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Texas Civil Rights Project

The current status on local police reform efforts

Well, the budget amendment process didn’t do much.

CM Letitia Plummer

City Council on Wednesday unanimously approved Mayor Sylvester Turner’s $5.1 billion budget for the next fiscal year, slightly increasing funds for the Houston Police Department even as some cities are under pressure to cut law enforcement spending amid nationwide protest over police violence and the death of George Floyd.

As the council took up budget, chants of “Black lives matter” and “No justice, no peace” could be heard from protesters outside City Hall. Dozens of police reform advocates had asked city council the day before to divert funding from HPD’s massive budget to other services, such as health care and affordable housing.

Instead, the $965 million approved for HPD represents a 2 percent, or $19 million, increase over the current year. The overall city budget is up 1 percent.

The police department takes up more than a third of the tax- and fee-supported general fund, which pays for most of the city’s day-to-day operations. Much of the HPD increase is due to a 3 percent raise for officers under a 2018 labor contract that expires in December.

Turner, who later Wednesday signed an executive order on police reform, offered a passionate defense of the HPD budget, arguing that Houston has a shortage of police officers compared to other large cities. He often has pointed out that Houston, with a population of 2.3 million people and an area of more than 650 square miles, has 5,300 officers; Chicago, with a population of 2.7 million and 275 square miles, has about 12,000.

[…]

At-Large Council member Letitia Plummer proposed an amendment that would cut 199 vacant positions in the police department and redirect that money toward a slew of reforms, including giving the Independent Police Oversight Board subpoena power and boosting funds for mental health units and re-entry programs. Plummer’s amendments failed without the support of any other council member.

At one point, Plummer held up a heavily redacted HPD use-of-force policy, which she said the department gave her office when it requested a copy.

“We started the conversation on police reform. Not one of my amendments passed but I know that I stand on the right side of history,” said Plummer, who addressed the protesters outside after the vote. “That is the most important takeaway. I answer to the people who elected me. I will be holding the (mayor’s) task force accountable.”

The mayor did support an amendment from Councilmember Ed Pollard that would set up a public website where residents could browse complaints about police misconduct. The mayor said the site could work alongside the executive order he signed later Wednesday, and Pollard’s amendment was referred to the legal department for implementation.

I’ll get to the executive order in a minute. I know folks are upset by the failure of CM Plummer’s amendment. It is disappointing, but it’s not surprising. Stuff just doesn’t happen that fast in Houston. There’s almost always a need to build a broad base of support for significant changes, and that takes time. The good news is that CM Plummer’s proposals, especially redirecting certain kinds of 911 calls away from police and towards social workers, has a lot of merit and should garner a lot of support as more people learn about them. Making this a goal for the next budget is very doable, I think.

Now, as for that executive order:

The executive order embraces some measures laid out in the #8cantwait campaign, including: requiring officers to de-escalate, give a verbal warning and exhaust all other options before using deadly force; mandating that they intercede when they witness misconduct; forbidding choke-holds and firing at moving vehicles; and reporting all use of force to the Independent Police Oversight Board.

It also prohibits serving no-knock warrants unless the chief or his designee approves them in writing. A botched raid on Harding Street last year left two people dead, several officers wounded and two narcotics officers charged with crimes. It also has prompted the Harris County district attorney’s office to review and seek the dismissal of scores of drug cases involving one of the indicted officers, Gerald Goines.

“This is not the end,” Turner said, adding that thousands of residents protesting the May 25 death of Houston native George Floyd while in police custody in Minneapolis made his executive order possible. “In the absence of people that stood up, marched, protested, this would not be happening.”

Several of the requirements — the duty-to-interfere requirement, bans on choke-holds, and prohibiting firing at moving weapons — were already HPD policies, and some experts have cast doubt on whether the #8cantwait reforms have resulted in measurable progress in the cities that have adopted them.

Houston Police Chief Art Acevedo said the reforms were meaningful in that they now are codified at City Hall. A new chief cannot come in later and undo the policies without going through the mayor’s office, he said.

“I think it is a huge, watershed moment,” he said.

See here for the background. A group called the #Right2Justice coalition put out this statement afterward:

“Mayor Turner promised bold reform on policing in Houston. Instead, his executive order on use of force is largely a restatement of existing policy. It makes little meaningful progress at a moment when tens of thousands of people have taken to the streets demanding change. Several of the requirements — the duty-to-interfere requirement, a partial ban on choke-holds, and prohibiting firing at moving vehicles — were either restatements of police best practices or already Houston Police Department policy or practice. Last year, the Houston Police Department forcibly entered a home to search it without warning. Two residents were killed, and four officers were shot. The executive order does nothing to prevent this kind of no-knock raid from happening again.

“The Houston Police Department has killed six people in the last two months. This moment demands meaningful change: new policies to require automatic release of body cam footage of police misconduct and eliminate no-knock warrants, and significant investments in diversion like those Harris County made yesterday. This executive order is not the meaningful reform we need.”

This coalition includes ACLU of Texas, Anti-Defamation League, Houston Immigration Legal Services Collaborative, Immigrant Resource Legal Center (IRLC), Texas Appleseed, Texas Civil Rights Project, Texas Organizing Project, and United We Dream. I checked several websites and Twitter feeds and could not find this statement on any of them. The ACLU of Texas Twitter did retweet Chron reporter Jasper Scherer, who tweeted an image of the statement. I feel like there is room for improvement here.

Anyway. I agree with Chief Acevedo that this means the next HPD Chief can’t just come in and throw this stuff out, and that’s good. But the next Mayor could throw it out, so we need to keep that in mind. A big question here is what happens when someone violates this order in some fashion. What are the consequences, and how will they be enforced? That needs to be addressed.

Also, too, that task force. I saw somewhere, but now can’t remember where, that Mayor Turner expects them to give a report in three months. That’s good, we need to have a deadline and a promise of a report, but that’s still just a starting point. There needs to be a plan to enact whatever this task force recommends as well.

Did you notice that bit in the budget story about the police union contract, which expires in December? That’s another opportunity to make positive changes, as Ashton Woods opines:

Under Article 30 of the contract, when a complaint is filed against an officer, the accused officer receives all copies and files associated with the complaint against them. They then have 48 hours to review the complaint against them, talk to a lawyer, and get their story together. All of this happens before they are required to give a statement to their supervisor. This “48-hour rule” insulates them from questioning and gives cops a privilege that no civilian gets.

Article 26 grants a committee of officers the power to appoint the 12 “independent hearing examiners” who get the final say in officer discipline for misconduct. But these examiners are not actually independent, as half of them are appointed by the police chief and the other half by the union. In other words, when an officer has been disciplined for misconduct and appeals that discipline, these cop-appointed examiners get to make the final call. Because the union gets to pick 50 percent of the examiners, they effectively have veto power. This gives the police union, the most outspoken opponent of police reform, a startling amount of control over officer discipline.

You may have noticed that there’s a huge piece of the puzzle missing: community oversight. While Houston technically has an Independent Police Oversight Board, this board has no subpoena power and no direct discipline authority, making it one of the weakest and least effective community oversight boards in the nation. According to the City of Houston website, the board can’t even take complaints directly from civilians. All complaints are reviewed by HPD.

As noted before, District B candidate Tarsha Jackson has recommended these and other changes as well. As much as anything, the key here is paying attention and making clear what we want to happen.

Finally, there was action taken by Commissioners Court.

Harris County’s sheriff and eight constables voiced support Wednesday for some of the policing and criminal justice reform measures approved by Commissioners Court hours after George Floyd, a longtime Houstonian killed by Minneapolis police was laid to rest.

In a session that stretched past midnight, Commissioners Court on Tuesday approved 10 reform-minded items inspired by the nationwide protests following Floyd’s May 25 video-recorded death, including a pledge to examine how to create a civilian oversight board with subpoena power, adopt a countywide use-of-force policy for officers and establish a database of use-of-force incidents.

Precinct 4 Constable Mark Herman said all eight constables met for several hours Wednesday morning to discuss the proposals. The group was unanimous in favor of adopting a universal use-of-force policy and sharing documents, including video, to help the county create a public log of violent police encounters.

“We’re in agreement to work with Judge Hidalgo’s group and be transparent and show any use of force we have,” Herman said.

Precinct 3’s Sherman Eagleton, one of two African-American constables, said the group did not come to a conclusion about welcoming more civilian oversight. He said Floyd’s killing had already spurred the constables to review their policies, though the group needs more time to evaluate the Commissioners Court proposals.

“That civilian review board might be a good thing once we find out more about it,” he said.

[…]

During the discussion Tuesday evening on creating a database of use-of-force incidents, First Assistant County Attorney Robert Soard warned court members they were perilously close to exceeding their authority by setting policy for other elected officials.

County Judge Lina Hidalgo agreed to amend the item to make clear that participation by agencies would be voluntary. She said video footage, however, often is crucial in exposing misconduct by police, as was the case in Floyd’s killing.

“How many times has this kind of thing happened and it just so happens that no one was taking a video, and so we didn’t know?” she said.

Precinct 1 Commissioner Rodney Ellis said he was open to testing the limits of the court’s power even if that meant an issue needed to be resolved in state court. He said Commissioners Court’s passage of the items also could force the elected law enforcement officials to confront those issues.

“We do have the right to put the public pressure on, you got me?” Ellis said.

See here for the background. This is a good step forward, and it clearly does require the cooperation of the constables. As with the Houston items, we need to keep track of the progress made, and revisit these items in a year or so to ensure they have had the desired effect, with an eye towards doing more as needed.

Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

Attorney General Ken Paxton informed county judges and election officials Friday that if they advise voters who normally aren’t eligible to apply for mail-in ballots due to a fear of contracting COVID-19, they could be subject to criminal sanctions.

His warning came in a letter to local officials Friday and two weeks after a state district judge had issued a temporary injunction allowing eligible voters who are fearful of contracting COVID-19 by voting in-person to cast their ballots by mail.

In order to qualify to vote by mail under state law, Texans must submit an application and be either 65 years or older, disabled, out of the county on election day and during early voting, or be eligible to vote but confined in jail.

During a hearing last month, the Texas Democratic Party argued that Texans following stay-at-home orders and exercising social distancing fall under the Texas Elections Code’s definition of a disability, which is “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”

In Friday’s letter, Paxton said that while a person ill with COVID-19 would qualify under the state’s definition of “a sickness,” a fear of contracting the virus is simply “a normal emotional reaction to the current pandemic and does not, by itself, amount to a ‘sickness’” that would meet the eligibility requirements to vote-by-mail.

Therefore, officials and “third parties” should not advise voters to apply for mail-in ballots for those “who lack a qualifying sickness or physical condition to vote by mail in response to COVID-19,” the letter reads.

Chad Dunn, the general counsel for the Texas Democratic Party, which is one of the plaintiffs in the lawsuit, said in a statement Friday that the court has already overruled Paxton’s arguments.

“Paxton can keep on stating his opinion over and over again for as long as he wants but the bottom line is he needs to get a court to agree with him,” Dunn said. “We all have opinions. In our constitutional system, what courts say is what matters.”

In his letter, Paxton also said the lawsuit “does not change or suspend these requirements” due to his appeal of the judge’s ruling.

“Accordingly, pursuant to Texas law, the District Court’s order is stayed and has no effect during the appeal,” Paxton wrote. “Moreover, even if the order were effective, it would not apply to any county clerk or election official outside of Travis County. Those officials must continue to follow Texas law, as described in this letter, concerning eligibility for voting by mail ballot.”

Dunn disagreed with that assertion, and Thomas Buser-Clancy, a senior staff attorney with the ACLU of Texas, which had also joined the lawsuit, said Paxton’s letter misinterprets the law.

“Ken Paxton’s letter — which is not binding — gets the law wrong and serves no other purpose than to attempt to intimidate voters and county officials. The simple fact is that no Texan should have to choose between their health and exercising their fundamental right to vote,” Buser-Clancy said in a statement.

See here for the background. You can see a copy of Paxton’s letter here, and a copy of the ACLU and Texas Civil Rights Project’s responses here. The Austin Chronicle adds more:

The letter, also distributed as a press release, presumably has been sent to officials in all 254 Texas counties. Asked to respond to the Attorney General’s explicit threats of “criminal sanctions” in the letter and his interpretation of state election law, Travis County Clerk Dana DeBeauvoir said, “This is [Paxton’s] opinion and he’s stated it a couple of times previously. We are waiting to hear from the courts.”

State District Court Judge Tim Sulak recently granted a temporary injunction, ruling that the risk of infection by the coronavirus that causes COVID-19 is sufficient to enable all Texas voters to apply for mail ballots for the July 14 elections (Congressional run-offs and a Senate District 14 election in Travis County, other contests elsewhere). Paxton appealed that decision to the Third Court of Appeals, and has adopted the position that while the appeal is pending, “the District Court’s order is stayed and has no effect.”

However, some election officials have said they are planning for a surge in voting by mail. Earlier this week, DeBeauvoir told the Chronicle that Travis County normally receives about two VBM applications a day for an interim election like the July run-off. “Right now they’re running at about 200 a day,” she said.

[…]

An earlier, “advisory” Paxton letter to state Rep. Stephanie Klick – issued prior to the District Court’s official ruling – made the same general argument about the disability provisions of state election law. The latest letter is addressed to County Judges as well as election officials. Travis County Judge Sarah Eckhardt told the Chronicle that Paxton’s invocation of possible “criminal sanctions” is a “threat designed to suppress voter turnout.”

Eckhardt added that Paxton’s argument that the temporary injunction is “stayed” during the Third Court appeal is simply “one lawyer’s opinion, and the higher court may have a different opinion.”

As for the reiteration of Paxton’s earlier advisory letter, DeBeauvoir said, “He wants to make certain his threat is being heard.”

I mean, I know I’m not a lawyer and all, but usually you have to ask for a court order to be stayed pending appeal. If any of that has been done, then all I can say is that it has not been reported in a form that was visible to me. If there hasn’t been a subsequent order to stay Judge Sulak’s ruling pending appeal, either from Judge Sulak himself or from the appellate court, in this case the Third Court of Appeals. For what it’s worth, the official order from Judge Sulak says at the end:

“It is further ORDERED that for this Temporary Injunction Order to be effective under the law, cash bond in the amount of $0 shall be required of the Plaintiffs and filed with the District Clerk of Travis County, Texas. The Clerk of Court shall forthwith issue a write of Temporary Injunction in conformity with the law and terms of this Order. Once effective, this Order shall remain in full force and effect until final Judgment in the trial on this matter.”

Seems pretty clear to me. As for the matter of the claim that even if there’s no stay on the order it only applies to Travis County, there’s nothing in the text of the order that looks to me (again, Not A Lawyer) like it supports that interpretation. The judge does refer to the Intervenor Plaintiffs and the fact that they represent voters “throughout the state of Texas”. I suppose this could be clarified, but the interpretation that it’s a statewide ruling seems just as reasonable to me. I know Ken Paxton is full of bluster, but this seems to me to dance close to the line of blatantly disregarding the judge’s order. Is he gonna send in the Texas Rangers to arrest Diane Trautman? Maybe the plaintiffs need to ask the judge to please remind Ken Paxton where the lines are here.

UPDATE: The Chron now has a story about this, which mostly draws from the Paxton letter and ACLU/TCRP responses.

TDP gets initial win in vote by mail lawsuit

It’s a good start, but we’ve got a long way to go.

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

[…]

During the hearing, those plaintiffs offered up two expert witnesses — a local doctor and an epidemiologist — who testified to the risks for transmitting the virus that would come with in-person voting. Meanwhile, the risks tied to mail ballots are “negligible,” said Catherine Troisi, an epidemiologist with the University of Texas Health Science Center at Houston School of Public Health.

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice” that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.

See here and here for the background; there is also a federal lawsuit over the same issues, for which I don’t know the status. The Chron adds some more detail.

State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton wrote in a letter on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, which voting rights advocates had claimed as a victory.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this when public health makes it dangerous to vote in person.”

But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess,” said Glen Maxey, the Texas Democratic Party’s primary director, who administers elections in dozens of counties, as he testified about the guidance during a court hearing on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

But Anna Mackin, an assistant attorney general, argued that the law clearly does not cover those afraid of COVID-19 and urged state District Judge Tim Sulak “not to allow this global crisis to be manipulated as a basis for rewriting a provision of the election code.”

Yes, Paxton’s “letter” does indeed seem to fly in the face of that SOS advisory. Is that a lack of communication between branches, or a real difference of opinion? Hard to say. Bear in mind, there’s nothing in state law that allows the Governor to order the cessation of abortions in the state. AG Ken Paxton interpreted the Abbott emergency order that initiated a shutdown of non-essential businesses and services to include abortion providers, which the exigent circumstances allowed. Here, however, he’s arguing that these same exigent circumstances do not allow for an interpretation of the state’s absentee ballot law that includes voting by mail for people who claim under that law that they are unable to vote in person. It’s not that these interpretations are indefensible, but the two of them together sure suggest a strictly partisan motive. (Add in the ruling that gun shops do count as “essential” for some extra zest.)

In a vacuum, I think people of good faith could reasonably differ on the interpretation of our vaguely-worded state law, and one could make a principled argument that it’s the role of the Legislature to make such a significant change in how it should be read and enforced. But Ken Paxton is not making a good faith argument, he’s simply doing what he always does, advancing his partisan interests over anything else. He certainly may win, in both venues. Let’s just be clear about what he’s doing. The TDP (a plaintiff in the case), the ACLU of Texas (an intervenor), and the Texas Signal have more.

UPDATE: More from Texas Lawyer:

The dispute—which asks whether all Texans should be able to vote by mail because of social distancing restrictions and the risk of contracting the coronavirus—was headed to a higher court. Acknowledging that, Judge Tim Sulak of the 353rd District Court ruled from the bench that he would grant a temporary injunction, and reject jurisdictional arguments by the state of Texas.
The judge will issue a written order once it’s prepared.

Sulak said that if voters didn’t get clarity on whether the Texas vote-by-mail law applied to them, they might face a choice of having to vote in person, and accept the risk of getting sick. Or they could try to apply for a mail-in ballot. However, if the government later found their mail-in ballot inappropriate, voters could face prosecution, or find that their ballot was not counted, the judge said.

Also, if Sulak didn’t grant relief, he said there was a risk of future conflicts involving candidates filing election contests to challenge the voting results.

“Some of that could lead to the unstable, unsettled, uncertain situation about: Who are our elected representatives,” Sulak said. “Especially now that we are in this disaster scenario, where we don’t have courts running as efficiently as they have previously, it could result in some very serious governance issues, very serious jurisprudential issues.”

[…]

The plaintiffs sought a temporary injunction, and eventually a permanent injunction, that would require the defendants to accept and tabulate mail-in ballots from voters who are practicing social distancing to stop the spread of the virus.

On the other hand, the state of Texas, which intervened as a defendant, argued that the court didn’t have jurisdiction. The state claimed that a voter wouldn’t qualify to vote by mail just from having a fear of contracting the coronavirus. Also, the claim wasn’t ripe, since no one knows if the contagion will still be present in July, when the primary runoff elections are scheduled.

However, during a hearing Wednesday on the application for a temporary restraining order, an infectious-disease epidemiologist who testified for the plaintiffs said that it’s highly likely that the coronavirus will continue to spread in Texas through the summer.

“Once social distancing guidelines are relaxed, in my expert opinion, it’s inevitable we will see a rise in cases,” said Cathy Troisi, a professor at the University of Texas School of Public Health in Houston.

Voters going to the polls will be at risk of infection because they’ll come into close contact with other people, and they’ll touch voting machines that many voters have touched, Troisi explained. Election workers would be at a higher risk, because they stay at polling locations all day and have contact with many more people, she added.

When asked if voting by mail carries a risk of infection, Troisi replied, ”Voting by mail does not, so yes, voting by mail would protect the public health and public safety of Texans.”

Sulak rejected the state’s jurisdictional arguments, which also included claims that the plaintiffs’ interpretation of the vote-by-mail law was significantly expanding the statute the Texas Legislature wrote.

“I respect the separation of powers. We’ve got a choice here between arguments from that perspective and arguments from something that has seminal, fundamental, individual constitutional rights: that is, free people making full choices and having full access to have choices about their government,” Sulak said.

The judge asked plaintiffs’ counsel to draft an temporary restraining order, and to submit a proposed order denying the state’s plea to the jurisdiction.

And now we wait for the appeal, and for a hearing in the federal case.

Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

Abbott’s stay-in-jail order blocked and then unblocked

This was Friday.

A state district judge in Travis County has temporarily blocked enforcement of Gov. Greg Abbott’s order to limit jail releases during the new coronavirus pandemic. She cited unconstitutional provisions and overreach of executive power in the gubernatorial order.

State District Judge Lora Livingston issued her ruling Friday night after a lawsuit this week challenged the governor’s order that prohibited judges from releasing some inmates without paying bail. Abbott’s order was prompted by some local officials moving to reduce the number of people locked up in disease-prone county jails. He said “releasing dangerous criminals in the streets is not the solution.”

Abbott’s order banned the release of jail inmates accused or previously convicted of a violent crime on no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas argued in their lawsuit filed Wednesday that Abbott’s order violates the constitutional separation of powers and keeps only poor defendants in jails. The plaintiffs, represented in part by the ACLU of Texas and the Texas Fair Defense Project, asked the court to declare Abbott’s order unconstitutional and an overreach of his power.

[…]

In a virtual hearing Friday, Livingston repeatedly questioned how the governor’s order affected public safety and whether he could make a widespread decision to take away judges’ authority to individually assess defendants.

“I’m just trying to understand how this order without regard to any particular specific information about a case can blanketly decide that a personal bond is not necessary or appropriate or required in a particular situation,” she said. “I’m troubled by the sort of blanket nature of that order in the same way that apparently the governor was concerned about a blanket order from judges that hasn’t yet happened but could theoretically be entered.”

[…]

“What confusion is solved by the governor taking action in this way when in my mind, and apparently in the mind of the Harris County district judges, there’s no confusion at all?” she asked Biggs. “I think the judges do what they do and that Harris County order seemed to bear that out: This is what judges do everyday and we will handle it, thank you very much.”

She later added that the county judge can’t tell local judges how to make decisions. “That’s not how separation of powers works; that’s not how reality works.”

See here for the previous update. Judge Livingston more or less addressed the question I had raised, which is that given how the judges in Harris County had already said they were going to operate, what was Abbott’s order even doing? This ruling was to in effect until April 24, at which time there will be another hearing. But then the Supreme Court stepped in:

The Texas Supreme Court has revived Gov. Greg Abbott’s order restricting the release of some jail inmates during the coronavirus pandemic.

On Saturday, the high court stayed a state district judge’s ruling from Friday night that blocked Abbott’s order. The district judge cited unconstitutional provisions and an overreach of executive power in her temporary order against Abbott. The Supreme Court’s order is also temporary, with responses due to the court Monday evening.

The legal battle stems from an Abbott order issued last month during the state disaster. The governor’s order prohibits judges from releasing jail inmates accused or previously convicted of a violent crime without paying bail — banning no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes and with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

A copy of Judge Livingston’s ruling is here. I would refer you to the Grits for Breakfast analysis of why the plaintiffs should win on the merits, which now we have to hope that the Supreme Court is able to recognize as well. The Chron has more.

Another lawsuit filed over Abbott’s stay-in-jail order

There’s no slowdown in the litigation business, that’s for sure.

Gov. Greg Abbott’s order restricting the release of some jail inmates during the new coronavirus pandemic is facing a second court challenge arguing his order violates the constitutional separation of powers and discriminates against poor criminal defendants.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas sued Abbott and Texas Attorney General Ken Paxton Wednesday in Travis County district court. The plaintiffs are represented in part by the ACLU of Texas and the Texas Fair Defense Project.

Last month, Abbott issued an executive order that suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes without paying bail. The order largely banned judges across the state from releasing such defendants on no-cost, personal bonds, which can include conditions like drug testing and regular check-ins. The attorney general’s office has said no-cost release could be considered for individuals based on health or safety reasons after a chance for a hearing is given, which some attorneys said takes weeks.

But, under Abbott’s order, people accused of the same crimes with the same criminal history could still quickly be released from jail if they had access to cash. The lawsuit argues Abbott’s order ignores constitutionally-mandated separation of powers by taking away judges’ discretion. It also states the system put in place under the order creates an unconstitutional wealth-based system, similar to those that federal courts have slammed in Texas counties.

“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” said Amanda Woog, executive director of the Texas Fair Defense Project, in a statement announcing the lawsuit. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”

See here, here, and here for the background. A copy of the lawsuit is here and the full statement from the ACLU is here. I get that this lawsuit is over the authority Abbott has to suspend various criminal laws, but it’s a little unclear to me what the actual stakes are. The misdemeanor court judges, who are plaintiffs in this suit, have already said they will continue to abide by the bail lawsuit agreement, while the felony court judges are doing their own thing. I guess we’ll find out when we start having hearings. If you’re a lawyer and want to help clarify this for me, please do. Grits has more.

Intervening in the mail ballot expansion lawsuit

From the inbox:

The ACLU of Texas, American Civil Liberties Union, and Texas Civil Rights Project on Wednesday joined a case seeking to declare that under Texas law all registered voters qualify to request a mail-in ballot as a result of the COVID-19 public health crisis.

The lawsuit states that in order to prevent wide-scale disenfranchisement during this public health crisis, the court should declare that the Texas Election Code’s definition of “disability” in the vote-by-mail provision – one of the basis of eligibility to vote-by-mail in Texas – currently encompasses all registered voters. The suit further states that the court should order that all mail-in ballots received by eligible voters under this category due to the pandemic be accepted and tabulated.

Because of the current COVID-19 public health crisis and the need to be confined at home, all individuals cannot physically appear at a polling place on Election Day without a risk to their health. Texas has 3,997 confirmed cases as of today. The latest guidance from the Trump administration advises against gatherings of more than 10 people, and many Texas counties have ordered restaurants and bars closed.

“Public safety must be prioritized during the coronavirus pandemic,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “If we don’t address how COVID-19 will affect our access to the ballot, people will find themselves balancing their civic duty to vote and their need to stay healthy. Clarifying that all Texans may vote-by-mail during this crisis under current state law is unquestionably the most effective and immediate way to ensure we protect both public safety and voting rights. Our state leaders must act fast so we can educate the public about how they can safely exercise their right to vote.”

The civil rights organizations are asking for the court’s declaration that the vote-by-mail provision applies to all Texans in light of the pandemic to allow for public education and planning to process an increase of mail ballots.

“Texans should not be asked to choose between their physical well-being and their fundamental right to vote, when we already have an election code that can accommodate a public health emergency,” said Joaquin Gonzalez, lead attorney on the case in the Voting Rights Program at Texas Civil Rights Project. “The secretary of state has been shockingly silent when our clients have been seeking her leadership and guidance the most. I know we’re in isolation, but you can send an email.”

“States all across the country are making vote by mail available because they know it is a common-sense solution to protect democracy and people’s well-being during this public health crisis,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project, citing states such as West Virginia, Indiana, Delaware, and Virginia, among others. “In failing to issue guidance making clear that all Texans are eligible to vote by mail due to the COVID-19 outbreak, Texas is forcing a false choice between protecting public health and allowing Texans to exercise their right to vote. Vote-by-mail for all eligible voters allows for both. Texas can and should make this common-sense solution explicit.”

The plaintiffs in this filing include the League of Women Voters of Texas, MOVE Texas, League of Women Voters of Austin Area, Workers Defense Action Fund, and University of Texas student Zach Price.

A copy of the motion to intervene is available here.

See here for the background. Again, the arguments are straightforward and have been discussed before. It’s mostly a question of how the state will oppose them, and what the courts do from there. As the Chron editorial board notes, the Secretary of State could simply agree to the plaintiffs’ demands and be done with it, but I think we both know that Abbott and Paxton won’t let that happen. We’re going to need a ruling soon for this to matter for the primary runoffs. The Texas Signal has more.

UPDATE: And as soon as I finished drafting this, I got the following in my mailbox:

On Wednesday, Texas Secretary of State Ruth Hughs’s office responded to Progress Texas’ petition calling on Texas to implement universal vote-by-mail. So far, the petition has received roughly 3,000 signatures from voters across the state.

In the response, the Secretary of State’s office hinted at the possibility that Texans who are concerned for their health may meet the disability requirements currently in place to apply for a ballot by mail. However, the vague response is open to interpretation and requires clarity in the form of an official proclamation or agreed court order from Secretary of State Ruth Hughs or Governor Greg Abbott.

“Right now, no voter we know of has immunity to COVID-19, and physical polling places could risk exposure and cause injury by way of sickness,” said Ed Espinoza, executive director of Progress Texas. “We have to make our upcoming elections as safe as possible. We believe that election law provides a remedy for all voters to vote-by-mail, but we need clarity from the state. Texas already allows no-excuse vote-by-mail for voters aged 65 and up, and we need our statewide lawmakers to step up and expand the benefit to everyone.”

“Being terrified of catching a virus that’s killing hundreds of thousands of people should obviously qualify as a legitimate reason for Texans to want to vote by mail, but we need an advisory from Secretary Hughes to make that official,” said Anthony Gutierrez, executive director at Common Cause Texas. “This email communication seems to indicate the Secretary of State agrees with our position, but this needs to be explicitly stated.”

Secretary of State Ruth Hughs office’s response states:

“One of the grounds for voting by mail is disability. The Election Code defines ‘disability’ to include ‘a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.’ (Sec. 82.002). If a voter believes they meet this definition, they can submit an application for ballot by mail.

“As the situation changes, we will be updating our guidance. We hope this information has been helpful.”

Progress Texas and Common Cause Texas call on Secretary Hughs and Gov. Abbott to act in the interest of Texans’ health, safety, and voting rights to officially expand vote-by-mail universally through an official proclamation or agreed court order as soon as possible.

We all agree on what the law says. What matters is what it means. If, as we have previously discussed, the state agrees that anyone can claim the disability allowance, then great! We’re done here. If not – and clearly, I think they won’t, though I’ll be happy to be proven wrong – that’s where we need the court to step in and issue a ruling. The clock is ticking.

Still trying to do something about the coronavirus risk in the jail

Time is extremely limited for this.

A federal judge Friday asked lawyers to hammer out a plan for releasing about 1,000 indigent inmates detained on bonds of $10,000 or less amid fear of a COVID-19 outbreak at the third largest jail in the country. The judge indicated she would take up the fate of another 3,400 people in the Harris County Jail awaiting trial on higher bonds next week.

The instructions by Chief U.S. District Judge Lee H. Rosenthal came in response to an emergency request Friday by the team of lawyers who challenged the county’s bail policies. They argued that thousands of poor defendants trapped in the jail simply because they couldn’t afford bail should be granted immediate bail hearings or be released.

The pleading laid a grave situation at the hands of a judge who has made many tough decisions in the criminal justice realm.

“A public health catastrophe of historic proportion looms in the Harris County Jail. Only this Court can avert it,” the motion says. “With every passing hour, the risk of disaster increases. All eyes turn to this Court in this dire moment.”

The bail lawsuit motion for a temporary restraining order and preliminary injunction seeks release of about half the jail’s population of nearly 8,000 if they cannot be afforded immediate bail hearings. This would mean thousands of people charged with nonviolent offenses would be allowed to await trial on bond outside the facility, as they would otherwise be able to do if they could post cash bond.

Other local officials, including the sheriff, state district judges and top county official have been tackling the potential public health threat from different angles over the past two weeks, seeking compassionate releases of medically vulnerable inmates, bonds for those accused of nonviolent offenses, or some cross-section of the two groups.

But early Friday lawyers from Civil Rights Corps, the Texas Civil Rights Project and pro bono counsel from Susman Godfrey, stepped in with a constitutional approach to the jail problem that could allow much more drastic cuts in the population than the compassionate release plans outlined by the sheriff and the county judge.

Rosenthal asked the lawyers for indigent defendants and attorneys for the sheriff and the county to assemble by Monday a list of thousands of people who might qualify for release based on their bond amounts, charges, criminal histories and risk factors. In addition, the judge indicated she would move swiftly on a subset of the indigent defendants who can’t pay their bond. She asked for confirmation that 1,000 or so people being held on bonds of up to $10,000 were not subject to other holds or detainers.

The sheriff and county officials told the judge that they had no objection to this first group being released if they fit the judge’s criteria. According to a lawyer for the plaintiffs, the only agency that opposed the release of those facing $10,000 bonds was the Texas Attorney General’s Office.

Sheriff Gonzalez had been working on this for the past week, trying to get individual judges to allow some inmates to be released, but the process was slow. County Judge Lina Hidalgo had been working on an executive order that would have released a larger number of inmates, but she shelved it after objections from the Attorney General’s office; you can read that story for the details. And I know, we’re all going to be murdered in our sleep by a rampaging horde of pot smokers and check kiters, but let’s do pause for a moment and consider what the alternative might be:

In another effort to address the issue, Harris Health System leaders on Friday sent a letter asking for the release of defendants with nonviolent offenses.

The county medical system’s president and CEO stressed that an outbreak in the Harris County Jail is not a matter of if, but when.

“The Harris County Jail and other large correctional facilities pose a real and immediate danger to the health of the community,” Esmaeil Porsa said. “An even limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system. If this happened — and the likelihood is high — it could leave many vulnerable people in our community without access to care.”

Porsa urged the county to consider prioritizing inmates over 60 with pre-existing conditions such as cancer, diabetes, asthma and chronic pulmonary disease, heart disease and HIV. Jails are known to have higher concentrations of people in the high-risk group, he said.

He added that social distancing is nearly impossible, with dorm settings holding between 20 and 60 people in a close space. And quarantine is also unfeasible when inmates are booked in and out of the jail on a daily basis.

We could just let them all die, I suppose. I’m sure Dan Patrick would approve. I would rather not do that.

UPDATE: And now Greg Abbott is involved, and I’m confused.

As the first Harris County inmate tested positive for COVID-19 Sunday, Gov. Greg Abbott issued an executive order blocking any release of inmates from jails and prisons accused or convicted of violent crime.

“Releasing dangerous criminals from jails into the streets is not the right solution and doing so is now prohibited by law by this declaration,” Abbott said at an afternoon briefing.

The news comes as federal, state and local government officials continued to squabble over details of what a jail release would look like as they attempted to prevent a catastrophic outbreak among the approximately 8,000 people incarcerated at the downtown facility.

The governor was referencing Attorney General Ken Paxton’s motion to prevent Harris County from releasing 4,000 people awaiting trial on felonies, saying such a move would “allow dangerous criminals to roam freely and commit more crimes during the ongoing COVID-19 pandemic.”

“Protecting Texans is one of my highest priorities. It is vital that we maintain the integrity of our criminal justice system and continue to enforce state law during this pandemic,” Paxton said. “My office will not stand for any action that threatens the health and safety of law-abiding citizens.”

Hours earlier a federal judge convened an emergency hearing to address plans that plaintiffs in a federal civil rights case had hammered out over the weekend with lawyers for the sheriff and the county judge to release inmates accused of some nonviolent offense.

An official from Paxton’s office appeared telephonically at that hearing and said the AG planned to appeal an order by the federal judge to the 5th U.S. Circuit if it called for any blanket releases.

The judge set a hearing for Tuesday to address a possible appeal.

There wasn’t anything in the previous story about people accused or convicted of violent crimes, hence my confusion. I assume there are still plenty of people in the Harris County jail for misdemeanor charges, so it’s not at all clear to me what the extent of the dispute is. Maybe later versions of the story will make that more clear.

UPDATE: There’s now a more detailed version of the Chron story and also a Trib story, but this post is too long already. I’ll be back with more tomorrow.

Abbott delays primary runoffs

So this was originally going to be a post about what various groups have been advocating for the primary runoffs. And then Greg Abbott went and pushed the runoffs back to July without addressing any of the other concerns that had been raised. So here’s my post about that, and then because I spent a lot of time writing the other post, I’ve included that beneath the fold, so you can see what would have been.

Texas is postponing its May 26 primary runoff elections to mid-July to help prevent community spread of COVID-19, Gov. Greg Abbott announced on Friday.

State officials had been trying to decide whether to convert that election to an all-mail-ballot, but Abbott on Friday said the state will instead move the election.

“Holding the runoff in May would cause the congregation of large gatherings of people in confined spaces and cause numerous election workers to come into close proximity with others,” a statement from Abbott’s office said. “This would threaten the health and safety of many Texans.”

The election will be moved to July 14 with early voting starting on July 6.

[…]

Some lawmakers had been pushing Abbott to convert the May runoff election into an all-mail election. Because the turnout out is typically low, they said Texas could easily get ballots to people who want to vote in the runoffs.

I mean, this could be adequate. Lord knows, we all hope that we’re finished with social distancing and coronavirus is more or less under control by then. If it’s not, though, then what’s Plan B? I can understand why Abbott might have wanted to take the easy way out, but he doesn’t really have control over that. Hope for the best, I guess. Anyway, read on for what this post was going to be. The Trib has more.

(more…)

Abbott addresses vote by mail possibilities

He’s thinking about it.

Gov. Greg Abbott acknowledged on Tuesday that he has the authority to postpone May 26 runoff elections or conduct them exclusively via mail-in ballots in response to the coronavirus.

“Everything’s on the table,” Abbott told reporters when asked about expanding vote-by-mail.

On Monday, Hearst Newspapers reported that state officials have been kicking around the idea. Currently, Texas allows limited use of vote-by-mail.

State Sen. Paul Bettencourt, R-Houston, said because of how low the turnout is, he thinks Texas could easily do an all-mail election to keep people from having to stand in line to vote.

Abbott, however, is not certain he can order the May 2 municipal elections around the state to make similar changes because those are local elections.

“It may only be the municipalities have the power to make that decision, and so there’s that legal issue that we are making a determination on,” Abbott said. “That said, if I don’t have the legal authority, we may provide suggested guidelines.”

See here and here for the background. The local elections on May 2 are a different breed, and Abbott may be right that it’s not in his authority to order a change in their procedures. Seems like a good question to ask the Attorney General, and hopefully get a quick answer out of him, since time is of the essence. Giving them some guidance on how to proceed would also be a good answer.

Also of interest:

The Texas Civil Rights Project has sent a letter to the Texas Secretary of State arguing that everyone in Texas already qualifies to vote by mail because they have the risk of being sick.

“Texans should not be asked to choose between their physical well-being and their fundamental right to vote,” said Beth Stevens, legal director of the nonprofit group’s Voting Rights Program. “The Secretary of State should act quickly within her authority to issue guidance to counties, so they can prepare for the logistics of more mail-in-ballot applications. There’s a lot of uncertainty, but luckily, the Texas Legislature gave us this process in the election code and we can rely on it now.”

We talked about how more people could be voting by mail now if they asked for it. There are concerns, but they can be addressed, especially for a low-turnout May election like the primary runoffs. But again, if we’re going to do this we need to get a concrete proposal on the table as soon as possible so any objections or concerns can be aired and dealt with. There’s definitely some momentum here and that’s good to see, but we need to get this going.

All mail ballots for the primary runoffs are being discussed

This is a pleasant surprise.

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

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

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

[…]

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

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

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

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

One other issue to contend with:

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

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

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

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

We need to talk about those lines

I wish we could talk about something else, but we have to do this.

Hervis Rogers, the hero we don’t deserve

Dozens of Democratic voters were still waiting to cast ballots at midnight in Houston, turning Super Tuesday into a painful slog for some citizens amid questions about how the County Clerk’s office had allocated its voting machines across the county.

Janet Gonzalez left work early and at 5:30 p.m. checked a website the clerk’s office runs to show wait times at polling places. It seemed Texas Southern University had a short wait, but when she arrived she found a massive line. She waited an hour outside and three more inside before she finally cast her ballot.

Officials with the clerk’s office acknowledged the accuracy of the wait-times website is reliant on election workers manually updating the status of their polling places.

Some people in line gave up and walked away, Gonzalez said. Others briefly sought refuge on a scattering of chairs before giving them up to others as the line inched forward.

[…]

Democratic County Clerk Diane Trautman and her staff said each of the county’s 401 polling places started with between 16 and 48 machines, depending on anticipated turnout, but at each location the machines were divided equally between the Democrat and Republican primaries, regardless of whether the location heavily favored one party or the other.

“If we had given one five and one 10, and that other one had a line, they would say, ‘You slighted us,’” Trautman said late Tuesday. “So we wanted to be fair and equal and start at the same amount. Through the day, we have been sending out additional machines to the Democratic judges to the extent that we ran out.”

During Election Day the clerk’s office dispatched 68 extra voting machines to Democratic polls, including 14 to TSU, in response to election judges’ requests. Trautman added that some of the machines assigned to TSU to start the day had to be replaced after malfunctioning.

Trautman said a joint primary — which would have allowed both parties’ ballots to be loaded on each voting machine, rather than separating the equipment by party — would have reduced the lines, but the GOP rejected the idea.

[…]

County Democratic Party chair Lillie Schechter said her staff did not grasp until Tuesday that when Trautman spoke of allocating the machines “equitably” she meant dividing them equally at each polling site, rather than giving each party the same number of machines but concentrating most of them in areas known to be strongholds of each party.

“We’re thrilled that turnout has been so high today and that’s been super exciting, but I think the story with the voting machines goes a step farther back than just how the voting machines are allocated,” she said. “The machines are part of the problem but not the whole problem.”

In order to preserve citizens’ ability to vote at any polling place on Election Day – a new policy under Trautman, and one GOP officials have opposed – Schechter said the parties needed to agree on shared polling locations. That gave Republicans more power in the negotiation, she said, and resulted in more than 60 percent of Tuesday’s polling sites being located in Republican-held county commissioner precincts, with less than 40 percent in commissioner precincts held by Democrats.

It’s kind of amazing that more people didn’t just give up and walk away after hours of waiting on line. You think you’re committed to American ideals and democracy, tell that to Hervis Rogers and the other people who waited as long as they did to exercise their right to vote. Every last one of them deserves our thanks, and a hell of a lot better from the experience next time.

This story expands a bit on that last paragraph above.

The clerk’s office dispatched additional machines to some poll sites, located in heavily black and Hispanic neighborhoods including Third Ward, Acres Homes and Gulfgate. They provided only partial relief.

At Texas Southern University, where just 48 Republicans voted early, the final Democratic voter cast his ballot after 1 a.m. after waiting in line for more than six hours.

Democratic election workers at a Sunnyside voting center reported functioning machines were broken in a successful ruse to get the clerk’s office to send more, a spokeswoman for Trautman said.

The sheer expanse of Harris County’s 1,777 square miles and most-in-Texas 2.3 million registered voters long has posed problems for county clerks in primary and general elections. When Democratic precincts in past elections had extremely long lines, some in the party blamed the Republican county clerk.

Problems persisted in Tuesday’s primary, however, even though Democrats have controlled every countywide post since last year.

Yes, and many people noticed, though a lot of blame still accrued to Republicans thanks to their long and dedicated record of vote suppression. But we don’t have Stan Stanart to kick around any more, and the spotlight is on us to fix this, not just for next time but on a more permanent basis.

I mean, I can accept that the Harris County GOP’s refusal to go along with a joint primary and the certainty that they’d pitch a fit if Dems got more voting machines than they did even though it was a virtual certainty that Dems would be the larger part of the Tuesday electorate was a problem. But we elected Diane Trautman to solve problems like that, and on Tuesday she didn’t. The onus is squarely on her to be completely transparent about what happened and why it happened, and to come up with a plan to ensure it never happens again. That doesn’t mean just brainstorming with her staff. That means concrete action involving all of the stakeholders – people from the community, election law experts, Commissioner Ellis and Garcia’s offices, County Attorney Vince Ryan and 2020 nominee Christian Menefee, grassroots organizations like TOP and the Texas Civil Rights Project and whoever else, and the HCDP since they have as big a stake in this as anyone. Convene a commission, get everyone’s input on what they saw and what they experienced and what they know and what they need, and come up with a plan for action.

Among other things, that means having much better communications, both before the election so people have a better idea of what polling places are open and what ones aren’t – yes, this is on the website, but clearly more than that needs to be done – and on Election Day, when rapid response may be needed to deal with unexpected problems. Why weren’t there more voting machines available on Tuesday, and why wasn’t there a way to get them to the places with the longest lines in a timely manner? Let the Republicans whine about that while it’s happening, at that point no one would care. Stuff happens, and anyone can guess wrong about what Election Day turnout might look like. But once that has happened, don’t just sit there, DO SOMETHING about it. It really shouldn’t have to take election clerks pretending that machines had malfunctioned to get some relief.

Also, as useful as the voting centers concept is, we need to recognize that for folks with mobility issues, having places they can walk to really makes a difference. Add Metro and transit advocacy folks like LINK Houston to that list of commission attendees, because the mobility of the people in a given neighborhood needs to be weighed into decisions about which Election Day sites are open and which are consolidated in the same way that relative turnout is. If a significant segment of a given population simply can’t drive to another neighborhood to vote, then all the voting centers in the world don’t matter.

I get that in November we’ll have all locations open, and there won’t be any squabble over who gets which voting machines. That will help. But in November, no matter how heavy early voting will be, we’re going to get a lot more people going to the polls on Election Day than the 260K or so that turned out this Tuesday. Voter registration is up, turnout is up, and we need to be much better prepared for it. Diane Trautman, please please please treat this like the emergency that it is. And Rodney Ellis, Adrian Garcia, and Lina Hidalgo, if that means throwing some money at the problem, then by God do that. We didn’t elect you all to have the same old problems with voting that we had before. The world is watching, and we’ve already made a lousy first impression. If that doesn’t hurt your pride and make you burn to fix it, I don’t know what would.

(My thanks to nonsequiteuse and Melissa Noriega for some of the ideas in this post. I only borrow from the best.)

UPDATE: Naturally, after I finished drafting this piece, out comes this deeper dive from the Trib. Let me just highlight a bit of it:

Months before, the Democratic and Republican county parties had been unable to agree to hold a joint primary, which would have allowed voters to share machines preloaded with ballots for both parties.

The Harris County Democratic Party had agreed to the setup, but the Harris County GOP refused, citing in part the long lines Republican voters would have to wait through amid increased turnout for the pitched Democratic presidential primary.

“We wanted them to do a joint primary where you would just have one line and voters could use all the machines, but they couldn’t agree on that,” said Harris County Clerk Diane Trautman, who was elected to her post in 2018.

Without a resolution, Trautman chose to allocate an equal number of machines for both primaries at each polling site “because we didn’t want to slight anyone,” particularly as Harris moved to countywide voting to free voters from precinct-specific voting. But the move essentially halved the number of voting machines available to Democratic voters on a busy election day. That meant Republican voting quickly wrapped up across the county while Democratic lines made for extra hours of voting at multiple polling places.

In a Wednesday press conference, Paul Simpson, the chair of the Harris County GOP, reiterated that the party was adamantly opposed to joint primaries and sought to preempt any blame for long Democratic lines. To Simpson, Trautman misfired by pursuing a 50/50 split of voting machines across the board instead of using past turnout data to adjust allocations, and he pointed to the party’s recommendation to give Republicans only four machines at Texas Southern University.

“The county clerk refused and failed to follow our suggestion to avoid the lines that we predicted last summer were going to happen,” Simpson said.

(Previous voting patterns weren’t available for Texas Southern University, which was only added as polling place under Trautman.)

But Lillie Schechter, the chairwoman of the Harris County Democratic Party, said the excessive wait times Democrats faced Tuesday were part of a broader electoral divide in a county that has turned reliably blue in recent years. That change in power has come with voting initiatives that local Republicans have not warmed up to, including a move to countywide voting that allows voters to cast ballots at any polling place in the county on election day.

To keep countywide voting for the primary election, the political parties needed to agree on the distribution of shared polling places. But the map the GOP pushed for on Super Tuesday established more voting centers in the two county commissioner precincts represented by Republicans, Schechter said.

“If you look at the story to say let’s blame the county clerk’s office, you’re missing the big picture here,” Schechter said.

In the aftermath of the wait time debacle, Trautman acknowledged that Democratic voting on Super Tuesday was bogged down by both technical and training issues. The county’s voting machines — the oldest in use among the state’s biggest counties — went down at different points in the night. Election workers weren’t always able to make the adjustments to bring them back into order. Both machines and election workers were “stretched to the max” during the late-night voting slog, she said.

At midnight — seven hours after polls closed — voting was again interrupted at the two polling places that were still running, including the Texas Southern University site, when the tablets used to check in voters automatically timed out and had to be rebooted.

Later on Wednesday, Trautman signaled she was assessing what the county needed to fix moving forward — a better method for rerouting voters to nearby voting sites with shorter lines, a wait time reporting system that’s not dependent on busy election workers, pushing for more early voting and, perhaps most notably, purchasing additional equipment for the November election.

“We will work to improve to make things better,” Trautman said.

It’s the right attitude and I’m glad to see it. The Clerk’s office is also in the process of scoping out new voting machines, which can’t come soon enough but which will introduce new challenges, in terms of adapting to the new technology and educating voters on how to use it. All this is a good start, and now I want to see a whole lot of follow-through.

The next round in the Motor Voter 2.0 lawsuit

Score one for the plaintiffs.

Still the only voter ID anyone should need

Finding Texas in violation of federal law, a U.S. judge gave civil rights lawyers a small win Thursday — fueling hopes of a wider victory in a continuing fight over the state’s online voter registration practices.

U.S. District Judge Orlando Garcia said the 1993 National Voter Registration Act requires that Texans be able to register to vote at the same time they go online to renew or update a driver’s license.

Visitors to the Department of Public Safety website, however, must click through to another website, download a form, print it out, fill it in and mail it to their county registrar — extra steps that violate the federal law’s “motor voter” provision designed to encourage voter participation, Garcia said in a written order.

“Congress lifted these burdens to make voter registration easier, not more confusing and difficult,” he wrote.

Noting that Monday is the deadline to register to vote in the March 3 primaries, Garcia limited the scope of his order. He required state officials to update the voter registrations of three Texans who sued over the motor voter law, using the information already provided to DPS when they renewed their driver’s licenses.

Longer-term solutions remain under consideration and will be ruled on in the future, the judge said.

See here for the background. An earlier storylaid out the arguments.

Pressing for speedy action with a key voting deadline only days away, civil rights lawyers returned to federal court Tuesday to argue that Texas continues to violate a U.S. law designed to make voter registration easier.

Under the “motor voter” provision of the 1993 National Voter Registration Act, Texans who renew their driver’s license online must be allowed to simultaneously register to vote or update their registration with a new address, Beth Stevens with the Texas Civil Rights Project argued.

For years, however, Texas has required potential voters to take extra steps in violation of the law, Stevens said, urging U.S. District Judge Orlando Garcia to take action against the state.

“It will refuse to comply with federal law until it is forced to do so, Texas voters be damned,” Stevens said during a 2½-hour hearing in Garcia’s San Antonio courtroom.

Under the state system, Stevens estimated, more than 735 Texans lost the right to vote in 2018.

[…]

The Texas Civil Rights Project recently filed a new lawsuit with three voters who had moved, renewed their driver’s license online but are still registered to vote at their old address. Two nonprofits, MOVE Texas and the League of Women Voters of Texas, also joined the newest lawsuit, arguing that they have standing because they are forced to spend time and money signing up voters who should have been able to update their registrations on the DPS website.

Stevens said the new lawsuit still seeks to require simultaneous voter registration, but she asked Garcia to issue an order no later than Friday to require state officials to let the three plaintiffs register to vote using the information already provided to DPS to renew their driver’s licenses.

Monday is the last day to register to vote in the March 3 Texas primaries, she noted.

The state argues that nothing is stopping these three people from registering by other means. That’s true, but also not the point. The point is that the law says that they are supposed to be registered this way. In the initial lawsuit, the Fifth Circuit said the plaintiffs didn’t have standing because by the time the lawsuit was filed they had been registered and thus there was no injury claim to remediate. If that’s the case, then the state is arguing that the plaintiffs should invalidate their own case. As we now see, that didn’t work. I would expect the court to rule in the plaintiffs’ favor on the larger question at some future date, and from there we’ll see if the Fifth Circuit admits that they fixed the problem with the first lawsuit or finds some other pretext to throw out this one. In the meantime, kudos to all for a job well done. A press release from the Texas Civil Rights Project is here, and from the TDP is here.

“Motor voter” lawsuit 2.0

Try, try again, this time hopefully addressing the cause of the Fifth Court of Appeals’ rejection of the first lawsuit.

Still the only voter ID anyone should need

The first time former English professor Jarrod Stringer was told he couldn’t vote in a Texas election, he sued. A federal appeals court tossed his case on a technicality, but one of the judges ended up admonishing state officials to not let it happen again.

Yet it did, and now Stringer and other frustrated Texans are taking the state back to federal court.

In a federal lawsuit filed Tuesday in San Antonio, they are arguing anew that the state continues to disenfranchise an unknown number of voters by violating the motor voter law, a federal requirement that people be allowed to complete voter registration when they get a driver’s license. Stringer is the lead plaintiff in the second legal chapter of a fight over Texas’ resistance to online voter registration.

The state allows driver’s licenses applicants to complete their voter registration when they physically appear at a Texas Department of Public Safety office, but does not allow the same result when residents update or renew licenses online. At least 1.5 million Texans use the state’s online driver’s license portal a year, according to Stringer’s lawyers, though it’s unclear how many also attempt to re-register.

Stringer first encountered the prohibition after moving back to his hometown of San Antonio in 2014. He updated his driver’s license and mistakenly thought he had re-registered to vote at the same time. But after standing in line at an early voting polling place set up on the University of Texas at San Antonio campus, he discovered he was not on the voter roll.

“Having the option to vote was something that I have taken seriously,” Stringer said in an interview. “Voting is just a fundamental act of expression of citizenship.”

[…]

In their new lawsuit, Stringer, two other voters, along with two nonprofits that work to register Texans to vote, have revived the arguments from the first lawsuit, pressing virtually the same legal claims that prompted Garcia’s initial favorable ruling.

This time, to avoid the legal pitfall over standing to sue, Stringer and the other voters in the case are filing their legal challenge while remaining off the voter rolls in the counties where they now live, and Stringer has noted that he has plans to move in 2020 — a point at which he will again run into the limitations of the online DPS system.

But while they’re working to address the issues found by the 5th Circuit last year, the Texas Civil Rights Project doesn’t plan to ask the plaintiffs to sit out the upcoming election. With the three individual voters in the case expected to reregister before the Feb. 3 deadline for the March primaries, the lawsuit could ultimately serve as a test case of what sacrifices a voter must make at the ballot box to challenge a system that they see as impeding their access to it.

In the interest of not quoting the whole story I cut out a bunch in the middle that recapped the first lawsuit and why it was dismissed – you can read this post for my own link-filled “previously on…” segment. This story reminded me that the Fifth Circuit wasn’t necessarily hostile to the first lawsuit, perhaps just overly pedantic. If that’s the case, and this isn’t a “Lucy and Charlie Brown and the football” situation, then maybe we can get a different result. There’s every reason to believe that the district court will rule in favor of the plaintiffs again. The question is what happens after that. With any luck, we’ll find out soon.

Fifth Circuit overturns “motor voter” lawsuit verdict

Bummer. Totally expected and completely on brand for the Fifth Circuit, but a bummer nonetheless.

Still the only voter ID anyone should need

A federal appeals court has overturned a previous ruling that could have opened the door to online voter registration in Texas.

In a Wednesday court order, the 5th U.S. Circuit Court of Appeals reversed a federal district judge’s ruling that Texas was violating federal law by failing to register residents to vote when they updated their driver’s licenses online. The panel of three federal judges that considered the case did not clear the state of wrongdoing but instead determined that the three Texas voters who had brought the lawsuit did not have standing to sue.

The case revolved around a portion of federal law, often called the motor voter law, that was designed to ease the voter registration process by requiring states to give residents the opportunity to register to vote at the same time they apply for or renew their driver’s licenses.

The legal dispute came after three Texas voters who moved from one county to another were unable to reregister to vote when they updated their driver’s licenses through the state’s online portal. Although the state follows the law for individuals who renew their driver’s licenses in person, Texas does not allow for online voter registration.

[…]

Two of the voters who sued the state believed they had registered and didn’t discover they were not on the voter rolls until they tried to vote in 2014. They were allowed to cast provisional ballots, but their votes were not counted. The third voter also believed he was registered to vote and only discovered he wasn’t when he sought help from county officials to determine his polling location for a 2015 election.

But the 5th Circuit sided with the state’s argument that the voters could not take the issue on in court because they had since successfully registered to vote and were no longer harmed by the state’s practice.

The federal appeals court found that [District Court Judge Orlando] Garcia erred when he reasoned that court-ordered compliance with federal law was needed to “prevent repetition of the same injury” to the three voters and others because the state’s challengers had not sufficiently proved the online system would continue to be a problem for them in the future.

I have a lot of links for this. The lawsuit in question was filed in 2016, and the initial ruling came two years later. Judge Garcia ordered the state to come up with a fix, which could have led to a partial implementation of online voter registration to comply. (Note how the main opposition to this, in mid-2018, came from the Harris County Clerk’s office. Elections matter, y’all.) The state said “nah, we’re good, no fixes needed or offered”, appealed the ruling, asked for an emergency stay of the order, which they received, thus putting everything on ice. And now here we are.

The fact that this was overturned on grounds of standing rather than on the merits suggests that maybe another go at this might be successful, if the right plaintiffs can be found. Which is still kind of ridiculous, since the claim wasn’t that people couldn’t get registered at all but that the state wasn’t following federal law and thus made it more of a pain to register and more likely that people would honestly think they had had their registration updated when they hadn’t. One of the plaintiffs was denied the opportunity to vote in the 2014 election, which sure seems to me to be a legitimate harm for a court to address. I’m not sure what a “correct” plaintiff looks like in this context. Be that as it may, it took over three years to get from the original filing to this ruling, and with no guarantee that a second try would work, or would succeed at SCOTUS even if it got past the Fifth Circuit, this is once again something that’s just gonna have to be solved by winning elections and passing laws, and in this case maybe also installing a DPS director that cares about complying with federal law. I wish it didn’t have to be this hard to secure basic rights and services from our state government, but it is, and we’re the only ones who are going to be able to do something about it. The Texas Signal has more.

Voting centers everywhere

In Dallas:

Starting in November, problems like Mr. Voter’s, at least in Dallas County, will be a thing of the past. Tuesday afternoon, the Texas Secretary of State’s Office officially gave the county permission to participate in the countywide voting program the state allows its most populous counties to opt into. That means that whenever you vote, whether it’s early or on Election Day, you can vote at whatever polling place you choose, as long as you’re both registered to vote in Dallas County and physically in Dallas County.

County commissioners voted to ask the state to get in on the program this spring, after county staff said participation would streamline the voting process, potentially increase voter turnout and decrease the number of voters who cast provisional ballots.

“It is time to come into the 21st century and have an election system that actually works,” Commissioner Elba Garcia said in March. “The main point about vote centers is that we have people, over 3,000 people, that wanted to vote during the last election and they were not able to do it. Voting centers bring that to the table. It’s time to make sure that anyone who wants to vote is able to go and vote in the right place without any problems.”

[…]

In order to participate in countywide voting this November, Dallas County had to upgrade its voter check-in system, something you may have noticed if you’re one of the literally hundreds of people who voted in May or June’s municipal elections. Those looking to cast ballots now check in on a cloud-connected tablet that has service from two carriers, in case one is on the fritz.

November’s state constitutional amendment election is essentially a dry run. If everything comes off without a hitch, and Dallas County sends a successful report to the state, the county will be able to offer countywide polling places during all elections moving forward.

In San Antonio:

The Secretary of State approved Bexar County’s adoption of the vote center model Friday for the upcoming November election, Bexar County Elections Administrator Jacque Callanen told county commissioners Tuesday.

The November election will serve as the “soft rollout” for the vote center model, Callanen said. Vote centers allow voters to cast ballots at any location in Bexar County on Election Day. The county previously used the precinct model, under which voters were required to cast ballots at their specific precincts on election day.

“When we do publication [of voting locations], we’ll have Vote Center 1, VC 2, VC 3, and addresses listed,” Callanen said. “No longer are we precinct-driven.”

Callanen said she expected people to get used to the new model after a complete election cycle. The Elections Department plans to start its advertising push after Oct. 1 to allow people enough time to hear about and understand the new voting model.

“I think that will take a little assistance to get the word out,” she said.

This year’s Nov. 5 Election Day will feature 10 constitutional amendments on the ballot, and turnout is expected to be low. However, county election officials view the election as an important dress rehearsal for the November 2020 presidential election.

Both will join Harris County, which had its dry run in May and will get a fuller test this November, with the city of Houston elections and the Metro referendum. It’s a good thing that voting centers are spreading, because traditional polling places have been going away in the state in recent years.

A new report out from the Leadership Conference Education Fund found that Texas is leading the nation in polling place closures, another practice that voting rights advocates fear can lead to disenfranchisement.

The report, titled “Democracy Diverted: Polling Place Closures and the Right to Vote,” looked at 757 of the 861 counties and county-level equivalents across the nation that were previously covered by Section 5, and found that 750 polling places in Texas have been shuttered since Shelby. That constitutes almost half of all polling places in the U.S. closed since 2013. Fourteen Texas counties closed at least 50 percent of their polling places after Shelby, and 590 have been shuttered since the 2014 midterm election.

Maricopa County in Arizona had the most polling place closures, but that was followed by six counties in Texas: Dallas lost 74 places; Travis lost 67; Harris shuttered 52; Brazoria closed 37; and Nueces closed 37.

“The large number of polling location closures is attributable to the size of Texas and the fact that we’re no longer under preclearance,” said Beth Stevens, director of the Voting Rights Program at the Texas Civil Rights Project. Now, “there’s no one [the state needs] to ask for permission to make changes.”

[…]

This comes into focus when looking at the demographics of some of the counties that saw the most closures. Brazoria County, which lost 59 percent of its polling locations since Shelby, is 30 percent Latino and 13 percent African American. The number of polling places in Nueces County, home to Corpus Christi and 63 percent Latinx, dropped by nearly a third. In Jefferson County, where Beaumont is located, about 34 percent of its 250,000 residents are African American and 20 percent are Latino; polling places there dropped from 57 in 2012 to 39 in 2018.

The report attributes some of these closures to jurisdictions adopting the county-wide polling program and opening voting mega-centers. By allowing people to cast a ballot on Election Day at any location, instead of bounding them to their precinct, the program is supposed to make voting easier (more locations to choose from, shorter lines).

The Texas Civil Rights Project is supportive of the program, said Stevens—so long as it’s enacted responsibly. She pointed to counties like Harris and Bexar as good examples: they’ve moved to county-wide polling while maintaining every single polling location that they would otherwise be required to have.

But, the report notes, some counties with large drops in polling locations—like Somervell (minus 80 percent), Loving (minus 75 percent), and Stonewall (minus 75 percent)—didn’t transition to vote centers. The report adds, “voters in counties that still hold precinct-style elections have 250 fewer voting locations than they did in 2012.”

The report is here and I’ve just glanced at some of it, so I can’t give you too much extra context. Some of what’s reported in the Observer is a bit alarmist, however. Loving County had 110 total registered voters in 2016, and its demographics are almost entirely Anglo. I’d bet that its “75% reduction” is going from four sites to one. Stonewall County had 998 RVs total in 2016. Every voter counts, but not every county’s actions are equal in scope. The statistics for Brazoria, Jefferson, and Nueces counties sounds more ominous, but all of them use voting centers as well. Travis County, of course, is one of the pioneers of voting centers; one of the people in charge of implementing the Harris County program came from the Travis County Clerk’s office having done the same thing there. What all this means is we need more information about how well or not these are working and what the effect are on voters of color. Which, as is noted in the report summary, is a hard thing to assess without Section 5 of the Voting Rights Act. This is definitely something to watch, I just can’t say right now what the level of concern needs to be. The Chron, whose story gets more into the details about voting centers, has more.

Lawsuit filed over mail ballot practices

We haven’t had a good voting rights lawsuit in a few months.

In a federal lawsuit filed Wednesday in San Antonio, [two] voters — George Richardson of Brazos County and Rosalie Weisfeld of McAllen — alleged that the state law that allows “untrained local election officials to arbitrarily and subjectively” reject mail-in ballots based on mismatching signatures violates the Fourteenth Amendment, the Americans with Disabilities Act and the Rehabilitation Act of 1973.

Joined by groups that represent Texans with disabilities, veterans and young voters, they are asking a federal judge to either block election officials from rejecting mail-in ballots over signature doubts or require Texas to notify voters about an alleged mismatch in time for them to “cure” their ballot.

“Even though Texas’ mail in-ballot process should make voting easier for voters from these underrepresented groups, the current flawed process leads to the unlawful disenfranchisement of these Texas voters,” the lawsuit says.

Like other states, Texas offers voting by mail to various kinds of voters — people with disabilities, Texans who are 65 and older, voters who will be outside of the county during an election, such as college students, and those in jail during an election.

Before they are counted, a committee of local election officials reviews mail-in ballots 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 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.

The lawsuit claims at least 1,873 mail-in ballots were rejected on the basis of mismatched signatures during the 2018 general election; at least 1,567 were rejected in 2016.

See here for the TCRP press release, which contains a link to the lawsuit and a video explaining things. Ideally, this should lead to a settlement. Both parties make use of mail ballots, so it’s not a partisan issue the way voter ID is. And objectively, the standard being applied, such as it is, is ridiculously arbitrary. I can tell you that my signature has changed over the years, from something that was readable as my full name to a basically meaningless scrawl. I noticed it as it was happening, but it happened anyway. I doubt I could replicate one of my older signatures even if I tried. It’s still my hand scrawling it, and it makes no sense that some bureaucrat could decide that it didn’t represent me. I don’t think Ken Paxton’s office knows how to settle lawsuits like this, though, so I expect it to be fought out in the courts. I’ll be keeping an eye on it.

The main concern about voting centers

This Trib story, which is about the implementation of voting centers in multiple counties across Texas for the 2020 election, delves into one of the main concern about them: Voting centers can change from one election to the next, which could mean the closure of a location that has been in use for a long time.

Diane Trautman

The switch from precinct-based voting locations to countywide vote centers is often followed by closures and consolidations of polling places both for logistical and cost-saving reasons. Because the criteria for those changes is typically based, in part, on traffic at each voting site, community leaders and voting rights advocates are wary that could translate to more polling location closures in areas with predominantly Hispanic, black and lower-income residents, who participate in elections at lower rates than white and more affluent Texans.

“Our concern is to make sure that we increase the likelihood of people voting,” James Douglas, head of the NAACP branch in Houston, warned the Harris County Commissioner’s Court earlier this year. “This ought not be about money.”

[…]

Although provisional ballots are used to record a person’s vote when there are questions about eligibility or if a person is at the wrong precinct location, the ballots fall short of fully illustrating the scope of precinct-based voting problems because there’s no way of tracking voters who showed up at the wrong voting site and then went home without voting provisionally. But data collected by the Texas Civil Rights Project showed that the number of rejected provisional ballots cast by voters who showed up at the wrong location crept up from 2,810 in 2016 to roughly 4,230 last year in the state’s four largest counties — Harris, Dallas, Bexar and Tarrant, which are all working to transition to the vote center model.

More than half of those recorded rejections came out of Harris County, where Diane Trautman, a Democrat who was elected county clerk in 2018, moved quickly to implement vote centers and received approval to use a May municipal election as a trial run.

Trautman — like county officials in Dallas and Tarrant — has vowed to leave all existing polling locations in place through 2020. Opening up its 700 polling locations to all voters will make Harris one of the nation’s largest counties running vote centers.

Still, community leaders were troubled by a portion of the county’s written plan to make countywide voting permanent. That plan lists “voter turnout” first under the criteria to be considered for possible future polling place consolidations.

“This is going to be a question and a test for all the larger counties that are going forward” with vote centers, Trautman said in an interview with The Texas Tribune.

In weighing polling place closures, counties adopting vote centers typically consider factors like turnout and Wi-Fi connectivity. Vote centers depend on e-pollbooks, which electronically record whether a voter has already cast a ballot, and must be networked with other polling sites.

In Dallas County, election officials are reviewing whether to consolidate dozens of voting sites that are serving voters from multiple precincts and what to do with polling locations that are in close proximity. Community members there warned against closures primarily based on voter turnout even if other voting sites appeared to be nearby.

“Being half a mile is not across the street. Having to cross the freeway is not across the street. We do not support the closures,” said Kimberly Olsen, political field director for the Texas Organizing Project, which advocates for communities of color and low-income Texans.

Trautman noted any changes in Harris County would be run by a community advisory committee with an eye toward preserving polling locations that traditionally serve voters of color, residents who speak different languages and people with disabilities, but it’s unlikely the county would move too far from the current number of polling locations. And she said she would not trade tradition, especially in areas where voters have cast their ballots at the same polling place for 100 years, for county cost-savings.

“We have no intention of disturbing that,” Trautman said. “I don’t care if two people voted in that location.”

As I’ve noted before, traditional polling places are often consolidated for lower-turnout elections. In Harris County, for anything other than a November-in-an-even-year race, you were always well advised to check and see what locations were open before you headed out on Election Day. In this sense, that’s nothing new. County election administrators do need to be careful, and solicit plenty of public feedback, when deciding on what locations should be used in any election. I think this is far less likely to be an issue in an election like 2020, but it will be an ongoing concern, with odd-year local elections being a particular spot for problems. Elections administrators will need to be transparent, Commissioners Courts will need to exert oversight, and the rest of us will need to pay attention. If we all do that much, we ought to be all right.

The SOS voter purge may be over, but Ken Paxton is unaccounted for

Keep an eye on this.

Best mugshot ever

After the judge approved the settlement, the original list of voters was scrapped. Under the agreement, Texas officials now will only flag names of people who have said they’re not citizens after they have registered to vote.

[Joaquin Gonzalez, a voting rights attorney with the Texas Civil Rights Project,] said the settlement requires that he and the other plaintiffs be able to oversee how the state carries out this more limited voter investigation.

“We get numbers of people that have been matched, so that we can tell if there is something that appears to be going wrong in the process,” he said.

[…]

But there’s one issue that wasn’t dealt with: Attorney General Ken Paxton’s plans.

When the original voter removal effort was announced, Paxton – the state’s top prosecutor – said he would “spare no effort in assisting” with those cases.

Because of that, plaintiffs named him in their lawsuits. A federal judge removed him, however, because he doesn’t have the power to actually cancel voter registrations.

Perales said it’s unclear what Paxton will do following the settlement.

“Ken Paxton has said contradictory things about this voter purge that came out of the Texas Secretary of State’s office,” she said.

For example, when lawmakers raised questions about the state’s effort earlier this year, Paxton said he didn’t have the time or resources to go through the list and investigate people.

“At the same time, Ken Paxton’s office has claimed that they are still investigating – or doing some kind of investigation – of registered voters who may be non-U.S. citizens,” Perales said.

Paxton’s Office also has been shielding documents related to the voter-removal effort from public view.

In a letter to media organizations and others, the open records division of his office has said, “the information at issue relates to an open criminal investigation conducted by the [Office of the Attorney General’s] Election Fraud Section of the Criminal Prosecutions Division. Further, the OAG states release of the information at issue would interfere with the pending investigation.”

See here for the background. I was wondering about this myself when the settlement terms were announced. It goes without saying that Ken Paxton cannot be trusted. If he has the opportunity to press forward with any of these cases, on whatever grounds, he will. I strongly suspect that all of the attorneys for the plaintiffs will need to keep their evidence files close at hand, ready to whip out for a new motion when and if Paxton strikes. Do not let him try to make wine from the fruit of the poisoned tree.

On a side note, this story also addresses the question of why the state settled instead of appealing, as they usually do:

Gonzalez said he thinks state officials did that partly because the legal challenge was looming over Whitley’s confirmation as secretary of state. He had only recently been appointed when he announced the voter list. Gonzalez said state officials backed off when Senate Democrats vowed to block his confirmation.

“Their opposition to the nomination, we believe, is [part of what] provided the leverage for the state to be willing to settle this in the first case, because the state doesn’t settle voting rights cases like this,” he said.

Maybe. Doesn’t seem to have helped, but I can see the logic. I still feel like there was more to it than this, but I can believe this was a factor.

Settlement officially reached in lawsuits over bogus SOS advisory

Great news.

Still the only voter ID anyone should need

Three months after first questioning the citizenship status of almost 100,000 registered voters, the Texas secretary of state has agreed to end a review of the voter rolls for supposed noncitizens that was flawed from the start.

The deal was announced Friday as part of an agreement to settle three legal challenges brought by more than a dozen naturalized citizens and voting rights groups against the state. The groups alleged that the voter citizenship review, which was launched in late January, was unconstitutional and violated federal protections for voters of color.

Secretary of State David Whitley — who has yet to be confirmed by the Texas Senate amid the fallout over the review — agreed to scrap the lists of registered voters his office had sent to county voter registrars for examination. Whitley’s office will instruct local officials to take no further action on the names of people it had classified as “possible non-U.S citizens,” and county officials will be charged with notifying voters who received letters demanding they prove their citizenship that their registrations are safe.

The state is also on the hook for $450,000 in costs and attorney fees for the plaintiffs’ lawyers.

The agreement must still be approved by the federal judge overseeing the case, and the state will have five days after the judge dismisses the plaintiffs’ legal claims to officially rescind the list. But the settlement amounts to a profound defeat for the state leaders who had defended the review even though it had jeopardized the voting rights of tens of thousands of naturalized citizens.

“Today’s agreement accomplishes our office’s goal of maintaining an accurate list of qualified registered voters while eliminating the impact of any list maintenance activity on naturalized U.S. citizens,” Whitley said in a statement Friday. “I will continue to work with all stakeholders in the election community to ensure this process is conducted in a manner that holds my office accountable and protects the voting rights of eligible Texans.”

See here for the background. I thought at the time that this was a resounding defeat for the state of Texas, and I very much still think that. Honestly, I’m stunned that the state gave up like this instead of taking their chances with the ever-pliable Fifth Circuit. Did they think their case was such a loser that even the Fifth Circuit wouldn’t bail them out? It’s mind-boggling. Anyway, here are the statements from the various plaintiffs in the suit, courtesy of the ACLU’s press release:

“After months of litigation, the state has finally agreed to do what we’ve demanded from the start — a complete withdrawal of the flawed and discriminatory voter purge list, bringing this failed experiment in voter suppression to an end,” said Andre Segura, legal director for the ACLU of Texas. “The right to vote is sacrosanct, and no eligible voter should have to worry about losing that right. We are glad that the state has agreed to give up this misguided effort to eliminate people from the voter rolls, and we will continue to monitor any future voter purge attempt by the state to ensure that no eligible Texan loses their voice in our democracy.”

“Three months after the state released a discriminatory and flawed voter purge list, they have finally agreed to completely withdraw the advisory that risked throwing tens of thousands of potentially eligible voters off the rolls,” said Beth Stevens, voting rights legal director with the Texas Civil Rights Project. “State officials have wasted hundreds of thousands of dollars and struck fear and confusion into thousands of voters in order to pursue their voter suppression agenda. We are glad that this particular effort was stopped in its tracks and we will remain vigilant to ensure that not one single voter loses their right to vote due to the actions of state officials.”

“While we are glad to see this program scrapped, it’s important to remember that the state not only began to disenfranchise tens of thousands of eligible voters, but also threatened them with criminal prosecution,” said Brendan Downes, associate counsel with the Lawyers’ Committee for Civil Rights Under Law’s Voting Rights Project. “Naturalized citizens are, by definition, Americans. It’s time for the state to start treating them that way.”

“Secretary Whitley’s agreement to scrap what the court called a ‘ham-handed’ process and implement these common sense changes will go a long way to protecting eligible naturalized citizens from being improperly purged from the rolls,” said Sophia Lakin, staff attorney with the ACLU’s Voting Rights Project. “We will continue to monitor the secretary and counties to protect eligible Texas voters from discriminatory barriers to the ballot box.”

“This settlement acknowledges that naturalized Americans have full and equal voting rights — they cannot be singled out and purged from the rolls due to their status,” said Chiraag Bains, director of legal strategies at Demos. “The settlement is a victory for our clients and all in Texas who were wrongfully deemed ineligible to vote. The secretary’s actions were reckless and misguided, and we hope that other states will take note and avoid similar unlawful actions.”

“The League regrets that it took a lawsuit to remind our state officials that naturalized citizens have a right to vote and to fully participate in our democracy,” said Grace Chimene, president of the League of Women Voters of Texas. “We are hopeful that new procedures will prevent naturalized citizens from being treated as second class citizens. We will continue to work with the secretary of state, as the chief election officer for Texas, to protect all citizens’ right to vote.”

“When the secretary of state tried to discriminate against eligible voters in a dangerous voter purge, we stood up to challenge this egregious act of voter suppression. Today, we won,” said H. Drew Galloway, executive director of MOVE Texas Civic Fund. “Young naturalized citizens no longer have to worry about this reckless voter purge impacting their constitutional right to vote. We will continue to fight for all young voters across the state.”

The whole thing is also visible at the Texas Civil Rights Project webpage. The Secretary of State – who by the way still needs to be someone other than the deeply incompetent David Whitley – will still conduct reviews of voter rolls to look for non-citizens, it will just need to be done under this new framework. The one remaining question is what will happen with the voters whose names were referred to AG Ken Paxton for possible criminal investigation. We’ll just have to see what Paxton does – I can’t imagine him turning down an opportunity to grandstand, but he may be just smart enough to decline to pursue cases that will be tough to win given the questionableness of the evidence. With him, it could go either way. The Chron, the Dallas Observer, and Slate have more.

TCRP report on Texas election administration problems

From the inbox:

Today the Texas Civil Rights Project (“TCRP”) released a report—utilizing data from the largest non-partisan Election Protection effort in the state, provisional ballot data, as well as publicly available information—to analyze the the long-standing failures in Texas election administration infrastructure.

According to the report, Texas Election Protection 2018: How Election Administration Failures Impacted Hundreds of Thousands of Voters, election administration issues impacted, at a minimum, 277,628 voters — a number higher than the margin of victory in Texas’ closely watched Senate race.

“Across Texas, the 2018 election brought a surge of civic engagement energy. We saw record-breaking voter registration and turnout rates in almost every county. Unfortunately, Texas’ election administration did not keep up with voters,” said Emily Eby, report author and staff attorney with the Texas Civil Rights Project. “Through our Election Protection efforts, we heard directly from voters about the problems they encountered in the voting booth due to the state’s unwillingness to bring our democracy into the 21st Century. There is an urgent need for Texas to reform its antiquated election infrastructure immediately and this report sheds light on how many voters were harmed by the state’s election administration failures.”

The 2018 general election saw a wave of renewed civic engagement and democratic participation that swept across the state. Voter registration surged to 79.36% of the citizen voting age population, the highest percentage in Texas since the 2004 presidential election. Of those registered in Texas, 53% turned out to vote (up 20% from the 2014 midterms and the highest in a Texas midterm election since 1970). Despite this renewed wave of civic engagement, Texas’ election administration failed voters.

Findings from the report revealed:

  • Late poll openings, including at least 1,512 voters who had their voting rights curtailed by late openings in Harris County alone.

  • Long lines at polling places, including a three-hour wait time in a polling location in Corpus Christi during Early Voting.

  • At least 262,647 eligible college students lacked an accessible place to vote on their college campuses.

  • Early registration deadlines, overwhelming county administrators who had to process all of the paper applications one-by-one.

  • Noncompliance with federal voting rights laws, including at least 753 voters who were disenfranchised because Texas refuses to comply with the National Voter Registration Act.

  • Provisional ballot problems, including at least 10,831 eligible voters who cast ballots that did not count simply because the voter was in the wrong place on Election Day.

  • Voter intimidation, such as when Alan Vera, a Harris County resident, allegedly attempted to disenfranchise some of his fellow Houstonians by delivering over 4,000 voter challenges to the voter registrar’s office.

  • Voting machine malfunctions, such as the Hart eSlate voting machine malfunction that switched straight-party votes in the Texas Senate race. At least 1,885,066 voters were susceptible to the Hart eSlate machine error.

In addition to highlighting the issues in Texas’ election administration infrastructure, the report recommends key solutions for local, state, and federal policy makers to address the systemic failures before the 2020 election — when voter registration and turnout are expected to reach record levels once again.

The landing page with another summary of the report is here, and the full report is here. Some of the Harris County problems will be ameliorated by the election of Diane Trautman, like when and how long polling places are open. Some issues, like college campus voting locations, are only now getting visibility and can be worked on locally, as was the case last year in Prairie View. Some issues, like expanded voter registration, will require legislative fixes, which very likely means a Democratic takeover of state government; there may be a bipartisan bill in the House for same day registration, but I can’t imagine a scenario in which Dan Patrick or Greg Abbott let such a thing become law. It all starts with winning more elections. The Chron has more.

Judge blocks any voter purges from the SOS advisory

Good. Let’s hope this lasts.

Still the only voter ID anyone should need

In a major victory for voting rights groups, a federal judge has ordered that no Texas county should purge suspected noncitizen voters from the rolls or issue letters demanding that they prove their citizenship “without prior approval of the Court with a conclusive showing that the person is ineligible to vote.”

The Wednesday order from U.S. District Judge Fred Biery comes a month after the Texas secretary of state flagged nearly 100,000 voters for citizenship review — and a flurry of civil rights groups filed three lawsuits to block state and county officials from purging voters based on what has proven a deeply flawed set of data.

Biery ordered that as the litigation continues, counties can “continue to find out if in fact someone is registered who is not a citizen” — some local officials have proposed comparing lists of flagged voters with names of individuals made citizens at recent naturalization ceremonies, for example — but may not communicate directly with any particular individual on the list. Reaching out to a voter to demand proof of citizenship starts the clock on a process that can lead to that voter being purged from the rolls.

[…]

Biery’s order directly addresses the more than a dozen counties that are named defendants in the flurry of lawsuits. It also directs the state to inform Texas’ other 200-plus counties that they may not purge voters or demand proof of citizenship without his approval.

Last week, eight counties agreed voluntarily to halt their efforts, and on Monday, Biery extended that order to a total of 15 counties.

[…]

Much like his remarks in court this week, Biery’s order contained harsh words for the state’s bungled attempt to review its rolls, and good omens for the civil rights groups aiming to prove that Texas has treated two groups of people, native-born citizens and naturalized citizens, differently.

“Notwithstanding good intentions, the road to a solution was inherently paved with flawed results, meaning perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us,” Biery wrote. “No native born Americans were subjected to such treatment.”

Biery also wrote — as civil rights groups and voting experts have long maintained — that “there is no widespread voter fraud” in Texas and that an attempt to root out noncitizens on the voter roll forces officials to figure out “how to ferret the infinitesimal needles out of the haystack.”

State officials have said that moving forward, they plan to watch for noncitizens who are registered to vote by comparing voter rolls with more recent lists of individuals who present proof of legal status, but not citizenship, at DPS. Biery’s Wednesday order allows that process to proceed but advises that officials may not purge those voters or demand proof of citizenship without approval from him.

See here, here, and here for the background. As a reminder, this is just the wrangling over an injunction, to determine whether or not the state and counties can continue to pursue this purge while the case is being litigated. It’s not a decision on the merits, just a stop sign for the state until a decision is reached. Assuming the Fifth Circuit doesn’t step in and screw things up as it usually does, of course. No word as of the publication of that story as to whether or not the state would appeal. Judge Biery made a good call, but as always this is far from over. The Lone Star Project, which picks out some highlights from Biery’s order, has more.

Of course there are bills to do something with that bogus SOS advisory

What else did you expect?

Still the only voter ID anyone should need

Among other things,  Senate Bill 960 and Senate Bill 953, filed late last week, would require voter registrars across the state to kick every person off the voter rolls who at one point said they were not a citizen to any government agency.

Beth Stevens, voting rights program director with the Texas Civil Rights Project, said the bills could potentially reduce “protections that a voter has to address a claim that they are a noncitizen.” The nonprofit is one of many groups challenging the state’s effort in court.

“It further adds an element of intimidation of voter registrars,” she said.

[…]

If enacted, SB 960 and SB 953 would require registrars to immediately remove flagged voters from voter rolls. The bills wouldn’t require registrars to notify individuals their citizenship was being questioned. SB 960 would also subject any registrar who does not immediately remove those voters to a civil penalty and a possible Class A misdemeanor charge.

SB 960 would also give the Attorney General’s office the power to petition a court to remove a registrar from office if he or she does not kick those voters off the rolls.

“These two bills – and particularly SB 960 – are very much voter suppression on their face,” Stevens said.

SB 960 was filed by state Sen. Paul Bettencourt, a Republican from Houston. Bettencourt did not respond to a request for comment. He did, however, weigh in on the issue last year and admonished local officials for not pursuing and removing alleged noncitizens from voter rolls.

“This really strikes at the fabric of the integrity of the whole election process,” Bettencourt said in a written statement last June. “The fact is that non-citizens simply cannot vote in our elections.”

SB953 was authored by Sen. Pat Fallon. Of course Bettencourt would have a hand in this. He made his bones as Harris County Tax Assessor finding many creative and legally questionable ways to purge voters he didn’t like. There’s a reason why voter registration numbers in the county were flat for so long. Whether this particular ploy will work or not remains to be seen. These bills can probably pass if the leadership wants them to, but in the absence of a push they may die the usual death by natural causes. I’ll try to keep an eye on them.

Civil rights groups want Whitley to not be confirmed

No kidding.

Still the only voter ID anyone should need

More than 30 civil rights and community groups are calling on Senate Democrats to block the confirmation of embattled interim Secretary of State David Whitley, who oversaw the botched rollout of an investigation into the citizenship of tens of thousands of Texas voters.

“Under no circumstances should Mr. Whitley be allowed to continue to serve as the Texas Secretary of State. The Senate Democratic caucus – and each of you individually – have the power to unite in defense of the voting rights of all Texans and stop his confirmation,” the groups wrote in a letter sent to Democratic senators on Thursday morning. “We call on you to affirmatively block the confirmation of David Whitley for Texas Secretary of State.”

[…]

“It has become exceedingly clear that Mr. Whitley is unfit to serve in that office,” the letter reads. “Mr. Whitley has targeted naturalized citizens for disenfranchisement and falsely accused them of committing voter fraud.”

The letter’s signatories, which include the League of Women Voters of Texas, the Texas NAACP, the League of United Latin American Citizens and the Texas Democratic Party, took Whitley to task for being unable to answer questions during his confirmation hearing in front of the Senate Nominations Committee about how his office handled the advisory’s rollout.

“Mr. Whitley demonstrated an embarrassing lack of knowledge about the process he initiated,” the letter reads.

Calling Whitley’s conduct “disqualifying,” the groups said he “knew or had reason to know that a substantial number of these 58,000 Texas residents had not voted unlawfully, and still he sent the entire list to the Attorney General for criminal investigation and potential prosecution.”

“Mr. Whitley’s actions demonstrate a level of incompetence that we cannot accept in a position tasked to protect and advance our most fundamental rights of civic participation,” the groups wrote.

I found a copy of the letter here. You will recognize a number of the signers as plaintiffs in the multiple lawsuits filed against Whitley and the SOS. Whitley’s confirmation remains in limbo as the Senate committee has yet to vote out his nomination following the hearing two weeks ago; it’s still pending after another no-action committee meeting on Thursday. It would take at least two Dems to vote for Whitley, assuming he gets unanimous Republican support, which maybe isn’t a sure thing given that he’s still pending in committee. And as of yesterday, every Dem Senator was on record opposing Whitley.

All 12 Democrats in the Texas Senate have publicly confirmed they are opposed to confirming embattled Secretary of State David Whitley, giving them more than enough votes to block his nomination if they’re all in the chamber when the vote comes up.

The tally of “no” verdicts from Senate Democrats hit a dozen on Friday, upping the ante on the minority party’s ability to block his path to confirmation if they all stick together. To be confirmed, Whitley needs a two-thirds vote in the 31-member chamber. But whether Whitley’s nomination will make it that far remains unclear.

[…]

If Whitley’s nomination is left pending for the rest of the session, he can serve only until the Legislature leaves Austin in late May. After that, Abbott could nominate a replacement who would immediately take over as secretary of state and serve at least until the next legislative session in 2021.

If the Senate votes and Whitley is rejected, he must leave office immediately.

Doesn’t look good for Whitley, does it? My guess at this point is that Whitley never comes up for a vote, and Abbott appoints someone else after the session. Basic competence for the task at hand, and not regularly insulting everyone’s intelligence, that’s all we’re asking here. This Twitter thread from the press conference has more.

Three times a lawsuit

Hat trick!

Still the only voter ID anyone should need

A group of civil and voting rights organizations is suing the state’s chief election officers and local election officials in five counties, claiming Texas’ voter citizenship review efforts are unconstitutional because they intentionally target naturalized citizens and voters of color.

In a lawsuit filed Monday in a Galveston federal court, the MOVE Texas Civic Fund, the Jolt Initiative, the League of Women Voters of Texas and the Texas NAACP allege that the state’s move to flag tens of thousands of voters for review using faulty data violates the equal protection clause of the U.S. Constitution. They claim the effort places an undue burden on the right to vote and treats naturalized citizens differently than those born in the county.

The groups also allege that the state violated the Constitution and the federal Voting Rights Act by acting at least in part with the goal of discriminating against voters of color when it advised counties to verify the citizenship status of the voters it flagged.

The lawsuit against Texas Secretary of State David Whitley, Director of Elections Keith Ingram, and local election officials in Galveston, Blanco, Fayette, Caldwell and Washington counties is the third one filed against state officials since Jan. 25, when the state announced that it was sending counties a list of approximately 95,000 registered voters who told the Texas Department of Safety they were not citizens when they obtained their driver’s licenses or ID cards.

[…]

In their complaint, the plaintiffs — represented by the ACLU of Texas, the national ACLU, the Texas Civil Rights Project, Demos and the Lawyers’ Committee for Civil Rights Under Law — argue that Whitley “declined to include safeguards” in the process that would ensure naturalized citizens weren’t erroneously included on the list.

“The right to vote is a fundamental and foundational right, possessed equally by U.S. born and naturalized citizens,” the complaint reads. “The Secretary of State’s purge treats those who have been naturalized as second-class citizens whose right to vote can be uniquely threatened and burdened solely because at some point in the past, these individuals were not U.S. citizens.”

See here and here for the scoop on the other lawsuits, and here for a copy of the complaint. I had speculated in yesterday’s post about Lawsuit #2 that we could get this one as well, as the groups representing these plaintiffs had had specifically said they would sue if the SOS didn’t back all the way off. Gotta follow through when you say stuff like that, so folks will know you don’t mess around. At this point, we’re waiting to see what the courts will say. In an ideal world, they will force the state to do what these plaintiffs asked in the first place, which is to get their crap together before they put out baloney like this. Here’s hoping. On a related note, Mayor Turner released a statement urging Harris County Tax Assessor Ann Harris Bennett to reject the SOS advisory, which you can find here.

Civil rights groups push back on bogus SOS letter

Good.

Still the only voter ID anyone should need

Lawyers with 13 organizations — including the Texas Civil Rights Project, the ACLU of Texas, the League of Women Voters of Texas and the NAACP Legal Defense Fund — are demanding that the state rescind an advisory sent to local election officials regarding the individuals whose citizenship status the state says the counties should consider checking. In a letter sent Monday, the groups requested a response by Jan. 30, claiming that the state’s data was flawed and demanding more information about the methodology it used.

Some of the groups are considering litigation against the state, said Beth Stevens, voting rights legal director for the Texas Civil Rights Project.

The letter comes three days after the Texas secretary of state’s office announced it would send local election officials a list of 95,000 registered voters who had provided the Texas Department of Safety some form of documentation, such as a green card or a work visa, that showed they were not citizens when they were obtaining driver’s licenses or an ID cards.

“Using such a data set to review the current citizenship status of anyone is inherently flawed because it fails to account for individuals who became naturalized citizens and registered to vote at any point after having obtained their driver license or personal identification card,” the lawyers wrote.

In their letter, the groups point to efforts in Florida that used similar methodology to create a list of approximately 180,000 registered voters that officials claimed were noncitizens based on records used when they obtained driver’s licenses. That fight ended up in federal court after more than 2,600 were mistakenly removed from the rolls after being classified as noncitizens. About 85 voters “ultimately proved actionable,” the lawyers wrote.

See here for the background. The letter to the SOS is here, and the letter they sent to all 254 county election administrators is here. The latter is both a public information request for “all records relating to the Advisory, including but not limited to the list of all individuals identified by the Secretary of State or Department of Public Safety as potential non-citizens, the Voter Unique Identifier for each of those individuals, and all communications and correspondence with the Secretary of State concerning the Advisory”, and a plea to not take any action “unless and until the Secretary of State has provided greater transparency on its procedures and ensured there are adequate safeguards for not identifying lawfully registered naturalized citizens.” The letter to the SOS lays out their demands for more information, and drops a little math on them:

Given that Texas Driver Licenses and ID Cards do not expire for a full six years after they are issued, the odds are quite high that this list of purported non-citizens includes tens of thousands of people who are now US citizens entitled to vote. Indeed, each year, between 52,000-63,000 Texans become naturalized citizens (roughly the same number of potential non-citizens you claim have voted in Texas elections over a 22-year period).1 Given that newly naturalized citizens have voter registration rates around 50%,2 it is reasonable to conclude that at least 25,000 newly naturalized Texans are lawfully registering to vote each year. Even if one assumes that not all naturalized citizens previously obtained driver licenses, and not all registered naturalized citizens registered immediately, it is easy to see how this would result in your office obtaining over 90,000 incorrectly identified matches.

Read them both. Given that Ken Paxton was sending out email earlier the same day screaming about thousands of illegal voters, I think the odds are very high this will wind up in court.

Bail lawsuit 2.0

This one will be tougher to tackle, but the principle remains the same.

A hard-fought battle to reform Harris County’s bail system has prompted a second civil rights action.

The legal team that successfully challenged the county’s bail practices for low level offenses on the grounds they unfairly detained indigents, filed a new federal class action suit this week tackling money bail for felonies, which results in thousands of poor defendants being locked up before trial or entering guilty pleas to avoid lengthy incarceration.

This new lawsuit, which hit the docket during the Martin Luther King Jr. Day holiday, claims the county is holding people unjustly, simply because they cannot afford to pay a cash bail. Currently, people arrested who can post a cash bond or hire a commercial bonding company can simply resume their lives as their cases proceed through the criminal docket.

The lawyers argue that pretrial release should not be contingent on how much money a person has. Its one of a number of lawsuits around the country, including one before a district judge in Galveston, attempting to topple bail systems that treat people differently based on their income.

“This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community,” the lawsuit argues. “Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children.”

[…]

The lawsuit noted there are human costs to keeping people in jail. Since 2009, the complaint stated, 125 people have died while awaiting trial in the county lockup, including a woman who committed suicide this month after she could not pay her original bail of $3,000.

“Now is the time for a new vision and a new era of collaboration and innovation,” the lawyers said in a joint statement to the Houston Chronicle. “We are confident that with the leadership of the county judge, the sheriff, the district attorney, the public defender, and the felony judges, all of whom have expressed their commitment to bail reform, we will be able to resolve this case without wasting millions of dollars of taxpayer money as happened in the prior case.”

Most of the key stakeholders struck a similar note in responding to the new lawsuit.

Tom Berg, first assistant to District Attorney Kim Ogg,said the office is glad to work with the parties toward “a fair, just and speedy resolution” and at the same time “responsibly conserve the county’s resources so that they go for the staffing needed for bail reform implementation and not litigation costs.”

County Judge Lina Hidalgo said the county aims to support public safety, fairness and a cost-effective, fiscally responsible system. She acknowledged that there’s a long way to go.

“We’ve got a system that in a way fails on all three fronts,” she said Tuesday. Hidalgo said the crop of newly elected officials seem dedicated to enacting these types of change.

The sheriff also mentioned safety concerns, saying felony bail improvements require careful examination. However, he lauded the idea of reforming what he has referred to as a “broken system.”

“I support all efforts to improve our criminal justice system that strike a smart balance between our duty to ensure public safety and upholding our American ideal that everyone is presumed innocent until proven guilty in court,” Gonzalez said. “I support equipping judges with the data they need to accurately measure each defendant’s unique risk of failing to appear in court and committing additional crimes before they stand trial.”

Of the three plaintiffs in this lawsuit, two were busted for drug possession and the other for DUI. There’s still a lot of non-violent inmates in the jail awaiting disposition of their case because they couldn’t scrape up a bond payment. As with misdemeanants, the ability to write a check to a bail bond agency has no correlation with whether you will show up for your court date or if you are likely to commit further crimes while out. Again, Robert Durst was out on bail. It makes sense to separate the genuine risks from the harmless shlubs. Will such a system be perfect? No, of course not. Some people who get out on a personal recognizance bond are going to turn out to have been bad risks. But again – I can’t say this often enough – people do that right now, under the current system. We just accept it as the way things are. Well, the way things are is capricious, unjust, and almost certainly unconstitutional, as the system for misdemeanors was as well. We’ll never have a better chance to design a better system. Let’s get to it.

How Dems took Hays County

Three cheers for Texas State University.

As the dust settles after last week’s election, the political identity of Hays County hangs in the balance: Is it red or blue?

The rapidly growing Central Texas suburban county — Texas’ 22nd-largest by registered voters – hadn’t voted for a Democrat at the top of the ticket since 1992. In this year’s general election, however, it gave U.S. Rep. Beto O’Rourke, D-El Paso, a 15-point edge over Republican incumbent U.S. Sen. Ted Cruz. It was the first time in 13 general elections that the county flipped, even though it has become increasingly blue in recent elections.

What exactly fueled the flip is still unknown – and it’s most likely due to a slate of factors – but University of Houston political science professor Brandon Rottinghaus said the “off-the-charts-big” student turnout at Texas State University played a big role.

Turnout was so large during early voting that students reported waiting in lines for more than an hour. After the Texas Civil Rights Project threatened to sue the county amid allegations that it was suppressing the college student vote, Hays County commissioners extended early voting on the Texas State campus and created an additional Election Day voting site.

Hays County election data indicates that Texas State students took advantage of the extended voting opportunities. The 334th precinct, which includes the on-campus LBJ Student Center voting location, saw the largest increase in voters from 2014 to 2018 of any precinct in Hays County. A total of 1,942 voters cast their ballots this election. That’s more than five times the 373 voters who cast their ballots in the 334th precinct in 2014, and significantly higher than the 1,406 voters who cast their ballots in that precinct in 2016, a presidential election year.

[…]

But in a county where more than 80,000 voters cast ballots this past election, experts say there are factors other than a robust young voter turnout that contributed to the flip.

Mark Jones, a political science professor at Rice University, said that Hays County was not as red as other parts of the state heading into the election, but he said it turned blue “much more abruptly than other counties.”

He chalks up the the switch, in part, to poor performances by statewide Republican candidates.

“Statewide Republicans were down across the board due to the unpopularity of Donald Trump and the popularity of Beto O’Rourke,” Jones said.

Republican incumbents like Lt. Gov. Dan Patrick, Attorney General Ken Paxton and Agriculture Commissioner Sid Miller faced strong challenges from their Democratic opponents as votes from across the state poured in on election night, even as Hays County handed double-digit advantages to their Democratic challengers.

Jones also said that Hays County may have flipped this election because of the “Austin creep.”

“Metro Austin” — known for its liberal politics — “is increasingly moving north into Williamson County and south into Hays County because home prices in Austin are rising,” Jones said. “You’re getting more people who look, act, think and feel like Austin residents who move across the Hays County line.”

See here for some background. While it’s clear that Texas State students turned out in force, the magnitude of the Dems’ win in Hays County leads me more towards the “Austin creep” theory. It’s basically the same thing as what we’ve seen in Fort Bend and Collin/Denton, as voters from the nearby large urban county have been part of the population growth there. What I’d really like to see is a comparison of Hays County, which borders Travis to the southwest on I-35, and Bastrop County, which borders Travis to the southeast where US290 and SH71 go and where Ted Cruz increased his margin from 2012 to 2018 by a bit. Bastrop is clearly more rural than Hays and I’m sure that has a lot to do with it, but there’s also a lot of new development near the border with Travis, and it seems to me there’s a fair amount of “spillover” population as well. Does that part of Bastrop vote more like Travis, or is there a clear demarcation? The geography may also make a difference – the southwest part of Harris County that abuts Fort Bend is Democratic, but the south/southeast part of Harris that borders Galveston County is not, and I believe that has contributed to Galveston County getting redder. Maybe there’s a similar effect for Hays and Bastrop? I’m just speculating. Anyway, that’s another question I’d like to see explored. In the meantime, kudos to everyone who worked to make Hays County blue this year.

Lawsuit filed over late start times at several precincts

This crap should not happen.

After several polling locations in Harris County failed to open on time this morning, the Texas Civil Rights Project and the Texas Organizing Project are suing the county in hopes of extending Election Day voting hours until 8 p.m. at nine polling locations.

In a lawsuit filed Tuesday afternoon, the two groups alleged that the county was violating the Texas Election Code because polling locations that opened after 7 a.m. would not remain open to voters for 12 hours on Election Day as required by state law.

Polling locations across the state’s biggest county “not only failed to open at 7 a.m., but remained closed until well after 7 a.m.,” the plaintiffs wrote. Voting was further delayed at some polling locations because of equipment issues, including sign-in and voting machines that weren’t working.

The two groups put forth affidavits from several Harris County voters who faced delays Tuesday morning and, in some cases, were kept from casting ballots before needing to head to work.

[…]

When they started letting voters in to vote, the sign-in machines were not working. She watched poll workers troubleshoot the machines until leaving at 7:45 a.m.

“Harris County has been a major flashpoint, if you will,” Beth Stevens, voting rights legal director for the Texas Civil Rights Project, said earlier in the day.

At least 18 polling locations in Harris County either did not open on time or were only partially open on time, with some locations at first operating with one or two machines when they were supposed to have eight or even 16, Stevens said.

Those sorts of issues are “typical of start-up issues on Election Day,” said Hector de Leon, director of communications and voter outreach for the Harris County Clerk’s Office. He said the county has technicians stationed across the county so they can get to voting locations within 10 minutes of a technical distress call and get machines up and running.

“There’s nothing atypical about this morning,” de Leon said. “It’s just the nature of Election Day morning.”

I’ve no doubt that a big, sprawling county like ours with hundreds of voting locations is going to present logistical problems, but maybe be a bit less blase about it? At the very least, this suggests the county didn’t have much of a contingency plan in place, nor does it suggest that the county sees it as a problem that some people may have had to leave and go to work without having voted, and may or may not have the chance to try again later in the day. I don’t know as I post this what will happen, but surely keeping the polls open till 8 at the affected locations is a reasonable thing to do. That and electing a County Clerk who will plan for this kind of thing before it happens.

UPDATE: The League of Women Voters Houston posts that the nine locations shown in the linked photo will be open till 8.

More campus voting issues

Hello, Texas State.

The long early voting line that wrapped around the LBJ Student Center earlier this week was a welcome sign to those at Texas State University who were hoping for strong enthusiasm among young voters on campus.

But with early voting on campus restricted to three days, civil rights attorneys, voting rights advocates and local Democrats are now raising the specter that the hour-and-a-half waits that students faced at the polling location could not only dim student turnout but also violate state and federal law.

In a letter sent to the county Thursday evening, lawyers with the Texas Civil Rights Project — on behalf of two Texas State students, MOVE Texas Action Fund and the League of Women Voters of Hays County — demanded that the county reopen the early voting location on campus and add an Election Day voting site to avoid a lawsuit.

Requesting a response by 12 p.m. Friday, the Texas Civil Rights Project alleged that the county’s decision to limit early voting at the on-campus location was a violation of the U.S. Constitution because it specifically targets a class of voters.

“The burdens imposed by closing the on-campus early voting location fall particularly and disproportionately on the county’s young voters, who are significantly more likely to live on or near campus and are less likely to have easy, immediate access to reliable transportation to vote off-campus,” Beth Stevens, the Texas Civil Right’s Project’s voting rights legal director, wrote.

The Texas Civil Rights Project also claimed the closure of the on-campus polling site violates two portions of the Texas election code — one that limits the number of temporary polling places in a county commissioner’s precinct and another that regulates the number of polling locations that must be set up for each voting precinct.

[…]

Access to early voting on college campuses varies across the state. Students at the University of Texas at Austin have access to two on-campus polling locations throughout the early voting period and on Election Day. Tarrant County is splitting up its early voting between several universities and colleges, offering three days of early voting at both the University of Texas at Arlington and Texas Christian University.

Meanwhile, students at the University of Houston and Rice University — both in Harris County — and University of North Texas in Denton will only have access to on-campus voting on Election Day.

See here for more on the Prairie View situation. In the end, Hays County Commissioners Court took corrective action.

After being threatened with a lawsuit over early voting access at Texas State University, Hays County commissioners voted Friday to expand voting hours on campus.

In an emergency meeting, the Republican-dominated court voted to re-open the early voting site that operated on campus during the first three days of early. The polling location at the LBJ Student Center will reopen on Nov. 1 and Nov. 2 from 7 a.m. to 7 p.m. The commissioners also agreed to add an Election Day voting site at the university.

“I want everyone to know and understand that we are doing our best. We are trying to follow the laws and allow the opportunity for all to be able to vote in the most efficient manner possible,” Commissioner Lon Shell, a Republican, said before the court went into executive session to discuss the issue.

Good. I mean, we are experiencing record turnout for early voting, which is one part a much higher level of engagement this year versus 2014, and one part more people shifting their behavior to vote early instead of on Election Day. Counties are going to need to respond to that, and they need to do so before voting begins. Not every college campus needs to have an early voting location, but at places like PVAMU and TSU it makes sense. Beyond that, let’s please not treat early voting locations differently. If a site is good for early voting, let it be as good as every other site in the county.

The eSlate issue

Everyone please take a deep breath.

Some straight-ticket voters have reported that voting machines recorded them selecting the candidate of another party for U.S. Senate, exposing a potential problem with the integrity of the state’s high-profile contest between U.S. Sen. Ted Cruz and Congressman Beto O’Rourke and leading good government groups to sound the alarm.

Several Democratic voters, for example, have complained the voting system indicated they were about to cast a vote for Cruz, a Republican, instead of Democrat O’Rourke as they prepared to send it. Some said they were able to get help from staff at the polling place and change their votes back to what they intended before finalizing their ballots.

Most of the 15 to 20 people who have complained to the state so far said that their straight-ticket ballot left their vote for U.S. Senate blank, according to Sam Taylor, communications director for the Secretary of State. A spokesman for the Texas Civil Rights Project said the group has received about a half dozen complaints, mostly of Democratic straight ticket voters whose ballots erroneously included a vote for Cruz, and one Republican straight ticket voter whose ballot tabulated a vote for O’Rourke.

The problem occurs on the Hart eSlate voting machine when voters turn a selection dial and hit the “enter” button simultaneously, according to the state. Eighty-two of the 254 counties in Texas have these machines, although complaints have only come from Fort Bend, Harris, McLennan, Montgomery, Tarrant and Travis counties, according to Taylor.

The issue with the eSlate machine first surfaced in the 2016 presidential election. The Secretary of State’s office described it as user error at that time, and said the same of this year’s problems in an advisory sent to election workers issued this week.

“It does pop up from time to time,” said Taylor. Voters should “double and triple check and slow down” before casting their ballots, he said.

Although the state sent the advisory, the Civil Rights Project contends that more should be done to ensure voters understand the potential for wrongly recorded votes.

The group is pushing the state to post advisories to inform voters at the polls about the problem, and how to detect it.

“This is not an isolated issue but a symptom of a wider breakdown in Texas’s election systems,” said Beth Stevens, the organization’s voting rights director. “Texas voters should have full confidence that when they use a voting machine they are indeed casting their ballot of choice.”

I would dispute that this problem first surfaced in the 2016 election. We’ve heard a variation of problems like this going back to at least 2008. Here’s a post I wrote back then, in which there was confusion – some of which was being spread intentionally – about voting straight ticket and then clicking again on Obama/Biden, which of course would have the effect of canceling the vote in that race. This particular complaint may be relatively new, but reports of the voting machines not doing what the voters thought they were going to do have literally always been with us. It’s one part bad interface design, and one part user error.

The solution – for now – really is to review your ballot before you press the “cast vote” button. I do that in every election, because it’s always possible to not click what you thought you’d clicked, just like it’s possible to do that on your computer or tablet or cellphone. Election officials can and should do a more thorough job of educating voters about the voting machines – there are always new voters, and there are always voters who are not confident with electronic gadgets, and these people have as much right to vote the way they want to vote as anyone else – but the bottom line remains the same. Review your ballot before you commit to it, just like you review other transactions.

Here’s that advisory from the Secretary of State, and here’s the press release and letter to the SOS from the Texas Civil Rights Project. The TCRP is 100% correct that Texas needs to upgrade its voting machines, both to improve the interface and also to bolster security. As someone who works in cybersecurity, it’s unthinkable that we have voting systems that provide neither redundancy nor an audit trail. We know what a better system looks like, we just need a government that is willing to invest in it. We just need to vote in sufficient numbers to make that happen. The Trib has more.

High schools need to do a better job of making voter registration available to students

As the Texas Civil Rights Project notes, it is the law.

Still the only voter ID anyone should need

In a report published today by the Texas Civil Rights Project, new data from October 2016 to February 2018 shows that just 34 percent of high schools in Texas requested voter registration forms from the Secretary of State—the key first step in registering students under the process mandated by Texas law. This is up from a mere 14 percent of public high schools in 2016.

“Our schools must prepare young Texans for the future, which includes teaching them how to participate in our democracy. For more than five years, TCRP has attempted to work with the Secretary of State to help schools comply with our unique high school student voter registration law,” said James Slattery, Senior Staff Attorney with the Texas Civil Rights Project and author of the report. “Instead of working with civic engagement groups, parents, and students, the Secretary’s office has dragged its feet in implementing common sense reforms to help high schools comply with the law. This means that, every year, more than 180,000 eligible students are not getting the opportunity to register to vote as required by law.”

In addition to the report, TCRP is also releasing the first-ever digital map of nearly 3,000 public and private high schools in Texas that visually displays which schools and school districts have requested high school voter registration forms from the Secretary, pursuant to the law, and those schools for which we have not been able to verify compliance.

Currently 82 out of 232 counties in Texas, or 35 percent of all Texas counties, did not have a single high school request a voter registration form. The digital map will serve as a resource for parents, students, policy makers, and community members in spearheading efforts to register eligible students to vote.

“As the state’s chief elections officer, we encourage Secretary Rolando Pablos to take common sense steps to address the abysmal compliance rate,” continued Slattery. “We owe it to these young Texans to make sure they are equipped with the tools they need to participate in the democracy they will soon inherit from us. That includes making sure that every eligible high school student is offered the opportunity to register to vote as soon as they come of age, and educating them in all the duties of citizenship.”

See here for the report, and here for the map. To me, the answer to the question “why aren’t we doing a better job of this” is simply that there’s no enforcement. If it’s not anyone’s job to make it happen, it’s not going to happen. If we want the SOS to get schools and districts to do what they’re supposed to do, then give the SOS the resources to do that, and then hold the SOS accountable for it. This isn’t rocket science.

State asks for emergency stay of “motor voter” ruling

Also as expected.

Still the only voter ID anyone should need

Texas Attorney General Ken Paxton on Friday asked a federal appeals court to block a San Antonio judge’s order that gave state officials 45 days to correct an online voter registration system that was found to violate federal law.

U.S. District Judge Orlando Garcia on Monday ordered officials to create a process that lets Texans simultaneously register to vote when they obtain or renew a driver’s license on the Department of Public Safety website. The current system violates the National Voter Registration Act’s motor-voter provision by adding several hurdles to the registration process, the judge ruled.

Paxton quickly informed the 5th U.S. Circuit Court of Appeals that he intends to challenge Garcia’s order.

[…]

Paxton’s filing argued that Garcia added requirements that are not included in federal law, such as ordering state officials to create a public-education campaign to explain the new voter-registration process.

In addition, Paxton argued that the three voters who sued lacked standing because they were already registered to vote when their lawsuit was filed in 2016.

He also complained that Garcia gave state officials only 45 days to make the changes, saying the state’s current online vendor could not complete changes before its contract expires Sept. 1, and the new vendor would need 90 days to create a process.

See here for the background. The next scene in this movie that we’ve all seen before is the Fifth Circuit giving Paxton what he wants, and then we wait for the appeals process to play out. Lather, rinse, repeat.

State appeals “motor voter” ruling

No surprise.

Still the only voter ID anyone should need

The legal fight over whether Texas is disenfranchising thousands of voters by violating a federal voter registration law is on its way to federal appeals court.

Just after a federal judge gave Texas less than two months to implement a limited version of online voter registration, the state on Monday formally notified U.S. District Judge Orlando Garcia that it was appealing his finding that Texas was violating the law — also known as the “Motor Voter Act” — by failing to allow drivers to register to vote when they renew their driver’s licenses online.

Pointing to registration deadlines for the November election, Garcia created a 45-day deadline for the state to create the online system for drivers in order to comply with the federal law that requires states to allow people to register to vote while getting their drivers licenses.

[…]

The AG’s office tried to defend the state’s practice of directing drivers to the secretary of state’s website. But Garcia ruled that practice “is not enough” and violates the Motor Voter Act and the Constitution’s Equal Protection Clause by treating voters who deal with their driver’s licenses online differently than those who register in person.

The state had also argued that there are technological difficulties associated with online voter registration even in this narrow form, particularly because state law requires a signature when an individual registers to vote. But Garcia also dismissed that argument because the state already keeps an electronic signature on file.

The state’s “excuse for noncompliance is not supported by the facts or the law,” Garcia said in his ruling.

See here and here for the background. I figure the first order of business will be for the state to try to get the Fifth Circuit to put this on hold pending the appeal. Given that court’s track record of granting such injunctions whenever the state comes knocking, I wouldn’t hold my breath waiting for that online system to come about. The Chron has more.