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Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

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

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

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

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

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

To the Honorable Supreme Court of Texas:

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

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

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

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

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

Endorsement watch: Carol and Borris

This is another easy call.

Sen, Carol Alvarado

When Carol Alvarado was elected to represent state Senate District 6 in a special election in 2018, she already had an impressive record under her belt.

After serving on Houston City Council and as the city’s mayor pro tem, she was elected in 2008 to the Texas House of Representatives to represent District 145. She was appointed chair of the Urban Affairs Committee and worked with Republican colleagues to get bills passed, including a 2015 grand jury reform bill that became law.

In her freshman term as a state senator, Alvarado has continued that run.

She co-sponsored 32 bills, 29 of which became law. The legislation ranged from a bill requiring insurance companies to cover diagnostic mammograms to one that gives every student the option of having an ECG heart screening as part of his or her athletic physical exam.

[…]

Alvarado, 52, whose opponent in the race is Libertarian Timothy Duffield, told the editorial board Medicaid expansion will be her top goal in the 2021 Legislature.

That’s an especially worthy goal during the current economic downturn as thousands lose employer-sponsored insurance. We strongly recommend Alvarado for State Senate District 6.

I think in a year where there are a lot of races to endorse in, it’s all right to skip the ones like this where there’s no major party opponent. But even if you do that, Sen. Alvarado would be an obvious choice. She’s done everything you’d want her to do as your Senator.

This one is a bit more nuanced.

Sen. Borris Miles

Outside the Legislature, state Sen. Borris Miles can’t seem to keep himself out of trouble.

The list of scandals include his indictment (and acquittal) over charges of deadly conduct after he allegedly pulled a gun and threatened the host of a holiday party in 2007, his threatening to “beat up” a plainclothes DPS trooper who was protecting Attorney General Ken Paxton in 2015, reports by the Chronicle in 2016 that he repeatedly failed to disclose his business interests in three companies as state law requires, and a 2017 Daily Beast piece that detailed sexual harassment accusations.

His constituents, first in House District 146 and now in Senate District 13, have found none of these allegations disqualifying, sending Miles back to Austin year after year. They have been rewarded with a solid Democratic lawmaker who represents the interests of a region that cuts across Harris County and includes neighborhoods such as Sunnyside, East End, Greater Fifth Ward and International District.

[…]

His opponent, Republican Milinda Morris, is a practicing obstetrician-gynecologist and U.S. Air Force veteran. She opposes abortion rights, and supports unrestricted gun carry and school vouchers. In recommending her in the GOP primary last March, we praised her support for public health and openness to expanding Medicaid.

Based on his troubling pattern of behavior, we believe voters can do better than Miles and have twice endorsed his primary opponents. But in this race, his track record in the Legislature and the fact that his positions are far more in sync with his district than his opponent’s make him the best choice on Election Day.

For what it’s worth, the most recent allegation the Chron cites is from 2017, so perhaps Sen. Miles has been keeping himself out of trouble lately. But maybe it’s just not making the news right now.

One could draw a parallel, in terms of unbecoming behavior, from Sen. Miles to Rep. Briscoe Cain, whom the Chron declined to endorse. Cain is also in sync with his district, as I noted. I would argue that Sen. Miles has an actual record of accomplishment, in the House as well as the Senate, while Rep. Cain is basically a whoopie cushion with a Twitter account (when it hasn’t been suspended for making threats, anyway). Again, though, one might claim that he’s just doing what the people in his district voted for him to do. If one is sympathetic to Rep. Cain’s viewpoint, I can understand how one might conclude that the main difference is that the Chron mostly agrees with Sen. Miles on the issues, and as that is the case that’s why the Chron is mostly endorsing Democrats (these days, anyway). I doubt I could persuade you otherwise.

The people responded to the call for poll workers

In Harris County, bigtime.

Muhammed Nasrullah was ready to call it quits. After working as an election judge in every Harris County contest since 2004, the COVID-19 pandemic discouraged the 67-year-old retired mechanical engineer from signing up again.

He is in a high-risk age group, and he knew friends who had contracted the virus. Then he began to read news stories about a nationwide shortage of poll workers during the pandemic. And he was worried that delays in the U.S. Postal Service have undermined the public’s trust in mail ballots.

In such a consequential election Nov. 3, with record turnout expected in Harris County, Nasrullah decided he would serve again.

“I convinced myself that the election is so important that I’m willing to take the risk,” he said. “I feel like I’m doing my civic duty, and it’s a good feeling.”

He is one of 11,000 poll workers Harris County Clerk Christopher Hollins hopes to recruit this year, twice as many as in 2016. Hollins’ ambitious $27.2 million election plan includes nearly tripling the number of early voting sites and an 8 percent increase in poll locations on Election Day. He needs an army of poll workers to staff them.

The clerk’s office in August launched an aggressive social media campaign to recruit workers, and Hollins recorded a commercial.

By this week, 29,000 applications had arrived.

Rachelle Obakozuwa, polling locations and recruitment manager for the clerk’s office, attributed part of the increased interest to many residents believing the November presidential election is especially important.

“And for another, people really need work because of COVID and a lot of layoffs,” Obakozuwa said. “We’re seeing both equally.”

Pay was also a factor – poll workers are receiving $17 per hour for their work, nearly double the $9 per hour they got in 2016. Decent pay for meaningful work, who knew that would be attractive to so many? They – and we – can thank Diane Trautman for upping their pay.

Fuentes is one of more than 100 student clerks Harris County recruited from Houston-area schools. As they often are more tech-savvy than older workers, Obakozuwa said one of the students’ tasks will be to update the clerk’s wait time app for polling places.

That task will be crucial to ensuring a smooth experience for residents, as the clerk’s office estimates each voter will spend far longer in the booth this year because of the elimination of straight-ticket voting. The hours-long lines to vote at some locations in the March primary election were partly blamed on a failure of poll workers to update the app, leading voters to visit sites that already were crowded.

Under the Texas Election Code, counties do not hire most poll workers directly. Rather, county clerks recruit and train poll workers, who are selected by the Democratic and Republican election judges at each polling site.

The loss of straight ticket voting may turn out not to be a concern, but until the Fifth Circuit speaks, it’s too soon to say. Be that as it may, my first thought when I saw this story was “Gosh, I sure hope other counties are this successful at getting poll workers”. But other counties may not be paying as well, or may not be able to pay as well. That’s an inequity situation if so, because it shouldn’t be the case that voting is easier and more accessible in one place due to financial constraints. This is another thing that could be addressed by the Legislature, by mandating a minimum level of pay and a minimum number of poll workers per location and locations per county, and allocating the money to cover costs above a certain level for each county so they can comply. I’m being overly simplistic here, but the point I’m making is that the state could be doing what Harris County has done this year, which is spend the money necessary to improve access to voting. I think we all know what will be required for that to happen. I’m just saying it’s something we can work to make happen.

Hey, look, it’s online voter registration!

And they said it couldn’t be done.

Still the only voter ID anyone should need

When Jarrod Stringer updated his driver’s license address in 2014, the Texas Department of Public Safety website asked if he wanted to register to vote. He clicked yes and thought he was registered. That fall, when he went to vote in San Antonio, he was denied. According to the system, he had never registered. It was past the registration deadline, so he couldn’t vote.

That kicked off a six-year legal battle that included two lawsuits for the right for Texans to register to vote online while updating their licenses.

“It’s traumatic when you can’t vote,” Stringer said. “It’s implicitly saying, ‘You don’t have a voice. You can’t participate in change.’”

On Wednesday, Stringer won that “mind-boggling” fight with the state of Texas two weeks before the deadline to register to vote in 2020. Acting on a federal judge’s orders, the state updated its online systems to allow people to add their names to the voter rolls when they update their licenses.

While it’s a limited step — the online option is still only available to people updating their licenses — the change marks the first time Texans have been able to register to vote online, which advocates say could significantly increase turnout both this year and for future elections.

Mimi Marziani, the president of the Texas Civil Rights Project, which brought forward the lawsuits, said the change specifically helps marginalized Texans, who most often move.

“This is absolutely a victory for voting rights for all Texans,” Marziani said. “It’s a particular victory for younger Texans, poorer Texans and Texans of color.”

[…]

Previously, Texans like Stringer who tried to register while using the state’s online license portal were directed to a blank registration form they had to fill out, print and send to their county registrar. The state was forced to change that system after U.S. District Judge Orlando Garcia ruled last month that DPS is “legally obligated” to allow voters to simultaneously register to vote with every license renewal or change-of-address application. Garcia had ordered the state to set up a “fully operable” online system by Wednesday.

“The Secretary of State and Texas Department of Public Safety are in compliance with the court’s order,” said Kayleigh Date, a spokesperson for the Office of the Attorney General, in a statement.

See here for the background. My guess is that the total number of people who will register for this election via this method will be countable on one’s fingers, but that’s not the point. The point, as Marziani rightly says, is that this shows how easily the state of Texas could have done this, and how easily it could be adapted for general purposes as soon as the law allows it. Given the challenges that voter registrars have faced in these COVID times, that’s a big deal. It’s still going to take a Democratic trifecta to happen, but once we get there the rest will be easy. The Chron has more.

Endorsement watch: Three more for the Lege

In numerical order…

Rep. Jon Rosenthal, HD135:

Rep. Jon Rosenthal

As a political novice Jon E. Rosenthal pulled off one of the biggest upsets of 2018 when he knocked off 12-term Republican Rep. Gary Elkins to win the state House District 135 seat in what turned out to be a big year for Democrats.

The 57-year-old mechanical engineer has since proved to be an able legislator, willing to work across party lines to get things done for his district and the state. He also appears refreshingly free of the conflicts of interest that plagued his predecessor’s time in the state house.

We recommend that voters in this west Harris County district give Rosenthal another term.

[…]

Rosenthal was named Freshman of the Year by the Legislative Study Group, a nonpartisan caucus that “focuses on developing mainstream solutions and advancing sound public policy that benefits all Texans.”

He was a co-author of the bipartisan House Bill 2195, which was signed into law and mandates Texas schools to have refined emergency plans.

Rosenthal said he was especially proud of helping open access roads surrounding the construction of the Texas 6 bridge over U.S. 290 in response to businesses worried about losing customers.

Voters were smart to entrust the seat to Rosenthal and they’d be smart to do it again.

Rep. Rosenthal has some serious Scott Hochberg energy around him, by which I mean he’s really smart, understands complicated technical subjects, and is just a genuine, down-to-earth guy. Swapping him in for Gary Elkins was one of the biggest upgrades the Lege has had in awhile.

Rep. Gene Wu, HD137:

Rep. Gene Wu

State Rep. Gene Wu’s understanding that “budget is policy” will come in handy next year as the pandemic’s strain on the economy will demand creative thinking from lawmakers in finding new sources of revenue and to ensure vital services are protected.

“Education cuts are off limits — period,” Wu told the editorial board. “It took us twenty-something years to even get to this point where we can say education is at least somewhat well-funded. We don’t want to go backward.”

The Democrat’s experience last session as a member of the powerful House appropriations committee is just one more reason why voters in Texas House District 137 should send Wu back to Austin for another term.

“I believe in Texas, I believe in this country and I believe the people deserve to be represented by someone who is both knowledgeable and passionate about making people’s lives better,” Wu says.

[…]

Elected in 2012, the 42-year-old former prosecutor in the Harris County District Attorney’s Office hit the ground running. He has introduced and fought for a variety of bills, many of them focused on battling human trafficking, juvenile and adult criminal justice reform, and protecting children from abuse, including an overhaul of Child Protective Services that received widespread bipartisan support.

Rep. Wu, whom you should be following on Twitter if you’re not already, is going to be a force to be reckoned with when the Dems have a majority in the House, and even more so when they have more than that. I also get the sense that he will run for something bigger at some point. I could picture him as a candidate for District Attorney, Mayor of Houston, a Congressional district if there’s a clear opportunity after redistricting, or even something statewide, as the tide in Texas continues to turn. And if I’m wrong and he’s still in the House ten years from now, he’ll either be Speaker or a senior member of the Speaker’s leadership team. If I’m still writing this thing ten years from now, you can fact-check me on this.

Akilah Bacy, HD138:

Akilah Bacy

Investing in education, making affordable health care available to more Texans and ensuring big businesses pay their fair share are some of the top priorities for Democrat Akilah Bacy, our choice in the race for Texas House District 138.

The district, which includes Spring Branch and Cypress-Fairbanks, has been represented by Republican Dwayne Bohac since 2003, but changing demographics have turned it into a battleground. Bohac, who kept his seat in 2018 by just 47 votes, is not running again.

Bacy, 35, is a graduate of Texas Tech law school and was an assistant district attorney for Harris County before opening her own firm. She grew up in northwest Houston and understands her community’s strengths and its challenges. Although she is a “solid blue Democrat,” Bacy stressed, if elected, she would legislate for all Texans.

“I am running to make sure that I am a representative who speaks for our district, not just the Democrats, not just the independents, not just the Republicans,” she told the editorial board.

Her opponent, Republican Lacey Hull, testified in Austin for parents who opt out their children from mandatory vaccines and a “parental rights” group she co-founded wants to dismantle Child Protective Services. Despite repeated invitations, she did not meet with the editorial board.

My interview with Akilah Bacy from the primary is here. I think she’ll make a fine State Rep. I get that some Republicans think that the Chron isn’t fair to them in the interview/endorsement process, and if you do think that then there’s no point in talking to them. But I have to say, if you’re anti-vaxx and pro-dismantling CPS, you should feel like a pariah.

The HCDE makeover

One more world to conquer in Harris County.

David Brown

The future looked bleak for Texas’ last remaining county education department in early 2019.

After years of state-level efforts to abolish the Harris County Department of Education, a new majority of trustees signaled they would take a more critical look at the agency’s inner workings and whether it still served the core function of supporting local school districts.

Less than a year later, the entire makeup of the board has changed. Now a 5-2 majority of HCDE supporters oversee the department and its $128 million annual budget, a majority that could grow after the November election.

The two board seats on this year’s ballot — two of the three at-large positions — are held by Republicans Don Sumners and Michael Wolfe, the remaining trustees who have been critical of the department in the past. Sumners is seeking re-election, and although Wolfe is not running for his old seat, his father, Bob Wolfe, is.

Sumners’ Democratic opponent is David Brown, an educator who works for Change Happens, a Third Ward-based nonprofit that provides mentoring, drug prevention and other services to low-income youth. Democrat Erica Davis, chief of staff for Precinct 1 Constable Alan Rosen, is running against Wolfe. If Brown and Davis capture the two at-large positions, board president Eric Dick — who has opposed efforts to shut down the department — would be the lone remaining Republican trustee.

[…]

Erica Davis

In recent decades, the department has been the subject of frequent criticism of some state and local conservatives who call it an unnecessary bureaucracy that would better serve districts if it were dissolved and its assets were given to local schools.

Republicans who shared that belief gained control of the board after the 2018 midterm elections and were quick to exercise their new role. Former trustee Josh Flynn was named board president during his first meeting in January 2019. Minutes later, the board voted to scrap a contract with a lobbying firm that represented HCDE interests in Austin.

They voted the following month to change the composition of an ancillary board that issues bonds and oversees construction contracts. They asked the board attorney to investigate the department’s Education Foundation, then put an item on two meeting agendas to replace the same attorney with a representative from Republican state Rep. Briscoe Cain’s law firm, an ally of the Republican trustees. The board ultimately kept its original lawyer after the item to remove her was tabled.

Tempers flared between the new majority and those who supported the agency. Trustee Eric Dick, the sole Republican on the board who supported HCDE, frequently exchanged terse words with the new majority, especially former President Flynn and Trustee Michael Wolfe. The tension came to a head after Dick reported that Wolfe had made sexual advances on a woman who had applied to become the board’s secretary, and allegedly attempted to blacklist her among Houston Republican groups after she turned down his advances.

After reviewing a third-party report on the allegations commissioned by the board, trustees voted to censure Wolfe in April 2019, and Harris County Attorney Vince Ryan launched an investigation into the allegations. Wolfe has denied the allegations, and the county attorney has yet to release any findings.

Ultimately, the board’s Republican majority was short-lived. Former Trustee George Moore resigned after moving out of Harris County in May 2019, and the board later appointed Democrat Amy Hinojosa to replace him. Flynn resigned in December that same year after his eligibility to run for the Texas House was questioned due to his position on the board. The board appointed Democrat Andrea Duhon to take Flynn’s place, firmly shifting the board majority.

“I have to tell you, it seems like it’s working like a well-oiled machine,” Duhon said. “It’s been fabulous not having to worry about someone coming in and trying to tear it all apart.”

Sumners, Bettencourt and other Republicans have blamed Flynn for the shift in power. Though Republicans outnumbered Democrats for most of 2019, Dick sided with the Democrats amid an ongoing feud with the Republican trustees, resulting in a 3-3 deadlock that left the board unable to appoint Moore’s replacement. Moore was barred from voting.

In December, however, Flynn skipped a meeting where trustees were set to appoint his and Moore’s replacements. That allowed Dick and the two Democrats to appoint Hinojosa and Duhon.

See here for some background. I had wondered how it was that a board with a Republican majority managed to appoint two Democrats as replacement for departing Republicans, thus turning a 5-2 GOP majority into a 4-3 Dem majority. Pretty hilarious, if you ask me. It’s only the second time in my memory that the Dems have had a majority on the HCDE Board. A brief history:

2006: All seven members are Republicans, after Dems failed to field a candidate in the Precinct 1 position (the incumbent, who had not drawn a primary challenger, withdrew at the last minute).

2008: 5-2 Republicans after Jim Henley and Debra Kerner win the two At Large positions that were on the ballot, as part of the initial Democratic breakthrough in Harris County. Kerner’s opponent in that election, by the way, was none other than Stan Stanart.

2012: Erica Lee wins the Precinct 1 position, and Diane Trautman wins the third At Large spot, thus giving the Dems a 4-3 advantage.

2014: Republicans take back the two At Large positions they lost in 2008 and go back up by a 5-2 margin on the Board. Michael Wolfe, who had lost in 2012, and Don Sumners are elected.

2016: No change in composition, but Sherrie Matula loses the Precinct 2 race by a whisker. Eric Dick is elected in Precinct 4.

2018: Still no change in composition. Danny Norris succeeds Erica Lee in Precinct 1, Richard Cantu succeeds Diane Trautman in the At Large position, and Josh Flynn defeats Andrea Duhon by less than 2,000 votes for the Precinct 3 spot. While Republicans maintain a 5-2 majority on the Board, they now have a majority of Board members who want to undermine what the Board is doing.

Late 2019, after the filing period for 2020 closes: George Moore (who had defeated Matula by less than 500 votes in 2016) resigns for personal reasons, and Josh Flynn resigns (after a bit of a kerfuffle with the county GOP) to pursue the nomination in HD138 (he would lose the primary). As described above, Amy Hinojosa and Andrea Duhon are appointed, giving the Dems a 4-3 majority again. With the Dems favored to win the two At Large seats back, they would have a 6-1 majority for next year. Hinojosa will be up for election in 2022, and Duhon in 2024.

So there you have it. There have been some attempts in the Lege to curtail the HCDE , and it won’t surprise me if there are bills to that effect filed in this session. Having a Dem House majority would block that. In the meantime, I don’t know what has gotten into Eric Dick, but I approve. Remember to vote in these races, they will be way down at the bottom of the ballot. Any chance you get to vote against Don Sumners, you owe it to yourself to take it.

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

Here we go again.

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

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

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

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

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

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

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

[…]

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

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

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

The Chron adds some detail.

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

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

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

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

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

Never stop never stopping, Stevie.

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

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

Let’s not overstate the no-straight-ticket effect

With all due respect, this is some ado about not very much.

With straight-ticket voting no longer an option in 2020, the Harris County Clerk estimates the average resident will spend a significantly longer time in the voting booth this fall, which could cause long lines at polling sites in the state’s most populous county.

In an effort to avoid voting delays, Harris County Clerk Christopher Hollins has nearly tripled the number of early voting sites to 120 and increased Election Day polling places by 8 percent, to 808. The $27.2 million plan, the most expensive election in county history, also includes extended voting hours and drive-through balloting.

Gov. Greg Abbott also has added an extra week of early voting.

With a projected record turnout of as many as 1.7 million voters, the clerk’s office hopes residents vote early or by mail, if eligible, said Benjamin Chou, Hollins’ director of innovation.

“No matter how much we do, I think at the end of the day there will be lines,” Chou said. “It’s just a matter of will we avoid a nightmare scenario by doing as much as we can, by stretching the limits of what we thought was possible even just a few months ago.”

The Legislature abolished straight-ticket voting, effective in 2020, in an effort to ensure residents make informed choices about candidates.

The elimination of that method, combined with a ballot with more than 80 races and limited access to mail ballots have made this year particularly difficult for elections administrators. A stopwatch test by Hollins’ office calculated that a straight-ticket ballot takes two minutes to cast, while selecting a candidate for each individual race in November would take 15 minutes.

Using those estimates and turnout data from 2018, when 76 percent of voters selected a straight ticket, a Houston Chronicle analysis found county voters would spend a combined 187,000 more hours in the voting booth if forced to vote each race individually.

A more likely outcome is that some voters, late for work or family obligations or simply overwhelmed by the length of the ballot, make choices in only the top races, said University of Houston political science Professor Elizabeth Simas.

“The fear would be they go to vote for president, maybe vote for senator, and then they walk out,” Simas said. “And we’re not going to get a large number of votes cast for the races that are much lower down the ballot.”

I will stipulate that going from clicking one button and being done to having to click a button fifty-something times will make your stay in the booth that much longer. (I have no idea where that “ballot with more than 80 races” item comes from. I just checked my own sample ballot, and I counted 54 total races, and that includes a handful of races with just an unopposed Democrat. The non-Presidential ballot is longer, as there are more statewide contests and more local judicial races, but we’re not in 2022 just yet.) There’s no question that it will take voters longer to vote the whole ballot, and if you are the kind of voter who deliberates over every race and carefully chooses a candidate in each, then yes, you could be there for 15 minutes or so.

But here’s the thing: That kind of voter wasn’t the person who had been clicking the straight-party button before now. And I can tell you, from my own personal experience, if your intent is to mostly or entirely vote for just the candidates of your preferred party, then it doesn’t actually take all that long to complete the ballot. I feel pretty confident saying I’ve been in and out of there in five minutes or less.

I don’t want to minimize the problem. It is going to take longer for many people to vote this year. There will very likely be some lines as a result. It’s clear that part if not all of the reason for eliminating straight ticket voting was the belief by Republicans that making it take longer to vote would benefit them. There have been so many stories this cycle in which a Republican candidate or consultant refers to this, as if it’s a key part of their strategy to win in an electorate that does not favor them. Putting aside the fact that I don’t believe “ballot fatigue” is a thing that significantly favors Republicans, I just don’t think the time factor will be that big, either. We have plenty of voting locations, we have six extra days plus a whole lot of hours to vote, and we have a lot more people voting by mail this year. I appreciate that Chris Hollins is thinking about this, but it is not something that will keep me awake at night.

Endorsement watch: The Susan Collins of Texas

Three things in life are certain: Death, taxes, and certain Chron endorsements.

Rep. Sarah Davis

The voters in state House District 134 — a swing district that covers all or parts of River Oaks, Bellaire and Meyerland and includes the Texas Medical Center — face a tough choice in the Nov. 3 election.

Five-term Republican incumbent Rep. Sarah Davis and Democratic challenger Ann Johnson are both well-qualified, skilled communicators whose many talents would serve them well in the Legislature.

We recommend Davis, 44, based on her experience, growth in office and independence.

A rare Texas Republican who supports abortion rights, she has moved from the tea party positions of her first 2010 victory to embrace the Affordable Care Act provisions of Medicaid expansion and coverage of pre-existing conditions as well as bucking her party on other issues.

[…]

Johnson has stressed her policy differences with Davis on immigration and gun control, where the incumbent is more in line with the GOP. Johnson has criticized Davis’ vote to let school districts arm teachers and to require universities to permit guns in campus parking lots and her sponsorship of a “show me your papers” bill to allow local law enforcement officials to ask about immigration status.

Those are not measures supported by the editorial board.

And yet. In the same way that the Chron endorsed Orlando Sanchez for Treasurer in four straight elections, so have they endorsed Sarah Davis consistently since 2012. Look, if you want to believe that Sarah Davis is a force for good for reproductive rights and LGBTQ equality and even expanding Medicaid, I can’t stop you. I happen to think that campus carry and “sanctuary cities” legislation are indelible stains on her record, but you do you. My opinion is that it’s better to maximize the odds of a Democratic House than to depend on a singular Republican savior. Your mileage may vary.

(Where the post title came from.)

Texas Central gets federal approvals

A big step completed.

Federal officials have issued final approvals to backers of a Houston-to-Dallas high-speed rail line, clearing the way for construction of the proposed line, in a move almost certain to face challenges from opponents.

Texas Central Railroad, the company planning to operate trains from Houston to Dallas with a stop near College Station, said early Monday that the Federal Railroad Administration had issued both the Record of Decision that ends the environmental analysis and the Rule of Particular Applicability that governs the safety standards the Japanese-developed trains must use.

“This is the moment we have been working towards,” said Carlos Aguilar, CEO of Texas Central Railroad.

Railroad administration officials did not confirm the approvals, with the company saying the details and specifics of the rules will be released soon.

Company officials — who less than a decade ago expected construction to cost $10 billion, now say building it will cost “around $20 billion,” with construction possibly starting in the first half of next year.

[…]

With the two approvals in hand, Texas Central can begin final designs and construction of the project. A consortium of companies, including Italian construction giant Salini Impregilo, Central Japan Railway — builder of the Shinkansen bullet trains that will be the basis for the Texas trains — and Spanish rail operator Renfe, are all hired to handle various parts of the building and operations of the system.

Though development involves global companies, Texas Central and supporters, including elected officials in Houston and Dallas, note the company is based in Texas and the companies will hire thousands of locals to build and operate it. Some, such as Houston Mayor Sylvester Turner, said new travel modes will define how the metro areas grow and cooperate.

“The construction of high-speed rail will have a generational impact, creating thousands of jobs right here in Houston and injecting billions of dollars into our local businesses,” Turner said.

Texas Central had previously hoped to start construction by the end of this year. I presume, though the story doesn’t indicate, that the COVID situation may have slowed things down a bit.

Most of the rest of the story is given to Texas Central opponents, and I think we can recite most of what they have to say by heart. I don’t expect the opposition to ease up any time soon, but the opponents are beginning to run out of tools in their bag, especially after a favorable court ruling on the “are they really a railroad” question. I’ve said repeatedly that the best thing TCR can do for their own future is to get those shovels in the ground and start constructing before the Lege has the chance to take any further action. They’ll be at the very beginning stages of that during the session this spring, so maybe this is the end of the line for serious peril.

Of course, we don’t know how demand for this kind of travel will change in a post-COVID world. One could argue that with fast boarding and roomier passenger spaces, TCR will be better placed than before to compete with the airlines. They may have a harder time competing with people driving themselves, however. All this assumes there will be the same kind of demand for mostly business travel going forward. We just don’t know what that effect will be in the longer term, but any argument that the Zoom-and-Teams world we’re in now obviates the need for big rail projects like TCR would apply to big road projects as well. We may very well make some inaccurate guesses about this. We’re going to have to live with that until we do know better. The Trib has more.

Endorsement watch: No Briscoe

The Chron follows the basic principle that bad acts should not be rewarded, and bad actors do not belong in positions of trust and power.

Mary Williams

In his two terms representing House District 128, Rep. Briscoe Cain has quickly acquired a reputation well beyond being the most conservative lawmaker in the House. He’s an elected official whose offensive posts earned him a suspension on Twitter. He was Texas Monthly’s Worst Legislator of 2017.

As a member of the ultra-conservative House Freedom Caucus, Cain has tweeted a threat to former El Paso Congressman Beto O’Rourke with the warning “My AR is ready for you Robert Francis.” He trolled Stephen Hawking shortly after news of the acclaimed physicist’s death.

He introduced legislation to defund a state council that promotes palliative care for the terminally ill, conflating the specialized end-of-life services for dying patients with so-called “death panels.” He wastes his colleagues’ time on the House floor pushing severe abortion restrictions he knows won’t pass constitutional muster. He posed for the cameras while getting an illegal haircut as a stunt to pressure Gov. Greg Abbott to reopen hair salons and barbershops.

That kind of grandstanding in the chamber or social media chatter does nothing to benefit the people of House District 128, which straddles the Houston Ship Channel and includes Pasadena, Deer Park, Baytown and Crosby.

They deserve better. They deserve a state representative who cares about the issues important to the district — air quality, chemical plant safety, education.

That is why we are recommending his challenger, Democrat Mary Williams, in the House District 128 race.

I mean, look, HD128 is the most Republican House district in Harris County, and the people of HD128 are represented by Briscoe Cain because they voted for Briscoe Cain. It’s free and fair to call him out on his bullshit – he has a level of entitlement that would put any trust fund boarding school scion to shame – but he’s not in office because of some anti-democratic shenanigans. The world is always a better place when the likes of Briscoe Cain are sitting on the sidelines, but let’s not fool ourselves about why he’s not.

The Chron also takes a stance against bad ethics.

Sandra Moore

Voters in state House District 133 returned Rep. Jim Murphy for a sixth term in the Legislature in 2018, even after news broke about a business arrangement that raised serious questions about possible conflicts of interest.

Murphy was paid a yearly salary for more than $312,000 as the general manager of the Westchase Management District, which is also within the boundaries of HD 133. He also served as chairman of the House Committee on Special Purpose Districts.

The situation got even murkier when reporters revealed that Murphy’s contracts included incentive payments for delivering state funds from the Legislature. For example, Murphy would receive a $6,000 bonus if he secured “$1 million or more in new TxDOT funding for highway projects” for Westchase.

Murphy has not been accused of a crime or cited for an ethics violation, but this is a violation of public trust in an issue involving taxpayers’ money.

Still, Murphy won re-election with 58 percent of the vote in 2018 and can expect a similar margin this fall in the solidly Republican district.

But if you believe Murphy’s arrangement to be disqualifying, and we do, there are two other candidates on the ballot for consideration: Democrat Sandra Moore and Libertarian James Harren.

The Chron endorsed Moore, who ran for HD133 in 2018 but lost in the primary runoff. I find Briscoe Cain to be by far the more egregious of the two – Murphy has redeeming qualities as a legislator who can do productive work – but oddly enough this sort of sin seems like the more probable cause for a voter to turn on him. Briscoe Cain can do what he does because enough people in his district like him for what he does. Murphy may find that his actions may cost him friends, or at least the support of some voters. That has something to do with the district in question as well, but self-dealing drawing a stink eye is more universal. (Unless your name is Donald Trump, of course.) Also, this district is like a more Republican version of HD134, and as such I’d bet the under on that 58% mark for Murphy. He had no opponent in 2016, but HD133 performed as a 62-63% Republican district that year. It won’t surprise me to see a couple more points shaved off of that this year.

A matter of timing

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

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

Voter registration during a pandemic is hard

Especially when online voter registration is not an option.

Still the only voter ID anyone should need

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

Meanwhile, in other election innovations:

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

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

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

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

HPD adopts cite-and-release

Took them long enough.

The Houston Police Department plans to join Harris County’s cite-and-release program, fulfilling advocates’ long-running request to implement the policy they say keeps low-level offenders out of jail and saves law enforcement resources for more serious threats.

In a presentation to the city council’s Public Safety Committee, two assistant chiefs on Thursday laid out the program they would use for a set of six misdemeanors offenses. The strategy mirrors that already used by the Harris County Sheriff’s Office and other local departments in the county, using a program set up by Harris County court-at-law judges.

In those cases, officers now would be required to give people a citation with the time and date they must appear in court, instead of hauling them to jail, unless they meet certain exceptions. Like the sheriff’s office, HPD officers who use their discretion to disqualify an eligible offender from the program would have to get supervisor approval and list the reason in their report, according to the presentation.

“I believe cite-and-release programs are critical, not just as it relates to police reform, but addressing the prison pipeline and, quite frankly, racism in our criminal justice system,” said City Councilmember Abbie Kamin, who chairs the committee. “I reiterate that this is just one aspect of improving and making sure our city is safe for all Houstonians. We can’t be finished after cite and release.”

Assistant Chief Wendy Baimbridge said the department plans to adopt the program internally, as it is allowed to do under state law. It was not clear when that will be done.

[…]

Darrell Jordan, a Harris County court-at-law judge who helped design the cite-and-release program, which launched in February, said the city should not win plaudits for dragging its feet and finally succumbing to pressure.

He said the roll-out and presentation of the program was “all for show” and wasted time. The city could have opted into the program without an ordinance days, weeks, or months ago, if it wanted. The county’s cite-and-release court has processed 113 cases since the program’s launch in February. About half of those, 60, came from the Harris County Sheriff’s Office, that agency reported.

“I don’t believe in applauding people for waiting six months to fix a problem,” he said. “That’s six months Houstonians had less officers on the streets. How many victims have suffered waiting for police officers to respond? How many alleged criminals have gotten away?”

See here and here for the background. I largely agree with Judge Jordan here, with two caveats. One, late is still better than never, so I do credit the city for eventually coming around. It shouldn’t have taken this long, but at least in the end they did make the right decision. And two, I do want City Council to vote on making this an ordinance, to make it harder for future police chiefs to tinker around the edges of this system if for whatever the reason they don’t like some part of it. It would also ensure that HPD doesn’t take too much time getting around to implementing this. This can, and ideally should, be part of a larger ordinance that includes other reforms. It’s a first step, not the end of the journey.

Endorsement watch: Three to get started

But first, why do endorsements, anyway?

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

[…]

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

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

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

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

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

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

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

Chrysta Castañeda

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

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

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

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

[…]

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

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

Next, Michelle Palmer for SBOE.

Michelle Palmer

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

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

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

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

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

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

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

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

Finally, there’s Natali Hurtado for HD126.

Natali Hurtado

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

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

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

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

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

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

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

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

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[…]

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

The court asked Paxton’s office for its opinion.

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

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

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

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

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

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

Harris County preps to print mail ballots

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Lawsuit filed over gun sign law

This is interesting.

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

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

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

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

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

A state appeals court upheld the 2019 law last week.

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

[…]

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

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

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

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

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

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

SCOTX extends stay in Harris County vote by mail case

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

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

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

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

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

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

Hollins was not immediately available for comment.

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

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

Cite and release for Houston

Good.

Houston is preparing a cite-and-release policy that could let people accused of certain misdemeanors off with a ticket instead of an arrest, perhaps the city’s most significant bid at criminal justice reform since the killing of George Floyd ignited a renewed national reckoning over policing.

Mayor Sylvester Turner previously has alluded to the effort, and the proposal is scheduled for discussion at the Public Safety Committee on Thursday. City Councilmember Abbie Kamin, who chairs that committee, said she has helped work on the policy.

“I’m thankful to community groups for advocating for this, and to HPD and Mayor Turner for bringing this forward so quickly,” Kamin said.

The details of the measure, which remain in the works, were not immediately available Monday, including which offenses would be included and whether tickets would be required — or merely preferred — instead of arrests. It also is unclear whether the measure would be an ordinance passed by the city council or an administration policy.

Since 2007, state law has allowed citations for all Class C misdemeanors and some others. Among them: possession of up to 4 ounces of marijuana; criminal mischief (damage up to $750); graffiti; theft of up to $750; providing contraband in a correctional facility; and driving with an invalid license. In those cases, officers can give offenders a written citation with a date and time to appear in court, allowing them to await the hearing without going to jail.

Advocates and elected officials in Houston have been calling for a cite-and-release policy for years. The “Justice Can’t Wait” report, released in July by a broad coalition of Houston-area criminal justice advocacy groups, renewed calls for the policy, and five city council members echoed that in a letter released late last month.

The mayor’s own transition team recommended such a policy in a 2016 report after Turner first was elected.

See here for some background. I know some people can’t sleep at night unless everyone who has ever encountered a police officer is in a jail cell, but would you rather have those officers spend their time hauling graffiti artists and people with expired licenses off to jail, or patrolling the streets after writing them a ticket? The Harris County Sheriff’s Office has had a similar policy since February, and as far as I can tell the region has not fallen into anarchy and chaos. Keep people out of jail and keep cops on the streets. And maybe that Task Force report (due by the end of the month) will have more.

UPDATE: Here’s a later version of the story, with some back-and-forth about whether the city should implement this now as a matter of policy, or draft an ordinance to mandate cite-and-release and implement it that way.

Now we wait on SCOTX

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

Chris Hollins

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

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

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

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

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

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

County Clerk can send his vote by mail applications

Good.

Chris Hollins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State appeals court rules (mostly) against Libertarians in filing fee lawsuit

Here’s the story. It gets into the legal weeds, and I’m going to try my best to clear them out.

A state appellate court this week upheld a 2019 law that extended a requirement that candidates pay a filing fee or submit a petition to appear on the ballot to minor party candidates.

A district court found the fee was unconstitutional, siding with nine Libertarians who had sued, saying it was unreasonably burdensome. But the three-justice panel of Texas’ 14th Court of Appeals on Tuesday sided with the state, saying the plaintiffs did not make a strong enough constitutional argument to waive the secretary of state’s sovereign immunity to civil suits.

The law at issue, House Bill 2504, lowered the amount of votes a party needed to get in a statewide election to retain a place on the ballot. But it also added a requirement that candidates nominated at a convention — such as those in the Libertarian and Green parties — rather than through a primary had to pay a filing fee or gather petition signatures in order to be on the ballot. Previously, only major party candidates had to pay those fees.

The law “imposes reasonable and nondiscriminatory restrictions that are sufficiently justified by the State’s interest in requiring candidates to show a modicum of support to guarantee their names on the general-election ballot,” Justice Meagan Hassan wrote. “These are the same restrictions imposed on major-party candidates with respect to their participation in the primary election.”

The ruling Tuesday will not affect Libertarian candidates on the ballot this year.

There are a couple of active lawsuits challenging the new filing fee/petition signature requirements from HB2504, this one in state court which I had not blogged about before and a federal lawsuit that as far as I know has not had a hearing yet. I gave the state lawsuit a mention at the end of this post, mostly to note that the requirement to pay the filing fees was in effect in Texas despite the original order from Judge Kristin Hawkins, as it had been superseded by the state’s appeal. This lawsuit was partly about that now-not-in-effect injunction that enjoined the collection of the filing fees, partly about whether Secretary of State Ruth Hughs could be properly sued over this, and partly about the constitutionality of the fees in the first place. Let’s go to the opinion to try to unpack things.

The trial court granted Appellees’ request for a temporary injunction and enjoined Hughs from enforcing section 141.041 and the related advisory. The trial court also denied Hughs’s plea to the jurisdiction. Hughs filed separate appeals with respect to these decisions, which were consolidated into a single appeal.

For the reasons below, we affirm the trial court’s temporary injunction in part as modified and reverse and remand in part. We conclude the trial court erred insofar as it (1) denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the constitutionality of section 141.041 and (2) improperly enjoined the enforcement thereof. We further conclude the trial court (1) properly denied Hughs’s plea to the jurisdiction with respect to Appellees’ claim challenging the advisory and (2) did not abuse its discretion by temporarily enjoining the advisory’s enforcement in part.

First, the appeals court denied SOS Ruth Hughs’ claim that she was immune to being sued for this. Harris County Judge Lina Hidalgo and then-Harris County Clerk Diane Trautman were also sued in their official capacities in the original petition, but they were not party to the appeal.

Second, the appeals court overturned Judge Hawkins’ ruling that the filing fees were unconstitutional. This was covered in the story and is the bulk of the opinion, which gets into some exceedingly mind-numbing detail. I consider myself a reasonably sophisticated layman for the purposes of reading and understanding legal writings, but boy howdy did my eyes glaze over in this part of the document. The bottom line is that the court concluded that the fees did not constitute an excessively burdensome requirement.

The matter of the injunction is where it gets a little tricky. Let’s skip ahead to the end, where that piece of business is addressed.

The trial court’s temporary injunction enjoins Hughs from enforcing section 141.041’s requirements at the time of the Advisory’s December 9, 2019 deadline or “at any other time.” We therefore construe the injunction to enjoin the enforcement of both section 141.041 and the Advisory.

We concluded above that sovereign immunity precludes Appellees’ claim challenging the constitutionality of section 141.041. Therefore, to the extent the injunction enjoins enforcement of section 141.041, the trial court lacked subject matter jurisdiction to enter the injunction.

Turning to the enforcement of the Advisory, […]

I’ll spare you a bunch of mumbo-jumbo to say that this means that while the law is constitutional and thus will not be enjoined, the enforcement of the law via the Secretary of State’s advisory that specified the minor parties’ need to collect filing fees or petitions was still in question. Let’s move up to the thrilling conclusion:

When injunctive relief is provided for by statute, we review the trial court’s decision on a temporary injunction application for an abuse of discretion. 8100 N. Freeway Ltd., 329 S.W.3d at 861. We do not substitute our judgment for that of the trial court and may not reverse unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonableness. Id.

As discussed above, we conclude that the Advisory conflicts with section 141.041 in part by impermissibly expanding the section’s requirements to all minorparty candidates seeking nomination at a convention. Considered in conjunction with Texas Election Code section 273.081, this conclusion supports the trial court’s finding that Appellees “are in danger of being harmed by a violation or threatened violation” of the Election Code. See Tex. Elec. Code Ann. § 273.081. Therefore, the trial court did not abuse its discretion by enjoining Hughs’s enforcement of the Advisory insofar as the Advisory required compliance with section 141.041’s fee/petition requirements by minor-party candidates who have not been nominated by the convention process. See 8100 N. Freeway Ltd., 329 S.W.3d at 861. Candidates who ultimately secured their party’s nomination as a result of the convention process, however, must comply with section 141.041. The injunction thus is erroneous to the extent that it relieves candidates nominated by convention of any obligation to comply with section 141.041 at any time. Therefore, we modify the injunction’s language by deleting the bolded text from the following paragraphs:

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to accept or rejecting applications for nomination from
third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to accept or rejecting applications for nomination from third-party candidates on the grounds that the applicant did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendant Hughs is temporarily enjoined from refusing to certify third-party nominees for the general-election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or at any other time.

The Court ORDERS that Defendants Hidalgo and Trautman are temporarily enjoined from refusing to certify third-party nominees for the general-election election ballot on the grounds that the nominee did not pay a filing fee or submit a petition in lieu thereof at the time of filing or any other time.

The bolding is in the original, where the appeals court is quoting from Judge Hawkins’ order establishing the injunction. What this says is that the SOS and Harris County were enjoined from enforcing the filing fee requirements at the time that the candidates were being placed on the ballot, but not forever. These candidates were in fact required to pay the filing fee or collect the petition signatures – again, because the court ruled those requirements were legal. That was essentially the status quo when the Democrats successfully defenestrated the Greens, and it is my interpretation that this means the Libertarians would have been equally vulnerable to such a challenge if the Republicans had timely fashion.

All of this is my reading, and I Am Not A Lawyer, so those of you who know better please feel free to point out my idiotic errors. As to what happens next, the plaintiffs may appeal to the Supreme Court – they did not comment about that in the story – and of course there remains the federal challenge, though based on the Ralph Nader experience of 2004, I would not be holding my breath. Use the next year-plus between now and the 2022 filing period to figure out how to pay the fees or collect the signatures, that’s my advice. The Statesman has more.

Here comes Forward Majority

Wow.

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

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

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

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

[…]

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

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

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

UT-Tyler/DMN: Trump 48, Biden 46

Here’s our first post-convention poll from an outfit that has polled the state at least twice so far this year.

Texas remains a toss-up in the presidential race. But Democrat Joe Biden’s modest – and somewhat startling – lead over President Donald Trump has evaporated in the last two months.

From a 5-point edge in early July, Biden now lags Trump by 2 points among likely Texas voters in a poll released Sunday by The Dallas Morning News and University of Texas at Tyler.

Trump’s lead is 48-46.

That turnaround is sure to gladden the hearts of Republicans, who have no hope of controlling the White House without Texas.

But as Trump has clawed his way back into contention just in time for the post-Labor Day sprint, Sen. John Cornyn has lost ground against Democrat MJ Hegar. His lead now stands at 11 points, down from 13 in early July.

But nearly 3 in 10 voters remain undecided, making for a potentially volatile fall.

“Trump is ahead,” said political scientist Mark Owens, who directed the poll, adding that the fates of the two Republicans at the top of the ticket are closely entwined. “Trump is helped by Cornyn.”

The poll, conducted Aug. 28 to Sept. 2, surveyed 1,176 registered voters. Of those, 901 said they are “extremely likely” to vote in November. The margin of error is plus or minus 2.87 percentage points for the bigger group, and 3.22 points for the subset of likely voters.

The news is better for Biden among registered voters, and since elections hinge on enthusiasm and turnout, it’s worth paying attention to all potential voters and not just those who are already sure to cast ballots.

Biden leads 44-43 with that broader group, though he led by 5 points two months ago.

See here for polling data, which for the first time contains demographic breakdowns of the data. I’ll get to that in a minute. The July poll had Biden up 48-43 among “likely” voters and 46-41 among registered voters. That was easily the biggest lead any poll had shown for Biden, so it seems likely it was a bit of an outlier. The April poll was just RVs and had a tied race, 43-43.

Some fascinating results in the data. Greg Abbott’s approval rating is a solid 54-33, right in line with his July rating. Abbott saw a dip in his approval ratings during the worst of the COVID-19 outbreak in July and August, but there wasn’t that much polling data that included an approval rating for him, so it’s hard to say how much of an effect there really was. Dan Patrick’s approval rating is a much lower 42-45 (he was at 37-37 in July), and Trump has a 40-38 rating, with 22% of respondents, including 22% of Democrats, saying they neither approve nor disapprove. Imagine me sitting here with my mouth hanging open, because that makes no sense at all.

It’s impossible for me to take very seriously a polling result that has both candidates in the 30s and 20s, with 30% or more of the respondents being not sure. Even the “Likely Voter” sample for the Senate race has Cornyn up 39-28, with 28% not knowing. Yet somehow, the result for the question about voting for the “Democratic or Republican candidate for the Texas State House” is 49-48 Dem for RVs and 48-49 for LVs. Seems to me the party preference at this level is going to tell you more about the party preference at the higher levels than anything else.

Interestingly, Biden does better among Likely Voters of color than RVs of color. He’s at 53-26 among Hispanic RVs and 75-10 among Black RVs, but at 58-28 and 87-9 in the LV screening. Make of that what you will. Trump goes from 57-34 among white RVs to 60-35 for white LVs, and 54-41 among white LVs with a college degree, which is better for him than elsewhere in the country, and 68-27 among whites with no college degree. The same thing happens with the “Democratic or Republican candidate for the Texas State House” question – it’s 67-33 Hispanic, 85-15 Black, and 37-56 for Dems among RVs, but 71-28, 90-10, and 36-64 for likely voters. Again, make of this what you will.

There are still many pollsters to be heard from, including UT/Texas Tribune, Quinnipiac, PPP, Fox News, and CBS News. It gets a little trickier tracking the data because now there are more likely voter results, which may or may not also include RV results. We’ll do the best we can. Remember, it’s never one poll result that matters, whether you like that result or not. It’s the aggregate, and as far as that goes, this remains a close race.

Data for Progress: Biden 48, Trump 45

From the inbox:

New polling data from Data For Progress shows Texas Democrats in a strong position to capture control of the Texas House of Representatives in the November general election.

A late-August survey of likely Texas general election voters in 30 battleground house districts found an unnamed Democratic state house candidate leading the Republican 45-42. In those same districts, Joe Biden leads Donald Trump 49-42.

“This polling data confirms what we are seeing in targeted house districts across the state,” said HDCC Chairwoman Celia Israel. “Texans want new leadership in Austin, focused on meeting their needs during this challenging time. Our candidates are offering that leadership and voters are responding.”

The poll, conducted August 20-25, surveyed 2,295 likely general election voters, including 1,032 voters in battleground state house districts, and has a margin of error of +/- 2.2 percentage points.

You can see the polling memo here and the poll data here. The poll used online web panels. Of interest from the polling memo:

● Biden leads Trump by 3 points statewide (48% Biden, 45% Trump)
● Democrat MJ Hegar trails Republican incumbent John Cornyn by six points in the U.S. Senate race (40% Hegar, 46% Cornyn), with 15% of voters undecided
● In competitive state House districts, Democrats lead Republicans by 3 points (45% Democrats, 42% Republicans), with Biden leading by seven points in those districts (49% Biden, 42% Trump)
● Democrat Chrysta Castañeda trails Republican Jim Wright by six points in the Texas Railroad Commission race (33% Castañeda, 39% Wright), with 25% of voters undecided
● A majority of voters (65%) say they are more likely to support a candidate for office who pledges to achieve 100% clean energy by 2035 and create millions of new clean energy jobs as America transitions to a clean energy economy
● A majority of voters (58%) say they are more likely to support a candidate if they refused to take money from fossil fuel companies, executives, or lobbyists

And from the poll data:

[1] If the 2020 presidential election was held tomorrow and the candidates for president were Republican Donald Trump and Democrat Joe Biden, who would you vote for?


                                  D    R    I
Democrat Joe Biden         48%  94%   9%  47%
Republican Donald Trump    45%   4%  87%  33%
Not sure                    8%   3%   4%  21%

[2] If the election for U.S. Senator from Texas was held tomorrow, who would you vote for?


                                  D    R    I
Democrat MJ Hegar          40%  84%   7%  32%
Republican John Cornyn     46%   6%  85%  36%
Not sure                   15%  10%   8%  32%

[3] If the election for Texas state house was held tomorrow, who would you vote for?


                                  D    R    I
The Democratic candidate   43%  92%   6%  34%
The Republican candidate   45%   4%  88%  33%
Not sure                   12%   5%   6%  34%

[4] If the election for Texas Railroad Commissioner was held tomorrow, which of the following candidates would you vote for?


                                  D    R    I
Democrat Chrysta Castaneda 35%  80%   4%  22%
Republican Jim Wright      41%   4%  82%  26%
Libertarian Matt Sterett    3%   2%   1%   8%
Not sure                   21%  13%  13%  44%

Where the Democrats lag in these races is with Democratic and independent voters. That suggests the real results will be closer to the Presidential race; compare to the previous poll of the RRC race. In the 34 contested Hous3 districts (12 held by Dems, the other 22 held by Republicans), the numbers are 49-42 for Biden, 43-41 for Cornyn over Hegar, 39-36 for Wright over Castaneda, and 45-42 for the Dem State House candidate. We’ll see how this poll compares to the others when they start coming out.

Wait, there’s a Census going on?

I smack my forehead so hard.

Through a small notice tucked into the state’s business register, Texas appears to have acknowledged that the 2020 census count is going badly.

With just a month of counting to go in the crucial decennial census, the self-response rate for Texas households has barely topped 60%. As census workers have followed up in person with households that haven’t responded, the share of households accounted for has risen to 79.5% — but Texas is still far behind several other states and several percentage points behind the national average.

On Aug. 26, the Texas secretary of state’s office quietly put out word that it has up to $15 million to spend on an advertising campaign intended to urge residents to get themselves counted. The effort — which Texas will pay for by dipping into federal dollars meant to address the coronavirus pandemic — amounts to a last-minute about-face by the state, whose Republican leadership had previously shot down any significant state funding for efforts to avoid an undercount.

The urgency the state is feeling a month out from the census deadline is apparent in the timeline of its request for proposals for a broadcast, print and digital campaign to “educate Texans on the significance and value of participating in the 2020 Census” and drive up response rates. The notice was posted last week, and bids are due by Wednesday. The contract is projected to begin two days later. Counting for the census is set to end Sept. 30.

The latest census figures showed that households in urban, Democratic-leaning areas of Texas had filled out the census online, by phone or by mail at higher rates than those in more rural, Republican-controlled areas and South Texas communities. The U.S. Census Bureau’s door-to-door campaign to follow up with households that did not self respond to the census is ongoing.

Wait, you’re telling me that the deliberate choice made by the Republican leadership to not give a dime to Census outreach efforts may actually be coming back to hurt them politically? That’s a plot twist I hadn’t anticipated. Now it all makes some sense – if it was only Dems that were in danger of being screwed, for sure they wouldn’t care now.

The state’s sudden pursuit of a multi-million advertising campaign to promote the count comes more than a year after it left local governments, nonprofits and even churches to fill the organization void in chasing an accurate count.

“It’s frustrating that we’re doing this at the last minute,” said Luis Figueroa, the legislative and policy director for Every Texan, a left-leaning think tank previously known as the Center for Public Policy Priorities that has been at the forefront of census efforts in the state. “We hope there is enough time for it to be meaningful and effective. There’s an adage about ‘better late than never,’ but there is also ‘a day late and a penny short’.”

[…]

If enough Texans are missed in the count, it would jeopardize the three additional seats in Congress the state was expected to gain after this census.

Even as other states put millions of dollars to mount census campaigns, Texas lawmakers during last year’s legislative session declined to put additional state dollars toward the census, rejecting proposals by Democratic lawmakers to create a statewide outreach committee and set aside millions of dollars in grants for local outreach efforts.

Already without state funds, the local canvassing and outreach efforts were derailed by the coronavirus pandemic. Then, the U.S. Census Bureau announced it was cutting moving up the deadline for responding up by a month. Combined with the strain on outreach efforts brought on by the pandemic, the earlier deadline has heightened the risks that Texas will be undercounted and that some Texans, particularly those who are low-income or Hispanic, will be missed in the count as the pandemic continues to ravage their communities.

“Republicans had an opportunity to address this. They refused to do this, and now the secretary of state is in the fourth quarter of the game, in the final seconds, trying to throw a hail mary, and it ain’t going to work,” said state Rep. César Blanco, an El Paso Democrat who had unsuccessfully pursued state dollars for the census. “This is an embarrassment.”

See here for more on that earlier deadline, which is now even earlier than before thanks to continued malfeasance from the federal government. This was a deliberate choice by our Republican state leaders. We will pay the price for that choice for the next ten years.

Will we have redistricting hearings?

Not looking great for it right now.

In the shadow of the COVID-19 pandemic, Texas Republicans have quietly halted plans to hold a series of public input hearings across more than 20 cities, slated to occur earlier this year, to collect public testimonials from Texans about redistricting. These testimonials would be a critical tool to help group communities which share common social and economic interests, voting patterns, and local preferences as new district maps are being drawn.

A coalition of 42 advocacy groups have taken notice of this indefinite stoppage and are demanding for the resumption of public hearings on redistricting in a safe and accessible format.

[…]

In an effort to remedy urgent concerns about the lack of preclearance and increase transparency in the upcoming 2020 redistricting process, Texas lawmakers planned for a series of public input hearings earlier this year, led by the House and Senate Redistricting Committees. Both committees are led by Republicans, Rep. Phil King and Sen. Joan Huffman, respectively.

The House and Senate originally planned for a limited public hearing schedule, however, the Texas Civil Rights Project built a coalition of groups to successfully agitate for the geographic expansion of these public hearings to reach across every corner of the state, from Austin and Houston to Amarillo and Weslaco. Then, COVID-19 swept across the state.

Because state leadership prematurely opened the state and failed to enact safety measures to control the pandemic, COVID-19 cases have skyrocketed to nearly 600,000 infections and have claimed nearly 11,000 lives, disproportionately killing Black and Latinx Texans. South Texas communities along the U.S.-Mexico border have the highest infection rates across the entire nation.

Due to the pandemic, public hearings for redistricting were indefinitely postponed in March. However, in the past four months since, the legislature has failed to provide a plan to resume the hearings with a modified schedule or different format.

The Texas Civil Rights Project argues that resuming this process to hear from Texans and receive community input is both urgent and vital to avoid further suppression and the dilution of voting power of Black and Brown communities.

You can see a copy of the letter and who signed it, along with a list of the cities where hearings had been tentatively scheduled, here. I attended one of these for the 2011 reapportionment, and there was a lot of interesting information that was presented, with several members of the public having useful things to say. The point of these hearings is to give the public a chance to understand what the data looks like and how any proposed new maps may affect their communities, while also giving the committee members a chance to hear about concerns and issues that they might not otherwise know about. It’s the least they can do, in my opinion, and even with a pandemic there needs to be a way to bring this opportunity to the people. Zoom meetings have their pros and cons, but they could certainly be used here, and would allow for people not in any of those 20 cities to attend without having to travel. Something is better than nothing, and right now nothing is what we have.

Why endorse Sarah Davis?

It’s a good question.

Rep. Sarah Davis

Planned Parenthood’s Texas political arm on Thursday endorsed state Rep. Sarah Davis, rebuffing abortion rights activists who had lobbied the group to deny political support for the Houston Republican.

The efforts to deny Davis the endorsement had revolved around a petition circulated by Sherry Merfish, a deeply connected Democratic donor and former Planned Parenthood board member. The petition concedes that Davis “may have met the minimum standards of what it means to be ‘pro-choice,’” but argues that “the rest of her record stands completely at odds with the cause of reproductive justice and the purported mission of Planned Parenthood.”

It had gathered some 450 signatures by Wednesday afternoon, including numerous Planned Parenthood donors and two board members of the group’s Houston affiliate. One of the board members, Peggie Kohnert, had circulated her own petition.

The lobbying effort has revealed a fracture between key members of Houston’s abortion rights community and the leaders of Planned Parenthood Texas Votes, a political action committee that defines itself as nonpartisan but has struggled to find Republicans like Davis to endorse. As the debate plays out, Texas Democrats — desperate to capture a House majority before next year’s critical redistricting battle — are making an all-out push to unseat Davis, whom they view as one of the most vulnerable Republican legislators in the state.

Davis’ stances on abortion have angered members of her party but helped garner support from moderate voters. In the last two cycles, she won re-election while her party’s standard-bearers, Donald Trump and Ted Cruz, each failed to crack 40 percent in her district.

Houston lawyer Ann Johnson, Davis’ Democratic opponent, argues the incumbent has worked against women’s reproductive issues by opposing the Affordable Care Act and declining to vote for the law’s optional expansion of Medicaid. Davis disagrees, saying she has voted against “every anti-choice bill” during her time in office.

Some of Johnson’s supporters say groups such as Planned Parenthood Texas Votes have allowed Davis to carefully curate her moderate reputation while she aligns with her party on immigration and gun policies. Merfish said the group also would paint a misleading picture of Johnson by backing Davis.

“By endorsing Sarah, in people’s minds who may not be as familiar with Ann, it would cast doubt on whether Ann is aligned with them on these issues,” Merfish said. “Because, then why wouldn’t they endorse both of them, or why wouldn’t they stay out of it?”

Planned Parenthood Texas Votes announced the Davis endorsement Thursday as part of a slate of 18 new endorsements. Davis is the only Republican among the 27 candidates the group is backing this cycle.

In a news release, Planned Parenthood Texas Votes said it is “working to elect officials not to just defend access to sexual and reproductive health care, but to repair and expand the public health infrastructure damaged by Governor Abbott and other extremist politicians.”

There was a preview story about this on Wednesday, which covered much of the same ground. As the story notes, Davis also received the endorsement from the Human Rights Campaign, despite Ann Johnson being an out lesbian. The story goes into a lot of detail about Davis’ career and various votes and issues that are at the heart of the dispute, so I encourage you to read the rest.

On the one hand, I get why PPTV and the HRC want to endorse Republicans like Davis, who are an increasingly rare breed. It’s in their best interests, at least as they see it, to be non-partisan, which means they need to find Republicans they can support. From a national perspective, Democrats may be the majority in Congress now, but partisan control is likely to swap back and forth over time, and you need to have some connections to the Republican majority when it exists, no matter how otherwise hostile it is, because you can’t afford to be completely shut out. Long term, I’m sure groups like these very much want for their issues to not be seen as strictly partisan, but to have broad consensus across party lines, and the only way to do that is to have Republican faces you can point to and say “see, they support us, too”. They have done this for a long time, and it’s just how they operate.

On the other hand, the simple fact of the matter is that having Sarah Davis in the State House makes it that much more likely that the Republicans will maintain their majority in that chamber, and a House with a Republican majority and a Republican Speaker is absolutely, positively, one hundred percent going to pass at least one major anti-abortion bill in 2021, just as it has every session since 2003, when the Republicans first took the majority and thus gained trifecta control of Texas state politics. A State House with a Republican majority and Speaker will absolutely not pass a bill to expand Medicaid. I agree, such a bill would almost certainly be DOA in the Senate, but at least it would get there, and the voters in 2022 would have a tangible example of what they’ve been missing out on. And of course, a State House with a Republican majority and Speaker will absolutely make further cuts to women’s health (which is already happening without any legislative input) and add further restrictions to Planned Parenthood, again as they have been doing for years now. All of this would happen regardless of the virtuous votes that Sarah Davis would cast. I mean, it may be true that she has helped stop some things and reverse some cuts and spoken against some other things, but all this has happened regardless. She’s only one member, and they have always had the votes to do all that without her.

This debate has played out for several years at the national level, with the national Planned Parenthood PAC being criticized in the past for supporting the likes of Arlen Specter and Susan Collins and a handful of Congressional Republicans for their reasonably pro-choice voting records while overlooking the “which party is the majority” aspect. Indeed, for the first time ever, Planned Parenthood has endorsed Collins’ challenger, with her vote for Brett Kavanaugh being the proverbial last straw. Activists, including blogs like Daily Kos, have made the same argument about control of the chamber versus individual members with acceptable voting records. However you feel about what PPTV and HRC did here, it’s not at all a surprise to see this debate arrive here on this level.

Ann Johnson

Though individual endorsements rarely have the power to swing elections, Planned Parenthood Texas Votes holds more sway in House District 134 than the average political group, said Renée Cross, senior director of the Hobby School of Public Affairs at the University of Houston. The district, which covers Bellaire, West University Place, Southside Place, Rice University and the Texas Medical Center, is home to some of the most affluent, educated and politically engaged voters in the state and contains what Merfish described as a “trove of Planned Parenthood voters.”

The group’s endorsement is particularly significant for Davis, Cross said, because of President Trump’s struggles among suburban women.

“Just like the tea party helped bring her in back in 2010, the anti-Trump movement could help move her out, especially among women,” Cross said.

I agree that Davis is better positioned with these endorsements than without them. A bigger concern for Davis is just simply how Democratic HD134 was in 2018, when Beto took 60% of the vote, and Davis was fortunate to not have had a serious challenger. I see a parallel to Ellen Cohen, who won re-election in 2008 by a 14-point margin over a non-entity opponent, even as Republicans were carrying the district in nearly every other race. 2008 was a strong Democratic year overall in Harris County, but HD134 was actually a bit more Republican than it had been in 2006, when something like seven or eight downballot Dems also carried the district. Cohen still vastly outperformed other Dems in the Republican tidal wave of 2010, but that wave was too big for her to overcome. I get the same feeling about Davis this year. Maybe I’m wrong – no two elections are ever alike, and HD134 has been a Republican district far longer than it’s been a Democratic district – but there’s a reason why neutral observers view Davis as being endangered.

One last thing: When I say that groups like PPTV and HRC want to be supportive of Republicans like Sarah Davis, it’s because there’s literally no other Republicans like Sarah Davis, at least at the legislative level in Texas. The thing is, Republicans like her have been extremely endangered for some time now. Go ahead, name all of the Republican legislators you can think of from this century that you could classify as “pro-choice” with a straight face and without provoking a “no I’m not!” response from them. I got Joe Straus, Jeff Wentworth (primaried out by the wingnut Donna Campbell), and that’s about it. I’m old enough to remember when Gary Polland and Steven Hotze ousted Betsy Lake, the nice River Oaks Planned Parenthood-supporting lady who had been the Harris County GOP Chair in the 90s, thus completing a takeover of the party that has lurched ever further rightward since. If they can’t support Sarah Davis, I have no idea who else in the Republican Party they could support.

CD17 poll: Sessions 45, Kennedy 42

Another mind-blowing poll result, in a district that no one has seen as competitive.

Rick Kennedy

In a district where 56 percent of voters supported President Donald Trump in 2016, Democratic congressional candidate Rick Kennedy is in a strong position to challenge the Republican control of Texas’ 17th Congressional district. Our recent survey of likely 2020 voters finds that Kennedy is within striking distance of former Congressman Pete Sessions who moved to the district last year after losing a race in his former Dallas based congressional district.

While Kennedy is fairly well-known and well-liked for a challenger in this traditional Republican stronghold (41% know enough about him to have an opinion and 63% of this cohort have a favorable opinion of him), he is clearly being helped by two factors: 1) Sessions is bringing a lot of baggage with him from northern Texas and 2) Democratic nominee Joe Biden is only trailing by 1 point in his race against the sitting President.

Normally running against someone who spent close to 20 years in Washington DC would be a challenge but that is not the case in this race. Sessions is known by 69 percent of likely voters and among these voters, 57 percent have a negative opinion of the former Congressman. This includes 21 percent of Republican voters who are familiar with Sessions. When it comes to the top of the ticket, statewide numbers in Texas have shown a close race between Biden and Trump, and the 17th district is following this trend with Biden receiving the support of 47 percent of voters in the district while Trump just one point ahead with just five percent undecided.

Given the state of the Presidential race, and the negative views surrounding Session’s connection to the Ukraine scandal that the President was impeached over, it is not surprising to see such close numbers in the congressional race. Indeed, Kennedy is only trailing Sessions by 3 points (42% to 45%) with 13% of voters undecided.

Naturally, there’s a Patrick Svitek tweet as the source for this. You can see a slightly wordier version of this on Kennedy’s campaign webpage.

For sure, voters have good reason to dislike Pete Sessions, reasons that go well beyond mere carpetbagging. But let’s be clear, this district wasn’t on anyone’s radar because Beto lost it by ten points, with Kennedy and lower-profile Democrats trailing by fifteen. As Matt Mohn points out, there’s not a lot of Dem-friendly turf in this district. It wasn’t even on Rachel Bitecofer’s extensive watch list, as it lacks the higher concentration of college-educated white folks that have made suburban districts trend blue. And not to put too fine a point on it, but Kennedy has no money, so even if Joe Biden is running right on Donald Trump’s heels here, Kennedy would be in a weaker position to capitalize on it than a better-funded candidate would be.

If I sound a little skeptical, it’s because I am. CD17 was more Republican than the state as a whole, in 2016 and in 2018. If it truly is basically a tossup at the Presidential level, we should be seeing even better Democratic results statewide and in other Congressional districts. I’d expect to see polls showing Biden up by three to five points to be consistent with this. Is this impossible? No, not at all. But it is exceptional, and I would want some correlation before I felt comfortable touting it as evidence of anything.

And speaking of other poll results, here are two more of interest:

In CD21, a poll sponsored by End Citizens United has Wendy Davis tied with freshman Rep. Chip Roy 46-46, with Biden up by one point, 48-47, on Trump. An earlier poll had Davis down one and Biden up three, so basically just some float within the margin of error. These results feel closer to what I’d expect if Biden is more or less even or a point or two behind in Texas. If anything, I might expect Davis, as well known as any Texas Dem and with a pile of money, to be doing a little better. This poll included a bit of negative messaging on Roy, which moved the numbers to 49-45 for Davis.

In HD138, one of the top Democratic targets in the State House, Akilah Bacy leads Lacey Hull 48-42, with Biden up ten, 53-43. After “balanced positive and negative messages for both candidates”, Bacy remains up by six, 50-44. This one also feels about right to me. If that Commissioners Court poll is in the ballpark, Bacy should be in a very strong position.

That’s your polling news for today. I’m sure I’ll be back soon with more, the way this has been going.

Another example of why bail reform is needed

This is troubling in a lot of ways, but fortunately there is a path forward.

Since November, eight defendants fresh out of jail on bond have walked into state District Judge Ramona Franklin’s court and been sent right back to jail.

Instead of standing for a routine court hearing in a first step in their criminal court cases, they ended up back in sheriff’s custody after Franklin revoked their bail and ordered them back behind bars, sometimes with no lawyer present for the defendant.

The process has put Franklin at odds with defense attorneys across Harris County who argue she is engaging in behavior that unfairly penalizes defendants who are presumed innocent — and can cause them to lose thousands of dollars they have scraped together to pay their bail.

Defense attorneys say Franklin revoked their bonds without notice or cause, some of them without legal representation. They argue the process is illegal, in a judicial complaint filed earlier this week with the State Commission on Judicial Conduct.

“Many times these people are effectively ambushed,” said Grant Scheiner, with the Texas Criminal Defense Lawyers Association. “They can’t defend themselves and have no access to counsel.”

[…]

When arrested, suspects usually appear before a magistrate who determines probable cause and a bail amount. After posting bail and being released from custody, they have about a day to appear before a district court judge, where they’re expected to be appointed counsel.

But Thiessen and Scheiner said the defendants complied with the rules of their appearance while Franklin violated procedure, going against the mandate recently issued in an appeals court.

“When the court of appeals hands down the decision telling you not to do something and you proceed contrary to that decision, it just shows a lack of respect for the court of appeals and the Constitution,” Thiessen said.

Franklin has said that she asks attorneys to stand in during those proceedings, the defense lawyers said, but no formal appointment or recording of those stand-in attorneys exists.

Most recently in these initial appearances, Franklin has called some of the defendants to her stand without an attorney present, Thiessen said. A prosecutor reads probable cause findings — the same document and evidence read to a magistrate — and Franklin revokes bond, raises bail amounts and remands the defendant into sheriff’s custody.

“The practice she is engaging in is very unusual,” said Amanda Peters, a law professor at the South Texas College of Law Houston who teaches criminal procedure. “I’ve never seen a judge revoke a bond and then set a higher one if a defendant didn’t violate a condition of bond.”

In some cases, she has ordered defendants who’d posted bond be held without bail, a move defense attorneys say is a clear violation of their clients’ constitutional rights.

State law mandates that judges need to give the defendant “reasonable notice” that they intend to deny bail and allow “meaningful opportunity to be heard.”

Most of the defendants were denied the opportunity for representation before Franklin acted in their cases, using probable cause materials that are often considered inadmissible evidence in trials, Thiessen said.

“Each of these defendants appeared in court and had no notice of what was about to take place,” the defense lawyers said in the complaint. “No notice that Judge Franklin intended to revoke their bonds. No notice that Judge Franklin intended to deny them bail.”

What’s happening here is that the defendants had paid the bond required of them, had shown up in court for their next hearing as they were required to do, had no violations of their bail or other offenses that could cause their bail to be revoked, and yet their bail was either revoked or raised, for no apparent reason. One thing I didn’t realize that this story pointed out is that if you have paid the bond for (say) a $25K bail, and then your bail is subsequently raised to $50K, you don’t get back the amount you paid to the $25K bail so that it can apply to the higher bail. What you paid to the bail bondsman is now gone, and you are starting from scratch to pay the higher bail. Needless to say, lots of people can’t afford this.

I don’t know why Judge Franklin is doing this – she declined to comment for the story – and it’s not clear what can be done about it. What is being alleged here is illegal, but I don’t have a sense for what the State Commission on Judicial Conduct can or will do about it. We have certainly learned over the past few years that just having a law in place for something is not sufficient if there is not an enforcement mechanism in place that brings actual consequences for violating those laws. I hope members of the Legislature, and of Congress, who have criminal justice reform on their priority lists keep this in mind.

I also hope that the ongoing litigation over bail reform for felony defendants brings all of the current abuses of the system to light:

Those probable cause documents were the same materials magistrates used to set the initial bond amounts, meaning no new evidence existed, the complaint alleges. Harris County Public Defender Alex Bunin said Texas law requires new evidence is required under a Texas statute that requires “good and sufficient cause” to raise bond. Franklin is just one of several judges who use these practices, he said.

“I think the issue is going to be taken a lot more seriously now,” he said. “Some judges have followed the rules of due process better than others, and I think that’s also coming to light.”

Let’s name names and get it all on the record. It was clear prior to the 2018 election that the Republicans judges (with one honorable exception) were the main impediment to bail reform in the misdemeanor courts. All of the felony court judges are Democrats, and so far only two of them (Chuck Silverman and Brian Warren) have petitioned to join the plaintiffs in this lawsuit. That means that all of the others are at least potentially part of the problem. It’s not too late for any of them to get on the right side of things, but that time will soon come, and it’s going to be on us Democratic primary voters to clean up whatever mess is left. I very much hope that our Democratic judges decide that they want to be part of the solution and not part of the problem, but we need to be prepared to deal with the ones that make a bad choice. Judge Franklin was unopposed in March, and has no Republican opponent. She can’t get a pass like that again.

Finally, for those who show up in the comments here with links to Facebook posts about people who get released on PR bond and then do something horrible: This is a coward’s argument. If you honestly believe that everyone who gets arrested for anything should be kept in jail until they get acquitted by a jury, have the guts to say so. Or if you believe that only people that you personally don’t find to be scary can get released, or if you believe that everyone should have to pay bail of some large minimum amount, say so. Because what you are arguing for, whether you are able to admit it or not, is for lots of people to be kept in jail before they are ever found guilty of anything. If you can’t admit what you’re actually arguing for, then maybe you should keep that argument to yourself.

And now the state has sued to stop the Clerk’s mail ballot application program

Such a busy day in court.

Acting at the request of the secretary of state, the Texas attorney general on Monday sued Harris County after it refused to drop plans to send applications for mail-in ballots for the November general election to more than 2 million registered voters.

Attorney General Ken Paxton is asking a state district court to bar Harris County Clerk Chris Hollins from proactively providing the applications to every registered voter in the county, alleging Hollins does not have the authority under state law to carry out the plan.

[…]

There is no state law that specifically prohibits election officials from sending out mail-in ballot applications to all voters. Instead, Paxton argues that county clerks are only “expressly empowered” by the Texas Election Code to send out applications to voters who request them, “but there is no statute empowering County Clerks to send applications to vote by mail to voters who have not requested such an application.”

“And Hollins’s plan to send vote-by-mail applications to every registered voter, regardless of whether the application was requested or whether the recipient is qualified to vote a mail ballot, is not an exercise of power that is necessarily implied to perform his duties,” Paxton wrote.

The legal action was sought by the secretary of state’s office, which last week demanded the county retract its plan by Monday at noon. The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older — the only predetermined qualification for a mail-in ballot in Texas — to avoid confusion about eligibility.

The secretary of state’s office claimed that Harris County’s endeavor would amount to “abuse of voters’ rights,” raising the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

But Harris County refused to back down from its plan, with Hollins noting that the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail.” The county has also previously indicated it is planning to purchase more mail-sorting equipment and hire hundreds of temporary workers who will focuse on processing voting-by-mail applications and ballots.

“They have taken the position that somehow sending the form that would make it easier for someone to vote is somehow impeding a person’s ability to vote,” said Douglas Ray, a special assistant county attorney in Harris County. “The lack of logic in that assertion is beyond me.”

See here and here for the background. A copy of the AG’s filing is here. There are two main differences between this action and the Hotze filing. One is that this is a lawsuit filed in Harris County district court, for which the AG will seek a temporary restraining order, while the Hotze action is a writ of mandamus to the Supreme Court. The other is that this one seems to make a narrower claim about the law in question, which is that the Lege didn’t give the Clerk this power and so the Clerk does not have it. It’s not as problematic or nonsensical as the Hotze argument, but it still fails my “plain reading” test and still invites the question of why anyone else would be empowered to do this if the Clerk is forbidden. You can read the other post, I’m not going to repeat myself. I will also confess that I didn’t read the AG’s filing, mostly because it was later in the day when this story hit and I was tired. I expect it’s less ridiculous than the Hotze filing, but that is a very low bar to clear. As of this moment, I have no idea what the schedule for this may be, but for obvious reasons there should be some action quickly. The Chron and the Texas Signal have more.

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

It’s mandamus time! Again.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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