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HISD Superintendent search is back on

For now, anyway.

Houston ISD trustees kicked off their long-delayed search for a permanent leader Monday, choosing three superintendent search firms to interview later this week.

The initial move comes as the state’s largest district seeks to fill a position that Interim Superintendent Grenita Lathan has held since March 2018, when Richard Carranza abruptly left to lead New York City public schools. HISD’s search has been delayed because of the looming threat of state sanctions, a state order that temporarily halted the first search and lingering uncertainty about the trustees’ ability to hire a quality candidate, among other issues.

Trustees are scheduled to reconvene Wednesday and possibly Thursday to select from the three firms: Austin-based JG Consulting; Illinois-based Hazard, Young, Attea & Associates; and Nebraska-based McPherson & Jacobson. Board members opted against interviewing GR Recruiting and the Texas Association of School Boards’ Executive Search Services.

“I prefer to interview three and give those three more time with us,” Trustee Dani Hernandez said.

HISD trustees have not released a proposed timeline for completing the search. School boards typically take multiple months to choose a lone finalist.

As the story notes, the previous search was halted by conservator Doris Delaney, who cited the investigation into allegations that five HISD Trustees had violated the Open Meetings Act when they voted to bring back Abe Saavedra as interim Superintendent and force out Grenita Lathan. The recent Third Court of Appeals ruling that affirmed an injunction against the TEA takeover stated that TEA officials failed to follow their own procedures in conducting that investigation, which sort of brings us full circle.

The injunction did not explicitly say HISD trustees could resume the superintendent search, leading to uncertainty about the board’s authority. However, trustees are interpreting the injunction as giving them the power to restart their search, and TEA officials have not moved to halt the effort.

“Because of the turmoil, it’s been hard to know what has been the long-term vision (for HISD),” Trustee Holly Maria Flynn Vilaseca said in November. “This process will help provide space to hear that, as well as the vision of others, as we do what’s best for kids.”

The potential for a bigger mess if the Supreme Court overturns the lower court rulings is very present, but one way or the other, the district deserves the opportunity to hire a new leader. Let’s just hope this results in less chaos and not more.

TEA still barred from taking over HISD

Still in a state of limbo.

Texas is still temporarily barred from taking over Houston Independent School District, a state appellate court ruled Wednesday, upholding a lower court’s order.

In a 2-1 ruling, the Texas Third Court of Appeals upheld a temporary injunction that stops the Texas Education Agency from replacing the elected school board of its largest district with an appointed board of managers. The appeals court ruling sends the case back to the lower court that in January blocked the state’s takeover effort.

The appellate judges said Houston ISD had a “probable right to relief” since the TEA did not follow proper procedure and acted outside its authority as it moved to sanction the district. It also ordered the state to “pay all costs related to this appeal.”

The TEA plans to appeal the ruling to the Texas Supreme Court. “While the Agency is disappointed with the split ruling from the 3rd Court of Appeals, this is only a temporary setback,” the agency said in a statement. “We are confident that the Texas Supreme Court will uphold the Commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”

[…]

[T]he appellate court’s ruling Wednesday said Texas’ “proposed actions are not authorized by the Education Code.” The opinion stated that the state did not have the right to appoint a conservator to oversee the entire school district in 2019, force Houston ISD to suspend its search for a new superintendent, or impose sanctions based on an investigation, among other things.

The opinion was written by Judge Gisela Triana, who was joined by Judge Jeff Rose in the ruling. In a dissenting opinion, Judge Thomas Baker wrote that Texas is authorized to take over Houston ISD, the injunction should be removed and the district’s claims should be dismissed.

See here and here for the background, and here for a copy of the opinion. The Chron story goes into the opinion in some more detail.

To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019. While the law is intended to punish districts with campuses receiving failing grades in multiple consecutive years, the justices found that the TEA failed to take a technical step — ordering HISD to submit a campus turnaround plan for Wheatley — that it says was required under the statute.

The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.

State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which thus hasn’t yet been met.

Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation, which Morath cited as a third reason for replacing HISD’s board.

For what it’s worth, the “affirm” opinion came from a Democratic justice (Triana) and a Republican justice (Rose), while it was a Democratic justice (Baker) who voted to overturn the district court opinion. I don’t know when this might be resolved – the appeal to the Supreme Court is of the injunction, while the case itself was sent back to the district court – but until there is a final ruling that says the TEA can install its Board of Managers, I’m going to operate on the assumption that there will be HISD Trustee elections this year. I guess there would be regardless, but at least for now those elections mean a bit more, since the Board of Trustees is still running things. The Press has more.

Followup omnibus Election Day post

Wanted to clear up some loose ends from the late night/early morning post and add a couple of things I’d missed the first time around. I’ll have a longer “thoughts and reactions” post probably tomorrow.

– The district results from last night appear to be the same this morning, which means: No Congressional flips, Dems flip SBOE5 and SD19, Dems flip HD134 but lose HD132, for a net one seat gain the the Senate and zero seats in the House. I don’t know how many people would have bet on no net changes to Congress and the State House.

– One other place where Dems made gains was the Courts of Appeals. Dems won the Chief Justice seats on the Third (anchored in Travis and Williamson counties) and Fourth (anchored in Bexar but containing many counties) Courts of Appeals, plus one bench on the First Court (anchored in Harris, won by Veronica Rivas-Molloy) and three on the Fifth Court (Dallas/Collin, mostly). Dems fell short on three other benches, including the Chief Justice for the 14th Court, though the other result on the First Court was really close – Amparo Guerra trails Terry Adams by 0.12%, or about 3K votes out of over 2.25 million ballots. The key to Rivas-Molloy’s win was her margin of victory in Harris County – she won Harris by 133K votes, while Guerra won Harris by 114K, Jane Robinson (Chief Justice 14th Court) won Harris by 104K, and Tamika Craft (14th Court) won Harris by 90K. With Galveston, Brazoria, and Chambers County all delivering big for the Republicans, that big lead that Rivas-Molloy got in Harris was enough to withstand the assault.

– Final turnout was 1,649,457, which was 67.84%. That fell short of the loftier projections, but it’s still over 300K more votes than were cast in 2016. The new Election Night returns format at harrisvotes.com does not give the full turnout breakdown by vote type, but the PDF they sent out, which you can see here, does have it. The breakdown: 174,753 mail ballots, 1,272,319 in person early ballots, 202,835 Election Day ballots. Note that these are unofficial and un-canvassed numbers, and will change by some amount when the vote is certified, as some late overseas and military ballots arrive and some provisional ballots are cured.

– Another way to put this: 10.6% of all ballots were mail, 77.1% were early in person, and 12.3% were cast on Election Day. Just the early in person votes is a higher percentage of “before Election Day” tallies than any previous year. Will this be a new normal, at least for high-turnout even-year elections? I have no idea. Those extra days of early voting, plus all of the sense of urgency, surely contributed to that total. I don’t know that we’ll match this level going forward, but it won’t surprise me if the standard is now more than 80% of all votes are cast before Election Day (again, in even-year elections; who knows what will happen in the odd years).

– For what it’s worth, the closest countywide race was decided by about 76K votes; the next closest by about 90K, and the rest over over 100K. What that means is that if somehow all 127K of those votes cast at drive-through locations during the early voting period were suddenly thrown out, it’s highly unlikely to affect any of those races. I suppose it could tip a close non-countywide race like HD135, and it could reduce Veronica Rivas-Molloy’s margin in Harris County to the point that she’d lose her seat on the First Court of Appeals. I can’t see that happening, but I wanted to state this for the record anyway.

I’ll have more thoughts tomorrow.

UPDATE: The SOS Election Night Returns site now shows Amparo Guerra leading by about 1,500 votes, or 0.06 points, in the First Court of Appeals, Place 5 race. Not sure where the late votes came from, but they helped her, and they helped Jane Robinson, who is still trailing but by less than 5,000 votes, or 0.18 points.

SCOTX upholds Abbott’s limit on mail ballot dropoff locations

I’m shocked, I tell you, shocked.

In what’s expected to be the final ruling on the matter, the Texas Supreme Court has upheld Gov. Greg Abbott’s order limiting Texas counties to only one drop-off location for voters to hand deliver their absentee ballots during the pandemic.

The ruling, issued Tuesday by the all-Republican court, is the final outcome in one of a handful of lawsuits in state and federal courts that challenged Abbott’s order from early this month. A federal appeals court also sided with the Republican governor in an earlier ruling, overturning a lower court’s decision.

The state lawsuit argued that the governor doesn’t have authority under state law to limit absentee ballot hand-delivery locations, and that his order violates voters’ equal protection rights under the state constitution. The suit was filed in Travis County by a Texas-based Anti-Defamation League, a voting rights advocacy group and a voter.

In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.”

See here for the previous update. In a narrow and technical sense, the Supreme Court is correct. Abbott did in fact expand voting options with his original order, which not only added that extra week to early voting but also allowed for mail ballots to be dropped off during the early voting period. State law only allows for that on Election Day, one of many problems that will need a legislative fix in the near future. But we all know that the purpose of his amended order, more than two months after Harris County Clerk Chris Hollins had announced his plan to have dropoff locations at all 12 County Clerk offices, and several days after people began using those locations, was to issue a rebuke to Hollins for having the nerve to innovate like that, and to throw a bone to the howling nihilists in his own party that were attacking him for taking any step to make voting easier. The limit served no legitimate purpose, and was done in haste and with politics in mind. It is what it is at this point, and as with every other ad hoc obstacle thrown in our path, the voters have adjusted. We’ll be coming for you soon, Greg. The Chron has more.

Try not to get sick before Election Day

If you suffer a late illness that prevents you from getting to a polling place, you will need a doctor’s note to get an absentee ballot.

Texas voters who get sick shortly before Election Day and can’t go to the polls will still need a doctor’s note before they can get an emergency absentee ballot, a state appeals court ruled Friday.

Voting rights group MOVE Texas will not appeal the temporary ruling further. Instead, as a fallback, the group has established a free telehealth service with volunteer physicians to provide the necessary documentation for sick voters seeking absentee ballots starting Saturday, the executive director said.

The Texas 3rd Court of Appeals’ ruling, overriding a state district court order, said implementing the lower court’s ruling “would change the longstanding requirements governing late mail-in ballots and risk voter confusion.” The case will still be reviewed further after the election.

MOVE Texas first challenged existing election law in a Travis County court after reports this summer detailed voters who tested positive for the coronavirus in the days before the primary runoff election struggling to cast ballots.

Unlike applications for absentee ballots received before the general deadline, which was Friday, Texas law dictates that voters submitting applications for emergency absentee ballots must provide certification from a doctor that the voter has developed an illness that would keep them from being able to vote in person.

In the July primary runoffs, two Austin voters tested positive for the new coronavirus and were put under self-quarantine orders shortly after the cutoff date for mail-in ballot applications. They asked a Travis County district judge to waive the requirement for a doctor’s note but lost their case.

On Oct. 2, MOVE Texas filed a challenge in court, arguing that the state’s criteria for applying for emergency absentee ballots is unconstitutional and imposes an undue burden on the right to vote. Travis County District Judge Tim Sulak agreed, ruling against the requirement for a doctor’s note last week.

[…]

Preparing for the loss in the 3rd Court of Appeals, Galloway said the group designed a fallback program to connect sick voters to volunteer physicians who will meet via videoconference.

“It’s completely up to the physician if they want to issue the waiver or not,” Galloway said. “If so, they can do it digitally. That voter is then set and it’s at no cost to them to be able to complete the application and turn it into the elections department.”

Probably for the best at this point. I remember the earlier story, but if I blogged about it at the time, I can’t find the post.

Let’s be clear about three things. One, this is likely to affect a tiny, tiny number of people. The set of circumstances under which someone would be affected by this are super specific. It’s always worth worrying about anyone who faces obstacles to voting, but you can probably count the number of these people on your fingers. That said, if you haven’t voted yet, you could be a person affected by this.

Two, the main reason for all of this is our state’s restrictive laws for voting by mail. In a world where getting a mail ballot is easy – or even the default – problems like this go away. This specific situation could have been addressed by the court, but the big picture needs to be handled by the Legislature.

Finally, this is the argument for voting at your first opportunity. Life is uncertain. I get wanting to vote on Election Day, out of a sense of tradition or because you want to make sure that nothing comes up that might change your mind in a given race, or because a voting location that has meaning for you is only available on Election Day. The risk you take is that the longer you take, the greater the chances that something could come up that will complicate your ability to vote. I’m a committed early voter, and have been for years. Your mileage may vary. Just be aware of the tradeoffs.

SCOTX reinstates Abbott’s mail ballot dropoff location limit

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

State judge halts Abbott’s mail ballot dropoff limit order

Remember there was a state lawsuit over the executive order that limited counties to one mail ballot dropoff location? That suit had a hearing this week, and the plaintiffs prevailed. For now, at least.

A Travis County state district judge on Thursday ordered a halt to Gov. Greg Abbott’s directive limiting Texas counties to one drop-off location for hand delivery of absentee ballots. The ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties..

On Monday, a federal appeals court upheld the Republican governor’s order under federal law, overturning a lower court’s ruling. The Travis County decision, however, applies to potential violations of state law.

A Texas-based Anti-Defamation League, voting rights advocacy group and a voter filed the lawsuit in Travis County district court last week arguing that the governor doesn’t have authority under state law to limit absentee ballot delivery locations. The lawsuit also claimed Abbott’s order violates voters’ equal protection rights under the state constitution.

In a short order Thursday, Travis County District Judge Tim Sulak ruled against Abbott and the Texas secretary of state.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

It’s unclear if and when additional mail-in ballot drop-off locations might be re-opened. Travis County had four drop-off locations before the Oct. 1 order, and Harris County had a dozen in place. But the decision is expected to quickly be appealed to a higher state court.

See here for more about the state lawsuit, which as we had heard was scheduled for a hearing this week. The Statesman has some more details.

In a letter sent Thursday afternoon, state District Judge Tim Sulak, who presided over a hearing in the matter on Tuesday, told lawyers that he will issue a temporary injunction against Abbott’s Oct. 1 order.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

As the Chronicle notes, this ruling is (very likely) stayed for the time being:

Paxton said his appeal in the case means an automatic stay of Sulak’s decision. The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.

Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.

Remember a million years ago when the Libertarian/Green challenge to filing fees was still in effect despite the lower court ruling because of superseding? That’s the principle here. I’ll leave it to the lawyers to explain if it should be the principle here or not, but that’s where it’s at. The question now is, how quickly does this get to SCOTX? It seems likely to me that the ruling would be upheld by the Third Court of Appeals, but we all know where this is headed. It’s just a matter of when. So offer a halfhearted cheer for now, but keep your expectations in check until it’s all over.

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.

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.

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.

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

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

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

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

[…]

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

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

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

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

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

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

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

More on the Republican attempt to defenestrate the Libertarians

From the Statesman:

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

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

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

[…]

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

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

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

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

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

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

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

Republicans go to Supreme Court to remove Libertarian candidates

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

Republicans try and fail to remove Libertarian candidates from the ballot

From Patrick Svitek:

The Third Court of Appeals decision is here. You may be wondering, why did this same court agree to boot three Green candidates off the ballot last week, for the same reason of not paying filing fees? A good question, with a straightforward answer in the opinion.

Basically, the key difference is timing. By state law, the deadline for withdrawing from the ballot is 74 days before the general election, which this year was August 21. The same date is also the deadline for removing an ineligible candidate’s name from the ballot. A candidate who has withdrawn, or been declared ineligible, or died after this date will still appear on the ballot. Recent examples of the latter include Sen. Mario Gallegos in 2012 and State Rep. Glenda Dawson in 2006. If the ineligible/withdrawn/deceased candidate wins the election (as was the case in those two examples I cited), there is then a vacancy for the office, because that person cannot take office, and thus there is the need for a special election to fill that vacancy.

How that matters in this case is that the plaintiffs (“relators” in Appeals Court-speak) waited too long to take action. The relators included the NRCC, the Republican Party of Travis County, and Rep. Van Taylor. As outlined in the Dem cases against the Greens, they asked via email the Libertarian Party of Texas to disqualify the candidates that didn’t pay the filing fee, and then followed that up with the filing to the Third Court. The problem was, they sent that email “late in the evening on Thursday, August 20”, and filed their mandamus petitions on the 21st (the NRCC in the morning, the Travis County GOP at 9:19 PM). That did not leave adequate time for the Libertarian Party to respond, and it also means that the legal deadline I just mentioned had already passed. Here’s the analysis of the case from the court’s ruling:

“The law is clear that a challenge to the candidacy of an individual becomes moot ‘when any right which might be determined by the judicial tribunal could not be effectuated in the manner provided by law.’” Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.) (quoting Polk v. Davidson, 196 S.W.2d 632, 634 (Tex. 1946) (orig. proceeding)). “If a challenge to a candidate’s eligibility ‘cannot be tried and a final decree entered in time for compliance with pre-election statutes by officials charged with the duty of preparing for the holding of the election,’ we must dismiss the challenge as moot.” Id. (quoting Smith v. Crawford, 747 S.W.2d 938, 940 (Tex. App.—Dallas 1988, orig. proceeding)).

The Texas Election Code provides that “[a] candidate’s name shall be omitted from the ballot if the candidate withdraws, dies, or is declared ineligible on or before the 74th day before election day.” Tex. Elec. Code § 145.035. However, “[i]f a candidate dies or is declared ineligible after the 74th day before election day, the candidate’s name shall be placed on the ballot.” Id. § 145.039. “If the name of a deceased, withdrawn, or ineligible candidate appears on the ballot under this chapter, the votes cast for the candidate shall be counted and entered on the official election returns in the same manner as for the other candidates.” Id. § 145.005(a).

Because relators waited to file their challenge to a total of 30 candidates until the last possible day this Court could grant the relief they seek, they made it impossible for the Court to obtain the information and briefing needed to afford due process and make a reasoned decision until less than 74 days remained before election day. Accordingly, even if this Court were to conclude based on the mandamus record that respondents have a statutory duty to declare the real parties in interest ineligible, their names would remain on the ballot and any votes cast for them would be counted. See id. §§ 145.039, .005(a); see also Brimer, 265 S.W.3d at 928 (holding that challenge to candidate’s eligibility for general election becomes moot when it cannot be tried and final decree entered in time for compliance with pre-election statutes); accord Smith, 747 S.W.2d at 940 (“This is true, even though the contestant may have good cause or grounds for the contest.”) (citing Cummins v. Democratic Exec. Comm’n 97 S.W.2d 368, 369 (Tex. App.—Austin 1936, no writ)). No order that this Court might enter would be effective to change this result. The Republican Party candidates’ only legally recognized interest in pursuing this mandamus is to avoid being opposed by an ineligible candidate—an outcome that we cannot, at this point, change.

In other words, if the Republicans wanted the Libertarians who didn’t pay the fee off the ballot, they needed to act sooner than they did, in order to meet the statutory deadline for removing those candidates’ names from the ballot and also to give them their due process rights to respond to the allegations. Because they waited as long as they did, the law was clear that the candidates’ names would remain on the ballot, even if they were indeed ineligible. If one of those Libertarians were to win, then (I presume, anyway) there could be a subsequent lawsuit over whether they could take office or not, but that would be a fight for another day. They snoozed, they lost, better lawyering next time.

One more thing, from a footnote to the analysis of the case:

We note that relators seek the same relief that was sought and granted in our recent opinion, In re Davis, No. 03-20-00414-CV, __S.W.3d__, 2020 WL 4931747 (Tex. App.—Austin Aug. 19, 2020, orig. proceeding). There, the petition for mandamus was filed four business days before the statutory deadline. To assure due process to respondents, this Court required responses in one business day, the same as it did here. And in In re Davis, the candidates themselves brought the challenge. While it is clear that “a candidate for the same office has ‘an interest in not being opposed by an ineligible candidate,’” Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.) (quoting In re Jones, 978 S.W.2d 648, 651 (Tex. App.—Amarillo 1998, orig. proceeding [mand. denied]) (per curiam)), respondents in this proceeding challenge whether political parties have an interest sufficient to confer standing to pursue mandamus relief. See Colvin v. Ellis Cnty. Republican Exec. Comm’n, 719 S.W.2d 265, 266 (Tex. App.—Waco 1986, no writ) (holding that “voter” who was opposing political party’s chair had no justiciable interest apart from general public and could not bring suit to enjoin candidacy of ineligible candidates). We need not reach this issue or the other legal and evidentiary arguments raised by respondents because we are disposing of the mandamus petitions based on mootness.

In other words, the question of who raised this challenge to the Libertarian candidates would have been an issue for the court to decide if the matter was not moot. I should note that the Brimer v. Maxwell case cited in that footnote was a reference to a challenge brought by then-Sen. Kim Brimer against Wendy Davis for the 2008 election. There had been a prior challenge made by some Fort Worth firefighters who alleged that Davis did not resign her Fort Worth City Council seat in time to file for the Democratic primary, but that case was dismissed because the court ruled those plaintiffs did not have standing. Brimer did have standing, but a district court ruled in Davis’ favor and a subsequent appeal was denied in part because it was way past the deadline to boot anyone from the ballot. You never know what tidbits of interest can lurk in these things. Anyway, that should be that for now.

Weekend voting litigation news

I have two news items about voting-related lawsuits. Both of these come via the Daily Kos Voting Rights Roundup, which has been increasingly valuable to me lately, given the sheer number of such lawsuits and the fact that some news about them either never makes the news or does so in a limited way that’s easy to miss. For the first one, which I have been unable to find elsewhere, let me quote directly from the DKos post:

A federal court has rejected the GOP’s motion to dismiss a pair of Democratic-backed lawsuits challenging a 2019 law Republicans enacted to ban mobile voting locations that operate in a given location for only part of the early voting period. The law in question requires that all polling places be open for the entire early voting period, but because this puts additional burdens on county election officials’ resources, many localities have opted not to operate so-called “mobile” polling places altogether.

Democrats argue that the law discriminates against seniors, young voters, voters with disabilities, and those who lack transportation access in violation of the First, 14th, and 26th Amendments.

This was originally two lawsuits, one filed in October by the Texas Democratic Party, the DSCC, and the DCCC, and one filed in November by former Austin Assistant City Manager Terrell Blodgett, the Texas Young Democrats (TYD) and Emily Gilby, a registered voter in Williamson County, Texas, and student at Southwestern University serving as President of the Southwestern University College Democrats (the original story listed this plaintiff as Texas College Democrats, but they are not mentioned in the ruling). These two lawsuits were combined, and the ruling denying the motion to dismiss means that this combined lawsuit will proceed to a hearing. Now, I have no idea how long it will take from here to get to a hearing on the merits, let alone a ruling, and as far as I know there’s no prospect of an injunction preventing the law in question (HB1888 from 2019), so this is more of a long-term impact than a 2020 thing, but it’s still good news. I should note that there was a third lawsuit filed over this same law, filed in July by Mi Familia Vota, the Texas NAACP and two Texas voters. That one was filed in San Antonio federal court, while this one was in Austin. I do not know anything about that lawsuit other than the fact that it exists. Like I said, this stuff is hard to keep up with.

The ruling is here, and it’s not long if you want to peruse it. The motion to dismiss argued that the Secretary of State could not be sued because it didn’t enforce voting laws, that the plaintiffs did not have standing because the injuries they claimed under HB1888 were speculative, and that HB1888 was constitutional. The judge rejected the first two claims, and said that once standing and the right to sue were established, the constitutionality question could not be answered in a motion to dismiss because the state had a burden to meet for the law to be constitutional, even if that burden is slight. So it’s on to the merits we go. Now you know what I know about this particular offensive against one of Texas’ more recent attempts to limit voting.

Later in the Kos roundup, we learned about a brand new lawsuit, filed by the Hozte clown car crowd, which is suing to overturn Greg Abbott’s executive order that extended early voting by an additional six days.

Conservative leaders and two Republican candidates have filed suit to block Gov. Greg Abbott’s order that added six days of early voting for the November election as a pandemic-inspired safety measure.

The extension, they argued, must be struck down as a violation of the Texas Constitution and state law.

“This draconian order is contrary to the Texas spirit and invades the liberties the people of Texas protected in the constitution,” the lawsuit argued. “If the courts allow this invasion of liberty, today’s circumstances will set a precedent for the future, forever weakening the protections Texans sacrificed to protect.”

The lawsuit was the latest attempt by prominent conservative activist Steven Hotze to overturn Abbott’s executive orders and proclamations in response to the coronavirus.

None of Hotze’s suits to date has succeeded, but the barrage of legal challenges highlights the difficulty Abbott is having with his party’s right wing, which questions the severity of the pandemic and opposes limits on businesses and personal decisions.

The latest lawsuit, filed late Thursday in Travis County state District Court, was joined by Republican candidates Bryan Slaton, running for the Texas House after ousting Rep. Dan Flynn, R-Canton, in the GOP primary runoff, and Sharon Hemphill, a candidate for district judge in Harris County.

Other plaintiffs include Rick Green, a former Texas House member from Hays County, and Cathie Adams, former chair of the Republican Party of Texas and a member of Eagle Forum’s national board.

In late July, when Abbott extended the early voting period for the Nov. 3 election, he said he wanted to give Texas voters greater flexibility to cast ballots and protect themselves and others from COVID-19.

Beginning early voting on Oct. 13, instead of Oct. 19, was necessary to reduce crowding at polls and help election officials implement safe social distancing and hygiene practices, Abbott’s proclamation said. To make the change, Abbott suspended the election law that sets early voting to begin 17 days before Election Day.

At the same time, Abbott also loosened vote by mail rules allowing voters to deliver completed ballots to a county voting clerk “prior to and including on election day.”

The Hotze lawsuit, which sought to overturn that change as well, argued that Abbott’s emergency powers do not extend to suspending Election Code provisions and that the early voting proclamation violates the Texas Constitution’s separation of powers doctrine because only the Legislature can suspend laws.

The lawsuit seeks a temporary restraining order barring the Texas secretary of state from enforcing Abbott’s proclamation and a court order declaring it unconstitutional.

See here for a copy of the lawsuit. Abbott did extend early voting, though whether it was in response to Harris County Clerk Chris Hollins’ request or if it was something he was always planning to do – remember, he did do the same for the primary runoff election – is not known. What is known is that the State Supreme Court has shown little patience for Hotze and his shenanigans lately. The quote in the story from the lawsuit may be one reason why – there’s a lot more heat than facts being alleged, and even a partisan institution like SCOTX likes to have some basis in the law for what it does. The fact that the extension of early voting for the July runoffs went unchallenged would seem to me to be relevant here – if this is such a grave assault on the state Constitution, why was it allowed to proceed last month? The obvious answer to that question is that there’s a partisan advantage to (potentially) be gained by stopping it now, whereas that wasn’t the case in July. My guess is that this goes nowhere, but as always we’ll keep an eye on it. Reform Austin has more.

Finally, I also have some bonus content relating to the Green Party candidate rejections, via Democracy Docket, the same site where I got the news about the mobile voting case. Here’s the temporary restraining order from the Travis County case that booted David Collins from the Senate race and Tom Wakely from CD21; it was linked in the Statesman story that I included as an update to my post about the mandamus request to SCOTX concerning Wakely and RRC candidate Katija Gruene, but I had not read it. It’s four pages long and very straightforward, and there will be another hearing on the 26th to determine whether the Texas Green Party has complied with the order to remove Collins and Wakely or if there still needs to be a TRO. Here also is the Third Court of Appeals opinion that granted mandamus relief to the Democratic plaintiffs regarding all three candidates:

Molison and Palmer are hereby directed to (1) declare Wakely, Gruene, and Collins ineligible to appear as the Green Party nominees on the November 2020 general statewide ballot and (2) take all steps within their authority that are necessary to ensure that Wakely’s, Gruene’s, and Collins’s names do not appear on the ballot. See In re Phillips, 96 S.W.3d at 419; see also Tex. Elec. Code § 145.003(i) (requiring prompt written notice to candidate when authority declares candidate’s ineligibility). The writ will issue unless Molison and Palmer notify the Clerk of this Court, in writing by noon on Thursday, August 20, 2020, that they have complied with this opinion.

“Molison” is Alfred Molison and “Palmer” is Laura Palmer, the co-chairs of the Texas Green Party. Since the question of the state lawsuit filed by the Libertarian Party over the filing fee mandate came up in the comments on Friday, here’s what this opinion says about that, in a footnote:

We note that although the Green Party and other minor parties and candidates have attempted to challenge the constitutionality of the filing-fee or petition requirement in federal and state court, the statute is currently in effect and enforceable. The federal court denied the parties’ and candidates’ motion for preliminary injunction on November 25, 2019. See Miller v. Doe, No. 1:19-CV-00700-RP, (W.D. Tex., Nov. 25, 2019, order). Although the state district court granted a temporary injunction on December 2, 2019, temporarily enjoining the Secretary of State from refusing to certify third-party nominees from the general election ballot on the grounds that the nominee did not pay a filing fee or submit a petition, the State superseded the temporary injunction, and an interlocutory appeal is pending before the Fourteenth Court of Appeals. See Hughs v. Dikeman, No. 14-19-00969-CV, (Tex. App.—Houston [14th Dist.], interlocutory appeal pending).

Emphasis mine. So there you have it.

Further thoughts on the Dems defenestrating the Green candidates

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

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

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

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

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

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

[…]

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More challenges to Green Party candidates

From Patrick Svitek:

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

Austin’s sick leave ordinance is officially dead

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

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

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

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

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

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

Supreme Court sticks its nose in

I suppose this was to be expected.

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

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

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

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

[…]

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

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

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

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

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

[…]

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Paxton tries a Supreme shortcut

They sure are keeping busy.

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

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

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

[…]

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

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

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

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

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

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

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

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

Criminal complaint filed against AG Ken Paxton

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

MOAR MUG SHOTS

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

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

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

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

[…]

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

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

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

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

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

TDP petitions appeals court to get Paxton to knock it off

Good.

The Texas Democratic Party has asked a court to order state officials not to interfere with a previous court order that opened up mail-in voting in the state.

In their filing Tuesday with the Third Court of Appeals, lawyers accused the state of thrusting voters and local election officials into “legal limbo” by contradicting the earlier ruling.

[…]

Earlier this month, Attorney General Ken Paxton accused local election officials of “misleading the public about their ability to vote by mail.”

“Fear of contracting COVID-19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualifies a voter to receive a ballot by mail,” Paxton said in a statement last week. ““My office will continue to defend the integrity of Texas’s election laws.”

In its filing, the Texas Democratic Party said the court needs to step in to ensure counties and voters do not fear applying for and processing vote-by-mail applications.

“The State has taken the extraordinary action of publicly disregarding an order from a coequal branch of the government, asserting that its view of the Texas Election Code, which was rejected by the trial court, is law of the land and threatening those who follow the trial court’s interpretation with prosecution,” lawyers wrote in their motion. “This includes calling into question the validity of the injunction within Travis County and intimidating Travis County voters.”

See here and here for the background, and here for the TDP’s motion. Here I am Not Being A Lawyer again, but it sure seems weird to me that Ken Paxton would simply announce what Judge Sulak’s ruling meant, when the 3rd Court is right there. I get that the AG’s job includes offering non-binding legal opinion about things, but he’s also a party in this lawsuit, so his opinion in this case is hardly disinterested. Anyway, we’ll see what the 3rd Court makes of all this.

Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Shepherd ISD update

They’re the other district being taken over by the TEA due to failing performance.

Four days after a court order temporarily stopped Texas from taking over Shepherd Independent School District, elected school board members voted to effectively cede their control over the four-school East Texas district. They also fired the lawyers who got the takeover halted without a directive from the full school board.

With Friday’s school board vote, Texas education officials are poised to appoint their own board of managers to oversee hiring, budgeting and operations in Shepherd ISD, a result of the long-standing academic failure at two of its schools. It would be Texas’ first state takeover as a result of a 2015 law requiring harsh penalties for districts that fail to improve long-struggling schools.

“I’m opposed in principle to this,” said Mike Courvelle, the loudest school board voice in disagreement with the decision. “Once the state comes in…we’re granting them total control.”

The Third Court of Appeals in Austin, which issued an order Monday that temporarily blocked the takeover, must still give the state permission before it can appoint a new board. Almost all the discussion Friday on the school board’s votes happened behind closed doors in executive session.

Courvelle did get one win Friday: He and his colleagues unanimously tapped internal candidate Dianne Holbrook to serve as the district’s new superintendent, refusing the option chosen by the state. They did so knowing the state would likely overturn that decision.

“We know her. She’s here. We trust her,” Courvelle said. “We expect it to be a short-lived decision anyway.”

Jeff Cottrill, the Texas Education Agency’s representative in Shepherd, agreed with the latter part of Courvelle’s statement. “We look forward to the Third Court of Appeals bringing resolution to this litigation so the state-appointed superintendent Dr. Jason Hewitt as well as the board of managers can begin serving and uniting this community around improving student outcomes,” he told The Texas Tribune after the vote.

See here for the background. The stopped-and-to-be-restarted takeover situation is somewhat of a comedy of errors, stemming from miscommunication between the Shepherd board and the attorneys representing them. That’s not very interesting to me, and I expect that by mid-week or so the initial court order will be lifted. Of greater interest to me is this:

Shepherd’s takeover is due to a 2015 state law intended to hold school districts more accountable for improving their schools, instead of allowing them to languish in a state of low academic performance for years. If one school fails for five or more years, Texas is required to either shut down the school or take over the entire school district.

The same year the law was passed, Shepherd ISD’s primary and intermediate schools, which serve about half the district’s students, received their first failing grades.

Those schools would fail for four more consecutive years: a cohort of students attending elementary schools where less than a quarter of them can read on grade level.

When Ronnie Seagroves took over as principal of Shepherd Intermediate School last year, it had already been considered a failing school for years, not just for its poor academics but also lack of student discipline. Principals came and went, without providing vision or direction for the school and its students, he said.

Seagroves is working hard to turn that around by encouraging collaboration among teachers, providing more individualized instruction for students, and greeting students each day at the school’s entrance. But that same cohort of students who spent each year in a low-performing elementary school is now attending the middle school, which has received failing grades for the last two years.

So how likely do you think the TEA will be to reverse this trend? I suppose the preliminary question to that is, what caused this problem in the first place? Was Shepherd a more-or-less OK school system that suddenly took a nosedive? Was it that when a different (maybe more precise, maybe more random) measuring system was put into place, problems that had been there all along were suddenly exposed? Is there some other potential cause that may not be so readily identifiable? I’m skeptical that the TEA can and will do any better, but if they can at least identify the problem here, then maybe that can help other districts in the future. Whatever happens, I hope it’s done in a transparent manner, so we can learn from it one way or the other.

TEA appeals takeover-delay injunction

This isn’t settled just yet.

Texas Education Agency officials said they filed an appeal Thursday to overturn an injunction by a Travis County judge blocking it from replacing Houston ISD’s trustees with a state-appointed board of managers.

The appeal was sent to the Austin-based Third Court of Appeals, and if a panel of judges sides with the agency, it could resume its work to strip Houston ISD’s board of power.

If the injunction is upheld, the TEA would not be able to move forward until a lawsuit by the Houston ISD board of trustees has been decided. Travis County District Judge Catherine Mauzy on Wednesday set a hearing date for June 22.

[…]

Shepherd ISD, a small school district just south of Lake Livingston also is targeted for a board takeover by the TEA. That district also sought a temporary injunction this year to stop the education agency takeover. On Thursday, Travis County District Judge Karin Crump denied that application for an injunction.

HB 1842 was not the TEA’s only potential option to replace Houston ISD’s board. It could sanction the district over the state investigation. State law also allows the TEA to take over the board if a district has had a TEA conservator for two or more years.

HISD attorneys argue that the TEA’s investigation was biased and that because the TEA conservator was assigned to one campus, and not the district as a whole, her presence would not trigger a takeover.

The injunction by Judge Mauzy also blocks the TEA from acting under either of those rules.

See here for the background. The conventional wisdom seems to be that while the Third Court of Appeals may uphold the injunction, the all-Republican Supreme Court may be more favorable to the TEA. Make of that what you will. Time could be a factor, depending on how long it takes each court to hear and rule on the appeals. Honestly, I hope this gets decided on the merits in a timely fashion. Whatever the outcome, having some extra clarity on the law would be a good thing.

Omnibus election report

It’s after midnight, I’ve mostly posted stuff on my long-dormant Twitter account (@kuff), and I will have many, many thoughts in the coming days. For now, a brief recap.

– As you know, neither Beto nor any other Dem won statewide, thus continuing the shutout that began in 1996. However, as of this writing and 6,998 of 7,939 precincts counted, O’Rourke had 3,824,780 votes, good for 47.86% of the total. In 2016, Hillary Clinton collected 3,877,868 votes. It seems very likely that by the time all is said and done, Beto O’Rourke will be the biggest vote-getter in history for a Texas Democrat. He will have built on Hillary Clinton’s total from 2016. That’s pretty goddamn amazing, and if you’re not truly impressed by it you’re not seeing the whole picture. We’re in a different state now.

– Beto may not have won, but boy howdy did he have coattails. Colin Allred won in CD32, and Lizzie Fletcher won in CD07. Will Hurd is hanging on to a shrinking lead in CD23, up by less than 1,200 votes with about 14% of the precincts yet to report. He was leading by 6,000 votes in early voting, and it may still be possible for Gina Ortiz Jones to catch him. Todd Litton (45.30% in CD02), Lorie Burch (44.21% in CD03), Jana Lynne Sanchez (45.25% in CD06), Mike Siegel (46.71% in CD10), Joseph Kopser (47.26% in CD21), Sri Kulkarni (46.38% in CD22), Jan McDowell (46.91% in CD24), Julie Oliver (44.43% in CD25), and MJ Hegar (47.54% in CD31) all came within ten points.

– Those coattails extended further down the ballot. Dems picked up two State Senate seats, as Beverly Powell defeated Konni Burton in SD10 (Wendy Davis’ old seat) and Nathan Johnson trounced Don Huffines in SD16. Rita Lucido was at 46.69% in SD17, but she wasn’t the next-closest competitor – Mark Phariss came within three points of defeating Angela Paxton in SD08, a race that wasn’t really on the radar. Oh, and in an even less-visible race Gwenn Burud scored 45.45% in SD09, while Meg Walsh got to 41.60% against Sen. Charles Schwertner in SD05 (he was just over 55% in that race). We could make things very, very interesting in 2022.

– And down in the State House, Dems have picked up 11 seats:

HD45, Erin Zwiener
HD47, Vikki Goodwin
HD52, James Talarico
HD65, Michelle Beckley
HD102, Ana-Marie Ramos
HD105, Terry Meza
HD113, Rhetta Bowers
HD114, John Turner
HD115, Julie Johnson
HD135, Jon Rosenthal
HD136, John Bucy

Note that of those seven wins, a total of four came from Denton, Hays, and Williamson Counties. The Dems have officially gained a foothold in the suburbs. They also lost some heartbreakingly close races in the House – I’ll save that for tomorrow – and now hold 12 of 14 seats in Dallas County after starting the decade with only six seats. This is the risk of doing too precise a gerrymander – the Republicans there had no room for error in a strong Democratic year.

– Here in Harris County, it was another sweep, as Dems won all the judicial races and in the end all the countywide races. Ed Emmett lost by a point after leading most of the evening, while the other Republicans lost by wide margins. Also late in the evening, Adrian Garcia squeaked ahead of Commissioner Jack Morman in Precinct 2, leading by a 112,356 to 111,226 score. Seems fitting that Morman would lose a close race in a wave year, as that was how he won in the first place. That means Dems now have a 3-2 majority on Commissioners Court. Did I say we now live in a different state? We now live in a very different county.

– With 999 of 1,013 precincts in, Harris County turnout was 1,194,379, with about 346K votes happening on Election Day. That puts turnout above what we had in 2008 (in terms of total votes, not percentage of registered voters) but a hair behind 2012. It also means that about 71% of the vote was cast early, a bit less than in 2016.

– Oh, and the Dems swept Fort Bend, too, winning District Attorney, County Judge, District Clerk, all contests judicial races, and County Commissioner in Precinct 4. Maybe someone can explain to me now why they didn’t run candidates for County Clerk and County Treasurer, but whatever.

– Possibly the biggest bloodbath of the night was in the Courts of Appeals, where the Dems won every single contested race in the 1st, 3rd, 4th, 5th, 13th, and 14th Courts. I count 16 incumbent Republican judges losing, with several more open Republican-held seats flipping. That is utterly amazing, and will have an impact far greater than we can imagine right now.

– Last but not least, both Houston propositions passed. Expect there to be a lawsuit over Prop B.

The Courts of Appeals

The other judicial races where Dems have a chance to gain ground.

Republicans dominate Texas politics — but their stranglehold is especially noticeable in the courts.

Republicans hold all 18 seats on the state’s two high courts. Of the state’s 14 appeals courts, Democrats hold majorities on just three. On the other 11 courts, Democrats have no seats at all.

Democrats are hoping to flip that advantage on Election Day. In their eyes, the stars have aligned. They have a high-profile liberal darling running a competitive race for U.S. Senate at the top of the ticket. They have a controversial Republican president expected to generate backlash in his first midterm election. And enough judicial seats are up for election that Democrats could flip the four sprawling appellate court districts that serve Austin, Dallas and Houston. Hillary Clinton won those districts in 2016, but the courts are currently held entirely by Republicans.

If Democrats can sweep those races in 2018, they’ll take control of half the state’s appeals courts. And strategists say that goal is in sight.

[…]

No Democrat has been elected to the Dallas-based 5th Court of Appeals since 1992. The six-county district includes liberal-leaning Dallas, but also some of Texas’ most reliably red areas. In Dallas, as in Houston and Austin, large, urban centers contribute the lion’s share of the judicial district’s electorate, but right-leaning rural and suburban voters in surrounding counties have handed victories to Republicans for the past several election cycles. Only the 4th Court of Appeals, based in San Antonio, has a partisan split with Democrats in the majority. The Legislature controls these maps; the districts have changed only twice since 1967, most recently in 2005.

[…]

Ken Molberg, a district judge in Dallas, ran for 5th Court of Appeals in 2014 and came up nearly 72,000 votes short. This year, in another attempt, he’s confident things will be different. Molberg, a former Dallas County Democratic Party chair, has accumulated several hundred thousand dollars — an impressive sum for such an unstudied race — and said his region of the state is “ground zero for the party this go around.”

“The potential to switch this court in one election cycle is there, and it would be somewhat earthquake-like if that happened,” Molberg said. “It’s a tough race all the way around, but my analysis is that it can be done.”

Molberg is the best-funded of the eight Democrats battling Republicans for seats on the 13-justice court. But he said the slate will likely succeed or fail as a group.

“I don’t think individual campaigns have any effect at the court of appeals or district court level. …That’s an example of where you’re almost entirely dependent on straight-ticket voting,” said Jay Aiyer, a political science professor at Texas Southern University. “At the courthouse level, it’s easier for one party to dominate.”

[…]

“There is a real conformity, a uniformity of judicial thought on these courts that I think would really benefit from different experience,” said Meagan Hassan, who’s running as a Democrat for the Houston-based 14th Court of Appeals. She pointed to the tiny fraction of dissenting opinions written by Houston-area appellate judges, arguing that ideological balance is needed for the critical decisions these courts make.

In Tyler, for example, an all-Republican court of appeals struck down as unconstitutional the state’s new “revenge porn” law. The 3rd Court of Appeals is currently weighing the city of Austin’s paid sick leave ordinance. And state appellate courts are the last appellate stop for the vast majority of criminal cases in the state — yet many state appellate judges have no background in criminal law.

Democratic wins, Hassan said, “would bring balance to the court that hasn’t existed there in 25 years.”

That’s a theme several of the CoA candidates mentioned in the Q&As I did with them this year. They also point out that a lot of the Court of Appeals rulings stand because they don’t get heard by the Supreme Court or the CCA. I wrote about these races in 2016, when there were several pickup opportunities available, in part due to the wipeout of 2010. Dems did gain one seat each on the 4th and 13th Courts of Appeals in 2016, the latter being one they lost in 2010. They had gained three on the 4th and lost one on the 3rd in 2012, with all of those being up for re-election this time around.

For the 1st and 14th Courts, which are the ones that include Harris County, Dems lost the CoA races by a wide margin in 2014 but came much closer in 2016. Here’s an example from 2014 and an example from 2016. The deficit was close to 150K votes in 2014 but only about 40K votes in 2016. The formula for a Democratic win is pretty straightforward: Carry Harris County by a lot, break even in Fort Bend, and limit the damage in Brazoria and Galveston. That’s all very doable, but it’s likely there won’t be much room for error. It all starts with running up the score in Harris County (or Travis County for the 3rd, and Dallas County for the 5th). If that happens, we can win.

Microbrewery legal setback

Kind of a lousy Christmas present.

Three Texas brewers are going back to battle with the state after an appeals court reversed a decision that would have allowed them to sell their distribution rights for monetary compensation.

In 2014, Peticolas Brewing Co. (Dallas), Revolver Brewing (Granbury) and Live Oak Brewing Co. (Austin) sued the Texas Alcohol and Beverage Commission, saying a newly passed law related to who could sell a brewery’s distribution rights was unconstitutional. The mandate, which passed in 2013 with a bundle of other beer regulation reforms, said breweries may not accept payment for contracting with a distributor, but that a distributor could get a payout if it sold those same territorial rights to another distribution company.

Last year, a judge served victory to the breweries. But on Dec. 15, the Texas Third Court of Appeals reversed that decision. It stated, in part, the law does not prevent the brewers from successfully operating their businesses and that it also upholds the industry’s three-tier system, which aims to avoid conflicts of interest between alcohol manufacturers, distributors and retailers.

The decision will be appealed to the Texas Supreme Court, according to a statement from Institute for Justice, which is representing the breweries.

“It is well established that the Texas Constitution protects economic liberties, and these rights do not cease to exist when the government begins licensing and regulating individuals and businesses,” said Arif Panju, managing attorney for Institute for Justice’s Texas office, in a statement. “Every business in Texas should be concerned with the court’s ruling in this case. It is dangerous and we will ask the Texas Supreme Court to reverse.”

See here, here, and here for the background. You know how I feel about this. The three-tier system is an anachronism and a travesty, a glaring counterexample to any politician’s paeans to how Texas has a great business environment. Yet it persists, a lasting tribute to the lobbying efforts of the beer distributors and the big breweries that support them. As with so many things in this state, the ultimate solution is going to have to be a political one. Nothing will change until we elect enough people who want it to change. Austin360 has more.

New Braunfels can ban is back

A blast from the past.

New Braunfels officials plan to resume enforcement of the “can ban” and limits on coolers on rivers on Wednesday even as opponents of the controversial municipal codes continue to pursue a legal challenge to them.

The development follows the Texas Supreme Court’s refusal this month to bar the city from enforcing the ordinances, which prohibit bringing disposable containers or coolers over 16 quarts in size onto the Guadalupe and Comal rivers inside city limits.

“Everyone is still invited to enjoy their favorite beverage on our rivers. We just ask that they do so responsibly and in consideration of the health and sustainability of these important community assets,” Mayor Barron Casteel said in announcing Friday that enforcement of the measures would resume this week.

The resumption of enforcement after a lull of more than three years was called premature Monday by attorney Jim Ewbank, who brought suit in 2012 on behalf of local river outfitters and tourism-related businesses who contend the codes are an overreach of municipal authority.

Despite rejecting plaintiffs’ request to issue an immediate stay on enforcement of the contested codes, he noted the Texas Supreme Court did request a full briefing by the parties, “which is a good sign for us.”

The city’s brief is due to be filed by late November, said Ewbank, who expects the high court to decide by January whether to hear the whole case.

[…]

State District Judge Don Burgess granted the plaintiffs a summary judgment in 2014, but that decision was overturned in May by the 3rd Court of Appeals. It held that the plaintiffs lacked legal standing to challenge a penal code, therefore Burgess lacked subject matter jurisdiction on the case.

See here for my last update. I apparently missed the appellate ruling. Be that as it may, the city expects to get the ball rolling this week, with an eye on putting the ban back in place next year, assuming the Supreme Court doesn’t set them back. Adjust your tubing plans for the future accordingly.

You are now free to visually blight Texas highways

WTF?

Opponents of billboards and other signs along Texas roadways reacted on Monday with dismay to an appeals court decision striking down significant portions of the Texas Highway Beautification Act, saying the ruling could lead to a litany of signs along federally funded highways.

The Third District Court of Appeals in Austin issued the decision on the state law – cheered as the linchpin of Texas’ scenic roadway efforts – because the 42-year-old act restricts free speech.

Scenic Texas, a statewide group that has fought watering down Texas billboard laws, is urging the Texas Department of Transportation – the defendant in the current case – and state officials to appeal.

“What it appears to do is strip away TxDOT’s authority to regulate outdoor advertising as they have been doing it for the last 40 years,” said Margaret Lloyd, a Galveston resident and vice president of Scenic Texas. “We are concerned that authority has been removed completely.”

The ruling came late last week in a case regarding a 2011 sign erected to support Ron Paul’s 2012 presidential campaign. Auspro Enterprises placed the sign on its property along Texas 71.

[…]

TxDOT spokeswoman Veronica Beyer said the agency is reviewing the ruling and consulting with the Attorney General’s Office and the Federal Highway Administration.

“TxDOT does not regulate or restrict content, as TxDOT has regulations that provide protection for freedom of speech,” Beyer said in a statement. “Texas has the most beautiful roadways in the nation, and as such TxDOT only wishes to further maintain the safety to the traveling public without restricting peoples’ constitutional rights.”

Citing other restrictions on signs and previous court rulings, the appeals court struck down subchapters B and C of the beautification act, which are the centerpiece of the law. Essentially, the court ruled Texas’ law relies on exemptions that differ based on the content of the sign, which is unconstitutional.

“The Texas Act, as both (TxDOT) and the Texas Supreme Court have acknowledged, on its face draws distinctions based on the message a speaker conveys,” appeals court Chief Justice Jeff Rose wrote.

Rather than void parts related to political speech, as TxDOT sought during the case, the appeals court said it cannot sever one type of sign from another and deemed TxDOT’s total authority of signs unconstitutional.

“We strongly disagree with the interpretation the court has come up with,” said Anne Culver, president of Scenic Houston, a local version of the statewide group.

A copy of the ruling is here. It cites a recent SCOTUS case ( Reed v. Town of Gilbert), which the judges say “has arguably transformed First Amendment free-speech jurisprudence”. If that’s so, I don’t care for it, because I think this ruling, which struck down a law that had been in place with no objections for over 40 years, is too broad. Beyond the effect at the state level, this could affect local billboard ordinance as well. Surely we don’t want to go back to the ugly old days in Houston, right? Scenic Texas said in a post on Facebook that they will encourage the AG to appeal this ruling. This is one time where I agree with that advice. Swamplot and the Chron editorial board have more.

La Marque ISD lawsuit tossed

The end of the line for La Marque ISD.

A Texas appeals court has dismissed a lawsuit seeking to halt the annexation of the La Marque school district by Texas City ISD.

The 3rd Texas Court of Appeals on Friday dismissed the lawsuit, saying that it lacked jurisdiction and that the lower court erred in accepting the case.

“This is the end. It’s done,” said Terry Pettijohn, a member of the deposed La Marque school board that sued to prevent the Texas Education Agency from dissolving the district.

“It’s just hard to understand how a school district that had met TEA standards and was financially solvent could have been closed,” Pettijohn said.

Former Education Commissioner Michael Williams, replaced Jan. 1 by former Dallas ISD trustee Mike Morath, last year ordered La Marque ISD to merge with the Texas City Independent School District as of July 1. State officials said the district had failed to meet its financial marks.

Morath issued a statement saying, “Our primary focus at the Texas Education Agency is ensuring that students in La Marque have access to a high quality education. We continue our work as the transition to Texas City ISD moves forward.”

See here, here, and here for the background. I didn’t expect La Marque to prevail here, and we did need a resolution one way or the other to be prepared for the next school year. I just hope this works out as planned. I’d feel a lot better about it if there had ever been any statistics published about the effect of HISD taking over North Forest, but if there are it was done in a very low key fashion. We’ll see how this goes.

CCA dismisses remaining charge against Rick Perry

This would appear to be the end of the road.

Corndogs make bad news go down easier

Corndogs for everyone!

The state’s highest criminal court dismissed the remaining indictment against former Gov. Rick Perry on Wednesday morning, apparently ending the case that started with his threat to veto state funding for a local prosecutor if she refused to quit her office.

[…]

A ruling earlier in the year by a state appeals court dismissed one of the two felony charges against Perry: coercion of a public servant. Perry’s lawyers challenged that decision, arguing that the Austin-based 3rd Court of Appeals should have also dismissed the abuse-of-power charge.

And that’s what the Texas Court of Criminal Appeals did on Wednesday. Two of the court’s nine judges dissented in that one ruling, while one abstained.

Tony Buzbee, Perry’s attorney, called the ruling a “long time coming,” and said the case should have never been brought in the first place.

“I said all along this case was foolishness and would be dismissed.”

Michael McCrum, the special prosecutor in the case, called the ruling “horrendous.”

“This is a situation where the Republican court carved out a special ruling to get Perry off the hook. It changes law for past decades and offers no laws for future courts to follow,” he said. “This is, from what I understand, a special ruling tailor-made for Rick Perry.”

Craig McDonald, executive director of Texans for Public Justice, the liberal-leaning watchdog group behind a complaint that led to the indictment, largely echoed that notion.

“A highly partisan court has handed Rick Perry a gift,” he said. “This decision is based on who Perry is rather than what he did.”

You could sort of see this coming when the case was argued last November, but it’s still a bit of a surprise. Clearly, there are limits to how pro-prosecutor this court will be, and Rick Perry joins Tom DeLay in being beneficiaries of that. I don’t feel like spending too much time thinking about it, so I will point you to the Associated Press, the AusChron, Trail Blazers, the Current, and the Press for more.