it’s presently defined as a “sexually oriented business,” according to the ruling.

“Because (Trumps Inc.) operates a sexually oriented business, they are prohibited from offering both restaurant services and entertainers, even if the entertainers are fully clothed,” Gilmore wrote.

See here for the background. That was from last Friday, and while the club owner says their business is doing well now, who knows how long that may last under these conditions. Not to put too fine a point on it, but they’re now competing with a bunch of places whose primary business has always been food service. We’ll see how Onyx does without the loss of their main amenity.

One more thing, since this came up in that post:

In a case filed by a Houston strip club that wanted to reopen as a restaurant, U.S. District Judge Vanessa Gilmore of Houston said Abbott’s changing series of orders “has caused a state of confusion that rests clearly on the Governor’s doorstep.”

Gilmore ruled that Onyx Houston could open only “without additional entertainment” — in other words, no dancers, “even if the entertainers are fully clothed.”

But she went on to suggest some flaws in the state’s executive orders.

“As previously stated, the Plaintiff has failed to add the State as a party to this action to address the First Amendment and equal protection issues raised by the Governor’s orders. Nonetheless, the Court feels compelled to point out the constitutional problems raised by the Governor’s various orders.

“The fact that the governor has now apparently decided that jail time is too harsh a penalty for a violation of his orders is little comfort,” the judge wrote, “as even that action seems to have been motivated by the impact of his order on a single violator, Dallas salon owner Shelley Luther, leaving many business owners unsure, even now, if the orders would be equally applied to them.”

The story points out that the state of Texas – not just Greg Abbott, but also Ken Paxton in his role as lapdog/enforcer – has been quite inconsistent in its directives to businesses and cities, doing a complete reversal on the matter of enforcement after Shelley Luther started showboating. This pandemic has been very difficult for all levels of government to manage. It’s something we hadn’t seen before, and the various stay-at-home orders do raise a lot of questions about executive authority and competing interests and so forth, which the courts will be sorting out, in some cases for years to come. Greg Abbott and his craven response to the first sign of pushback from the seething masses that make up his Republican Party didn’t make any of this any easier.

Supreme Court sticks its nose in

I suppose this was to be expected.

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

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

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

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

[…]

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

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

Emerson: Trump 47, Biden 41

Next up.

The latest Emerson College/Nexstar Media polls of Texas, California, and Ohio show President Donald Trump with a slight advantage in Ohio and Texas in the general election against presumptive Democratic nominee former Vice President Joe Biden. Trump also appears to be who voters in these states expect to win in November, as a majority expect him to secure a second term.

As the coronavirus pandemic continues to deeply affect the country, Governors in all three states maintain strong approval and partisan divides are stark in individual opinions on the country’s future.

[…]

In Texas, a potential new battleground state, President Trump is at 46% approval and 44% disapproval. Republican Governor Greg Abbott has 54% approval and 32% disapproval among voters in the state. n=800, +/-3.4%.

Trump leads Biden by six points among Texas voters, 47% to 41%, but when undecided voters are included, Trump’s lead tightens to four points, 52% to 48%. Despite the close ballot test, a clear majority of voters in Texas, 61%, expect Trump to be re-elected.

A slight majority in Texas, 51%, would rather vote by mail this year because of concerns about safety related to the virus.

You can see the full poll data for Texas here. For what it’s worth, FiveThirtyEight uses the 52-48 push-the-leaner total on its Texas polling page.

There are some questions about what kind of newly reopened establishments one would feel comfortable in, if you want to read more. Texas respondents were more cautious than their Ohio counterparts, which was interesting. Note that while Greg Abbott had fairly solid approval numbers, they pale in comparison to Ohio Gov. Mike DeWine, who checked in at 71 approve/15 disapprove – California Governor Gavin Newsom was at 65/20. Both DeWine and Newsom have been generally praised for their handling of the pandemic, while Abbott has been his usual wishy-washy self. It’s not that Abbott’s numbers are terrible, but compared to his peers, they’re weak. Make of that what you will.

Hegar and West to debate

I know it hasn’t gotten much attention lately, but the primary runoffs are coming up, and the biggest choice you’ll have to make is in the Senate race. You’ll get to hear from the candidates in an online debate on June 2.

MJ Hegar

The Democrats in the runoff race to challenge U.S. Sen. John Cornyn are set to face off in a debate next month, the Texas Democratic party announced on Monday.

The first debate in the runoff between former Air Force pilot MJ Hegar and longtime state Sen. Royce West is set for June 2 at 7 p.m. The debate will air on Nexstar stations across the state, including Houston’s KIAH and San Antonio’s KSAT, and will be streamed online.

“To take back our state, Democrats must get our vision for the future to as many Texans as possible and showcase our candidates on as many platforms as possible,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “There is no Texas race bigger than the U.S. Senate race. MJ Hegar and Royce West represent the best of what Texas has to offer. This debate presents an opportunity for them to discuss our ideas and solutions to the challenges Texans face every single day.”

[…]

The runoff election, which was initially set for later this month, was pushed back until July 14 because of the coronavirus outbreak.

The Texas Signal adds a bit more:

Sen. Royce West

Texas Democrats announced today that they will be hosting a virtual Senate primary debate featuring candidates MJ Hegar and Royce West. This is the only debate scheduled, thus far, ahead of the July 14 runoff election.

In a Dallas Morning News/UT-Tyler poll from April, Hegar holds a double-digit lead over West. More than 40 percent of potential Democratic Primary voters still remain undecided.

[…]

According to KXAN, the host of the June debate, the event will consist of questions from moderators, other state journalists, and viewers. Viewers can submit questions using the hashtag #txsendebate on social media and email at [email protected]

The debate will be held on June 2, at 7 p.m. CST.

Here’s that KXAN story, which among other things shows where you can watch. In Houston, it will be on KIAH, the CW station, and also on their website. Click over to see where you can watch.

On a side note, I’m not paying a whole lot of attention to who is endorsing whom in the runoff. Both candidates are fine by me, but if this matters to you, then go check that out. Early voting now begins in June 29, so let’s start getting back in the zone.

MLS has a plan to start its season

That’s Major League Soccer, and their plan may sound a bit familiar.

With no indications of when it could resume the season in home markets, MLS has proposed placing all 26 teams in the Orlando area this summer and playing competitive matches without spectators at the Disney sports complex and possibly other locations, multiple people familiar with the plan said.

The players, coaches and support staff, numbering more than 1,000, would live under quarantine at one of the large resorts near Disney World for an undetermined length of time, said those people, who requested anonymity because they were not authorized to speak on the matter.

Teams would practice and play primarily at ESPN Wide World of Sports, which sits on 220 acres as part of Disney’s massive footprint in central Florida. Disney-owned ESPN is one of MLS’s broadcast partners.

[…]

The league is expected to accelerate plans over the next two weeks and set the framework for resuming a season that, because of the novel coronavirus pandemic, was shuttered after two weekends.

In jurisdictions where such activities are permitted, several teams have begun voluntary individual workouts, including the Dynamo in Houston. The league has postponed all matches until at least June 8, though the realistic timetable stretches deeper into the summer.

MLS hopes to soon allow players to begin training as part of small groups in local markets, a step the Bundesliga took last month before ramping up operations. The elite German circuit, along with the country’s second division, will resume this weekend with matches played without spectators.

Other European soccer leagues have also made plans to restart their seasons in the coming weeks.

Under its Orlando plan, MLS would welcome teams for workouts and multiple matches per day, which ESPN platforms would carry. It’s unclear whether the league’s other TV partners, Fox Sports and Univision, would show games.

This story came from the Washington Post. This plan is kinda sorta like the original Major League Baseball plan, which would have had all the games played in Arizona; that plan has now morphed into something that would have games played in most league cities. As with MLB, this plan would include games in an empty facility, isolating all the players and other personnel needed for the games – which means they would be away from their families for several months – and regular testing, with some contingency in reserve for if/when there’s a positive test. Money will be an issue, and while the state of Florida is “reopening”, sports facilities like ESPN Wide World of Sports are not yet included in that. So, fair to say, there are still details to iron out. But if you’ve been waiting for news about a sport other than baseball, there you go.

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

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

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

[…]

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

SD14 special election field is set

There are six candidates in total, but really only two that matter.

Rep. Eddie Rodriguez

Six candidates, including some well-known Austin-area politicians, have filed to run for the July 14 special election to replace retired Democratic state Sen. Kirk Watson, according to the Texas secretary of state’s office.

Candidates had until 5 p.m. Wednesday to file to run for the seat.

State Rep. Eddie Rodriguez, a longtime Austin Democrat, and former Travis County Judge Sarah Eckhardt are widely considered the two most prominent candidates for Texas Senate District 14, a historically Democratic seat that covers Bastrop County and parts of Travis County.

Sarah Eckhardt

Rodriguez has served in the House since 2003 and has support from most of Travis County’s state House delegation. And Eckhardt, whose last day as county judge was Tuesday, has helped to oversee the community’s response to the coronavirus pandemic.

Two Republicans are also running for the Senate seat: Don Zimmerman, a former Austin City Council member, and Waller Thomas Burns II, who initially filed as an independent.

Former Lago Vista City Council member Pat Dixon is running as a Libertarian, while Jeff Ridgeway is running as an independent candidate. Several others, including Austin City Council member Greg Casar, had been eyeing a run but decided not to join the race.

See here, here, and here for the background. This election was also originally scheduled for May and postponed till July due to coronavirus. I say that only the two Democrats matter in this race because SD14 is a safe Democratic seat. I have a very hard time imagining a scenario where either of the two mainstream, broadly popular Democrats who have previously won multiple elections fail to finish in the top two. One of the could win it outright, but if not then these two will be in the runoff. I may reach out to them for interviews – Lord knows, it will be good to talk about electoral politics again – but in the meantime, you voters in SD14 have a clear decision to make, and can’t go wrong either way.

Ransomware attack on state court system

Not great.

Websites for the Texas court system were still down Monday after a ransomware attack late last week left the network temporarily disabled, according to the Office of Court Administration.

Officials discovered the breach early Friday and quickly shut down sites and disabled servers to contain it, the office said in a statement. The hack did not impact e-filing and other services, many of which have been transferred to the cloud in recent years, according to the office.

“At this time, there is no indication that any sensitive information, including personal information, was compromised,” the office said. It added that websites for local trial courts are still available online.

The office said it detected the breach early and has refused to pay any ransom. While the courts have moved increasingly to remote hearings amid the coronavirus pandemic, the attack was unrelated, according to the office.

Officials have not said when the system will be back online, but they have set up a temporary website and are working with law enforcement and the Texas Department of Information Resources to investigate the attack.

As the story notes, this is not the first time that Texas governmental entities have been targeted by ransomware. The first thing that TDIR will need to figure out is whether this was actually targeted, or just a crime of opportunity, perhaps the result of someone opening a phishing email. If you follow this sort of news, you know that ransomware attacks are on the increase around the world; here’s a prominent recent example. I’m sure the system will recover from this, and good for the OCA if they detected it quickly. We just need to up our vigilance and defensive measures to stay on top of this.

Paxton tries a Supreme shortcut

They sure are keeping busy.

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

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

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

[…]

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

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

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

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

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

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

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

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

Still not enough tests

We know, we know. Don’t ask what we’re gonna do about it.

The vast majority of even those Houston-area residents experiencing symptoms consistent with COVID-19 are not getting tested, according to initial results of a Rice University survey, the latest evidence of the lack of screening for the deadly pandemic.

The survey, taken at Rice’s new COVID-19 registry, found that testing has been conducted in just 10 percent of respondents with a fever, 11 percent of those with a cough and 13 percent of those with shortness of breath — the foremost symptoms associated with the illness caused by the new coronavirus.

“This continues to make the case that health departments have been making about the need for greater testing resources and capacity,” said Marie Lynn Miranda, a Rice professor of statistics and the director of the COVID-19 registry. “Given that we know many asymptomatic people are spreading the disease, that so many people with symptoms are not getting tested is a concern.”

The survey also found that four of 10 households have lost income as a result of the crisis and that it is causing moderate to severe anxiety in one of four people.

The Rice COVID-19 Registry is modeled on its Texas Flood Registry, established in 2018 to measure the long-term health and housing impacts of Hurricane Harvey. Some 20,000 people have provided information to that registry, which was expanded to include the impact of a May 2019 storm that battered the region and Tropical Storm Imelda in September of the same year.

Some 4,300 Houston-area residents thus far have taken the COVID-19 survey, which Miranda calls an attempt to better understand how the COVID-19 pandemic and social distancing policies are impacting people’s lives, livelihoods and mental well-being.

The registry is here, the initial findings are here, and you can take the survey by clicking here. This is not a representative sample, since people are choosing to participate, but it’s interesting anyway. Anything that calls attention to the need to do more testing is worthwhile.

What the next CARES act could mean for Texas cities and counties

Short answer, a lot.

Cities and counties across Texas would get more than $29 billion from the $3 trillion coronavirus relief package House Democrats want to pass as soon as Friday.

That includes more than $1.7 billion to Houston and nearly $1 billion to San Antonio as both cities stare down massive budget holes caused by the outbreak. Harris County’s funding could top $2.6 billion and Bexar could be on tap for more than $1 billion, as well. Texas, meanwhile, could get nearly $35.5 billion from a separate pool of funding to aid states.

That’s all according to estimates compiled by the Congressional Research Service, Congress’ public policy institute. The estimates, which cover the rest of 2020 and 2021, are based on some factors not yet known, such as unemployment and infection rates, so they’re not exact.

[…]

At the top of the Democrats’ list is sending $875 billion to states, cities and counties to help plug huge budget deficits. Cities can’t use the aid that Congress has offered so far to close those budget holes and cities across the country, including Houston and San Antonio, are starting to lay off employees and cut programs.

The bill would also for the first time offer coronavirus relief aide to smaller cities, as past relief packages have only directed funding to cities with 500,000 or more residents, meaning suburbs could get tens of millions. New Braunfels, for instance, could get nearly $30 million. Sugar Land could get more than $58.5 million.

There’s a list of cities and counties in Texas and the amounts they would get here. As noted, it’s broken out over two years, so Houston would get $1.18 billion this year and $580 million next year, while Harris County would get $1.76 billion this year and $881 million next year. That’s way more than the current Houston budget gap, so I presume a lot of that money is intended for other purposes as well, such as perhaps rental assistance and maybe rebuilding public health infrastructure. The main point here is that this is a demonstration that someone has learned the lesson from 2009, which is that massive cuts and layoffs in city and state budgets is a huge drag on any economic recovery effort. (That someone is the Democrats, though for at least a few minutes the Republicans have decided that they need to take whatever steps they have to in order to keep the economy from completely collapsing on Trump.) I don’t know what a final version of this might look like – there are certainly things the Dems could concede on – but if something like this passes and cities and counties and states can “balance” their budgets without taking a chainsaw to them, it would be a bug freaking deal. Daily Kos has more.

LULAC joins TDP’s federal mail ballot lawsuit

More plaintiffs, more fun.

A prominent Latino civil rights group is jumping into the fight to expand Texas’ voting-by-mail eligibility, alleging the restriction that limits age eligibility for voting by mail to those 65 and older disproportionately harms Texas Latinos because they tend to be younger in age.

The League of United Latin American Citizens’ national and Texas arms signed on Tuesday to the Texas Democratic Party’s federal lawsuit against the state raising claims that the state’s absentee voting restriction is unconstitutional and violates the federal Voting Rights Act’s prohibition on discrimination against voters based on race.

“All voters will face substantial health risks by voting in person. But the consequences of voting in person will not be equally shared among Texas’ demographic populations,” reads LULAC’s complaint, which was filed in federal court in San Antonio.

LULAC cited census estimates that show nearly two out of every three adults older than 65 in Texas are white, indicating that the pool of voters eligible to request a ballot they can fill out at home and mail in is predominantly white.

“This means that the younger and minority voters, including many of LULAC Plaintiffs’ members, are disproportionately harmed by Defendants’ enforcement of the Eligibility Criteria,” the organization argued. “Nearly a third of Texas’s Latino voters are between the ages of 18-29.”

See here for the background. As noted, there’s a hearing this Friday for this suit. There’s also the age discrimination lawsuit and the undue burdens lawsuit, both in federal court, and the other TDP lawsuit, in state court. Kind of amazing there are this many seemingly viable arguments for allowing greater access to mail ballots, isn’t it? Almost like our state laws are overly restrictive. Doesn’t mean any of these will make it past the Fifth Circuit, but they’re going to have to work hard to shoot these all down.

Early voting gets an early start

This is a remarkably sensible thing to do.

Ahead of the first statewide election during the coronavirus pandemic, Gov. Greg Abbott has doubled the length of the early voting period for the upcoming July primary runoff elections.

In a proclamation issued Monday, Abbott ordered early voting for the July 14 runoffs to begin June 29 instead of on July 6. He noted that sticking with the truncated early voting window that’s typical for runoff elections “would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster.”

Abbott previously used his emergency powers under his statewide disaster declaration to delay the primary runoffs, which were originally slated for May, and a special election for the Austin area’s Texas Senate District 14.

[…]

“In order to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day,” Abbott wrote in the proclamation, “it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices.”

See here for the background. Bear in mind, it is this election for which the expanded vote by mail order applies, pending the outcome of appeals. Both increasing vote by mail and extending the early voting period serves the purpose of reducing the risk of in person voting. It could be that this decision was a strategic one, designed to undercut the Democratic argument that fear of contracting coronavirus is a legitimate disability per Texas law that must be mitigated by mail ballots. The idea here would be that having a longer early voting period for this election means that the risk of being in a crowd or waiting on line to vote is sufficiently lower that no further mitigation is needed. It may also be that Abbott is responding to the wishes of Republican voters, who have so far expressed greater interest in voting in person. Or maybe, just maybe, Abbott did this because it was a smart and beneficial thing to do. Crazier things have happened. If that’s the case, maybe he’ll be amenable to allowing a longer early voting period for November as well. Be that as it may, you now have two weeks to vote early in person for the primary runoffs. It’s a good thing however it came to be.

Yet another lawsuit over voting by mail

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

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

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

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

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

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

[…]

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

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

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

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

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

Criminal complaint filed against AG Ken Paxton

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

MOAR MUG SHOTS

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

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

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

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

[…]

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

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

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

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

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

A poll of poll workers

A bit of good news, and a bit of a warning, here.

Harris County poll workers seem willing to participate in this fall’s presidential election, even amid the pandemic, but voters are more reluctant, according to results from a recent Rice University survey.

Poll workers here — regardless of party affiliation — were game to show up if conditions are safe enough. However, registered voters across the political spectrum were more reluctant about in-person voting even with safeguards in place, according to a Rice University study conducted between March 27 and May 4.

“What was surprising to us was how many poll workers were committed to working the polls with the caveat that they wanted protective gear, Plexiglass screens and Q-tips (to cast votes on machines). They wanted to do in-person voting with protection,” said Bob Stein, a political science professor who ran the survey funded by Rice’s COVID-19 Initiative with colleagues from the university’s psychology, anthropology and computer science departments.

[…]

Nearly 80 percent of poll workers said they were likely to help out in November at sites that observed social distancing guidelines and provided personal protective equipment. Poll staffers were were less enthusiastic about outdoor or drive-thru voting scenarios, according to the Rice findings. Many election workers said they relied on the seasonal income.

Voters’ responses lined up more predictably based on their age, party and gender. Democrats, women and people over 65 opted for potential remote voting — drive-thru, drop-off, mail-in or online options. Republicans, men and voters under under 65 were more willing to cast ballots in person.

More than 30 percent of Democrats said were unlikely to vote in person with nothing but social distancing to protect them, versus 9 percent of Republicans. A fourth of women voters were reluctant to vote in person, compared to 14 percent of men. Among voters over 65, who are at greater risk if exposed to the virus, 27 percent said they probably wouldn’t vote even with protections in place; whereas, 18 percent of voters under 65 said they were averse to voting under those circumstances.

You can see a copy of the poll report here. As the story notes, the Harris County Clerk is already gearing up for more mail ballots and other protective measures for the July and November elections. The challenge may be a little greater now with the forthcoming resignation of County Clerk Diane Trautman, but that shouldn’t complicate things too much. Given the concerns about poll workers, most of whom are over 60, I’m pleasantly surprised to see their willingness to work this election. That says a lot both about their dedication, and their faith that the county will do a good job of making their job as safe as possible.

The partisan split in willingness to vote in person is a bit alarming, but let’s keep three things in mind. One is that the last picture everyone has of voting is the fiasco in Wisconsin, which I daresay has people justifiably spooked. I feel reasonably confident that election officials in the state do not want their county to be the poster child for that kind of experience in November, so I have faith there will be plenty done to ameliorate the concerns. I hope that the July primary runoffs will help alleviate some worry as well. Two, that cohort of people who are most reluctant about voting in person are the people who absolutely and without question already have the right to vote by mail, and that’s the voters who are 65 or older. The HCDP has been quite good at getting mail ballots out to their voters in recent elections, and I feel confident they’re up to that task for this year as well. I would also expect there to be a lot of messaging to voters, from the county and from parties and candidates, about voting by mail. And three, we still may get a much broader vote by mail program for the state, in one of the lawsuits that have been filed by the TDP or the one filed by younger voters on federal age discrimination claims. We now know more about where people are for this election. We just need to act on it.

The bad guys will be spending a lot in Texas, too

Don’t get complacent.

The Koch-backed Americans For Prosperity is planning an unprecedented push into Texas in 2020, throwing its support behind a slew of Republican candidates and expecting to spend millions as Democrats also commit more resources to the state ahead of November elections.

Americans For Prosperity Action, a super PAC affiliated with the nonprofit funded by billionaire Charles Koch that has long supported conservative causes. It announced Wednesday its plans to spend heavily to support Republicans in three key congressional races in the suburbs of Houston, San Antonio and Dallas. The group also plans to spend seven figures defending U.S. Sen. John Cornyn, for whom it has already spent more than $700,000 on ads, as Democrats try to win their first statewide race in a generation. And it’s supporting a dozen Republicans — and one Democrat — in state House races.

[…]

Americans For Prosperity Action says it plans “robust” spending in three of those races: U.S. Rep. Chip Roy, a Central Texas Republican facing a challenge Davis; Wesley Hunt, an Army veteran challenging Fletcher in the west Houston suburbs; and Genevieve Collins, a Dallas business executive running against Allred.

That support will include ads, direct mail and efforts to reach voters through text messages, phone calls and virtual events.

The group says it has already spent more than $700,000 supporting Cornyn. It plans to run digital ads supporting the Texas Republican constantly through the election, as well as larger ad buys, such as $500,000 it spent on ads just after Super Tuesday.

While the group is mostly throwing its support behind Republicans, it is backing one Democrat this cycle: Longtime state Sen. Eddie Lucio, Jr., locked in an unexpected runoff to hold onto his Brownsville district against Sara Stapleton Barrera, who ran at him from the left.

Yes, that’s Chip “You get coronavirus! And you get coronavirus!” Roy. We’ve begun to see the money for progressive candidates come in. This was inevitable, and it’s in many ways a good sign. They can’t take Texas for granted any more. Now we have to show them their money’s no good here. How sweet will it be for them to spend all that dough and lose?