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Texas

A matter of timing

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

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

CD03 poll: Taylor 44, Seikaly 43

From Nate Cohn:

All we get is Twitter for this one, any other info about the poll is behind the National Journal paywall. It’s in line with an earlier poll that had Taylor leading 43-37 and Biden up by two in the district. Seikaly’s improved performance is likely due to greater name recognition at this stage of the campaign.

I can’t analyze the poll in any meaningful way, but I can add some context to Nate Cohn’s assertion that if Biden carries CD03 he’s likely to have won Texas. Here’s a review of recent elections:

In 2012, Mitt Romney carried CD03 by a 64.2-34.1 margin, as he won the state 57.2 to 41.2.

In 2016, Donald Trump carried CD03 by a 53.8 to 39.9 margin, as he won the state 52.2 to 43.2.

In 2018, Ted Cruz carried CD03 by a 51.3 to 47.9 margin, as he won the state 50.9 to 48.3.

As you can see, CD03 was more Republican than the state as a whole, though that margin had narrowed by 2018. But if the pattern of CD03 being more Republican than the state overall holds, then it’s trivial to see that a Democrat winning in CD03 would also win statewide.

That comes with a raft of assumptions, of course. Maybe CD03 will be less Republican than the state this year. It’s been trending in that direction, and as a heavily suburban and college-educated district, that trend should continue. Perhaps this year the lines will intersect, and a Dem running in CD03 will have to win it by a certain margin in order to be able to win the state. If Biden really is winning CD03 by three points, you’d think that would be enough slack for him.

There’s one more piece of objective evidence that both this district, and by implication the state as a whole, is perhaps doing better for the Democrats than people realize:

Those are the three districts most recently added by the DCCC to their target list. You might say, the DCCC is in the business of talking up opportunities, so why should we take this as anything more than hype? Mostly because the DCCC already had its hands full in Texas – those three districts came after seven others currently held by Republicans, plus the two where Dems are playing defense. The DCCC is going to prioritize the districts where it thinks it can win, both to maximize its resources and keep its donors (and members) happy. They’re not going to go off on flights of fancy. It may be on the optimistic end of their spectrum, but if they believe there’s action there, you can expect there is.

Voter registration during a pandemic is hard

Especially when online voter registration is not an option.

Still the only voter ID anyone should need

In the first seven months of 2020, new registrations in Texas were down nearly 24% compared with that same time frame in 2016, according to numbers from the nonprofit Center for Election Innovation and Research. In April alone, registrations dropped 70%. Numbers have climbed back up over the summer, but that rebound might not be enough to get the state back to where it could have been, said David Becker, the center’s director.

“We’re not seeing an increase in voter registration activity that compensates for the decrease that we’ve seen in previous months,” he said. “In Texas, there’s still a pretty big overall deficit for the year in terms of new voter registration activity.”

The effects are being felt by both parties. Democrats and Republicans told The Texas Tribune that they’re struggling with voter registration in the era of COVID-19.

On the Republican side, the super PAC Engage Texas is emblematic of the challenge. By February, a month before the pandemic hit Texas, it had raised nearly $12 million and had hired nearly 300 staff members with the goal of registering hundreds of thousands of new likely Republican voters before the 2020 elections. The political action committee had shut down by May, citing challenges created by the coronavirus.

“It’s more difficult to register voters face to face and by traditional voter registration methods like door-knocking during the pandemic,” said Luke Twombly, a spokesperson for the Republican Party of Texas who said the party was not allowed to coordinate with Engage Texas.

However, Twombly said, the party has found “multiple alternative methods that have proven to be very successful at registering voters during the pandemic.”

Democrats, meanwhile, have long contended that Texas isn’t a red state, but a nonvoting state — one they could flip if they registered and energized more voters. Party leaders entered the 2020 cycle determined to register large amounts of young people and people of color who are opposed to the Trump administration. Groups like Beto O’Rourke’s Powered by People were gearing up for a massive blitz, only to find they can’t go door to door. Now many are hosting virtual phone banks with the hopes of registering hundreds of thousands of voters.

Voting rights groups are experiencing similar challenges. Since its founding in 2012, Mi Familia Vota’s Texas chapter registered over 50,000 new voters, a number the group thought would have gone up in 2020. But the group is anticipating seeing a 20% decrease in its final voter registration numbers since 2018, said Angelica Razo, the Texas state director for the group.

Many of the potential missed registrants, Razo said, are in the state’s growing Latino population, which has been disproportionately hit by the pandemic, and lower-income residents who don’t own printers and are therefore unable to print off voter registration forms.

“Latinos have been disenfranchised, and there has not been a lot of investment in Latino electoral participation,” Razo said. “But the energy is there, and people are fired up. Our people don’t want to get stuck on the sidelines for this election. Mi Familia Vota is working to create systems and resources hubs that make this process as accessible as possible.”

Lately, there have been some signs of a possible, albeit small, rebound. Groups like the League of Women Voters of Texas and MOVE say they saw registration bumps over the summer; both groups attributed the change, at least in part, to Black Lives Matter protests after the killing of George Floyd in Minneapolis police custody.

Roughly 16,500 people registered to vote with MOVE between June and August, Bonner said; Grace Chimene, the president of the League of Women Voters of Texas, also reported gains since the spring, though she was unable to provide exact figures.

[…]

Still, many groups are working to reach potential voters online. Chimene pointed to Register2Vote.org, a website that has been accessible to people since March 2018, which walks people through filling out the voter registration application online and then sends it to them in the mail filled out with the person’s information and a stamped return envelope.

Jeremy Smith, the executive director of Register2Vote, said it registered 23,700 Texans from March to May and another 37,500 from June to July. Some experts say they think the latest online tools will likely have the biggest impact on college students and people younger than 25.

The Texas Democratic Party is doing something similar. In April, it launched registertexas.org, which also sends voters pre-filled voter cards with return envelopes. It also formed a “voter expansion team” in January with the goal of “expanding the electorate,” said Luke Warford, the director of voter expansion. On Sept. 7, the party said it reached out to 1.3 million unregistered Texans in the week prior, though it’s unclear how many followed through and registered.

I find it interesting that while the one Republican-backed group that was trying to register voters gave up in May, while all of the Democratic and non-partisan groups have chugged along and found innovative solutions like the pre-filled-in applications that just need to be signed and stuffed in the mail. You tell me what that means about the relative levels of dedication. I said before that it was useful to have a Republican-backed group bump up against the reality of voter registration in Texas, as maybe that might give a little push to the eventual passage of a bill to allow online voter registration, which the earlier judge’s ruling cracked a door open for. But let’s be real, as with every other worthwhile election reform, the main prerequisite is going to be a Democratic trifecta in our state government.

Meanwhile, in other election innovations:

Utilizing its platform, Snapchat, the popular social media app, is registering new voters ahead of the election on Nov. 3. As of this report, the app has registered 407,024 people, according to data reported within the app. A spokesperson confirmed with Axios that the tally seen in the app’s “Register to Vote” portal represents the number of users who registered to vote via the app.

Snapchat is commonly used by millennials and Gen Z, including a wide number of people who recently turned 18 years old and who will have the ability to vote for the first time this year. To guide individuals through the ballot process and help ease the process of registering to vote, Snap–the company that owns the app–has partnered with Democracy Works’ TurboVote. To streamline the process of the registering feature, Voter Registration “Mini” allows users to register within the app itself instead of visiting registration sites. The tool became available last week and has already registered nearly as many voters as the app did in 2018 with the same feature.

For the 2018 midterm elections, Snap registered at least 450,000 new voters. Most of those who registered were between the ages of 18 to 24 years old and did so in key states like Texas, Florida, and Georgia, a company spokesperson said. According to the company, 57% of users who registered to vote with Snapchat went out and cast ballots, Axios reported. In addition to the voter registration tool, Snapchat is promoting a voter guide that allows users to search for terms associated with voting and the election, as well as guide them on how the process of voting works. To ensure users are prepared for Election Day, the app’s tool, called BallotReady, walks users through how to vote-by-mail and cast a ballot, with COVID-19 precautions in mind.

Give people the chance to use new technology in ways not originally envisioned, and they will. That’s not always a good thing, but in this case it certainly is. It’s up to us to ensure this kind of innovation is widely available.

Matt Glazer: To see boon, clean energy needs Congress

(Note: The following is a guest post that was submitted to me. I occasionally solicit guest posts, and also occasionally accept them from people I trust.)

I’m a bit of an Austin-area expert when it comes to weird homes. So, when I bought my own home last year—going in a more traditional route—I was surprised when I was left no less transfixed. Our builder had prioritized solar panel installations and, in the weeks, after settling in, I made a routine of watching the monitor tick up as our 12 panels fed energy back into the grid. Truth is I’m not the only one mesmerized. Watching the green bar climb and doing what we can to be a net producer of clean, affordable energy is a fun little game. Luckily, clean energy has caught the attention of Texans just as easily as the panels on my roof catch rays.

For more than a century, Texas has asserted itself as a national and global energy leader. Much of this legacy is owed to our wells of oil, but more so it is owed to our ability to build an economy around those prospects. Clean energy can continue to expand them beyond the subterranean. We were the first state to codify an energy efficiency resource standard after all and already Texas is top five in the nation for solar, and first in the nation for wind capacity. If you have ever driven through Texas, you can see evidence of this across the horizon from the panhandle to the coast.

All told—from renewables to clean vehicles, energy efficiency, clean fuels, and grid and storage—nearly a quarter of a million jobs were held in Texas’ clean energy industry last year. COVID-19 has detracted from those numbers depressing the state’s clean energy workforce by 10%—at least temporarily. Despite the setback, a growing commitment to reduce carbon emissions means clean energy is no longer being considered an alternative and instead as a necessary and growing component of diversified portfolios.

This will assure its subsistence, but while consistent demand could pull the industry back bit-by-bit, a major federal investment just might sweep the Lone Star State into this millennia’s energy boon. What the country needs now is a post-pandemic economic plan that spurs energy innovation, builds out 21st century infrastructure and continues driving down carbon emissions while creating 21st century jobs.

Though we often consider clean energy at scale, like in the case of utility companies, small businesses have played a significant role in clean energy’s early trajectory. In 2019, nearly two out of every three clean energy workers—of which there were 3.3 million in 2019—were employed by a small business. But, with manufacturing advancements driving down costs, the popularity of reduced carbon emissions rising and a steady churn of state-of-the-art tech reaching the market, clean energy’s entrepreneurial scene is far from saturated. One can even still imagine the potential for a new generation of Texas energy titans eventually adding to an already storied energy tradition.

To get there, however, requires a commitment not just from dedicated contractors like my own or local officials or even from Fortune 100 corporations, but from national leadership representing us in Congress. This issue is not a partisan one but an economic one, given the country’s current straits, we cannot afford to let the clean energy wallow in its COVID depression.

To truly capitalize on the economic and environmental potential of the vast prairies, strong wind gusts and access to persistent sun that outfit Texas, not to mention an intrepid workforce, we need our representatives and senators to put into action plans that bolster clean energy development and job creation while continuing to build on America’s leadership driving down carbon emissions.

I am grateful to have low cost, high production solar cells on my home. I am grateful for the incentives that made it possible to do something good and lower my total costs. I look at the energy I am creating for my city and know that an install team, builder, designer, electrician, and manufacturing company all created jobs. Jobs with an eye towards the future of Texas. Congress has an opportunity to continue to foster this innovation so we can be leaders in this established clean energy economy.

Matt Glazer is the past Executive Director of Progress Texas and co-founder of Blue Sky Partners.

Appeals court sides with Hollins in mail ballot applications case

It’s up to SCOTX now.

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

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

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

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

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

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

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

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

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

Adding to the team in Texas

Shot:

Chaser.

Joe Biden’s campaign is expanding its staff in Texas, bringing on 13 more people as the state continues to look competitive with just over seven weeks to go before the November election.

The Democratic nominee’s latest hires, shared first with The Texas Tribune, include several experienced Democratic operatives from the state. They include Dallas Jones, a Houston political consultant who will serve as Biden’s Texas political director, and Jackie Uresti and Jerry Phillips, who will each serve as political advisers to the campaign in Texas. Uresti was Hillary Clinton’s 2016 state director, while Phillips brings deep experience around Texas House politics and previously was executive director of the House Democratic Campaign Committee.

Biden’s campaign has also named Bethanie Olivan as digital organizing director and Terry Bermea as organizing director. Olivan recently held similar roles for the state party and Julián Castro’s presidential campaign, while Bermea is the former organizing director for Battleground Texas and was deputy state director for Michael Bloomberg’s White House bid earlier this year.

The campaign also said David Gins will serve as state operations director. Gins is a former U.S. Senate staffer who has since worked for the LGBTQ Victory Fund and the data science company Civis Analytics.

The campaign announced that Victoria Godinez, a former staffer to state Rep. Diego Bernal of San Antonio, is being hired as communications associate.

Rounding out the hires are six deputy coalitions directors, most with varying levels of Texas political experience: Deidre Rasheed, Karim Farishta, Dominique Calhoun, Teri Ervin, Lola Wilson and Joseph Ramirez.

That’s 19 paid staffers, and while I don’t know offhand how much Team Biden is spending in Texas, I do know that there’s plenty of national money coming in for Congress and the Lege. There’s a lot more happening here now than we’re used to seeing.

For what it’s worth, Trump has a 1.1 point polling lead in Texas, according to FiveThirtyEight. That site projects Trump to carry the state by 3.6 points. The Economist projects a 3.2 point win for Trump. In 2018, FiveThirtyEight projected a 4.9 point win for Ted Cruz (in their Classic model; two other models had him up 5.2 and 5.3 instead). That overshot the mark by about two and a half points, as Cruz actually won by a 2.56 point margin. To be fair, they nailed it in 2016, predicting an 8.5 point margin. The point is, it’s close. Closer than any time in recent memory. May as well play it that way.

Endorsement watch: Three to get started

But first, why do endorsements, anyway?

If newspapers are objective, why do you recommend candidates?
Newspapers don’t endorse candidates. Editorial boards do. The editorial board is separate from the newsroom. It is made up of opinion journalists with wide-ranging expertise whose consensus opinions and recommendations represent the voice of the institution — defined as the board members, their editor and the publisher. We do it as a service to our readers and to our democracy, which cannot flourish without an informed citizenry. For many busy people, researching each candidate isn’t possible. Rather than turn to partisan slates, some with pay-to-play motivations, we offer an alternative: informed candidate recommendations from nonpartisan journalists informed by facts, borne of careful analysis.

[…]

What’s our process?
General elections always involve hundreds of hours of screening, writing and editing to ensure trustworthy recommendations that readers can access readily and even take to the polls. The pandemic has forced a few changes. For congressional and local top races, we’re conducting Zoom interviews with all who accept our invitations. For many other races, we’ve conducted one-on-one interviews. In most races, lead writers for each research, conduct outside interviews and background candidates before making recommendations to the full board, which reaches a consensus.

Consensus isn’t always easy, especially when parties have failed to draw qualified candidates. Still, voters must vote, so we feel we must decide. When recommending someone we have reservations about, we’ll explain why to readers, same as we do when there are multiple excellent candidates.

Sometimes, an extra level of focus and expertise is needed to make the right call. As in past years, we’ve enlisted the help of retired longtime journalists in the 20 local judicial races. Mary Flood and Jeff Franks research and background candidates and then make recommendations for the board to consider.

Do we only endorse candidates who agree with us?
No. While we look favorably upon candidates whose values mirror our basic commitments to responsible spending, economic growth, strong public schools, improving health and protecting the environment, we often endorse candidates who don’t share our opinions on more contentious issues. To better serve voters in a diverse array of districts, we prioritize broader expectations of elected leaders: experience, willingness to work across the aisle, knowledge of issues, strong sense of ethics, fit with the district and general viability of the candidacy. For judges, fairness, competence and temperament are also strong considerations and, at times, the ideological diversity of the court as a whole. We give weight to incumbency, especially if it means seniority benefiting constituents, but we also scrutinize incumbents’ records on effectiveness, leadership, constituent services and ability to keep promises to voters.

Whether readers agree with our ultimate choices or not, we hope the facts, observations and analysis in each written editorial recommendation serves as a helpful tool in voters’ own research and decision-making.

I appreciate the Chron’s efforts and I find their process to be useful and valuable, even though I (sometimes very strenuously) disagree with some of their selections. Honestly, this is more of an academic exercise for me in an election where there’s no doubt about who’s getting my votes, but it is of great value to me in other contexts. It is good to have some reasonably objective and process-oriented sources for the races where the decision is truly hard.

Anyway, on to the endorsements. We start statewide with the Railroad Commissioner’s race and an endorsement for Chrysta Castaneda.

Chrysta Castañeda

Texas and Houston depend mightily on a thriving oil and gas industry, and that’s why it’s so important that the Railroad Commission of Texas be led by experienced, capable commissioners.

Fortunately, as an engineer and a lawyer, Democrat Chrysta Castañeda has the combination of knowledge and experience to help the RRC shepherd the crucial industry through one of the most challenging economies in decades.

As the founding law partner of the Castañeda Firm, which focuses on oil and gas litigation, she also understands the importance of crafting and enforcing regulations to protect the state’s environment.

That is why we recommend Castañeda, 57, in the statewide Railroad Commission race in the Nov. 3 election. If elected, she would join two Republican commissioners who, like her opponent, can be counted on to give the industry’s needs top billing over environmental concerns. What’s really needed is a balance between helping the industry thrive and minimizing its harmful impacts.

[…]

While [Republican candidate Jim] Wright also would bring experience to the job, it would be solely from the industry side. Texas needs at least one member of the Railroad Commission who takes to heart both the mandate that the commission promote the oil and gas industry and its charge to safeguard the water and air Texans drink or breathe.

Wright has some other issues, which the Chron does not delve into. With Presidential-level polling showing a very tight race, the other statewides are being seen as tossups this year. Castaneda may draw some crossover support if she can get enough of a message out. You can listen to my interview with her here if you haven’t yet.

Next, Michelle Palmer for SBOE.

Michelle Palmer

Long-time history teacher Michelle Palmer was troubled when the Texas State Board of Education approved a social studies curriculum that describes Moses as an influence on the Founding Fathers.

The Aldine ISD teacher saw the 2018 decision as a particularly egregious example of the board incorporating historical inaccuracies into textbooks and curricula used to teach 5.4 million Texas public school students.

“Moses was not much of an influence on Thomas Jefferson. He was not much of an influence on many of the Founding Fathers,” Palmer told the editorial board. “I find it very troubling that they have that as a standard that is supposed to be taught to our 13- and 14-year-old eighth graders.”

Even more troubling: It was part of a pattern for the 15-member state board of education, which is more often guided by conservative ideology than by good curriculum design.

That history motivated Palmer, 50, to run for the position currently held by Chair Donna Bahorich, R-Houston, who is not seeking re-election.

“As a board member, I would listen to the experts,” said Palmer, a Democrat.

That sounds basic, and it should be. But too many on the current board have refused to do so. That is why we are recommending Palmer for SBOE Position 6. The state board of education has responsibilities critical for the education of Texas children: setting curriculum standards, adopting textbooks and other instructional materials for public schools, overseeing the Texas Permanent School Fund and reviewing charter school applications.

We’re all familiar with the clown show that has been the SBOE. To be fair, it has gotten somewhat less bad in recent years, thanks in large part to the eviction of Don McLeroy from its ranks. There’s still plenty of room for improvement, and adding Michelle Palmer would be a step in that direction. My primary interview with Palmer is here.

Finally, there’s Natali Hurtado for HD126.

Natali Hurtado

In a repeat of the 2018 race for state House District 126, Democrat Natali Hurtado is facing off against Republican Sam Harless.

Two years ago, we recommended Harless for this seat based in large part on the Republican’s wise and politically brave support for expanding Medicaid and his contempt for the unscrupulous far-right activist group Empower Texans.

Unfortunately, Harless has backed away from Medicaid expansion at a time when the COVID-19 pandemic has made access to health care more important than ever. In a recent screening with the editorial board, he said he looked forward to a debate about expansion and expected it would happen someday. But he would not express support outright.

He also voted against a 2019 amendment that would have directed the Texas Health and Human Services Commission to seek a federal waiver to expand Medicaid in the state. That vote just happened to earn a green check mark from Empower Texans.

As our state battles COVID-19, Harless has appeared at campaign events without a mask and taken issue with Harris County Judge Lina Hidalgo’s mask order. Those actions show a troubling tendency to ignore science and turn a public health crisis into a partisan issue.

All this led us to take a fresh look at Hurtado. We like what we see.

You can read the rest for the affirmative case for Hurtado. She’s got a compelling biography, and actually means it when she says she supports Medicaid expansion in Texas. HD126 is on the target list for Dems this year, though not as high up as HDs 134 and 138. It’s looking like a competitive race, and an Election Day that includes a Dem win in HD126 almost certainly means a Democratic House.

The Chron also endorsed Republican Rep. Dan Huberty in a non-competitive race for HD127. More to come as they run ’em.

And so the re-reopening begins

Are we really ready for this?

Gov. Greg Abbott announced Thursday that most of Texas will be able to loosen some coronavirus restrictions, including letting many businesses increase their capacity to 75%, as soon as Monday.

Retail stores, restaurants and office buildings, which have been open at 50% capacity, will be permitted to expand to 75% capacity. Hospitals will be allowed to offer elective procedures again and nursing homes can reopen for visitations under certain standards.

The new reopening stage applies to 19 of the state’s 22 hospital regions. The three hospital regions excluded are in the Rio Grande Valley, Laredo and Victoria. Abbott said those regions’ hospitalizations are still “in the danger zone,” which he defined as places where coronavirus patients make up 15% or more of all hospitalizations.

At the same time, Abbott said the state was not yet ready to reopen bars, saying they are “nationally recognized as COVID-spreading locations.” He stressed, though, that the state is looking for ways to let bars reopen safely.

[…]

“Gov. Abbott’s press conference today was notable for what he didn’t say,” state Rep. Chris Turner of Grand Prairie, who chairs the House Democratic Caucus, said in a statement. “There was no mention of a contact tracing program, no mention of improving the state’s unreliable data and no mention of expanding Medicaid to increase access to health care for the millions of Texans who are uninsured.”

The Texas Democratic Party said Abbott is “basing his decisions on dirty data.”

Abbott began the news conference by hailing the state’s progress in the fight against coronavirus, saying the “biggest reason” for improvements has been that Texans are taking the pandemic seriously and exercising personal responsibility.

The governor reminded Texans that doctors have said the goal is not to eradicate the virus but to “contain the disease, to limit its harm and to maximize the health care system’s ability to treat both COVID patients as well as other medical needs of the community.”

When it comes to further reopenings, he emphasized the state will consider all data but “rely most heavily” on hospitalizations, calling that metric the “most important information about the severity of COVID in any particular region.” It is also the “most accurate information available on a daily basis,” Abbott said.

To that end, the regions that will be allowed to further reopen must have seen coronavirus hospitalizations make up less than 15% of all hospitalizations for seven consecutive days, according to the governor. If coronavirus hospitalizations rise above the 15% threshold for seven consecutive days in a region, a “course correction is going to be needed,” Abbott said, suggesting the solution would be a reversal of the area’s latest reopenings.

Given that many other countries have essentially eradicated the virus, one could certainly disagree with Abbott’s assertion about what the goal should be. Though to be fair, it does seem impossible to set such a goal while Donald Trump is President, so perhaps this is just Abbott acceding to that reality. The Chron adds some details.

The new regional threshold marks a significant shift for the Republican governor as the state’s pandemic response moves into the fall, with flu season arriving and many schools about to reopen for in-person instruction. He previously resisted committing to a regional approach, and said he would rely on a range of metrics — not just hospitalizations — to determine policies.

But the state’s health agency has been dogged by data backlogs, and some counties said they had lost confidence in state metrics such as the number of new daily infections and the percent of positive COVID tests, also known as the positivity rate. While the state has remedied at least some of the issues, hospitalization data have been more reliable throughout the pandemic.

Other large states, including New York and California, are currently using regional reopening plans based on several criteria, including new cases and test positivity. Public health experts caution against relying on hospitalizations alone, since they lag behind infections and therefore provide a delayed glimpse into the community spread of the virus.

All but two of the state’s 22 hospital regions have previously surpassed the new 15-percent threshold, according to the state’s calculation. The governor did not provide the methodology for how they calculated the percentages, and a spokesman did not immediately respond to questions about how the benchmark was selected.

The state has reported nearly 700,000 infections since March and nearly 14,500 deaths, a toll similar to that in other large states, including California and Florida. New York has reported fewer infections but more deaths, stemming from a surge earlier this year.

Texas has been below 10 percent test positivity for at least two weeks now. Earlier this week, state health officials unveiled a new method of calculating the rate, which shows it first dropped below 10 percent in mid August. Abbott has said before that he would consider further reopenings once the state remained below that threshold for two weeks.

Yes, our lousy data quality is an issue. I get that there’s a lot of pressure to let businesses get back to “normal” again. But let’s be real here: One, plenty of people will still not change their habits to what they were in the Before Times until they feel confident that the pandemic is truly under control. Public opinion is clear that most people do not feel this way, and as such this greatly limits the upside of any reopening scheme. Two, we have been down this road before, and the last time we went this way Abbott basically ignored all the metrics that he himself set and just went about loosening restrictions even though none of his own stated criteria were being met. There’s no reason to believe he has learned this lesson. Three, even if we had complete clarity on hospitalizations, that’s a lagging indicator, meaning that by the time the hospitals have started to fill up again, it’s already too late to stop it. Four, see above about the lack of our data quality, which again strongly suggests that even if Abbott is sincere about turning the car around at the first sign of trouble, that first sign may not be at all apparent when it’s happening.

Finally, the reason why people finally started to take the pandemic seriously is because Greg Abbott finally started taking it seriously, and conveying a message that we all needed to be wearing face masks and social distancing and avoiding large gatherings, especially indoors. We certainly haven’t gotten that message from Donald Trump or his biggest toadies like Dan Patrick. If you want to praise everyone for their personal responsibility, then you need to emphasize that they have to continue being personally responsible, which means wearing masks and so on. If that makes the rock-filled heads of Steven Hotze and his ilk explode, then so be it. Abbott loves being in front of the parade, but he does a crappy job of leading it. As I said the last time we re-opened, I really hope this works out. And I really hope Abbott is serious about backing off at the first sign that it isn’t. A statement from Mayor Turner is here, and the Dallas Observer, Reform Austin, the Texas Signal, and the Houston Press have more.

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[…]

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

The court asked Paxton’s office for its opinion.

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

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

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

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

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

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

We suck at COVID data, the continuing story

Would have been nice to have known this when it was happening.

State health officials published new data this week that showed the state’s positivity rate was higher in the spring that originally disclosed, even as public officials cited the data to justify business reopenings during the pandemic.

The Department of State Health Services on Monday announced a new method for calculating the positivity rate, or the proportion of positive tests, and conceded the previous method obscured the extent of viral transmission by combining old and new cases. The new formula relies on the date a coronavirus test was administered, rather than the date it was reported to health officials and verified as a case.

As Texas prepared for the first phase of reopening in late April, Gov. Greg Abbott repeatedly pointed to the state’s positivity rate, even as the number of new cases and deaths continued to rise. Announcing his initial reopening order on April 27, Abbott declared that the “COVID-19 infection rate has been on the decline over the past 17 days.”

The following week, the governor downplayed a new single-day record in new COVID-19 cases by again pointing to the positivity rate.

“Despite concentrating on areas where we think there may be a high level or number of people who could test positive, the fact remains that more than 95% of the people who were tested test negative,” Abbott said during a May 5 news conference.

State data at the time placed the seven-day average positivity rate at 5.84%, near the 5% benchmark recommended by the World Health Organization before governments ease restrictions. The actual rate, however, was higher. According to the new method employed by DSHS, Texas’ seven-day average positivity rate was actually 8.4%, near the 10% threshold Abbott had called a “warning flag” indicating a high level of community spread.

Following the reopening of bars, restaurants, stores and child care centers throughout May, Texas saw a surge in cases beginning in June. The state’s reported seven-day average positivity rate under the old method jumped from 4.27% at its lowest point in late May to 17.4% at its peak in mid-July. After revising the data, the state’s new chart shows that the positivity rate jumped from 5.81% in May to a peak of 21% in early July.

See here, here, and here for earlier entries in this chronicle. This stuff is hard, I don’t want to minimize that. Doctors and scientists have made mistakes and have changed their tune on COVID-related matters over time, as new data has come in and revised our understanding of what we thought we knew. Maybe no one could have known this at the time, I’m not in a position to judge. But as we’ve said before, the state rushed to reopen on Greg Abbott’s orders even as the Abbott-defined metrics for reopening were not being met. Now we know we were even further from the desired levels than we thought, and many more people have gotten sick and died or are suffering from long-term effects of the virus. We can have some level of sympathy for Greg Abbott, we can recognize that anyone would have made bad decisions if they were given bad data, and still hold him responsible for the outcome. His decision to reopen as he did was risky at the time, and it’s so much worse now. That’s all on him.

The post-Harvey flood control march

It’s a long journey, with a lot to be done. It’s going to take awhile.

Most of Kenwood, a working class, mostly Latino neighborhood, is so deep in the 100-year floodplain that Harris County engineers have concluded no flood control project could protect it from a strong storm. Instead, the county began a voluntary buyout program in Kenwood and seven other vulnerable areas two years ago, but found few takers. Under pressure to spend federal Harvey recovery aid more quickly, the county this summer chose to make the buyouts mandatory.

The extraordinary step only underscores that, more than three years after Harvey rolled ashore as the worst rainstorm in continental U.S. history — and amid a record-setting Atlantic hurricane season — progress toward reducing Houston’s greatest vulnerability has been painfully slow and piecemeal at best.

Voters passed a $2.5 billion bond two years ago, giving the county a huge injection of funding to tackle nearly 200 flood control projects. Those projects take time, often years, to complete, however. And county officials concede the cost to fully protect against 100-year storms is more than 10 times higher than what voters approved.

City Hall lacks a comparable cash infusion and so mostly is waiting on the slow-motion arrival of federal aid. Meanwhile, its voter-approved street and drainage program has been shorted by more than $260 million over the last six years, money that has been used on other city services.

The city and county did update their floodplain building standards in the months after the storm, but City Council has yet to follow Commissioners Court’s lead in strengthening storm water detention rules.

“Folks are definitely still quite dissatisfied with the level of flood protection that’s been provided thus far from the city and the county,” said Chrishelle Palay, director of Houston Organizing Movement for Equity. “When it comes to historically underserved communities of color, those are the communities where the infrastructure has been disinvested, both from street flooding and from watershed protection.”

The Houston region’s most readily available defense against future floods is the $2.5 billion county bond.

To date, the county Flood Control District has begun work on 144 of its 188 planned bond projects, but only 18 have reached the construction stage, said Deputy Executive Director Matt Zeve. A dozen projects the district funded with other revenues also have been completed since Harvey, removing an estimated 5,000 homes from the 100-year floodplain.

The bond funds are helping to accelerate long-planned projects and start new ones, Zeve said, but large infrastructure improvements cannot be engineered and built overnight.

“There are places in Harris County that are right where they were three years ago, but there are several areas where we’ve completed projects or are constructing projects right now, and those areas will have a lower risk of flooding in a future storm event,” Zeve said. “It’s not as fast as everyone wants, but we do feel like we’re making good progress on major flood damage reduction projects all over Harris County, with more to come.”

Home buyouts, though some take a year to complete, move the fastest, making the 560 repeatedly flooded homes the county has bought since Harvey among the few tangible signs of progress the city and county have made toward reducing flood risk since the storm.

Even this seemingly simple task, however, can be an arduous process fraught with difficulties and heartache for residents.

There’s progress, but it’s slow and spotty. We should acknowledge that capital projects take time by their nature, and so does relocating people. There’s a lot to be done because there was so much that hadn’t been done over the past thirty or forty years. I don’t know what else there is to say about this. We should keep a close eye on the progress of all of the projects, we should continue to demand that more is done, and we should be voting for politicians who work towards these goals, but in the end and under the best of circumstances, this is going to take time.

Harris County preps to print mail ballots

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

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

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

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

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

[…]

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

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

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

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

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

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

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

CD25: Williams 45, Oliver 43

The Congressional polls, they keep coming.

Julie Oliver

Progressive Democratic candidate Julie Oliver is in a close race with her GOP incumbent opponent Rep. Roger Williams, a new internal poll finds.

The poll of 400 likely voters by EMC Research shows Oliver only two percentage points behind Williams, 45 to 43, with a 5-point margin of error.

The same poll shows Williams has higher name ID recognition compared to Oliver (53 to 42 percent) but the incumbent lawmaker suffers from favorable-unfavorable ratings that are almost equal (23-20).

[…]

Monday’s poll is the second survey this cycle showing the competitiveness of Texas’ 25th congressional district, held by Republicans since 2013.

A DCCC in-house poll in July showed the same margin between William and Oliver, 45 to 43.

See here for more on that previous poll, and here for the polling memo. The main difference between these two polls is that Biden led Trump 47-46 in the July poll, and Trump leads Biden 49-45 in this one. The latter seems like a more realistic result – as noted, Trump won this district 55-40 in 2016, and Beto got 47% in 2018. He lost by five to Ted Cruz, so I can buy Trump beating Biden by four here. That would also bode pretty well for Biden’s statewide ambitions, even if it means Julie Oliver will likely lose, albeit by a smaller margin this time. But she’s running a strong race, she’s got the DCCC on her side, and she’ll almost certainly do better with the resources to make her case to the voters than without them.

I should note that Roger Williams’ campaign released a poll of its own last week, which showed the incumbent leading 52-40. That was a rare Republican poll release for this cycle, and it’s a pretty decent result for Rep. Williams. My guess is that this understates Oliver’s level of support – we have no details about this poll, so we really are just guessing – but it’s not completely out of the question. Hugely disappointing if accurate, but not impossible. That poll, which of course came via Patrick Svitek on Twitter, did not include a Biden/Trump matchup, or at least the public information released about that poll did not include such a question. Make of it what you will.

Lawsuit filed over gun sign law

This is interesting.

A church in Clear Lake and a coffeeshop in the Heights are challenging a Texas law that dictates how no-gun signs are displayed.

Bay Area Unitarian Universalist Church and Antidote Coffee allege the signs private properties need to display are meant to make it harder for them to keep out guns and to mark them as anti-gun establishments.

They are represented by gun safety group Everytown Law and Houston law firm Jones Day.

Alla Lefkowitz, director of affirmative litigation at Everytown Law, said property owners who don’t want handguns on their premises have to put up at least two different signs: one prohibiting concealed carry and one for openly carried guns.

And if they don’t want rifles to be carried, which is legal in Texas without a gun license, they need a sign for that too, the suit states.

Notices to exclude concealed carry must use the following language in both English and Spanish and with letters at least one inch in height: “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun.”

The size requirement makes it hard to impossible to print the signs at home and takes up space that could be used for other messages to patrons, the plaintiffs allege.

“Most states just have a simple requirement for a picture that is a simple pictogram and that says something along the lines of ‘no firearms’ or ‘no weapons,'” Lefkowitz said. “And there’s no evidence that that’s not understood.”

The plaintiffs want the court to declare the sign requirements unconstitutional and that property owners can decide how they want to indicate that they don’t allow guns and that they “need only follow the notice requirements under the General Trespass Law.”

[…]

Michael Cavanaugh, a criminal justice professor at the University of Houston-Downtown, said arguing the case as constitutional rights violations is a tough sell.

“If the court views the hanging of regulatory signs as a first amendment issue, then the coffee shop and church will win,” he said in an email. “However, I think they will see the issue as a simple regulation in which case Texas will win.”

Antidote is in my neighborhood, I may need to drop by and ask them about this. The story quotes one part of the law, for concealed carry, but there’s a separate law (Section 30.07) for open carry, and a separate sign is required to prohibit those as well. There’s no question that the law was designed to make it as hard as possible for entities to post the signs, and it will be interesting to see what the discovery process turns up, assuming this survives a motion to dismiss.

I support the goal here – it should not be this convoluted for a store owner to legally say “no guns in this establishment” – but I have my doubts that a lawsuit can succeed. I agree with Professor Cavanaugh, framing it as a First Amendment issue is probably the best strategy, I just don’t think the federal courts will accept it, not at the Fifth Circuit or at SCOTUS. The downside risk here is that a final ruling might wind up prohibiting a future Democratic Legislature from modifying this law to make it easier for guns to be forbidden by private property owners, decreeing that the gun owners’ rights supersede theirs. Of course, if such a future Democratic Lege passed a law broadening the ability of store owners and churches and what have you to forbid guns on their premises, I’m sure there would be a lawsuit filed against that, and we could wind up in the same place anyway. At some point, we need better courts, too. Until then, this is what we have. Everytown Law’s page about this suit is here, and Legal Newsline has more.

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

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

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

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

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

A state appeals court upheld the 2019 law last week.

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

[…]

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

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

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

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

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

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

SCOTX extends stay in Harris County vote by mail case

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

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

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

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

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

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

Hollins was not immediately available for comment.

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

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

Hegar targets open carry

I’m all in for this.

MJ Hegar

Former Air Force pilot MJ Hegar, a Democrat challenging Republican U.S. Sen. John Cornyn, is calling for an end to open carry.

The issue has never attracted the same sort of urgency from gun safety advocates as expanding background checks or banning assault-style weapons. But advocates say that is changing as protests rage on. They point to the Austin case and other high-profile shootings, including in Kenosha, Wis., where 17-year-old Kyle Rittenhouse is accused of killing two protesters and injuring a third with an AR-15-style rifle.

Like Texas, Wisconsin state law allows for rifles to be carried openly, though the state requires the carrier to be 18, meaning Rittenhouse likely was breaking the law. Police didn’t stop him before the shooting, despite video showing them offering him water.

“These cases are exactly why we need to curb open carry,” Hegar said. “Open carry in this day and age only serves to escalate the division and violence in our communities. Recent incidents show us that open carry is no longer about freedom but violence.”

[…]

Gun violence prevention groups that have backed Hegar — and plan to spend heavily in her favor — say it’s a position that will appeal to suburban voters, especially suburban women, a key demographic Hegar will need to carry if she is to be the first Democrat to win a statewide race in Texas in a generation.

Hegar’s backers believe she’s an ideal messenger on the issue as a mother, gun owner and decorated war veteran.

“We haven’t seen statements like this in a long time, and it goes to her experience,” said Brian Lemek, executive director of the Brady PAC, a group that supports candidates pushing for new gun laws. “How many people out there can say … ‘I took on fire from the Taliban, I have scars to show it.’ She understands the dangers.”

Pro-gun groups say Hegar is just trying to find anything that will help her gain traction as she trails Cornyn in polling and fundraising.

“She’s looking for anything she can get and she’s targeting probably new people who have moved to Texas, probably urban people, urban mothers or women,” said Mike Cox, legislative director of the Texas State Rifle Association. “She’s looking for anything.”

But Hegar — who owns five guns, including a semi-automatic assault-style rifle — has been calling to end open carry since at least last year, well before she won her party’s nomination, when she called open carry “an assault on every bystander within range.”

While the coronavirus and economic downturn have dominated much of the campaign season so far — and Hegar says they will remain the most important issues of the race — polling in Texas has shown support for gun laws, including universal background checks, red flag laws and banning assault-style weapons, especially after mass shootings in El Paso and Midland-Odessa last year.

Polling data shows a solid majority in favor of “sensible gun laws”, but that leaves a lot of room for interpretation. It’s also not clear how much a specific position might persuade someone to cross over to vote for a candidate they otherwise wouldn’t have supported, or how much a strong position on this issue affects turnout on either side. Be that as it may, the only path forward for new gun laws at the federal level begins with a Democratic majority in both chambers of Congress, and so for obvious reasons a Senator MJ Hegar advances that possibility. Federal laws and policies can also influence state laws, but that will depend on a whole other set of elections here. All of that said, I think we can agree that it’s a new day in Texas when a serious contender for statewide office can openly embrace stronger gun laws as a key part of her candidacy. I feel confident saying that hasn’t happened before. Even if she loses, this won’t be a one-off event. Expect to see more of this in the 2022 elections, when serious change at the state level is on the ballot.

The case for voting in person

From Wired, an argument for worrying less about voting by mail because voting in person is still a fine way to do it.

Casting a ballot in person, it turns out, isn’t so dangerous after all. Early in the pandemic, this might have seemed a crazy thing to suggest. The Wisconsin primary, back in March, was widely described in apocalyptic tones. The New York Times called it “a dangerous spectacle that forced voters to choose between participating in an important election and protecting their health.” After state Democrats fought unsuccessfully to extend the deadline for mailing back absentee ballots, the ensuing photos of long lines at Milwaukee polling places seemed to presage an explosion of Covid-19 cases.

But the bomb never blew. As I observed in May, there was no noticeable rise in coronavirus cases thanks to the Wisconsin primary. A follow-up study by researchers at the City of Milwaukee Health Department and the US Centers for Disease Control and Prevention concluded, “No clear increase in cases, hospitalizations, or deaths was observed after the election.” In fact, case numbers in Milwaukee were lower in the weeks after the election than in the weeks before it. There are caveats: In-person turnout was low overall thanks to broad use of mail-in ballots, and we don’t know how coronavirus prevalence in March will compare with November. Still, it’s telling that there have been no credible reports of virus spikes attributable to any other election this year, even though ill-considered polling place closures have led to further instances of Milwaukee-style overcrowding.

Why might voting be safer than expected? We now know that the coronavirus spreads mostly when people are in sustained indoor contact—settings like a restaurant, a bar, or a shared home or office. The risk of transmission in fleeting encounters, by contrast, is small. Outdoors, it is vanishingly so. Even the massive protests following the killing of George Floyd, which even sympathizers feared would seed outbreaks, did not, according to several large studies. The pandemic is really an indoor problem. Even the defining image of the danger of voting during a pandemic—lines around the block—serves to illustrate why there’s little to fear. For most people, standing in a spaced-out line, outdoors, while wearing masks, entails at most a paltry risk.

“I think if carefully done, according to the guidelines, there’s no reason I can see why that’d not be the case,” said Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, at a recent National Geographic event. “If you go and wear a mask, if you observe the physical distancing, and don’t have a crowded situation, there’s no reason why you shouldn’t be able to do that.” Likewise, a recent report from the Brennan Center for Justice advises, “In-person voting can be conducted safely if jurisdictions take the necessary steps to minimize the risk of transmission of Covid-19 to voters and election workers.”

This assumes that any lines one may have to wait on will be primarily outside. That’s not been my experience in past elections, but I feel reasonably confident that outdoor lines will be the norm this time around. In Harris and Bexar and Dallas and hopefully other counties, there will be some larger venues, like convention centers and sports arenas, being used as voting locations, which will also help. Point being, I tend to agree with the assessment that the risk of in person voting, assuming widespread mask usage, is fairly minimal.

There are also practical considerations about voting by mail. Jamelle Bouie wrote in the Times that a key piece of Trump’s Election Day strategy is to delegitimize any votes that are not counted on Election Day. Remember how many elections Democrats won in 2018 due to mail ballots that weren’t counted until after Election Day? That’s been called the “blue shift”, and Donald Trump will scream from the rooftops that those mail ballots don’t count and amount to stealing the election if he’s in any position to claim a win on the evening of November 3, regardless of the lie of his statement. The best way to prevent that is to have as many votes counted by the time the news people start giving us numbers from around the country. That means voting in person. Note that in some states, even if your mail ballot is received way early, it may be the case that it won’t be officially tallied until Election Day, which could still lead to this situation. Voting in person will not have that problem.

Other concerns include the unknown potential for mail delivery delays, which G. Elliott Morris tried to quantify, and problems with mail ballots being rejected due to alleged signature mismatches or other issues, which is something that of course happens at a higher rate to Black and Latino voters. (Black voters are, understandably, more dubious about voting by mail.) The recent court order helps in this regard, but it’s still a factor, and we don’t know yet if there will be an appeal. I know it sounds ridiculous, but younger voters are just simply not used to using the postal service, and may have problems with mail ballots as a result. All of this may turn out to be minor, but maybe it won’t. We just don’t know. Again, the remedy here is to vote in person if that is a reasonable option for you.

Of course, to some extent in Texas, this is an academic point. The large majority of us cannot vote by mail, something the state leadership has done everything in its power to ensure will still be the case. I have said and will continue to say, if you do qualify for a mail ballot, by all means apply for it and use it. Having more people vote by mail not only keeps them safe, it also means shorter lines and faster processing times at voting locations, which is something we all want. Just be very prompt about it, and track your ballot to make sure it is received. Use a dropoff location if practical. The real point here is that we all actually do need to make a plan to vote, and that plan needs to encompass the when, the where, and the how. Be part of the solution to ensure that everyone can vote as easily and safely as possible. I don’t need to say how much is riding on that.

SBOE updates sex ed curriculum

All things considered, especially the past history of the State Board of Education and its shenanigans, this could have been worse. It’s not great, but the potential for disaster was monumentally high.

The Texas State Board of Education gave preliminary approval this week to a sex education policy that includes teaching middle schoolers about birth control beyond abstinence — its first attempt to revise that policy since 1997.

In jam-packed meetings held Wednesday through Friday, the 15-member Republican-dominated board came one step closer to revising minimum standards for what Texas students learn about health and sex. It is expected to take a final vote in November.

The board voted to teach seventh and eighth grade students to “analyze the effectiveness and the risks and failure rates … of barrier protection and other contraceptive methods in the prevention of STDs, STIs and pregnancy,” in addition to the importance of abstinence. Currently, learning about birth control methods beyond abstinence is only a requirement in high school, where health education is an optional course.

But the board rejected proposals to teach middle school students about the importance of consent or teach any students to define gender identity and sexual orientation.

[…]

Over the last several months, panels of educators and medical professionals formulated recommendations to overhaul the health and sex education policies.

Board members clashed on several edits to those recommendations, including whether to include explicit reference to sexual orientation and gender identity. On Thursday and Friday, Ruben Cortez, a Brownsville Democrat, unsuccessfully proposed teaching middle schoolers and high schoolers to define sexual orientation and gender identity. He said the proposals would help LGBTQ students, who studies show have a higher rate of suicide attempts in part due to discrimination.

“One of my children this summer came out to us and the fact that she had to bottle that in for years thinking that we wouldn’t accept her,” he said, getting choked up as he spoke. “It’s difficult to imagine what other students who don’t live in a tolerant house would go through if we don’t insert language like this to help our students.”

Most Republicans on the board opposed his proposal, saying they would rather not include it in the minimum standards schools are required to teach. Instead, they said, they would rather let local school districts vote to add LGBTQ issues to their own health education policies, since state law gives them that flexibility. Matt Robinson, from Friendswood, was the sole Republican who voted with Democrats to add the language Friday.

“I would like to see this left up to being a community decision,” said Pat Hardy, a Fort Worth Republican.

“I don’t think at the high school level we can afford to be cryptic with regards to our youth,” said Marisa Perez-Diaz, a Converse Democrat. “Identity exists. We need to talk about it regardless of one’s sensitivity and discomfort.”

Most Republicans also opposed Cortez’s proposals Thursday and Friday to teach middle and high school students to “explain the importance of treating all people with dignity and respect regardless of their sexual orientation and gender identity.”

Instead, they approved teaching students to prevent “all forms of bullying and cyberbullying such as emotional, physical, social and sexual.” Schools can choose to include bullying as a result of sexual orientation and gender identity in those lessons, Republicans said.

On Wednesday night, board members battled over whether to teach sixth graders the definition of consent as it relates to physical intimacy and to “explain why all physical contact should be consensual.” Republicans said consent was a legally murky concept and instead prioritized students learning to be able to say no to unwanted approaches.

“In my opinion, refusal skills, personal boundaries, personal privacy covers this area at this age,” said Marty Rowley, an Amarillo Republican. “Eleven and 12 is too young in my opinion.”

I’d argue that stuff needs to be discussed from the time the kid is in preschool. Which, in a good preschool, it often is. It’s basic bodily autonomy, as in no one has the right to touch you if you don’t want them to. I don’t think it gets all that more complicated when you’re talking about touch in an explicitly sexual context. I can understand why people may be uncomfortable with that, but that’s just too bad. This was a significant missed opportunity.

Same thing with sexual orientation and gender identity. Perhaps what some people fail to understand is that the kids themselves are a lot more comfortable with that subject than many adults are. And kids who are gay or trans or nonbinary generally know who they are by middle school. We can’t choose to not engage with them on the subject. It’s alienating and insulting to them. Leaving it up to the locals may sound like a reasonable compromise, except that we know some school districts are hostile to LGBTQ students, and could not be trusted to set this material themselves. Some minimum level of standard is needed, and the SBOE whiffed on it. Basically, what was needed in both of these cases was honest, factual information, which would benefit all of the students. This change will not provide it to them, and that is a significant failure on the SBOE’s part.

The good news is the baby step away from abstinence-only education, which is a travesty with harmful repercussions. It’s not enough, but any movement in that direction is welcome. If we can take advantage of the opportunity we have this fall to elect some better members to the SBOE, maybe we can take more steps in that direction, and get on the right track with these other matters. The Chron and Reform Austin have more.

CD31 poll: Carter 43, Imam 37

Another interesting Congressional race poll.

Donna Imam

With less than two months to go until Election Day, an increasing number of eyes are looking toward Texas, where Republicans are fighting to keep their grip on the once-reliably conservative state.

There is perhaps no better sign of Texas’ shift toward Democrats than what’s happening in the state’s 31st Congressional District. The previously deep red district north of Austin has shifted dramatically in recent years, and a new poll obtained exclusively by COURIER shows incumbent Rep. John Carter (R-Texas) is vulnerable.

The poll, conducted by Public Policy Polling (PPP), found Carter leading challenger Donna Imam by only six points, 43-37 among 831 voters in the district. Libertarian Clark Patterson and Independent Jeremy Bravo tallied 10% of the vote combined, while 11% of voters remained undecided.

Imam performs particularly well with independent voters, leading Carter 44-28. She also appears to have significant room to grow, as 53% of voters said they were unsure whether or not they had a favorable opinion about her.

The poll also surveyed voters on the presidential race and found that President Donald Trump holds a narrow one-point lead (48-47) over Democratic nominee Joe Biden, a substantial shift from 2016 when Trump won the district 54-41.

[…]

While Democrats have set their eyes on several prizes across the state, the recent blue shift in the 31st has been particularly notable. Between 2002 and 2016, Carter won each of his elections by at least 20 points. But in 2018, Carter faced the fight of his career and narrowly edged out his Democratic challenger, MJ Hegar, by only three points. Hegar is now challenging Cornyn and finds herself down only 2 points in the district (48-46), according to the PPP poll.

You can see the poll data here. It’s a solid result in a district where Beto got 48.4% of the vote. Hegar ran just a shade behind Beto – he lost to Ted Cruz 50.5 to 48.4, while Hegar lost 47.6 to 50.6 – and this district has been on the radar for the DCCC (and for the Republicans, and for the national race-raters) from the beginning of the cycle. The problem has been finding a standout candidate, as there was a rotating cast of players in the primary, with nobody raising any money or making much noise until the runoff, when Imam finally started to edge forward. She still has to establish herself as a fundraiser – the DCCC is in town, but they’ve got plenty of fish to fry. I’ll be very interested in Imam’s Q3 finance report.

This poll is reminiscent of the polling in CD21, another near-miss district from 2018 with a similar demographic profile. In 2018, Joe Kopser lost to Chip Roy 50.2 to 47.6, Beto lost the district by a tenth of a point, and in 2016 Hillary Clinton lost it to Donald Trump 52-42. These latest polls have Biden up by one in CD21 and down by one in CD31, consistent with statewide polling that has Texas as a real tossup.

They key here has been the shift in voter preferences in Williamson County, which comprises a bit more than two-thirds of the district. Here’s how the Williamson County vote has gone in recent elections:


2012       Votes    Pct
=======================
Romney    97,006  59.4%
Obama     61,875  37.9%

Cruz      92,034  57.3%
Sadler    60,279  37.5%

Carter    96,842  60.9%
Wyman     55,111  34.6%


2016       Votes    Pct
=======================
Trump    104,175  51.3%
Clinton   84,468  41.6%

Carter   112,841  56.8%
Clark     74,914  37.7%


2018       Votes    Pct
=======================
Cruz      99,857  48.0%
Beto     105,850  50.8%

Abbott   112,214  54.1%
Valdez    90,002  43.4%

Patrick  101,545  49.2%
Collier   98,375  47.6%

Paxton    98,175  47.7%
Nelson   100,345  48.7%

Carter    99,648  48.2%
Hegar    103,155  49.9%

The story of 2018 was of the huge gains Democrats made in suburban areas like Williamson, but the thing here is that Dems gained about as many votes from 2012 to 2016 as they did from 2016 to 2018, with Republicans barely growing their vote at all outside of a couple of races. It wasn’t so much a shift as an acceleration, and it took WilCo from being on the fringes of competitiveness, where you could see it off in the distance from the vantage point of 2016 but figured it was still a few cycles away, to being a true swing district just two years later. If Dems can even come close to replicating that kind of growth in 2020, then CD31 is likely being undersold as a pickup opportunity. Obviously, the pandemic and the ambient chaos and pretty much everything else is a variable we can’t easily quantify. But the numbers are right there, so if CD31 does go Dem, we can’t say we didn’t see it coming.

One more thing: That 10% total for the Libertarian and independent candidates combined is almost certainly way too high. Libertarian candidates actually do pretty well overall in this district. The Lib Congressional candidate in 2012 got 3.7%, while a couple of statewide judicial candidates in races that also had a Democrat topped five percent. In 2016, the Libertarian in CD31 got 5.2%, with Mark Miller getting 7.1% in the Railroad Commissioner’s race. They didn’t do quite as well in 2018, however, with the Congressional candidate getting 1.9%, and the high water mark of 4.1% being hit in the Land Commissioner’s race. I’d contend that’s a combination of better Democratic candidates, with more nominal Republicans moving from casting a “none of the above” protest vote to actually going Dem. My guess is 2020 will be more like 2018 than 2016 or 2012, but we’ll see. In any event, I’d put the over/under for the two “other” candidates at five, not at ten. The Texas Signal has more.

A new COVID testing strategy

Sounds promising.

Harris County wants to implement a program that would look at how and where active COVID infection exists, hoping to better understand how the virus spreads within the region in real time, and use those findings to help shape public health policy.

This commonly used public health strategy involves analyzing representative samples of the population to get a better picture of how the virus is acting rather than just looking at overall infection numbers in the hopes that such data could help single out and address hotspots. By understanding the circumstances, occupations and activities that drive community spread, public health officials and legislators would be better equipped to understand the virus and address high-risk COVID communities.

While Harris County COVID testing currently takes place at a number of fixed drive-through and mobile sites, as well as through private and other healthcare providers, the program, known as surveillance testing, would provide data at the community-level that broadens data collection beyond those actively seeking out testing for possible infection. This type of survey would also help obtain data on asymptomatic cases.

How the county will implement the program has not been determined. A committee has been in the process of reviewing proposals from organizations that submitted applications to conduct the study. Each proposal must outline a plan — including collection strategy, finances and other project details.

Surveillance testing programs generally involve recruiting participants for a medical test as well as having them complete a questionnaire or additional survey, explained Dr. Rebecca Fischer, epidemiologist and assistant professor at Texas A&M’s School of Public Health. This information could be collected by going door-to-door, setting up an outdoor site, or recruiting participants through a website.

“A community surveillance testing program could really be a game-changer if done correctly,” Dr. E. Susan Amirian, epidemiologist at the Texas Policy Lab at Rice University, wrote in an email. The group was approached by County Judge Lina Hidalgo’s office to help officials better understand the epidemiological and scientific aspects of such a project. The Harris County Public Health Department has also been involved in an advisory role, said the department’s media specialist Martha Marquez.

With no national community-level COVID surveillance testing program in place, states, counties and universities have taken it upon themselves to conduct these kinds of “surveillance tests” to learn more about how the virus acts and spreads in their communities. Current reporting tactics are considered “passive” surveillance since they rely on people actively seeking diagnosis, said Fischer.

There’s more, and you should read the rest, but stop and focus for a minute on the first sentence of that last paragraph. Why, exactly, is there “no national community-level COVID surveillance testing program in place”? I mean, we know the answer to that question, but the point is that in the midst of the non-stop chaos and sabotage and authoritarianism, we’re still asking the same questions, making the same arguments, and waiting for the same basic things as we were six months ago. We should maybe try not to forget that.

Now we wait on SCOTX

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

Chris Hollins

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

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

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

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

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

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

CD21 poll: Davis 48, Roy 47

Second poll in this district.

Wendy Davis

Between August 31 and September 4, Garin-Hart-Yang interviewed a representative sample of 401 likely general election voters in Texas-21st CD. The survey, which was conducted on both landlines and cell phones, was fully representative of an expected November 2020 general election by key factors such as gender, age, geography, and race. The survey’s margin of error is +5%. The following are the key findings:

1. Joe Biden slight advantage in the presidential race is basically unchanged since our mid-July poll. The Vice President leads Donald Trump by 49% to 47%, compared to the 50% to 47% margin in the last survey.

2. The mid-July survey had the congressional candidates virtually tied, with Congressman Chip Roy ahead by one point. In the latest poll we find Wendy Davis with a one-point lead. Realistically, the Davis-Roy match-up continues to be extremely competitive and likely to remain a dead-heat.

One important finding is that despite several weeks of Club for Growth negative TV ads, Wendy’s initial TV ads emphasizing her inspiring personal story and bipartisan work in the Texas Senate are resonating with voters. Since our last survey, we find an increase in voters attributing positive sentiment to Wendy, including sizable gains for her among Independent voters.

See here for some background, and here for the Patrick Svitek tweet that you knew would be the source. CD21 has been a pretty good bellwether for the state as a whole these last couple of elections:


2016      District    State
===========================
Smith        57.1%
Wakely       36.5%

Trump        51.9%    52.2%
Clinton      42.1%    43.2%

Christian    53.9%    53.1%
Yarbrough    34.6%    38.4%

Keasler      56.7%    55.0%
Burns        38.1%    40.9%


2018      District    State
===========================
Roy          50.2%
Kopser       47.6%

Cruz         49.6%    50.9%
O'Rourke     49.5%    48.3%

Abbott       55.0%    55.8%
Valdez       42.8%    42.5%

Patrick      50.6%    51.3%
Collier      46.8%    46.5%

Craddick     53.3%    53.2%
McAllen      43.4%    43.9%

Hervey       54.3%    54.2%
Franklin     45.7%    45.8%

Closer correlations in 2018 than 2016, but they’re both in the ballpark. Ted Cruz underperformed relative to his peers. Lamar Smith ran ahead of the typical Republican, both in the district and statewide, while Chip Roy ran a little behind them. Don’t know if any of this means anything for 2020, but I’ll venture that CD21 will resemble the state as a whole fairly well. I don’t think Wendy Davis needs Joe Biden to carry the state to win, but as with any of the other hot races, the better he does, the better her odds are likely to be.

Scrambling to finish the Census

It’s a hell of a job, and it’s so important.

With a deadline looming for local governments to complete a population count for the 2020 Census, Houston Mayor Sylvester Turner is warning that the city could miss out on billions in federal funding for services such as road repairs and school lunches.

The reason? Less than 57 percent of the city’s residents have filled out the census form, a nine-question survey that can be completed by mail, phone or online. The city of Houston was planning a major outreach effort to avoid an undercount among young and poor people, immigrants and communities of color. The pandemic and economic insecurity from shuttered businesses, however, hampered outreach efforts and hobbled participation, officials say.

“September is the final month to respond to the Census,” Turner tweeted this month. “Over 40% of Houstonians have yet to answer 9 questions @mycensus2020.gov which could cost Houston $1500 person per year for 10 years. Please do so now.”

Sasha-Joi Marshall Smith, a city planner who has been coordinating outreach efforts, attributed low participation to political interference, civil unrest and the coronavirus pandemic. She is “terrified” about the economic and social reverberations of an undercount that’s now running about 15 percentage points behind 2010.

Every 1 percent of the population that’s not counted means $250 million in federal funding that the city is entitled to will be directed to another city, she said. “It’s that serious.”

“I tell people, ‘It’s our federal tax dollars… God forbid it goes to Dallas,’” she said. “Whether you were born here or not, it’s our job to make sure people here have basic services.”

Harris County faces a similar predicament, with just under 61 percent of residents having participated.

“There are so many pockets in Harris County where we haven’t heard from most people — perhaps a fraction of the people have responded but most have not responded,” said Tazeen Zehra, a senior census staffer in Houston.

Galveston County has had such a low return rate — 58 percent — that census workers have sought helpers from neighboring counties. Montgomery County is doing slightly better with just under 66 percent reporting. Fort Bend County has the highest participation rate in the state with more than 73 percent responding overall, including nearly 80 percent in Sugar Land.

The current deadline for local governments to complete their counts is Sept. 30. But outreach workers are hoping a federal judge will extend that deadline to Oct. 31 for the entire country at a court hearing in California next week. Harris County Commissioners Rodney Ellis and Adrian Garcia joined as plaintiffs in the California case because they’re concerned that their districts will be undercounted without an extension. The Trump administration previously offered an extension, then withdrew the offer.

We’ve discussed the challenges of the Census many times. The undercounting issue is so pervasive that even our retrograde state leadership has been forced to try to do something about it. There’s a temporary restraining order in that California lawsuit to which Commissioners Ellis and Garcia are parties, with a hearing scheduled for the 17th. I think the odds are good that the plaintiffs will prevail since “arbitrary and capricious” is the standard operating procedure for this administration, but even with those extra 31 days it’s going to be tough to get an adequate count. As with so many other things these days, this did not have to happen.

On a related note:

A three-judge federal panel in New York has ruled that the Trump administration cannot keep undocumented immigrants from being counted when lawmakers reapportion congressional districts next year — an effort that could have potentially cost Texas several seats in Congress.

In a significant departure from the way representation is typically divided up, President Donald Trump signed a memorandum in July directing Secretary of Commerce Wilbur Ross to exclude undocumented immigrants from the base population used to distribute seats in Congress. But in its Thursday ruling, the panel of judges deemed the memo an “unlawful exercise of authority granted to the President.”

The constitutionally mandated count each 10 years of every person residing in the country is used to determine congressional representation from each state. Excluding undocumented residents from the counts used to parcel out congressional districts would likely lead to a drastic realignment of political power throughout Texas.

Trump pursued the change by arguing that the U.S. Constitution does not define “which persons must be included” in that base population. But the New York panel of judges blocked Ross, who oversees the census, from providing any information on the number of undocumented people in each state.

See here for the background. This would almost certainly cost the state of Texas at least one if not two of the Congressional seats that it’s otherwise likely to get. Not that any of our state leaders care, going by their utter lack of any reaction to that memorandum. The courts can’t save us from everything, but they have been there at times like this.

One lawsuit about voting locations thrown out

This was filed just a couple of months ago.

Continuing to fend off attempts to alter its voting processes, Texas has convinced a federal judge to dismiss a lawsuit that sought sweeping changes to the state’s rules for in-person voting during the coronavirus pandemic.

U.S. District Judge Jason Pulliam dismissed a legal challenge Monday from Mi Familia Vota, the Texas NAACP and two Texas voters who claimed the state’s current polling place procedures — including rules for early voting, the likelihood of long lines and Gov. Greg Abbott’s decision to not require voters to wear masks — would place an unconstitutional burden on voters while the novel coronavirus remains in circulation.

In his order, Pulliam noted that the requests were not unreasonable and could “easily be implemented to ensure all citizens in the State of Texas feel safe and are provided the opportunity to cast their vote in the 2020 election.” But he ultimately decided the court lacked jurisdiction to order the changes requested — an authority, he wrote, left to the state.

“This Court is cognizant of the urgency of Plaintiffs’ concerns and does respect the importance of protecting all citizens’ right to vote,” Pulliam wrote. “Within its authority to do so, this Court firmly resolves to prevent any measure designed or disguised to deter this most important fundamental civil right. At the same time, the Court equally respects and must adhere to the Constitution’s distribution and separation of power.”

The long list of changes the plaintiffs sought included a month of early voting, an across-the-board mask mandate for anyone at a polling place, the opening of additional polling places, a prohibition on the closure of polling places scheduled to be open on Election Day and a suspension of rules that limit who can vote curbside without entering a polling place. Other requested changes were more ambiguous, such as asking the court to order that all polling places be sufficiently staffed to keep wait times to less than 20 minutes. The lawsuit named Abbott and Texas Secretary of State Ruth Hughs as defendants, but the suit targeted some decisions that are ultimately up to local officials.

The plaintiffs argued the changes were needed because the burdens brought on by an election during a pandemic would be particularly high for Black and Latino voters whose communities have been disproportionately affected by the virus.

See here for the background. As noted in the story, there is now a third week of early voting, and at least the larger counties like Harris have been making plans to greatly expand the number of in-person voting locations, both for early voting and Election Day, so the plaintiffs didn’t walk away with nothing. Harris County will also have expanded curbside voting; I don’t know offhand what other counties are doing. That’s not the same as a statewide mandate, but it will be good for the voters who can experience it. The mask mandate seems like the most obvious and straightforward thing to me, and anyone who would argue that being forced to wear a mask in order to vote is an unconstitutional violation of their rights will need to very carefully explain to me why that’s a greater obstacle than our state’s voter ID law. I would have liked to see this survive the motion to dismiss, but at least we are all clear about what the to-do list for expanding voting rights in the Legislature is. Reform Austin has more.

County Clerk can send his vote by mail applications

Good.

Chris Hollins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

This is pretty much the end of the line, at least as far as the courts are concerned.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Thursday that Texas can keep its strict eligibility rules for voting by mail.

Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age.

The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.

“In sum, the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age,” the panel wrote. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”

The federal panel vacated a lower court’s sweeping ruling that found Texas voters would face irreparable harm if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. On Thursday, state Democrats indicated they would push forward with their challenge at the lower court, where the appellate court sent the case for further consideration of the party’s remaining arguments against the state’s restrictions.

[…]

“Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” the judges wrote.

The panel was made up by Judges Carolyn Dineen King, who was appointed to the bench by President Jimmy Carter; Carl Stewart, who was appointed by Bill Clinton; and Leslie H. Southwick, who was appointed by George W. Bush.

Dissenting in part to the majority opinion, Stewart wrote that the state’s eligibility rules fail to “treat members of the electorate equally with regard to mail-in voting.”

“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart wrote. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”

See here for the background, and here for a copy of the opinion. Michael Hurta has a good brief analysis of it. As to what happens next, Rick Hasen thinks the original trial judge will find for the plaintiffs again, which will trigger another appeal. As such, this isn’t really the end of the line as I’ve suggested above, but it seems very unlikely to me that there will be a ruling that favors the plaintiffs any time before the November election. Whatever ultimately happens with this will not happen until at least 2021. I don’t care for this ruling, and this was about as friendly a three-judge panel as we were gonna get. It’s hard for me to see how the outcome changes.

Which means, as I have been saying over and over again, the ultimate fix rests within the legislative process. Just add this to the ever-increasing list of things that a Democratic Legislature, in conjunction with a Democratic Governor, will need to fix. The Republicans have made their position crystal clear. There’s no bipartisan solution. The only way out is through, and that means electing a better government. The Chron has more.

Another look at the County Commissioner race

It’s the most consequential local race on the ballot this year.

Michael Moore

Every four years since 1968, Harris County residents have been able to count on a Republican winning the Precinct 3 commissioner’s seat.

In that half century, a parade of Democrats have been trounced. Some years, the party did not even bother to field a candidate in the traditionally conservative district, which covers the western portion of the county. The past three Democratic presidential nominees carried Harris County, but no challenger in those cycles came within 16 points of Precinct 3 incumbent Steve Radack, who has held the post since 1989.

Of course, 2020 has been anything but normal. The COVID-19 pandemic has upended normal life. The Astros play in front of cardboard cutouts. And Democrats say they finally will capture Precinct 3, an open seat since Radack decided not to seek a ninth term.

They said the unpopularity of President Donald Trump in Harris County, against the backdrop of a mismanaged coronavirus response by state leaders and demographic shifts that favor Democrats will help the party’s nominee, political strategist Michael Moore, defeat his Republican opponent, former Spring Valley Village Mayor Tom Ramsey.

[…]

Demographic shifts in Precinct 3 give Moore an advantage, Democratic consultant Keir Murray said. When Radack first was elected, the west Harris County district largely was white and rural. It since has grown rapidly and diversified, with an increase in non-white and college-educated residents. Both groups favor Democrats.

“Precinct 3 now is probably about half white, and that’s a massive change from 15 years ago,” Murray said. “Forty percent of the voters are probably people of color now.”

He said Harris County’s shift to reliably Democratic also affects Precinct 3. Recent elections bear that out.

In 2016, Democratic presidential nominee Hillary Clinton lost the precinct by less than 1 point. The 2018 election, in a midterm year where Democrats traditionally struggle, U.S. Senate candidate Rep. Beto O’Rourke won the district by 4 points.

A wave of Texas Republicans, including six members of Congress, have decided against seeking re-election in 2020. University of Houston political science Professor Jeronimo Cortina said that suggests the party privately is pessimistic about its prospects this year, especially after Democrats made significant inroads in suburban communities in 2018.

“From a political perspective, it’s easier to retire than lose an election,” Cortina said.

I skipped over a bunch of back-and-forth about who’s gonna win, because that doesn’t tell us anything. We know about the Moore poll that shows both him and Joe Biden leading by double digits. Tom Ramsey claims to have his own poll that shows otherwise, and maybe he does, but we have no numbers to go with it, so. The 2016 and 2018 results tell a good story for Dems (see the Moore poll link for links to earlier precinct analyses), and I don’t think the current environment does Republicans any favors. Oh, and there’s some dire warnings in the story from a Republican about how those dumb Dems can’t count on straight-ticket voting to carry them anymore. I think you know what I think of such arguments.

On a side note, as Harris County’s registered voter population has grown over the past few years, so has the RV population in Commissioners Court Precinct 3:


Year      County RVs      CC3 RVs
=================================
2008       1,892,656      507,839
2012       1,942,566      501,988
2016       2,182,980      568,512
2020       2,370,540      622,890

The dip in RV population from 2008 to 2012 is due to redistricting. CC3 as a share of the total number of RVs in Harris County has grown slightly, from 25.8% in 2012 to 26.3% as of July, 2020. The main takeaway from that is that this precinct really is a different place than it was as recently as eight years ago. The precinct has 25% more voters than it did in 2012, and that’s pretty significant. As a whole, Harris County has gotten more Democratic as its number of registered voters has increased. Seems like that’s the same phenomenon in CC3, it’s just a question of whether it’s enough.

No, seriously, what are we going to do to prepare for the next Hurricane Laura?

I mean, the next one is coming whether we’re ready or not. We just don’t know when it will be here.

Though the storm ultimately tracked east, sparing Houston, the problem remains: The region is disastrously unready to handle any of the three main threats of an intense hurricane: a high surge, damaging winds and — even three years after Hurricane Harvey — flooding.

While Harvey’s devastating stall over the Houston area has resulted in billions of dollars of investment in flood control infrastructure and new regulations, Laura reminded the region of what a different kind of storm could do.

In its wake, leaders have made impassioned pleas about preparing for when — not if — that storm does arrive. Most notably, they have ramped up calls for federal funding on a so-called “coastal spine,” a system of levees, gates and dunes first proposed after Hurricane Ike in 2008, to protect the region from a storm surge.

Those plans, though, remain mired in the slog of the federal approval process. The kind of political will and cohesion needed to fast-track such infrastructure typically only forms after disasters, not before.

[…]

There are signs the region has reached an inflection point on the need to protect against that threat. A growing consensus among local officials around the effects of climate change has shifted the public policy debate to figuring out which infrastructure projects will help stave off its worst effects, and at what cost.

The proposed coastal spine, a 71-mile-long barrier system to protect the southeast Texas coast, has received the most attention since it was taken up by the Army Corps of Engineers in October 2018.

The plan is an outgrowth of the “Ike Dike” concept first pitched more than a decade ago by William Merrell, a professor of marine sciences at Texas A&M University at Galveston. It includes a series of gates that stretch the two-mile length of Bolivar Road, twin rows of 14-foot-high sand dunes across Galveston Island and Bolivar Peninsula, a ring levee around Galveston’s city center and investments in ecosystem restoration.

The price tag has been put at $23 billion to $32 billion, with the dunes and sea gate at the ship channel alone costing up to $18 billion of that. It is in the midst of a five-year design and study process and is on track to be sent to Congress for final approval in May 2021.

“Quite frankly, we need it yesterday,” Houston Mayor Sylvester Turner said last week. “We’re running out of lives, so to speak.”

Even on the most optimistic timeline, the coastal barrier is 10 to 15 years from becoming a reality. With the Houston-Galveston region a perennial target during the Atlantic hurricane season, there is a growing urgency to find a more expedient, cheaper solution.

The Galveston Bay Park Plan, first proposed by the Rice University’s Severe Storm Prediction, Education & Evacuation from Disasters (SSPEED) Center in 2015, includes similar protection features as the coastal spine, but adds a mid-bay barrier island system with a 25-foot wall that would protect the industrial complexes and densely populated areas in the west and northwest sections of Galveston Bay.

Jim Blackburn, an environmental attorney and co-director of the SSPEED Center, says the plan could provide vital protection a lot sooner than the coastal spine, but that it also could complement that barrier. He estimates that if allowed to use dredging spoils from the planned widening of the Houston Ship Channel to build the barrier islands, the project could be completed by 2027 at a fraction of the cost of the coastal spine — an estimated $5 billion to $7 billion.

“You have a coastal defense and that’s your first line of defense and then you come in with your in-bay defense, that is really the one that can protect against your bigger storms,” Blackburn said. “It’s very much almost like thinking in a military sense of how do you defend against an enemy invasion?”

See here and here for some background. I’m of the opinion that we just need to start building something, and that the price tag is a mirage, because the federal government can absolutely afford this. What we can’t afford is to sit around on our asses until the devastating storm we’ve been warned about for years comes and wipes our unprepared selves right off the map.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here comes Forward Majority

Wow.

A national Democratic super PAC is pumping over $6 million in to the fight for the Texas House majority.

The group, Forward Majority, plans to spend $6.2 million across 18 races that will likely determine who controls the lower chamber in January, according to an announcement first shared with The Texas Tribune. The money will go toward TV ads, digital ads and mail in each district.

“We have a once in a generation opportunity to establish a Democratic majority ahead of redistricting and cement Texas’ status as the biggest battleground state in the country,” Forward Majority spokesperson Ben Wexler-Waite said in a statement.

Democrats are currently nine seats away from the House majority — and growing confident in their chances of capturing the chamber. They have a released a slew of internal polls in recent weeks showing close races in many of their targeted districts, with the Democratic nominees clearly ahead in some.

[…]

Forward Majority has already been a significant player in Texas House races. It made a late push in the 2018 election, injecting $2.2 million into 32 lower-tier contests as Democrats went on to flip 12 seats. Forward Majority was also among the groups that went all in on the January special election for House District 28, which ended in disappointment for Democrats when Republican Gary Gates won by 16 points.

But many state and national Democratic groups were undeterred and still see a ripe opportunity this fall in Texas, especially with poll after poll auguring a tight presidential race at the top of the ticket. The GOP is on alert: The Republican State Leadership Committee has called Texas a “top priority” and promised to spend “several million dollars” to keep the state House red.

That’s a lot of money. I was expecting national dollars to come to Texas for this, which is one reason why I wasn’t too worried about the relative cash position of some Dem candidates. Anyway, the 18 districts are pretty much the ones you’d expect – you can see a list in the story – and this money ought to go a long way.

A win for those with lousy signatures

Some good news on the voting litigation front.

As Texas prepares for an expected deluge of mail-in votes in November, a federal judge has found that one facet of the state’s signature verification rules for those ballots is unconstitutional and must be reworked for the upcoming election.

U.S. District Judge Orlando Garcia ruled Tuesday that the state’s process for determining whether there is a mismatch between a voter’s signature on their ballot envelope and the signature the voter used on their application to vote by mail “plainly violates certain voters’ constitutional rights.”

In his order, Garcia ordered the Texas secretary of state to inform local election officials within 10 days that it is unconstitutional to reject a ballot based on a “perceived signature mismatch” without first notifying the voter about the mismatch and giving the voter a “meaningful opportunity” to correct the issue.

Additionally, to “protect voters’ rights” in the upcoming election, Garcia said the Texas secretary of state must either advise local election officials that mail-in ballots may not be rejected using the existing signature comparison process, or notify them that they are required to set up a rejection notification system that would allow voters to challenge a rejection.

[…]

Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

But because the state election code does not establish any standards for review, the plaintiffs argued that the law is applied unequally, with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

To correct course ahead of the November general election, Garcia ordered the Texas secretary of state to either halt all rejections based on a “perceived signature mismatch” or implement an “immediate remedial plan” that requires local election officials to notify a voter within one day of determining a perceived mismatch and allow the voter to challenge the rejection.

Under that plan, voters must be mailed notices of rejection within one day of a mismatch determination by the local review board. Those who provided phone numbers on their applications must be called at least once within one day of the decision.

See here for the background, and observe how adorably optimistic I was that this shouldn’t be a partisan issue since both parties use voting by mail. What can I say, it was 2019, you had to be there. I don’t have much to say now that I didn’t say then – this ruling makes total sense, the “standard” that was used was arbitrary and needlessly harsh, and it really is in everyone’s interests to make an effort to count these ballots. I assume Ken Paxton will appeal this because that’s what he does, but until then let’s be happy we got what we got. The Chron has more.

Dallas ends its scooter experiment

Over in Dallas, never started in Houston.

Photo: Josie Norris /San Antonio Express-News

Tis better to have scootered and stopped than to have never scootered at all.

That is the consensus of a handful of Houston proponents of rental scooters as they watched Dallas this week order companies to pull the devices from local streets, citing crime and other issues with their use.

“We have received complaints about scooters and would like to make substantial changes to the scooter program,” said Dallas Transportation Director Mike Rogers, in a statement. “The changes will include public safety considerations so that the city may have safe modes of alternative transportation.”

Companies have flooded some cities with scooters people can rent by the minute with a smartphone app, part of a growing micro-mobility movement. Users can grab a scooter, motor to wherever they are going within a few blocks or miles and simply leave the scooter for the next person. Advocates say the scooters reduce car travel while making moving outdoors in inhospitable places — like scorching Texas — possible.

Critics call the scooters mobile clutter, complaining they crowd sidewalks and pose a safety hazard to pedestrians and riders.

That is the point Dallas hit earlier this week. City officials told Bird, Spin, Jump and any other companies still out there to cease operations on Wednesday and remove all the scooters by Friday, bringing an end to a popular but contentious debate about dockless devices and local transportation, for now.

It is a debate Houston mostly has avoided simply by doing nothing. Regulations in Houston make deploying the scooters murky at best — much as companies such as Uber and Lyft began operating in a cloud of uncertainty related to taxi rules. The consensus was Houston’s regulations would need to be changed before scooters hit the streets for rent.

Houston was an outlier in Texas in not having scooters. Dallas and Austin were both fertile markets for the devices, at least until COVID significantly upended the business and some of the companies collapsed or cut back. San Antonio finalized its agreement with the companies in January after 10 months of public discussion, allowing Razor and Bird to deploy up to 1,000 scooters each.

[…]

Houston officials said scooter regulations remain possible, but are not a high priority compared to such efforts as Vision Zero to eliminate roadway deaths. .

“The city’s focus right now is on implementing Vision Zero and adding bike lanes across the city,” said Maria Irshad, deputy director of the city’s Administration and Regulatory Affairs Department. “At this time, a program is not under consideration but we are studying it and trying to figure out how it could safely work.”

Officials also are working through a number of transportation-related rule changes, including specific prohibitions and greater enforcement of illegal parking in bike lanes.

Meanwhile, use of Houston’s B-Cycle system is booming during the pandemic as bike-sharing officials ready for more expansion, including 100 new e-bikes that bring their own challenges related to trail safety.

Until I saw this headline earlier in the week, I’d completely forgotten that just over a year ago it looked like scooters, or at least some proposed scooter regulations, were about to debut in Houston. Crazy how things can change, huh? Scooters may have failed in Dallas, but they remain a success in San Antonio, as long as they keep off the sidewalk. We can only speculate at this point what their fate might have been in Houston if Lime and Bird and the rest had simply taken the Uber/Lyft approach and invaded the city first, letting the regulatory issues sort themselves out later.

Honestly, I think the main reason why scooters have taken a back seat in Houston is that the city’s attention has been much more on bikes and expanding bicycle infrastructure. B-Cycle has been successful and continues to expand, while Dallas tried and failed to go with dockless bike sharing. The city of Houston, along with Harris County and the Bayou Greenway Initiative, has been busy building out its bike infrastructure, which by the way is off limits to scooters as they are not people-powered. Also, too, we do have electric bikes in the pipeline, and they pretty much serve the same transportational niche as scooters.

So maybe this is a lot of fuss about nothing much. Or maybe the problem was that the scooter business model doesn’t necessarily work everywhere, and perhaps Dallas and eventually Houston would be served better by a non-profit scooter rental system like B-Cycle. I mean, if it really is about solving a people-moving problem that enables mobility without cars, then it shouldn’t matter what the entity behind the scooters is. I’ve said all along, I’m happy that other cities have taken the lead in working out all the kinks in this process before it comes to Houston, so my thanks to the people of Big D for their service. The Dallas Observer has more.

PPP/Giffords: Trump 48, Biden 47

From Evan Smith:

I could not find a news story, press release, or even a tweet from anyone else, so this is all you get, this plus the poll data. A few tidbits of interest:

– As this poll was done by the Giffords: Courage To Fight Gun Violence group, there are multiple questions about universal background checks and who does or does not support them. The poll shows strong support for universal background checks in Texas, 77% to 13% in favor, with 64% more likely to vote for a candidate who supports universal background checks versus 8% more likely to vote for a candidate who opposes them.

– Going down into the crosstabs, Biden won 2016 Clinton voters 94-3, while Trump carried his 2016 supporters 91-7. That’s actually one of the better results for Trump of this kind. Biden won the “other/did not vote” cohort 47-27. Similarly, MJ Hegar did pretty well here, going 78-7 with Clinton voters, while Cornyn was at 80-8 among Trump voters. Hegar has usually lagged in same-party support, which is why I note this. She was at 43-26 among the “other/did not vote” crowd.

– That said, it’s 88-5 for Biden among Democrats and 89-9 for Trump among Republicans; Biden actually has a bit of room to grow here, with 6% “not sure”. Indies split 46-46 for President. In the Senate race, it’s a more-typical 74-7 among Dems for Hegar (19% “not sure”) and 83-7 among Republicans for Cornyn (11% “not sure”); Hegar does win indies 44-38.

– An interesting split between the approval and vote-for numbers with men and women. Women give Trump a 44-54 approval rating, but only give Biden a 50-45 lead in their vote. Men approve of Trump 50-47, buy vote for him at a 52-43 clip. And for the first time that I’ve ever seen, this poll has a “Gender non-binary” category, with Biden leading 59-29 among them; this mirrors their approval rating for Trump exactly. I have no idea what the sub-sample size is for that cohort, but it’s cool to see.

– And because we always have to talk about this, Latino voters have a ridiculous 16-81 approval rating for Trump, and they support Biden over him by 71-23. For Black voters, it’s 10-89 on approval and 80-10 for Biden; for white voters it’s 69-29 on approval and 29-69 for Biden; for “other” it’s 16-66 on approval and 62-16 voting for Biden. That’s better Latino numbers for Biden than we’ve generally seen, and better white numbers for Trump. Make of that what you will.

– PPP has conducted multiple polls of Texas so far, in each case doing them on behalf of a group. There was at least one poll from them that I missed, as FiveThirtyEight has a result from August 24, also on behalf of a group (can’t tell from the page who) that had Biden up 48-47. PPP polls have generally been decent for Biden in Texas.

– The Giffords group did that earlier poll about Latino engagement in Texas, which did not include any horse-race numbers.

That’s all I got. Until the next poll…