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Travis County

Chron analysis puts freeze death total at 194

Sobering, to say the least.

The deaths of nearly 200 people are linked to February’s cold snap and blackouts, a Houston Chronicle analysis reveals, making the natural disaster one of the worst in Texas this past century.

The tally, which is nearly double the state’s official count, comes from an investigation of reports from medical examiners, justices of the peace and Department of State Health Services, as well as lawsuits and news stories.

The state count, which is preliminary, has yet to incorporate some deaths already flagged by medical examiners as storm-related.

The 194 deaths identified by the Chronicle so far include at least 100 cases of hypothermia that killed people in their homes or while exposed to the elements, at least 16 carbon monoxide poisonings of residents who used dangerous methods for heat and at least 22 Texans who died when medical devices failed without power or who were unable to seek live-saving care because of the weather.

Sixteen deaths were from other causes, such as fires or vehicle wrecks, while the remaining 40 were attributed by authorities to the storm without listing a specific cause.

“This is almost double the death toll from Hurricane Harvey,” said State Rep. Rafael Anchia, D-Dallas. “There was no live footage of flooded homes, or roofs being blown off, or tidal surges, but this was more deadly and devastating than anything we’ve experienced in modern state history.”

The toll is almost certain to grow in coming weeks as death investigators in the state’s most populous counties clear a backlog in cases from the cold snap. The Travis County medical examiner alone is investigating more than 80 deaths between Feb. 13 and Feb. 20.

The deaths come from 57 counties in all regions of the state but are disproportionately centered on the Houston area, which at times during the crisis accounted for nearly half of all power outages. Of the known ages, races and ethnicities of the victims, 74 percent were people of color. Half were at least 65. Six were children.

The previous count released by the state was 111, but as noted then and in this story that is sure to go up. There’s no central database for this kind of thing, only 14 counties have a medical examiner’s office, and not all county data is currently available. As with COVID deaths, there are likely some cases where one could argue whether the freeze was the actual cause of death or whether it was just proximate. The main point here is that the freeze was responsible for a lot of misery around the state and by any count more deaths than there were from Hurricane Harvey. It remains to be seen if the Legislature and the Public Utility Commission (which currently has no members) are taking adequate action to prevent this from ever happening again.

Austin mask mandate somehow still in effect

I admit, I did not expect this.

Best mugshot ever

Austin and Travis County can keep requiring masks for at least a bit longer after a district judge denied Texas Attorney General Ken Paxton’s request for a temporary block of the local mandate.

Paxton sued the local officials for refusing to end the mandate after Gov. Greg Abbott lifted state restrictions earlier this month. Paxton will likely appeal the decision.

District Judge Lora Livingston has yet to issue a final ruling on the merits of the case, meaning Austin and Travis officials may later be told to comply with state officials.

But in the meantime, County Judge Andy Brown said Friday’s ruling at least prolongs the amount of time masks are required in their communities — which gives them more time to vaccinate their residents.

“I’ve been doing everything that I can to protect the health and safety of people in Travis County,” Brown said in an interview. “And Judge Livingston’s ruling today allows us to keep doing that.”

[…]

The final outcome of the case could have implications for other Texas cities and counties on how local governments can enforce their own public health mandates, even after the state ordered them to end.

During Friday’s hearing, discussion broadly centered around the question: What powers do local public health departments have, and how do the governor’s emergency powers affect them?

Austin and Travis attorneys said public health officials have the authority to implement health measures — like mask mandates — outside of the context of the pandemic, and therefore should not be affected by Texas’ latest order.

State attorneys argued that Abbott’s emergency powers because of the pandemic trump any local orders.

Livingston pushed back on some of the state attorney’s arguments that not requiring masks allows for individual freedom.

“I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the deadly virus,” Livingston said.

See here and here for the background. Note that the judge still has not issued a ruling, she just hasn’t granted the state’s motion for an injunction while she makes her decision. The usual trajectory in this sort of thing has been for the good guys (i.e., whoever is on the opposite side of Ken Paxton, whether as plaintiff or defendant) to win in round one and sometimes in round two, but to ultimately lose. Since the legal question at hand in these matters is the imposition of a restraining order or injunction, and since Paxton loves filing emergency appeals, the outcome that matters in the short term – that is, whether or not the good guys get to do what they want to do or force their opponents to do or not do something – is decided quickly, and often renders the actual litigation moot. In this case, the judge has taken her sweet time issuing a decision, so there’s been nothing for Paxton to appeal. Plus, even if all they get out of it is a couple of weeks’ extra time, that extra time is consequential in terms of slowing the spread of COVID. I just did not see it playing out this way. So, whatever happens in the end, good for Austin and Travis County for finding a way to do something in the short term. I don’t know how replicable this is, but it worked this time and that did matter.

Have you been pining for another Hotze/Woodfill lawsuit?

Well, then today is your lucky day.

Not that kind of face mask

Texas Agriculture Commissioner Sid Miller and conservative activist Dr. Steven Hotze, a prolific litigant, are suing Lt. Gov. Dan Patrick for requiring COVID-19 tests for entry into the Texas Senate gallery and committee hearings.

In the 18-page suit filed in Travis County court, Miller and Hotze argue the Senate rule violates the Texas Constitution and Open Meetings Act and ask the court to block the rule. Patrick’s spokesman did not immediately respond to a request for comment.

“Gov. Abbott is opening up businesses while Patrick is shutting down the people’s access to their government,” the plaintiffs’ attorney Jared Woodfill said in a statement.

Members of the public wishing to view proceedings must receive a wristband that indicates a negative COVID-19 test. The rule was established to prevent the spread of the virus at the statehouse, which proved to be hotspots in other states.

[…]

The lawsuit says the Senate rule “unreasonably restricts speech” by mandating a “medical procedure as a prerequisite” and violates the right to free speech guaranteed by the Texas Constitution.

“The constitutional mandate that the legislative session be ‘open’ supersedes any statutory emergency authority that may otherwise apply to the Senate,” the suit reads, noting Hotze had tried to enter on March 2 but was denied entry when he refused a COVID-19 test.

See here for some background. I couldn’t find a copy of the lawsuit online, but Jasper Scherer has an image of the first four pages. In the name of preserving my sanity, I did not read them. One does not have to be a lawyer to think that the “free speech” argument here is a stretch, though maybe there’s something to the open meetings claim. I’ve got better things to worry about, so we’ll see what the courts make of it. We know what their recent track record is, I’ll just leave it at that.

HISD Board wins again in court

They’re still a thing, and Mike Morath can’t do anything about it right now.

The Houston ISD school board earned another win Friday in its effort to stave off Texas Education Commissioner Mike Morath’s plan to replace it with an appointed board, this time prevailing in a procedural battle before the state Supreme Court.

In an 8-1 decision, the Texas Supreme Court ruled that a state appellate court had the legal right to temporarily halt Morath’s move to oust HISD’s school board amid an ongoing lawsuit.

The ruling is not final victory for HISD in its fight with Morath. It merely means that the education commissioner cannot immediately move to replace trustees with a board of managers, which could vote to drop the lawsuit. The HISD board’s case remains pending, with an appeal related to the central issues of the case pending before the Texas Supreme Court.

Lawyers representing Morath and the Texas Education Agency argued that a state law precluded the courts from stopping state administrative actions — such as stripping power from school board members and appointing replacements — even if a trial court issues a temporary injunction. A Travis County judge overseeing HISD’s lawsuit issued such an injunction in January 2020.

An appellate court partially agreed with the TEA’s position, but the judges also found that they separately had the power to halt an administrative action under the state’s rules of appellate procedure, which they did in HISD’s case.

Lawyers for Morath and TEA disagreed and asked the state Supreme Court to overturn that finding, but the eight justices sided with the lower court.

See here and here for the background. This is a procedural ruling, which just means that the TEA does not get to take over HISD while the appeal of the ruling that said that the TEA did not properly follow the law while attempting to do the takeover is being litigated. HISD still has to win that appeal, and then have that upheld by the Supreme Court, to get out of the current situation. In the meantime, there’s the Harold Dutton bill that would make all of this moot, though it too would surely be subject to a lawsuit. I dunno, maybe the TEA should try to negotiate a settlement of some kind if they lose again, so we can all get on with our lives? Just a thought.

Do not give Ken Paxton any more power

Seriously, WTF?

Best mugshot ever

A new bill would give Texas Attorney General Ken Paxton greater prosecutorial authority over abuse-of-office charges — the very crime for which the FBI is reportedly investigating the state’s top attorney.

The bill, proposed by state Sen. Paul Bettencourt, R-Houston, would allow Paxton’s office to prosecute the charges without consent from local prosecutors, as is required now.

Paxton, a Republican who has been awaiting trial in a separate, unrelated felony securities fraud case for five years, has also been also under investigation by federal law enforcement after seven former aides accused him of using the powers of his office to help campaign donor, Nate Paul, an Austin-based real estate developer. Paxton has maintained his innocence in all cases.

His office did not respond to a request for comment.

Bettencourt’s bill was inspired by an unusual case in Harris County, in which Precinct 1 Commissioner Rodney Ellis, a Democrat, was found to have stored more than 1,200 privately owned pieces of African artwork, free of charge, at a county warehouse for more than three years.

Ellis pushed the Commissioners Court to sign a 2018 deal for 14 pieces for display in county buildings, but that agreement lapsed in January. His precinct later accepted more than 1,400, few of which have ever been shown publicly. The cost of storage over those three years is estimated at between $432,000 and $576,000, according to quotes from Houston art storage facilities.

A new contract has yet to be approved, and Ellis has not been charged with any crimes, though political foes allege that it constitutes an illegal abuse of office.

The Harris County District Attorney’s office is investigating the matter. The FBI is also reportedly investigating, according to KPRC 2, which broke the initial story.

[…]

Josh Reno, deputy attorney general for criminal justice, testified Monday that the office works with local prosecutors when requested if there is a potential conflict of interest.

“Local county and district attorneys want to be elected, and they are at a disadvantage in some of these cases when they may be prosecuting a very popular individual in their community,” said Reno, a former assistant district attorney tapped by Paxton in November. “I think SB 252 gives another tool in the tool belt for prosecutors who may not have the ability or may not have the political acumen to stand up to these folks.”

That would give the office “incredible power” over local prosecution decisions, said Sen. Robert Nichols, R-Jacksonville.

“My concern is — it’s obvious in this case, probably somebody should do something — but in our history, in our state’s history, occasionally we get some renegade attorney generals who if they really didn’t like you could harass the individual official,” Nichols said.

Sen. Sarah Eckhardt, D-Austin, who was a prosecutor with the Travis County Attorney’s office for eight years, said it was “folly” to presume the state’s top attorney would be any less political than a local prosecutor.

“We’re dealing with an attorney general’s office, for which the elected attorney general’s been under indictment for five years, so if you think you’re going to get less political prosecutions out of the current attorney general’s office, I think that’s highly unlikely,” Eckhardt said.

You can say that again. I’m old enough to remember when some people thought that having a Public Integrity Unit in the office of the Travis County DA, which had jurisdiction over crimes allegedly committed by state officials, was ripe for partisan overreach. As with so many other Republican-filed bills this session, there’s no obvious need for this kind of approach. There are ongoing investigations of the allegations, which may or may not lead to a case being brought if the evidence warrants. Bettencourt claims handing the power to investigate and prosecute over to the AG would somehow restore trust in the system, but all he’s doing here is attacking the system before it even has a chance to work. And that’s without taking the deep and flagrant concerns any decent person would have with Ken Paxton.

(Has it occurred to Bettencourt that Paxton could lose next year? He came close to losing in 2018, and he’s now got the FBI dogging him, among other things. There’s no way Bettencourt files this bill if Justin Nelson were the AG. Surely that highlights the clear problem with it.)

The bill did not get a vote in committee, which is not unusual. It may get voted on later, and one of the Senators who will have a vote on it is none other than Angela Paxton. How convenient. Most likely, it dies a quiet death. But add this to the long list of particulars against Paul Bettencourt, who needs to be voted out as much as Ken Paxton does.

Austin mask mandate enforcement still in place for now

No ruling, just a delay for a fuller hearing.

Best mugshot ever

Austin and Travis County officials can continue enforcing their mask mandates after a district judge delayed action on the Texas attorney general’s request to immediately stop the mandates.

That means city and county officials can continue to require masks until at least March 26, when District Judge Lora Livingston will hold a trial.

“People have been wearing masks for a year. I don’t know that two more weeks is going to matter one way or the other,” Livingston said during a Friday hearing, according to the Austin-American Statesman, which first reported the news.

[…]

Paxton’s lawyers pushed for an injunction hearing Friday, but Livingston said it wouldn’t be fair to give the defendants only a day to prepare, the Statesman reported. Livingston said after she hears arguments March 26, she’ll rule the same day.

Travis County Judge Andy Brown counts the two-week delay as a win. It buys the area some time to keep requiring masks while residents get vaccinated. It will also keep the mandate through most schools’ spring break holidays.

Abbott’s latest order states “no jurisdiction” can implement local restrictions, except a county judge and only when hospitalizations in a region exceed 15%.

“This case raises a pressing question: who is ultimately responsible for responding to the COVID-19 pandemic and other emergencies?” Paxton’s attorneys wrote in the lawsuit. “The Texas Disaster Act charges the Governor—not an assortment of thousands of county judges, city mayors, and local health officials—with leading the State’s response to a statewide emergency.”

But Brown and Adler argue that local public health officials maintain the authority to create orders on the local level to protect their community from pandemics. It’s different, they argued, from using emergency powers.

Brown said if the judge rules differently, it will have “huge ramifications” on local government moving forward.

Local government needs to be able to move quickly on issues of public health, he said, emphasizing that it’s “the whole point of the way our state government is set up.”

See here for the background. I certainly agree with Andy Brown about the ramifications for local governments, but it’s not like this is a surprise. Our Republican-dominated state government has been very clear about its priorities with respect to cities and (Democratic) counties. This is and will be just another example of that.

In the comments to the earlier post I was asked what would I have Austin and Travis County do about this. My deeply unsatisfying answer is that there isn’t anything they could do right now. The law and the courts are against them, and there isn’t even a symbolic win available. Paxton will prevail in court, very likely in swift fashion, and he’ll gloat about it. The only thing that can be done is to work extra hard to elect a better state government in 2022. Nothing will change until that happens. Believe me, I wish there were a better answer.

Paxton sues Austin and Travis County over its mask mandate

Completely expected.

Best mugshot ever

Texas Attorney General Ken Paxton is suing Travis County and Austin officials in an effort to force them to rescind their local mask orders, he announced Thursday.

“I told Travis County & The City of Austin to comply with state mask law,” Paxton tweeted. “They blew me off. So, once again, I’m dragging them to court.”

Texas on Wednesday lifted nearly all coronavirus restrictions, including Gov. Greg Abbott’s statewide mask mandate and occupancy restrictions. Abbott’s order said that “no jurisdiction” can require a person to wear a mask in public if the area doesn’t meet a certain number hospitalizations for the coronavirus. But Austin and Travis County health officials have said they will continue to enforce the safety protocols, setting the stage for yet another fight over pandemic response between state and local officials.

“[Travis County] Judge Brown and I will fight to defend and enforce our local health officials’ rules for as long as possible using all the power and tools available to us,” Austin Mayor Steve Adler said Thursday in a statement. “We promised to be guided by the doctors, science and data as concerns the pandemic and we do everything we can to keep that promise.”

[…]

Travis County Judge Andy Brown, who presides over the county government, said the authority to impose the local mask mandate comes from the county health authority, not from Brown’s emergency powers. Brown told The Texas Tribune on Wednesday that means the order should hold up in court.

“I listen to doctors, not to politicians like our attorney general,” Brown said.

As noted, Travis County and Austin extended their mandates on Wednesday, then Paxton sent them a letter saying basically “take that back or I’ll sue”. When they didn’t, he did. And look, no one holds Ken Paxton in greater contempt than I do, but he’s going to win this case. He may have to appeal it up a level or two to get there, but there’s just no way this story ends with the locals winning. I get the urge to defy the dumb order from Greg Abbott and to take a stand, but you gotta have a strategy and some reasonable expectation of achieving the outcome you want. This is not going to help.

Has Ken Paxton been lying about his travel schedule?

Would anyone be surprised if he had been?

Best mugshot ever

When the media reported that Texas Attorney General Ken Paxton had flown to Utah with his wife in the middle of the state’s power crisis last week, Paxton called it a business trip that had been planned in advance.

Now a group of whistleblowers from his office who sparked an FBI investigation of Paxton are casting doubt on Paxton’s explanation.

In court records filed Friday, the whistleblowers say the attorney general had told a Travis County judge he could not appear at a hearing in their case because he was scheduled to be in Austin on Feb. 18 for a House appropriations committee hearing. The committee later canceled the hearing because of the state’s weather disaster.

Instead, the spokesman for Utah Attorney General Sean Reyes said Paxton met with Reyes on the afternoon of Feb. 19 and again on Feb. 21, as first reported by The Dallas Morning News. Paxton has not said when he arrived in Utah; he returned on Feb. 23.

“This begs the question: did Paxton pre-plan his Utah trip with plans to skip his legislative testimony, the hearing before this Court, or both?” the whistleblowers’ attorneys wrote in a filing Friday. “Or was Paxton simply lying to Texans about his trip to Utah having been pre-planned?”

See here for background on the Paxton travel situation, and here for the most recent update about the whistleblower lawsuit. It’s nice having a group of people who know Ken Paxton and his bullshit inside and out who are so motivated to call him on it. Other than adding to the public store of data about Ken Paxton’s dishonesty and lack of character, it’s not clear to me what effect this has on that lawsuit. The reason for asking to move the hearing was presumably legitimate, and for sure it would not have been heard on the original date once the committee meeting was canceled. I expect this is just to impugn Paxton’s credibility in the lawsuit, and to that extent it works as intended. The dude just can’t help himself. Reform Austin has more.

Another look at how redistricting may go

RG Ratcliffe analyzes the geographic and political realities the Republicans face as they try to maximize their haul from the 2021 reapportionment.

Rick Perry famously called West Texas—a sparse land with few trees or humans—the Big Empty. The 92,016 square miles of the High Plains, the Panhandle, and western Hill Country have an estimated population of 2.2 million, less than that of Houston. But the region is also some of the most fertile Republican territory in Texas. The Big Empty delivered 78 percent of its vote to Donald Trump last year and elected three Republicans to Congress—all of whom supported overturning the president’s reelection loss in Pennsylvania and then opposed impeaching him on charges of inciting the Capitol riot in January.

These three congressmen are the kind of reliable soldiers and dependable votes the national Republican party wants voters to elect. Later this year, GOP Texas lawmakers will have the chance to redraw the state’s congressional map to try to make the most favorable conditions for similar representatives to win—and to exert great influence on the last two years of Joe Biden’s first term. Dictating the redistricting process because of the party’s House and Senate majorities and control of the governorship, Republican lawmakers will try to find a way to expand the GOP’s 23–13 partisan advantage in the Texas U.S. House delegation and to imperil the current 221–210 Democratic majority in the lower chamber.

But when those lawmakers begin redrawing the maps, they may look at the three West Texas representatives and find themselves saying, “Eeny, meeny, miney, moe, one of you has got to go.” The reason is simple: Even as the state has added enough population since 2010 to receive as many as three new seats in Congress, the Big Empty hasn’t kept pace. A congressional district drawn in Texas in 2011 needed to have a population of 698,488; districts drawn this year will need to have about 763,000. West Texas will be about 100,000 residents short of justifying three congressional districts.

The dilemma of the Big Empty is an example of how difficult it will be for Republicans to create the kind of partisan gerrymanders that have contributed to the large majority in the state’s House delegation that they enjoy today. Texas’s population has grown by 4.2 million since the 2010 census, according to the state demographer, Lloyd Potter, but that growth has not been where Republicans need it. Potter recently told a state Senate redistricting committee that most new Texans live in a triangle anchored by Dallas–Fort Worth, Houston, and San Antonio, and encompassing Austin. That triangle is home to the bulk of the state’s Democratic voters: the counties of those five cities went for Biden by 20 percentage points. Trying to redraw districts in the triangle, let alone fitting new ones in, will be a challenge for the GOP.

Republicans will have two main tools at their disposal to reduce the electoral power of the clustered populations of Democrats: splitting a block of them between or among districts to dilute their voting impact, or lumping multiple blocks together in a single district to limit the reach of their vote. We have some sense now, based on Potter’s estimates, of how they might do so, even as we wait for the Census Bureau to release gross population numbers in April and specific census tract data this summer. Here’s a tour of Texas and how the maps might be redrawn, starting out in the Big Empty.

Ratcliffe cites five areas where the GOP will have to make some tough choices: West Texas, where as noted above the population isn’t there for three whole Congressional districts; Austin, where the strategy of cracking Travis County into multiple districts put three Republican incumbents into jeopardy in the last two elections, thus leading to the possibility that they’ll just draw a super-blue district in the county again; Houston, where the same basic strategy of making CD07 more blue is probably the best way to protect other Republicans; the Metroplex, where the big suburbs just aren’t red enough for them any more; and South Texas, where Trump’s gains with Latino voters may be more illusory than real. We’ve touched on a lot of these topics before, but Ratcliffe brings some new details and puts it all into focus. There will be plenty of time to game this all out before actual maps start appearing, so go check it out.

TEA appeals HISD takeover ruling to Supreme Court

One way or the other, this should get a resolution.

Lawyers representing the Texas Education Agency filed an appeal Wednesday asking the state Supreme Court to overturn a temporary injunction that has slowed Education Commissioner Mike Morath’s plans to strip power from all nine Houston ISD school board members.

The filing comes nearly two months after the Third District Court of Appeals, in a 2-1 decision, ruled that Morath did not follow laws and procedures that would give him the authority to temporarily replace HISD’s school board with a state-appointed board.

TEA pledged in late December 2020 to appeal the ruling to the Texas Supreme Court. If the state’s highest court overturns the injunction, TEA leaders could install a new board that could vote to end HISD’s lawsuit.

[…]

In their filing Wednesday, state lawyers representing the state argued the Third District Court of Appeals erred in its interpretation of laws and regulations on all three fronts. The lawyers also claimed HISD should not be able to sue the state over an administrative matter.

“This case is of immediate importance to HISD students,” Assistant Solicitor General Kyle Highful wrote in the appeal. “And the court of appeals’ misinterpretations of the law endanger TEA’s future efforts to assist failing schools.”

Each of the three issues considered by the Third District Court of Appeals largely fell along technical lines.

See here for the previous update. The ruling in favor of HISD was bipartisan, so this isn’t an R-versus-D issue in the way some other recent lawsuits have been. No idea how long this may take, so just keep on keeping on until we know more.

Harris County considers its ERCOT responses

Maybe ERCOT isn’t right for us.

Commissioner Adrian Garcia

Harris County should consider leaving the state’s main power grid after it failed to prevent widespread blackouts for more than half of Houston-area residents last week, Precinct 2 Commissioner Adrian Garcia said Monday.

Garcia has asked the Commissioners Court to explore what authority it has to sever ties with the Electric Reliability Council of Texas, which oversees the grid that powers all of the state except for El Paso, parts of the Panhandle and a group of counties in East Texas.

“This agenda item is meant to explore how we in Harris County can take ownership of keeping residents safe, something the state has clearly shown it can’t be trusted to do itself,” Garcia said in a statement.

[…]

Liberty County, which borders Harris County to the east, is part of MISO. That grid also suffered outages during the storm, when demand for electricity overwhelmed supply, but they were less severe than those within ERCOT’s system.

What ability, if any, Harris County has to leave ERCOT is unclear. First Assistant County Attorney Jay Aiyer said such a move would almost certainly require approval by the Legislature. As subdivisions of state government, commissioners courts have few independent powers; they cannot even enact ordinances.

Aiyer said Harris County also will examine what actions, if any, the Legislature takes this session to reform ERCOT or the Public Utility Commission to prevent future blackouts.

The odds that the Lege would allow this are basically nil. Even if it made perfect sense on the merits, they’re just not going to allow it to happen. It’s still worth exploring and discussing, because everyone should be talking about potential options to improve our current situation. If nothing else, Harris County can clarify what it wants the Lege to do in response to last week’s fiasco.

The County Attorney has a role to play, too.

Harris County officials are launching an investigation into the events that led up to “Texas’ recent electricity disaster” and will be probing decisions made by the board that operates the state’s power grid, energy providers and the Public Utility Commission.

“Members of our community died in this disaster, and millions of Texans languished without power and water while suffering billions in property damage,” Harris County Attorney Christian Menefee said in a Tuesday statement. “Harris County residents deserve to know what happened, who made which decisions, and whether this could have been avoided or mitigated.”

[…]

Menefee will request authorization to take legal action on behalf of Harris County during its Commissioner’s Court meeting Friday. He said he is willing to collaborate with independent state agencies’ investigations as well.

He said operators should have been prepared after 2011’s hard freeze that exposed weaknesses in Texas’ electrical grid system.

“There was nothing unpredictable about this last freeze, and everyone had plenty of notice it was coming,” he said. “But, the people running the grid were woefully unprepared and failed to take immediate action and warn folks of what could happen.”

See above about what everyone, in particular everyone in a position of authority, should be doing. This is what Menefee ran on, and it’s good to see him follow through. Again, what he may actually be able to do, beyond some amicus briefs, is unclear, but we won’t know till he has a good look. He won’t be alone – as the story notes, Rep. Trey Martinez-Fischer has called on the Travis County DA to investigate as well. I think civil action is more likely to be the proper course, but hey, all hands on deck. Both items will be discussed by Commissioners Court on Friday.

SCOTx allows Inforwars lawsuits to proceed

Good.

The Texas Supreme Court on Friday rejected, without comment, conspiracy theorist Alex Jones’ attempt to toss out four defamation lawsuits by parents of children killed at Sandy Hook Elementary in 2012.

The parents sued in Travis County, where Jones and his InfoWars website are based, arguing that they were defamed and suffered emotional distress after InfoWars broadcasts disputed the authenticity of the school shooting and the news coverage that followed.

Twenty young children and six adults died in the mass shooting at the Sandy Hook school in Newtown, Connecticut.

Friday’s action by the Supreme Court upheld rulings by two lower courts that had allowed the lawsuits to continue.

The state’s highest civil court also gave the green light to another defamation lawsuit against InfoWars and reporter Kit Daniels by a man mistakenly identified as a suspect in the 2018 shooting at a high school in Parkland, Florida.

[…]

Friday’s announcement by the Supreme Court noted that two members, Justices Jeff Boyd and John Devine, would have granted Jones’ petition for review in the Pozner lawsuit, but the court order provided no reasons for their dissent.

In briefs to the Supreme Court, lawyers for Jones argued that the InfoWars host was engaging in protected speech because he was addressing matters of public concern.

“The pursuit of so-called ‘conspiracy theories’ concerning controversial government activities has been a part and parcel of American political discourse since our Founding, and it is protected by the First Amendment,” they told the court in a brief for the Pozner and De La Rosa case.

Jones also argued that state libel laws required any harmful speech to be directed at specific family members, but the Sandy Hook families were not named in three InfoWars reports in 2017.

But a lawyer for the Sandy Hook families argued that Jones didn’t merely say the school shooting was staged by the government, he also generally accused family members of being actors to help sell a supposed coverup and exploit the event to attack gun rights.

As a result, Jones and InfoWars accused family members of collusion in a hoax “relating to the murder of their son … for nefarious purposes,” lawyer Mark Bankston told the court.

Jones also was reckless in publishing information that was so improbable that no reasonable publisher would have done likewise without substantial confirmation, Bankston argued.

“Mr. Jones’ fantasy about a shadowy government conspiracy to murder first-graders and then exploit the event with the help of the media and actors is the very definition of ‘improbable,'” he wrote.

The lawsuits are by the parents of two of the children that were murdered at Sandy Hook. You never know what can happen, but Jones’ record in defending himself so far isn’t great – he not only lost at the Third Court of Appeals earlier in the year, he was ordered to pay court costs for the frivolity of his appeal. He deserves to lose and to have the full weight of the consequences of his actions come down on him. Law and Crime has more.

SCOTUS rejects TDP petition on vote by mail

Back to the lower court, I think.

The U.S. Supreme Court turned away a Democratic bid to force universal vote-by-mail in Texas, leaving intact a state law that lets people cast no-excuse absentee ballots only if they are 65 or older.

The Texas Democratic Party and its allies argued unsuccessfully that the law violates the Constitution’s 26th Amendment, which says the right to vote “shall not be denied or abridged by the United States or by any state on account of age.”

Voting by mail became a sharply partisan issue amid President Donald Trump’s unsupported contentions that the practice led to widespread fraud in the November election. Texas’s Republican governor and attorney general urged the Supreme Court to reject the Democratic appeal.

A divided federal appeals court in September rejected the 26th Amendment claim, saying the Texas law didn’t make it more difficult for anyone to vote. The panel left open the possibility the law could be challenged as a violation of the Constitution’s equal protection clause.

The Supreme Court also rejected Texas Democrats in June, when the justices refused to reinstate a trial judge’s order that would have let any voter request an absentee ballot to avoid the risk of contracting Covid-19. That order, which was blocked by the appeals court, was designed to govern the 2020 election and might have boosted Democrats’ prospects.

See here for the last update, which was a petition for review of the Fifth Circuit ruling that kept intact the existing law on vote by mail in Texas as the original lawsuit that claimed the existing law violated the 26th Amendment is litigated. If I understand this correctly, the original case needs to be re-argued, with guidance from that Fifth Circuit ruling, and then once there is a ruling on the merits, we’ll go through the appeals process again. Or maybe not, if Congress and President Biden can pass a new Voting Rights Act that would allow for this nationally. I don’t see that particular provision in there now, but that doesn’t mean it isn’t or wouldn’t be there. Anyway, it’s kind of a non-starter now, since the effort was to make that happen in 2020, but it’s never too late to make it easier to vote. Just don’t expect anything to happen in the short term, outside of what Congress may do. Reuters has more.

The Republican war against Harris County

To be fair, it’s not just Harris County that’s in the crosshairs, it’s the big urban counties, and cities in general. But it’s real and it’s dangerous and it’s anti-democratic.

Republicans in the Texas Legislature are gearing up to bar local governments from hiring lobbyists, punish cities that reduce their police budgets and restrict county judges’ power during future pandemics when lawmakers convene in Austin later this month.

The measures are sure to escalate the long-running feud between Texas’ conservative leaders and the mostly Democratic officials who run the state’s largest cities and counties. And while higher profile items such as coronavirus relief and redistricting are expected to eat up much of the 140-day session, Republicans have made clear they will carve out time for items such as the lobbying ban.

“In terms of (taxpayer-funded) lobbying, it’s morphed into a kind of partisan struggle,” said Michael Adams, chair of the political science department at Texas Southern University. “The Dems were hoping, particularly in the House of Representatives, they would fare better (in the November elections). But that didn’t happen, and so we still see the dominance of the Republican Party in all branches of the state government. And certainly I think they will send a signal.”

Local officials have been bracing for an especially difficult session since October 2019, when House Speaker Dennis Bonnen was caught on tape saying he had tried to make that year “the worst session in the history of the legislature for cities and counties.” Bonnen said he made his goal evident to “any mayor, county judge that was dumbass enough to come meet with me.”

[…]

Last session, Republicans nearly ushered through a bill to prevent large cities and counties from spending tax revenue on lobbying, but the measure died in the final days when voted down in the House. Bonnen in 2019 announced he would not seek re-election after he was heard on the same tape recording targeting fellow Republicans who opposed the lobbying ban.

Though the Legislature does not begin until Jan. 12, lawmakers already have filed numerous bills related to cities and other local entities. State Rep. Steve Toth, R-The Woodlands, has proposed making cities liable for damages if they release someone from custody who was the subject of a federal immigration detainer request and that person commits a felony within 10 years.

A bill filed by state Rep. Jared Patterson, R-Frisco, would prevent cities and counties from requiring businesses to adopt labor peace agreements — in which employers agree not to oppose unionization efforts in exchange for employee unions agreeing not to go on strike — in order to receive a contract. State Rep. Valoree Swanson, R-Spring, has filed legislation that would allow business owners to halt local laws in court if the law “would result in an adverse economic impact” on the owner.

Swanson also filed a bill that would abolish the Harris County Department of Education, unless voters decide to continue it through a referendum on the November 2022 ballot. Conservative lawmakers have long sought to shutter or study closing the agency, the last remaining countywide education department in Texas.

State Sen. Paul Bettencourt, R-Houston, filed legislation that would codify a Texas Supreme Court decision that blocked Harris County from sending mail ballot applications to every registered voter in the county ahead of the November election. Swanson filed the House companion bill.

That’s a lot, and it doesn’t count the revenue cap, or this little gem that I had been unaware of:

During the 2019 legislative session, Abbott quietly backed a bill that would have maintained the current system in Texas’ rural Republican regions while changing it in more densely populated, mostly Democratic counties. That bill, which failed, would essentially have allowed the Republican governor to pick judges in the state’s Democratic areas, while Republican voters picked judges in the conservative areas.

I have to say, on reading all this my first reaction was why would anyone in Harris County want to be governed by people who hate us and want to do us harm? Sometimes I wonder what it would be like if Harris County were its own state. We’d have something like ten electoral votes all on our own, and we wouldn’t have to deal with this kind of bullshit.

It wasn’t always like this, of course. It’s not that long ago that “local control” was a Republican slogan rather than a quaint idea. But it’s also not that long ago that Harris was a Republican stronghold, and the radical shift in philosophy isn’t a coincidence. It’s very much of a piece with the Trump administration’s attacks on blue states, and of the increasingly bizarre and undemocratic legal arguments being made about this past election, including the one that the Supreme Court briefly considered that federal courts could overrule state courts on matters of state administration of elections. It has nothing to do with federalism or “states’ rights” or local control or any other mantra, but everything to do with the fact that Republicans don’t recognize any authority that isn’t theirs. If they don’t like it, it’s not legitimate, and the laws and the voters can go screw themselves.

This, as much as anything, is the tragedy of Dems not being able to retake the State House. With no check on their power, the Republicans are going to do what they want, and the best we can do is try to slow them down. It makes the 2022 election, and the continued need to break through at the statewide level, so vital. I’ll say it one more time, nothing will change until we can win enough elections to change the balance of power in this state. And if someone can give me an answer to that “how can Harris County become its own state” question, I’m listening.

There is a website for COVID vaccine signups in Houston

You can’t use it right now, but it’s there.

Houston’s Health Department launched an online portal for residents to apply for an appointment at its COVID-19 vaccine clinic Monday but quickly ran out of available slots for the remainder of the month.

“The response to Houston’s first COVID-19 vaccine clinic was massive, quickly filling the appointment slots for the department’s current vaccine allocation,” Mayor Sylvester Turner said at a City Hall news conference where he was about to get his own shot in the arm.

“The vaccine clinic appointments are booked for the rest of this month, and the department is not taking additional appointments at this time.”

Turner said the city is working to set up additional sites and create additional capacity, although it is unclear when new appointments will be available. Turner said the city hopes to open a “mega site” on Saturday.

The portal, available at houstonemergency.org/covid-19-vaccines, added another way for qualifying residents to book for an appointment. A hotline also is available at 832-393-4220.

The city clinic vaccinated nearly 2,000 residents with the Moderna vaccine in two days. It is accepting residents from the first two phases of the state’s distribution plan, which include front-line emergency workers, people 65 and older, and those over 16 with certain high-risk health conditions.

It’s a good start, but at 2K shots a day, we’re talking two years to get to 75% distribution in the city. We’d like to go a little faster than that. Obviously, the city is limited by how much vaccine it can get, as well as the state regulations. Harris County had its own rough rollout thanks to confusion over who was allowed to sign up. On that first front at least, help is on the way, so maybe in another month or two we’ll see much higher numbers. And at least there is now a central location for this for Houston residents, something that had been sorely lacking before.

There’s some more vaccine coming to Texas, but it’s still not a lot.

On Monday, state health officials announced that 325,000 additional vaccine doses would be getting into the hands of 949 providers in 158 Texas counties over the next week, part of the first round of vaccinations for front-line health workers as well as nursing home residents, Texans over 65 and those with certain medical conditions, among others. Some 121,875 doses are earmarked for long-term care facilities such as nursing homes and assisted-living centers.

But with the number of vaccine doses available still falling far short of what’s needed to cover those who are eligible — and with state officials pushing hospitals and other providers to administer vaccine doses that the providers say they don’t have, aren’t sure are coming or have already administered — confusion and frustration have surrounded the initial few weeks of the vaccination rollout.

Providers have 24 hours to report their vaccination statistics to the Department of State Health Services, and the agency updates its numbers each afternoon with data reported by midnight the day before, so the state’s numbers could lag up to two days behind the reality on the ground.

Officials from the White House down to local doctors have warned that it would take months to have vaccine doses available to everyone who wants one.

“The problem is unrealistic expectations based on the reality on the ground,” said Marshall Cothran, CEO of the Travis County Medical Society, which received 700 doses through a local partnership and had them all scheduled within 48 hours for physicians and staff who are not affiliated with hospitals or other care organizations.

With the new shipments this week, the state has been allotted a total of 1.5 million doses through the first four weeks of distribution, officials said Monday. Providers in 214 of the state’s 254 counties will have received shipments by the end of the week, health officials said.

Some 793,625 doses had been received by providers by midnight Sunday, according to the Texas Department of Health Services.

Of those, 414,211 — just over half of those delivered — had been administered, according to the agency’s dashboard.

Hardesty said the nearly 16,000 doses his facility received are being administered “fast and furiously,” and about 10,000 people have gotten their first dose, with second doses to start in the next week.

“We’re giving them as quickly as we can,” he said.

I don’t doubt that, but let’s be clear that 1.5 million doses is five percent of the state’s population, and that 414K is just a bit more than one percent. Seven hundred doses for Travis County, with 1.3 million people, is a drop in the bucket. If you vaccinated 700 people a day in Travis County, it would take you six years to get everyone. In the end, this won’t take anywhere near that long, but we are talking months, and in the meantime the hospitals are also dealing with an insane surge in new cases. I can’t emphasize enough how much we needed to keep a lid on this, and how badly we failed at that.

Anyway. Here was the Harris County website for vaccine registration, which is still up but doesn’t have any method for signing up for a COVID shot at this time. Dallas County has its own website, while Bexar County had a similar experience as Houston did. It will get better, I’m sure, but the early days are going to be chaotic.

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.

A new high in hospitalizations

This is fine.

The Texas Department of State Health Services reported Monday a pandemic high 11,351 hospitalizations from COVID-19.

This surpasses the previous all-time high of 10,893, which occurred on July 22.

The record comes in the midst of a holiday season public health experts worry could exacerbate the already rapidly spreading virus and following an increase in cases weeks after Thanksgiving.

This hospital data does not account for people who are hospitalized but have not gotten a positive test, and DSHS says some hospitals may be missing from the daily counts. As of Monday, the state is also reporting 49 deaths from COVID-19, a lagging indicator of the extent of transmission rates, and more than 12,800 new confirmed COVID-19 cases. Reported cases may have appeared lower the last few days because some local health departments did not report data to the state over the holiday week.

Earlier this month, Texas’ ICU capacity was already the lowest since the start of the pandemic, leaving health care experts worried hospitals could be pushed to the brink as coronavirus cases continue to climb. Across the state, COVID-19 patients occupy 17.8% of the state’s hospital beds, and only 745 staffed ICU beds are still available.

At a press conference Monday, Mark Escott, Austin’s interim medical director and health authority, said that this week alone, “ICU utilization” is up 62% in Travis County and that hospital beds could become scarce in a matter of weeks.

“Our projections forward into the new year continue to look worse and worse day after day,” Escott said. “I think right now it appears we’re going to enter 2021 in a state of emergency.”

This is fine:

This is fine:

Dr. Peter Hotez, professor and dean of the National School of Tropical Medicine at Baylor College of Medicine, said he anticipated a major fall surge amid a wave of new infections in West Texas and the Panhandle.

Those areas are among the hardest hit in the country, he said.

“Up in Midland and places like that, it’s still a really tough area,” he said, adding, “In terms of surges, I’m maybe a little less worried about the Texas Medical Center. But in other parts of the state, it’s going to be a real concern.”

There are 745 ICU beds available across the state, according to data from the Department of State Health Services, the lowest number available since the pandemic’s surge during the summer. Among 63,679 staffed hospital beds, 13,416 are available statewide.

Further, 15 of the state’s Trauma Service Areas are reporting that more than 15 percent of their total hospital capacity is taken up by COVID-19 patients, crossing the threshold for what the state considers “high hospitalizations.”

At the Texas Medical Center, the weekly average of new COVID patients has more than doubled since early November, from 104 to 248. Medical center data from Sunday shows 1,594 total COVID patients and another 404 in the ICU. There are 1,298 total occupied ICU beds with hundreds more available, the data shows.

“The medical center has gotten a lot of heft, in terms of being able to accommodate COVID patients,” Hotez said.

[…]

The sporadic use of masks has contributed to the surge, said Hotez, adding that he doesn’t anticipate the number of statewide hospitalizations decreasing anytime soon. He noted that the number of beds is less of a concern than the number of trained staff available.

Hotez said he did not know how much Christmas gatherings would impact the number of infections. But he warned people that New Year’s celebrations would be the “best party the COVID virus can hope to have.”

“I would just say any kind of New Year’s celebration is fraught with risk ,” he said. “Because when you have this high level of transmission going on in the state, anytime you bring four or five people together, there’s a good likelihood they’re going to have COVID.”

I’m really scared for what the next few weeks may bring. Wear your mask, practice social distancing, avoid indoor gatherings, and try to survive until you can get vaccinated.

TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

No Walmart liquor stores

Some non-election litigation news of interest.

Texans still won’t be able to purchase liquor at Walmart, after the U.S. Supreme Court rejected a bid by the retail giant that would have allowed the booze to be sold at stores in the state.

Texas is the only state in the nation that does not allow publicly traded companies, like Walmart Inc., to obtain liquor permits — but they are allowed to sell beer and wine.

Walmart claims the law is discriminatory and has argued that 98% of liquor stores in the state are owned by Texans.

Turned away by the nation’s highest court, Walmart will now have to prove intentional discrimination before a federal trial court.

Lawyers for the Texas Alcoholic Beverage Commission said the law is in place to make liquor less readily available and curb its consumption.

“The law precludes large corporations from using their economies of scale to lower liquor prices and increase the density of liquor outlets in the State. This approach has served Texas well — it has consistently ranked among the States with the lowest per capita liquor consumption,” lawyers for the commission stated.

Not sure I buy the cause-and-effect logic there, but whatever. Walmart, which at the time still had a hyphen in its name, originally sued in 2015 in federal court in Travis County. They got a favorable ruling in 2018, which was remanded back to the district court by the Fifth Circuit (opinion here). Walmart had appealed this ruling to SCOTUS, so the denial means they have to go back to the district court and try again under the tougher guidelines set out by the Fifth Circuit. We’ll see if they proceed, or if they decide it might be faster and cheaper to try to elect a bunch of legislators who will pass a bill to do what they want. I’m no fan of Walmart, but I really don’t see the point of this state regulation. Everything we do with alcohol in this state is weird and anachronistic.

Counties of interest, part three: Around Travis

Part 1 – Counties around Harris
Part 2 – Counties around Dallas/Tarrant

Travis County has been at the forefront of the Democratic renaissance in Texas, punching well above its weight with both performance and turnout. Its blue essence has been spilling over its borders into its neighbor counties, and overall the picture here is as bright as you’ll see anywhere. Let’s have a look:


County       Romney    Obama    Trump  Clinton    Trump    Biden    Shift
=========================================================================
Bastrop      14,033    9,864   16,328   10,569   20,486   15,452     -865
Blanco        3,638    1,220    4,212    1,244    5,429    1,905   -1,106
Burnet       12,843    3,674   14,638    3,797   18,721    5,615   -3,937
Caldwell      6,021    4,791    6,691    4,795    7,975    6,536     -209
Hays         31,661   25,537   33,826   33,224   47,427   59,213   17,910
Williamson   97,006   61,875  104,175   84,468  138,649  142,457   38,939

Williamson and Hays get all the ink, and they certainly present opportunities for further growth. I believe the same dynamic is here as it is in Dallas and Collin/Denton, which is that Travis County and all of its characteristics have simply expanded into the adjacent counties, making the distinction between the two, at least in the areas near the border, basically meaningless. I’ve long felt this about the southwest part of Harris County and Fort Bend. The numbers certainly bear it out.

Of great interest to me is that Bastrop and Caldwell counties took a step in the right direction in 2020, after going the wrong way in 2016. I was especially worried about Bastrop, home of Jade Helm hysteria, starting to slip away, but perhaps they too will begin to go the way of Hays as development from Travis creeps farther out along State Highway 71. Caldwell County was a pleasant surprise, as it is more of a rural county, and one I honestly hadn’t realized bordered Travis – you pass through Caldwell on I-10 between Houston and San Antonio – until I was reviewing the map I consulted for this post. Whatever happened in Caldwell in 2020 to get it moving in this direction, I approve.

That leaves Burnet and Blanco, both to the west and northwest of Travis. I haven’t been to Burnet since the 90s and may well be talking out of my ass here, but just looking at the geography, I could imagine some of the Travis overflow that had been going into Williamson going a little farther west into Burnet, and maybe that will blue it up a little. Just a guess, and even if there’s merit to it that’s likely not a short-term prospect. Until then, if Dem activist folks in Travis are looking for new worlds to conquer, I humbly suggest Burnet – and Bastrop, and Caldwell – as opportunities to consider.

A high level look at the changing suburbs

The Trib takes a broad and high-level look at what I’m digging into now.

Although they didn’t get the blue wave they expected, Democrats narrowed the gap with Republicans in five of the most competitive and populous suburban counties in Texas.

An analysis of the presidential vote in solidly suburban Collin, Denton, Fort Bend, Hays and Williamson counties, plus partly suburban Tarrant County, showed that Republicans went from an advantage of more than 180,000 total votes in those counties in 2016 to less than a thousand votes in 2020, according to the latest data.

“This was not, on a whole, a good night for Democrats, it’s not what they hoped,” said Sherri Greenberg, a professor at the University of Texas at Austin’s LBJ School of Public Affairs. “But Democrats did see some gains and some success flipping areas in the suburbs.”

[…]

Some of Democrats’ biggest gains happened in Central Texas. Williamson County, where Trump won by 9.7% four years ago, flipped in 2020 and went to Biden by just over 1%. Hays County, which Trump won by less than 1% in 2016, gave Biden a nearly 11% victory this year. Both counties also supported Democratic U.S. Senate candidate Beto O’Rourke in the 2018 midterm elections.

Greenberg said those two counties are a perfect example of the trend that is helping Democrats in the suburbs: a growing population, particularly in demographic groups that tend to be more left-leaning. Since 2010, Williamson County alone has added more than 160,000 people, according to the U.S. Census Bureau.

“You see a growing population, a younger population, highly educated. Those kinds of voters are moving towards the Democrats,” Greenberg said.

In the Greater Houston area, Fort Bend County, which supported Hillary Clinton in 2016, was even more favorable for Biden, who won by 37,000 votes, compared with Clinton’s roughly 17,000-vote margin in 2016.

Fort Bend’s population is 811,688, and 20% of the population is Asian, according to the U.S. census.

“That county has become pretty solidly Democratic, and that happened quickly,” Cross said. “And it’s because of these younger, more educated and more diverse voters. It’s an example of what the Asian American vote can change.”

In North Texas, in Denton and Collin counties, Republicans expanded their margins from the 2018 midterms, but compared with the 2016 presidential election, Democrats narrowed the gap: In Denton County, Trump’s 20% victory in 2016 shrunk to 8.1% this year, while his margin in Collin County fell from 16% to 4.6%.

Meanwhile in Tarrant County, where Fort Worth is surrounded by a tapestry of suburbs, counting is still ongoing, but the latest results show that Democrats might be able to flip the county.

Not all suburban counties became as competitive as Tarrant. In Montgomery County, north of Houston, where more than 270,000 people voted, Republicans still had a comfortable 44% margin in 2020, 7% less than in the 2016 presidential election.

All of this is true, and there are some nice charts in the story to look at, but it obscures a couple of points. One, with regard to Montgomery County, it’s not the percentage margin that matters, it’s the raw vote differential. Trump won Montgomery county by 104,479 votes in 2016. He won it by 118,969 votes in 2020. It’s nice that the second derivative of their growth curve is now negative, but we need to start shrinking that gap, not just slowing its acceleration. Joe Biden will end up about 650K votes behind Donald Trump. That’s about 160K votes closer than Hillary Clinton got. If we want to make it easier for Biden, or Kamala Harris, or someone else, in 2024, that’s the target. It’s preferable if Montgomery County is not making that job more difficult.

The other point is that this discussion leaves out too much. The reason I wanted to look at all the counties that surround the big urban areas is so we can be aware of the places that are growing into becoming like Montgomery – think Parker and Johnson Counties up north – as well as the small counties that punch well above their weight, like Chambers and Liberty. Maybe we don’t have a clear answer for those places yet, but we need to be thinking about them, and we need to make having a plan for them a priority. We’re just conceding too much ground otherwise.

A few thoughts about Election 2020 before Tuesday

Just a brain dump, to get this all out there before we find out what happened. Let’s start with this:

After the conclusion of three weeks of early voting, 9.7 million Texans have cast ballots, crushing previous early voting totals in the state and setting Texas on a course for record turnout in this Tuesday’s general election.

At least 9,709,376 voters cast early ballots, according to preliminary final numbers released by the Texas Secretary of State and the counties on Saturday morning. That is 57.3% percent of registered voters, just shy of the overall turnout of 59.4% in 2016 by 2 percentage points.

Of those early votes, 8,738,363 were cast in person; 971,013 were cast by mail.

Early voting, which Gov. Abbott extended by six days this year because of the coronavirus pandemic, has already eclipsed total votes during the 2016 general election, when 8,969,226 Texans voted.

Texas has added 1.8 million registered voters since the 2016 election. Texas has not surpassed 60% turnout of registered voters since the early 1990s.

Harris County, Texas’s most populous county, leads the state with 1.4 million votes cast. Among large counties, Collin County outside of Dallas has the highest early voting turnout with 69%.

As we have discussed before, high turnout is generally more favorable to Democrats, but not universally, and there’s been plenty of activity in heavily Republican counties:

Comal County is like Montgomery County’s little brother, and Guadalupe is pretty Republican, too. That said, it’s important to keep in mind the distinctions between “percentages”, especially when we are talking about increases, and absolute numbers. Comal County cast 62K ballots total in 2016; I don’t know what their early voting numbers were in 2016, but a 26% increase over their final turnout would be close to 80K votes. Harris County has had a *net increase* of over 80K votes so far, with Election Day still to come. A 26% increase in total final turnout in Harris County would mean about 1.67 million total voters, or an increase of about 350K from 2016, and at this point that’s the low end. In short, Harris County is big. Always keep that in mind.

If you go back to the Derek Ryan report from Thursday, when “just” nine million people had voted, the electorate at that point was 52.1% female, and 43.4% male. (Not all people specify their gender on their voter registration.) Assuming that hasn’t radically changed as of Friday, that means that something like 800K more women than men have voted in Texas. (In Harris County, the gender ratio was 55.3 to 44.3, a gap of a bit more than 150K.) Given the greater preference for Joe Biden among women, that could be a factor in how this election turns out.

Now let’s talk about how easy, or not-easy, it was to vote in Texas this year. There’s a lot, but I’ll try to be concise. Let’s start with this:

Maybe bullet points will help.

– I agree – and have said on this blog – that the actual impact of the “one dropoff location” order and rulings is minimal. Hell, I didn’t even know that dropping off mail ballots was a thing you could do until this year. I think it’s fair to say that the number of people who have used this option in the past can be counted on your fingers. I don’t know how many people would have used it this election, but even if we’re talking five figures, it’s on the order of five percent of total turnout. People had plenty of other options available to them, including the Reliant Arena dropoff location (which is in many ways more accessible than the Clerk’s office downtown), the US mail, and voting in person. I have a hard time believing anyone was truly disenfranchised by this.

– But all of that is beside the point. The multiple dropoff locations, all at official County Clerk offices, was consistent with the letter and intent of the law, and the amended order to limit them to one, which came more than two months after Harris County announced its dropoff plan, was an obvious partisan exercise that had no basis or reason other than to make voting less convenient, and to slap down an innovative Democratic County Clerk in a heavily Democratic county. On every level, this was a screw-you to Chris Hollins and Harris County.

– Yet even there, we must acknowledge that Greg Abbott did in fact expand access to voting. That third week of early voting was huge – I’m sure that Allen West and the seething hordes of the Republican base are super pissed about that. Plus, the fact that mail ballots could be dropped off during early voting at all was the result of Abbott’s executive order, the same one that allowed for the extra week of early voting. State law as written only allows mail ballots to be dropped off on Election Day. Abbott expanded that. He weaseled out later on, but he was weaseling on himself

– So one might claim, as John Cornyn did on Twitter, that it can’t be all that hard to vote in Texas, because so many people are doing it this year. But once you get past Abbott’s original executive order – which, you may recall, the State GOP and Harris County GOP, among others, tried to kill via the courts – it was local officials, with Harris County Clerk Chris Hollins as the exemplar, backed by $31 million from the Democratic majority on Commissioners Court – that did all the work to make it easier. And again, Republicans from Greg Abbott and Ken Paxton down to dregs like Steven Hotze and Jared Woodfill, fought them every step of the way.

– Finally, we have to acknowledge that whatever was done to make voting easier this year, we started from a baseline of voting not being easy, in so many ways. One big reason why the effect of the “one mail ballot dropoff location per county” ruling was minimal is precisely because access to mail ballots is so limited, and we saw that play its way out in the courts. If counties had to spend large amounts of money setting up early voting locations, it’s in part because the Legislature took away the option of temporary voting locations in the 2019 session, not to mention the removal of straight-ticket voting, which meant it would take longer for people to vote and might lead to longer lines at voting locations. We haven’t even talked about Texas’ notoriously strict voter ID law, or its refusal to allow online voter registration or same-day voter registration, or its recent efforts to purge voter rolls, or the problems of how hard it is for people with disabilities to vote, and on and on and on. If we have heroic levels of turnout this year, it’s in spite of all these obstacles.

– So my bottom line is that while turnout this year has been truly remarkable, and I hope that the results will be equally remarkable, none of this should obscure the fact that we have a lot of room to improve. And the only way that will happen is if we win enough election to make the systemic changes we need.

Hope that wasn’t too long. I’m out of thoughts for now. Go vote if you haven’t already.

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.

Paxton accuses his accusers

Well, that’s one way to do it.

Best mugshot ever

In Republican Attorney General Ken Paxton’s first interview since seven of top aides accused him of accepting bribes and abusing his office, he said Tuesday that he was about to put one of them, first assistant attorney general Jeff Mateer, on administrative leave when Mateer made those accusations and resigned instead.

“I think he found out about it and decided he wanted to leave and set the narrative,” Paxton told the Southeast Texas Record.

Paxton also told the paper that he has placed two remaining executive employees — David Maxwell, director of law enforcement, and Mark Penley, deputy AG for criminal justice, who were among his seven accusers — on administrative leave while he investigates their actions.

Paxton’s statements on Tuesday provide the public’s first glimpse into how he is handling the matter inside the office of the Attorney General, where more than half of the executive staff has accused him of committing crimes.

[…]

In his interview Tuesday, Paxton reiterated his counterclaims against the whistleblowers, saying that they were trying to impede a legitimate investigation of the law enforcement agencies.

“It seems like my office did everything possible to stop an investigation of some law enforcement agencies,” Paxton said. “I can only come to the conclusion that there was an effort to cover up the reality of what really happened. This wasn’t supposed to be a complicated investigation.”

[…]

Paxton also backed accusations by Paul’s attorney, Michael Wynne, who said in a letter released late Sunday that Maxwell, a former Texas Ranger, berated Paul for even bringing the complaint. Paxton said he watched a video of the meeting between Maxwell and Paul.

“It was not a good interview — it was pretty harsh,” he said. “It was clear he had no interest in doing an investigation.”

In the interview, Paxton said Mateer also insisted that the attorney general did not have the authority to sign contracts and that only he, as first assistant, did. Paxton said he reviewed support documentation provided by Mateer and found it to be false.

“I don’t know why there’s so much turmoil over this investigation. I’m not impugning every law enforcement agent,” Paxton said. “We all should be held accountable. We all have to follow the law.”

Well, he was going to defend himself one way or another, and given what the accusations were, a defense of “no, they’re the real criminals” seems like the best option. That would then lead to the question of how it is Paxton managed to hire so many bad actors for high-ranking positions in his office, but that’s a problem for another day. For now, keeping his own ass out of trouble is the main goal.

Here we must pause and note that so far all we know is there were a bunch of accusations leveled against Paxton. We don’t know if there’s an investigation into the actions he’s alleged to have taken, much less if he did do the things he’s accused of. We do know that his accusers are fellow travelers in conservative circles, and that former Paxton lieutenant Chip Roy sided with them. We know that folks like Greg Abbott and Dan Patrick and John Cornyn have been in full “wait and see” mode, which may suggest that they genuinely don’t know what to make of all this, or that they’ve heard enough scuttlebutt to think there’s something to it, but they’re either not ready to throw Paxton overboard, or they’re seeking a more graceful way out of this mess. A lot of information has come out so far, none of which looks great for Paxton, but nothing yet that would force him to resign. That may be what this is like for awhile, and then either the feds do something to make it clear they’re going after him, or we get a press release saying he’s in the clear. Until then, this is what we have to sustain ourselves.

Well, there’s also this.

[Brandon] Cammack declined to answer questions about his work for the agency or speculate as to why Paxton called him about the job. But said he “rose to the occasion” in accepting a major assignment from the state’s top lawyer and that the fallout has been “unexpected.”

“When one of the highest elected officials in the state reached out to me to go conduct this investigation, knowing what my background and knowing what my experience was, with regards to state law claims… I took it seriously,” Cammack told The Texas Tribune Tuesday.

“I don’t know anything about office politics… I don’t know anything about [the relationship] between people. I was called to duty. I showed up for duty,” he said.

Cammack’s work for the attorney general’s office has ended, though he said it was “beyond” him to know if the review would go forward in someone else’s hands.

[…]

Legal experts have questioned the precise nature of Cammack’s job — Paxton described him as both an “outside independent prosecutor” and as “independent counsel” — and asked how he was able to issue subpoenas that aides said “related to private business concerns of Nate Paul.”

They also raised concerns that Cammack — who is connected to [Nate Paul’s attorney Michael] Wynne through their involvement in the Downtown Rotary Club of Houston and the Houston Bar Association — lacked the experience for such a high-profile assignment.

Cammack said the subpoenas were issued by a Travis County judge and that he never went before a grand jury. He submitted an application for subpoenas to the Travis County district attorney’s office and they assisted in getting them issued, he said. He declined to answer other questions about the subpoenas, including which judge issued them, and his role.

Cammack also disputed the notion that he lacked experience, saying he’d had a “successful practice” in Houston for about two and a half years, handling primarily criminal defense work. His investigation for the attorney general’s office centered on violations of the Texas penal code — “something I’m very well versed in having handled hundreds of cases for hundreds of families here in Harris County and contiguous counties.”

He said he was “not friends” with Wynne, but declined to say why Wynne was present when at least one subpoena was delivered. He also would not specify Paxton’s involvement in his work or provide specifics about his investigation.

Cammack said he was interviewed for the outside counsel position on Aug. 26 by Paxton and Mateer. He declined to provide specifics about the conversation, but said he understood there were a few other candidates for the job, and that Paxton asked about his educational and professional history.

A few days later, Cammack received a call from Ryan Vassar, deputy attorney general for legal counsel, about his contract, he said. Signed in early September, the agreement says Cammack would be paid $300 an hour to investigate a complaint and compile a report about any potential criminal charges. It did not give him the authority to indict or prosecute, and said he could work only as directed by the office of the Attorney General.

Cammack’s work on the case largely ended in late September when he received a cease and desist letter from Penley, the deputy attorney general for criminal justice, and then Mateer.

I mean, we still don’t know much, but what we do know just looks sketchy. And so we wait for more.

Nate Paul strikes back

Just when I think this can’t get any better.

Best mugshot ever

When Ken Paxton announced Friday his office was dropping the investigation into an Austin real estate investor’s claims of mistreatment during a federal raid of his home and business, the attorney general may have hoped the questions swirling around his relationship with Nate Paul would dissipate.

But a letter released late Sunday by Paul’s attorney that appears to be laying the foundation for a lawsuit against Paxton’s office dispelled any notion the controversy would go away soon.

[…]

Until now, Paul and his attorney, Michael Wynne, have remained mostly silent. But Sunday’s letter, in which Wynne demands that the attorney general’s office preserve documents related to the investor’s contact with Paxton’s office, flips that narrative.

In it, Wynne asserts that, far from helping his client’s cause, deep dysfunction inside Paxton’s office scuttled his client’s legitimate claim of abuse at the hands of federal investigators and has led to “A chaotic public spectacle of allegations.”

In Wynne’s telling, investigators’ behavior during the August 2019 raid against Paul were “among the most egregious examples of inappropriate behavior by government officials that I have witnessed in my professional experience.” The searchers tampered with records and then gave testimony contradicted by documents, he wrote.

Paul took his complaints to District Attorney Margaret Moore, who advised him that Paxton’s office was the correct agency to conduct any investigation of wrongdoing on the part of the searchers, including the FBI. But when Paul detailed his complaints, Paxton’s staff was dismissive and abusive, Wynne wrote.

At a July meeting, Paul’s team was “met with open hostility,” Wynne wrote. Paxton’s director of law enforcement, David Maxwell, “berated and insulted my client for bringing the complaint.”

Wynne said additional meetings with Paxton’s staff yielded the same “hostile attitude.”

Paxton personally attended a third meeting, Wynne wrote. At it, Paul demonstrated that the attorney general’s review of his complaint had been cursory and contained several errors, and that “this appeared to be an embarrassment to your office,” Wynne recounted in the letter.

Oh, my. Paul and his attorney are mad about the way Paxton’s office handled his demand for an investigation into the way he was treated by the feds, whom you will recall were investigating him for various alleged financial misdeeds. The seven senior members of Paxton’s staff found Paul’s complaint to be without merit, and the fact that Paxton proceeded – including the hire of the inexperienced and unqualified Brandon Cammack – is what led to them sending Paxton a letter alleging that he was taking a bribe. Maybe this is Paul’s way of saying he expected better service at that price.

The Trib adds some details.

Wynne’s letter places the blame for the debacle on the attorney general’s office, alleging top aides there failed to investigate his client’s claims as they should have and “deprived [Paul] of a proper review.”

“The mishandling of this complaint as outlined below has risen to an alarming level,” Wynne wrote in the letter, which also demands that the agency retain all related documents and files in preparation for potential litigation.

[…]

Wynne questioned the attorney general’s office’s basis for closing the inquiry, accused employees in the attorney general’s office of making “numerous inappropriate and false statements to the media” and said their handling of Paul’s complaint culminated in a “chaotic public spectacle of allegations, mudslinging, and an apparent power struggle” within the agency last week.

Top aides to Paxton have said internal investigations showed that Paul’s complaint lacks “any good-faith factual basis” and have accused their boss of serving a donor’s interest by hiring an outside attorney to pursue it.

Wynne said the circumstances of the federal search were “among the most egregious examples of inappropriate behavior by government officials” that he had witnessed.

In May 2020, Paul “sought guidance on the protocol for reporting a complaint” about the search and was told by Paxton to file it with the Travis County district attorney’s office.

The next month, the district attorney’s office referred the complaint back to Paxton’s agency after determining it would be “inappropriate” to send it to the Department of Public Safety, which was named in the complaint.

Wynne said “seven weeks of inaction” were followed by a series of meetings between him, Paul and officials in the attorney general’s office, whom he accused of being “hostile.”

At a meeting on July 21, the attorney general’s director of law enforcement, David Maxwell, “berated and insulted” Paul for bringing the complaint and attempted to intimidate them into dropping the matter, Wynne alleged.

He wrote that Maxwell and another top official — Mark Penley, one of the signatories on the letter about Paxton — attended a second meeting, in which Maxwell at one point yelled at Paul and asked “who [does] he think he is?”

At a third meeting, personally attended by Paxton, the review was found to be flawed and “appeared to be an embarrassment to your office,” Wynne alleged.

The Karen-like “I want to speak to your manager” energy out of this is strong, isn’t it? I’m dying for them to file a lawsuit against the AG’s office over this, because discovery is sure to be a hoot. The capacity this scandal has had to surprise and amaze me has been quite the source of joy these past few days.

And speaking of Brandon Cammack, the Paxton special prosecutors have some thoughts – and a motion – about how much Paxton paid him.

Texas Attorney General Ken Paxton has argued that $300 an hour is too much to pay the two special prosecutors appointed to take him to trial in a long-running felony securities fraud case — but that’s the rate his agency is paying the inexperienced attorney Paxton hired last month to investigate a complaint by a political donor.

[…]

The prosecutors, Brian Wice and Kent Schaffer, pointed out that irony in a spirited filing Friday before Harris County District Judge Jason Luong, asking that they be compensated at the same rate as Cammack, whom they dismissed as “an untested and unqualified rookie.”

“If this hourly rate sounds familiar, it should: it is the very rate the Pro Tems were promised when they were appointed,” they wrote in a Friday filing. “If the defendant’s choice to pay Cammack $300 an hour appears to be disingenuous, it is only because it is: in successfully derailing this prosecution by spearheading a concerted effort to defund it, the defendant has repeatedly referred to the Pro Tem’s $300 hourly rate in his filings as unreasonable and unwarranted.”

Wice and Schaffer, who told the court that between them, they have 80 years of experience in the criminal justice system, questioned why they should not be entitled to the same sum as Cammack, “whose own experience, training and expertise, compared to the Pro Tems, is virtually microscopic.”

Paxton can “run but not hide” from his “concession that $300 an hour is reasonable,” Wice and Schaffer argued.

In their own filing to the court, Paxton’s defense attorneys told the judge that Cammack’s contract is irrelevant to the issue of pay for the prosecutors.

[…]

The issue of prosecutor pay in the securities fraud case against Paxton was raised by a Paxton donor, Jeff Blackard, in December 2015, when he sued, calling the fees exorbitant. Since then, the issue has dragged through the courts for years, bouncing all the way up to the Texas Court of Criminal Appeals, the state’s highest court for criminal matters.

Paxton’s defense attorneys told Luong he should rely on the high court’s ruling — which found the $300 hourly rate fell outside legal limits — in determining how much Wice and Schaffer should be paid.

Nothing in the prosecutors’ filing, “which contains unsubstantiated gossip about an irrelevant matter and no legal argument, authorizes this court to disregard the holding of the CCA and grant the relief requested by the pro tems,” Paxton’s attorneys wrote.

I don’t know if Wice and Schaffer’s motion can be a justification to essentially overturn that CCA ruling, but it certainly shows (again) why that ruling was ridiculous, and why the current system for hiring special prosecutors is fundmentally flawed. They may not be able to do more than score political points, but even just a reminder of how much Paxton has been coddled and protected by his political buddies all these years is useful. The Chron and Rick Casey, who notes a connection between Michael Wynne and Brandon Cammack, has more.

Fifth Circuit upholds Abbott’s mail ballot dropoff limits

Because of course they did. Why would you have expected anything else?

In a ruling issued late Monday night, a federal appeals court upheld Gov. Greg Abbott’s order that limited counties to one mail-in ballot drop-off location.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, all appointed by President Donald Trump, rejected arguments from civil and voting rights groups that claimed Abbott’s order suppressed voting rights by making it harder to cast a ballot, particularly for elderly and disabled voters who are the most likely to use mail-in balloting.

In reality, the judges said, Abbott expanded voting options by suspending a state law that allows mail-in ballots to be hand delivered only on Election Day — a July 27 order that Abbott merely refined on Oct. 1 by closing multiple ballot drop-off sites in Travis and three other large counties, the panel said.

“That effectively gives voters 40 extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” Judge Stuart Kyle Duncan wrote for the panel.

The ruling blocked Friday’s injunction from U.S. District Judge Robert Pitman, who said Abbott’s order placed an unacceptable burden on voters who are most vulnerable to COVID-19.

[…]

The panel criticized Pitman for vastly overstating the magnitude of the burden on voting rights caused by Abbott’s “partial refinement” of an earlier order that made it easier for eligible Texans to hand deliver a ballot before Nov. 3.

“How this expansion of voting opportunities burdens anyone’s right to vote is a mystery,” Duncan wrote. “Indeed, one strains to see how it burdens voting at all.”

Texans still have “numerous ways” to participate before the Nov. 3 election — by voting early beginning Tuesday because Abbott added six days to the early voting period as a pandemic safety measure, by hand delivering completed mail-in ballots before Election Day, and by dropping their ballot in the mail, Duncan said.

See here and here for the background. Never mind the fact that the state of Texas had previously affirmed that multiple dropoff locations were legal, never mind the fact that Abbott issued this order a week before early voting began and more than two months after Harris County had announced its plan for multiple locations, and of course never mind the global pandemic that has everyone seeking to mitigate their own personal risk. Abbott extended the early voting period, so what are you peasants complaining about?

I mean, look. The Harris County Clerk used legal means to make voting easier and more accessible. The Governor used a false pretext to overrule him, and did so late in the process after people had been led to expect what the Clerk had implemented. The fact that the Governor had indeed taken steps to expand voting access isn’t relevant. The fact that most other counties hadn’t taken similar action as Harris isn’t relevant – they could have and in many cases should have, and if the Governor thought that was unfair to the voters in the slacking counties, he could have used the same authority he exercised here to try to spur those other counties to action. The point is that Harris County stood for making it easier and more convenient to vote, and the state of Texas said no, you can’t do that. In response, the Fifth Circuit said “we don’t see the problem here”. That’s what we’re up against.

I should note that there is still that state lawsuit, which will have a hearing this week. I don’t expect much at this point, but duty compels me to point this out. I presume the other federal lawsuit – as I observed before, this was a combination of two federal lawsuits, but did not include the third – is now moot. As we have seen over and over again, the way forward is going to require winning more elections first.

Why did Ken Paxton hire a newbie attorney to be a “special prosecutor” or whatever he meant to call him?

The Trib has some questions.

Best mugshot ever

It was a baffling, perilous, perhaps unprecedented task.

Texas Attorney General Ken Paxton hired an outside lawyer last month to look into a complaint of misconduct by a host of state and federal officials, including the Texas Department of Public Safety, the Federal Bureau of Investigation and a U.S. attorney’s office. The claim had been made by a Paxton donor whose home and office were reportedly raided by federal agents last year.

Some legal experts say the investigation should never have been in the hands of the attorney general’s office at all. But if it was, longtime Texas attorneys say, it’s a job for a seasoned prosecutor, perhaps someone with years of experience as a U.S. attorney or district attorney, someone who’d already established a reputation, someone who’d taken dozens of cases all the way from investigation to sentencing.

Instead, Paxton personally signed off on a $300 hourly rate for Brandon Cammack, a 34-year-old Houston defense attorney with ties to the donor’s attorney and five years of experience whose docket, court records show, largely comprises cases involving driving while intoxicated, low-level theft or assault.

Paxton’s office abruptly ended that investigation Friday after political backlash from both parties and criminal allegations from his own top aides. But questions about Cammack’s role — and the process of his selection — persist.

“That’s the $64,000 question: How did Paxton come to hire this particular lawyer?” said Tim Johnson, a former U.S. attorney for the Southern District of Texas. “You’d expect, for something that would have the possibility for serious consequences, that you’d want to have somebody that had a great deal of experience in the criminal justice system. And it doesn’t appear that they did that.”

Equally inscrutable is the precise job Cammack was hired to perform for the attorney general’s office. Paxton has described him both as an “outside independent prosecutor” and as “independent counsel,” and one subpoena obtained by The Texas Tribune refers to Cammack as a “special prosecutor.”

But Cammack’s contract, which Paxton released this week, shows that Cammack was never independent, nor was he a prosecutor. Cammack can investigate “only as directed by the [Office of the Attorney General],” and his contract specifies that he will not be involved in any indictment or prosecution born out of his investigation. He’s submitted an invoice for more than $14,000 of work, according to media reports.

I’ll get back to this article in a second, but I should note that it’s a pretty good overview of the story so far, and includes a lot of new details. Because this is a sprawling story that’s being told in multiple places, it also covers some stuff we’ve already talked about. No one is going to be able to write a short article for anything related to this just because recapping the backstory will take at least six paragraphs.

Legal experts and lawyers who’ve worked with Cammack, including his estranged father, questioned whether he has the experience needed to take on such a high-profile assignment.

As recently as 2018, a judge appointed a more senior attorney to assist Cammack when he was working as a defense attorney on a felony manslaughter case.

Mark Hochglaube, the longtime prosecutor and defense attorney who was brought in, said it wasn’t clear whether the judge or Cammack himself considered the young lawyer too inexperienced to handle the case alone — but that both were on board with getting Cammack some help.

Their client, who was found guilty of manslaughter, was sentenced to 50 years.

He praised Cammack’s effort on the case but questioned his selection for the high-profile appointment.

“If I were the attorney general, and I was in this predicament, would the name Brandon Cammack be the first name that popped into my mind? No, it wouldn’t,” Hochglaube said.

Young attorneys can often punch above their weight and rise quickly through the ranks, Hochglaube said, but he added, “I have a hard time saying, based on my experience with Brandon, that I would’ve thought this was suitable for him.”

[…]

Beyond questions about Brandon Cammack’s qualifications, the scope of his role is murky, too.

Why, some legal experts wondered, would a state attorney general be investigating claims against federal authorities at all? Some called the situation unprecedented.

“I guess every politician is limited only by his imagination,” said longtime Houston defense attorney Rusty Hardin, “but that’s a pretty unique event.”

Edward Loya, a Dallas attorney and former federal prosecutor for the U.S. Department of Justice, said FBI agents are not above the law, and, in principle, there is nothing wrong with the state attorney general looking into FBI misconduct for violations of Texas law.

But he added that it is unusual — and raises serious ethical questions — for a state attorney general to take on an investigation of FBI misconduct in a case involving alleged criminal activity of one of the attorney general’s donors. The prudent course, he said, would have been to refer the matter to the U.S. Department of Justice’s Office of the Inspector General, an independent division within DOJ that probes such claims made against DOJ employees.

“I can’t imagine that’s ever happened before,” said Johnson, the former U.S. attorney, adding that if he had been asked to fill Cammack’s role, “I would’ve stayed as far away as I could.”

“Anybody with half a brain would’ve gotten as far away from this as they possibly could,” Johnson said. But Cammack “may not have had enough experience to realize this is something he really shouldn’t want to get involved with.”

Lawyers interviewed by The Texas Tribune said Cammack’s official role as outside counsel raises questions about whether he had the authority to issue subpoenas, a power limited to prosecutors and assistant attorneys general. His actions in the case could open him up to legal liability if he usurped his authority, and Phelps, the former official in the attorney general’s office, questioned whether the issuance of the subpoenas amounted to a criminal offense.

“An outside counsel is not a ‘special prosecutor’ and has no authority to issue subpoenas, appear in front of a grand jury, or prosecute a criminal case,” said Phelps, who also worked for a decade as first assistant district attorney in Brazos County, and head of a special prosecutions division under Morales.

“I wish someone would pull that Brandon Cammack aside because I think he’s being used, because of his inexperience,” Phelps said.

I skipped over a couple of paragraphs that describe Brandom Cammack’s relationship with his father, who is also an attorney and who comes across as an abusive. It’s icky stuff.

After several days and a whole lot of reading, I’ve been thinking about how to summarize what we know so far, so if we get into a conversation with someone who knows nothing about this other than a vague recollection of some headlines or Facebook posts, we can help them understand. The basic gist of it is that a real estate hotshot in Austin named Nate Paul had been the target of an FBI investigation into his finances, which involved raids on his offices. Paul filed a complaint about the investigation and searches of his properties with the office of Attorney General Ken Paxton, to whom he had contributed $25K in the last election. Paxton did open an investigation, going through the Travis County DA’s office first with a somewhat shady legal pretext to get the investigation handled by his office instead of the DA. He then hired Brandom Cammack, an inexperienced attorney, in a role that is not clearly defined but is something like a special prosecutor, except that Cammack was not independent of Paxton, and no one thinks he had the qualifications or experience for the job. All of this looked like Paxton doing some legal work on behalf of Nate Paul but with the official seal of the AG’s office. That caused a revolt among Paxton’s senior assistants, who told him all of this was highly inappropriate at the least. In the end, seven top assistants to Paxton asked for a federal investigation of Paxton’s involvement in the Nate Paul situation, accusing him of being paid off by Paul to help Paul defend himself against the feds in their investigation of him. Whew!

That’s where things stand now, and there are various subplots and unanswered questions and who knows what else. You can see what I mean when I say that it will be impossible any time soon to write a short article relating to this. I feel like there are still some big shoes to drop, but I couldn’t even guess at what that might mean. It’s becoming quite the political hot potato, as US Rep. Chip Roy – a former top lieutenant to Paxton – has called on him to resign (as have a couple of newspaper editorial boards), and Sen. John Cornyn, himself a former AG, has expressed his disappointment in Paxton’s handling of this. I have to believe that this will be an issue in 2022, in a bigger way than the existing Servergy indictments of Paxton ever were.

One more thing, just to expand on an item noted in the story above: Paxton has officially closed the Nate Paul investigation that started all this, shortly after Travis County DA Margaret Moore told him her office was not going to be involved any more in any way.

Texas Attorney General Ken Paxton said his office is closing its investigation into a complaint made by one of his donors, hours after the Travis County District Attorney formally distanced itself.

Also on Friday, the Texas Department of Public Safety said it was not investigating allegations by aides in Paxton’s office that he committed bribery and other corruption crimes but instead the matter had been referred to the Federal Bureau of Investigations. A DPS spokesman said the Texas Rangers are available to assist.

Paxton had argued that he only pursued an investigation urged by the donor, Austin real estate investor Nate Paul, after getting a referral from Travis County District Attorney Margaret Moore’s office. Moore already told the Houston Chronicle that it was Paxton who first brought Paul’s request for an investigation to her and not the other way around.

A letter she sent Paxton Friday upped the ante and made clear her office is cutting all ties to the probe. Moore noted all the revelations that have come out in recent days — revelations that demonstrate Paxton has more than gone out of his way to assist Paul and his troubled real estate dealings.

“Any action you have already taken or will take pursuing this investigation is done solely on your own authority as provided by Texas law,” Moore said. “The newly surfaced information raises serious concerns about the integrity of your investigation and the propriety of your conducting it.”

She said the referral of the Paul matter from her office to his — until now in the hands of an outside Houston lawyer Paxton hired — “cannot be used as any indication of a need for an investigation …or an endorsement of your acceptance of the referral.” She also said she had instructed her employees “to have no further contact with you or your office regarding this matter.”

Paxton said in a statement Friday that he closed the investigation because his office “can only investigate in response to a request for assistance from the District Attorney’s office.”

I wonder if we’ll hear some more about this from the perspective of someone in Moore’s office, now that they are free of any constraint. We’re almost a week into this story and it’s still a total firehose of new information. The Statesman has more.

Judge briefly halts Abbott’s order limiting mail ballot dropoff locations

Late Friday breaking news, which lasted until the early afternoon on Saturday.

A federal judge ruled Friday that Texas counties can have multiple drop-off locations for absentee ballots heading into the Nov. 3 general election, blocking the enforcement of Texas Gov. Greg Abbott’s recent order that sought to limit counties to just one such location.

Saying Abbott’s order confused voters and restricted voter access, U.S. District Judge Robert Pitman granted an injunction late Friday barring its enforcement. With an unprecedented number of Texas voters requesting mail-in ballots during the coronavirus pandemic, and concerns about the reliability of the U.S. Postal Service, some large, Democratic counties had set up numerous locations to accept the ballots before Abbott’s order.

“By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.”

[…]

The Texas Democratic Party called Friday’s ruling a “common sense order [that] followed well-established law and stopped the governor from making up election rules after the election started.”

Before Friday’s ruling, Democrats had denounced Abbott’s order, labeling it voter suppression in a state that has repeatedly been knocked in federal court for intentionally discriminating against voters of color. Voting rights advocates and civic groups quickly sued Abbott in federal court, arguing the order was based on invalid security concerns and places an unconstitutional and unequal burden on the right to vote.

The Texas and national League of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters filed suit the night of Abbott’s order, and another lawsuit was filed the next day by the Texas Alliance for Retired Americans, the get-out-the-vote group Bigtent Creative and a 65-year-old voter.

“Cutting these mail-in voting locations was wrong and done solely to attempt to steal the election from the rising Texas electorate,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “A county, like Harris County, with more than 4.7 million Texans should have more than one hand delivery location. Limiting counties like Harris is a desperate Republican attempt to hold onto power.”

See here for the previous update, and here for a copy of the ruling. Looking at the plaintiffs, it appears that the first lawsuit and the second lawsuit were combined. That leaves one other federal lawsuit, plus the one state lawsuit for which there is a hearing next week.

One presumes this will be appealed, and as we all know the Fifth Circuit is where all good things go to die. I think there’s a strong argument to be made that allowing Abbott’s order, which was made more than two months after counties had begun making plans to have multiple dropoff locations and after the state Solicitor General filed a brief saying that state law allowed for this, is the thing that would improperly disrupt the election at this late date. I also think the Fifth Circuit can rise to the occasion of brushing such an objection aside. Travis County, one of the places that had multiple dropoff locations in place prior to the order, has said it will wait to see what the Fifth Circuit does before reopening them. It’s hard to fault them for that. The Chron and the Statesman have more.

UPDATE: As expected, Paxton has filed an emergency motion for a stay of the judge’s ruling. You can read that here. The smart money always says that he gets what he asks for from this court, so it’s a matter of how quickly they have a hearing and issue a ruling.

UPDATE: Faster than you can say “Anything you want, Kenny”, the Fifth Circuit grants Paxton’s motion. Now we wait for a hearing. See why Travis County decided to wait before reopening any of those dropoff locations? Here’s the Chron story about the granting of the stay.

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

Lawyers for voters and voting rights groups asked a federal judge Thursday to block Gov. Greg Abbott’s recent order limiting counties to one location where voters can hand-deliver mail-in ballots.

Abbott waited too long to issue his order on Oct. 1, they argued, not only because it came the same day Travis County opened four drop-off locations after a monthlong public information campaign, but also because voting had already begun in the Nov. 3 general election.

“It is too late and too dangerously burdensome to change election rules midstream,” lawyer Chad Dunn told U.S. District Judge Robert Pitman in a hearing that was held via Zoom as a pandemic precaution.

Other lawyers argued that Abbott’s order placed a disproportionate burden on Texans who are most likely to vote by mail — those who are 65 and older or have a disability — by forcing many to endure longer and more difficult travel to ensure that their votes are submitted in a time of decreasing confidence in the U.S. Postal Service.

“It’s ironic and sad,” lawyer John Devaney said. “Now, after voting has started, the plug has been pulled.”

Lawyers for Abbott disputed claims that his order limited voting rights, saying the governor acted to expand opportunities and options for voters during the pandemic.

Abbott’s first election-related order, issued July 27, added six days of early voting and suspended a state law that allows voters to hand-deliver mail-in ballots only on Election Day, lawyer Eric Hudson told the judge.

In effect, Abbott gave voters almost 40 extra days to hand-deliver their ballots, Hudson argued.

“That’s not provided for in Texas law, and without Gov. Abbott’s proclamation, that right … would not be possible,” he said.

Pitman broke in to ask: “Is it the governor’s position that we’ve given you so much it’s OK to take back a little?”

“I don’t think we’ve taken anything back, your honor,” Hudson replied.

This hearing was for the first lawsuit, filed by LULAC and the League of Women Voters. Earlier in the day, the ACLU and the Lincoln Project announced they had filed amicus briefs in support of the plaintiffs. Courthouse News has some further details.

Representing LULAC, San Antonio attorney Luis Vera said the fears of election fraud have already been discredited and voters had already turned in their ballots for four days until Abbott’s order.

“The state of Texas wants one set of rules for [the] one party they represent and one set of rules for the others,” he said.

Attorney Chad Dunn, with Brazil & Dunn in Houston, asked the judge to issue a preliminary injunction to “preserve the status quo.” He cited federal courts’ reluctance to change the terms of an election so close to Election Day.

“This case is about more than drop-box locations in a county. It is about whether the public believes the results of the election will be honored,” he said.

Attorney John Devaney, with Perkins Coie in Washington, told Pitman the individual voter plaintiffs have standing in the case because of the risk they face voting at the polls and contracting Covid-19, and because they will have to travel further to reach their county’s one absentee drop-off location.

He argued that LULAC and the League of Women Voters have standing as organizations due to the burden of having to reallocate their resources at the last-minute to account for Abbott’s order.

“They will need to change their website, their educational materials and contact their new members” with the new information, Devaney said.

In response to the judge asking if the state also faces a burden if he decides to block Abbott’s order, Devaney responded the state’s burden to maintain the status quo would be smaller than that of the plaintiffs.

“Voters tend to wait until the end of an election to request a ballot. It’s not just procrastination,” Devaney said. “In an election this heated, voters want to wait. There’s going to be a surge of absentee votes … given the two-week period for the USPS, people are going to have to turn in their ballots because they don’t trust the Postal Service.”

Judge Pitman asked the plaintiffs if there was any difference between the drop-off locations closed by Abbott’s order and the still-operation sites in terms of election security.

Attorney Susan Hays, representing Harris County Clerk Chris Hollins, responded the county’s shuttered annex locations are “typical business offices” that are more secure than other public places due to employees receiving election security training. She said they are “much more secure because they must show ID before handing over the ballot.”

Pitman said he would issue his ruling “as soon as possible” given the close proximity to Election Day. Early voting locations are scheduled to open on Oct. 13.

It wouldn’t shock me if we get a ruling by Monday, but we’ll see. This is now the fourth lawsuit filed against the Abbott order, with three of them in federal court. According to the Statesman story, there’s a hearing scheduled for the state lawsuit next week.

UPDATE: Here’s the Chron story:

During a hearing Thursday, U.S. District Judge Robert Pitman appeared unconvinced by the idea that eliminating the additional locations would have no impact on voting accessibility.

The suit before Pitman is one of several challenging Texas election laws and Abbott’s pandemic executive orders amending them that are still swirling, even as the start of early voting approaches.

[…]

The pool of voters using this method appears to be relatively small so far, though mail-in voting is up across Texas, so demand could rise.

In Harris County, for example, just 0.2 percent of 85,922 absentee voters hand-delivered their ballots during the low-turnout July primary runoff; 39 of the 404 ballots for the Nov. 3 election that have been returned through Thursday were dropped off by voters. Those dropoffs ceased when Abbott’s order went into effect with less than 24 hours notice.

It should be noted that dropoff boxes were basically never mentioned as an option for the July primary runoffs, so the fact that almost no one used them is no surprise. And since 39 out of 404 is almost ten percent, it sure looks like we were on our way to a significant increase in the use of this method. I point these numbers out because one can make an argument about how much of a burden Abbott’s order is based on them.

Paxton’s first line of defense

Settle in, folks, this is going to be a long one. We’ll start with the Dallas Morning News.

Best mugshot ever

Texas Attorney General Ken Paxton is defending his decision to bring on an outside lawyer to look into a complaint from real estate developer and campaign donor Nate Paul.

In an unusual step Wednesday, Paxton’s office released documents to beat back accusations by his own top deputies that the outside attorney, Brandon Cammack, is acting without authority. The records show Cammack is billing the state $300 an hour and that Paxton personally signed his hiring document.

The records — released through the agency’s Twitter account — signal Paxton is digging in for a fight after seven of his most senior employees accused him of bribery and abuse of office. The staff have raised concerns over Paxton’s relationship with Paul, whose home and businesses were raided last summer by the FBI.

Multiple senior officials in the agency told The Dallas Morning News late Wednesday they believed Paul was attempting to use the power of the office of the attorney general for personal and financial gain. And in a document obtained Wednesday by The News, Paxton’s deputy warned Cammack his employment agreement was invalid and may have been signed by Paxton “under duress.”

“The document appears to be signed by Attorney General Ken Paxton. To be clear this office has no record authorizing such a retention under our agency’s operating policies and procedures,” then-First Assistant Attorney General Jeff Mateer wrote in a letter dated Oct. 1.

“We believe this purported agreement is unlawful, invalid, unenforceable, against public policy, and may have been executed by the Attorney General under duress,” Mateer wrote, without elaborating.

“Under duress”? UNDER DURESS? Holy mother of Ann Richards. What does this even mean?

Cammack, 34, told The News on Tuesday that Paxton reached out to him in August to gauge his interest in working as outside counsel. He was asked to look into a complaint from Paul alleging misconduct by state and federal employees that was referred to Paxton’s agency by the Travis County District Attorney in June.

On Thursday, Travis County DA Margaret Moore said Paxton personally asked her to look into the complaint. After her office held a meeting with Paxton, Paul and Paul’s attorney, Moore referred the complaint to the Office of the Attorney General.

“The scope and nature of the complaints comprised matters that the D.A.’s Office would normally refer to a law enforcement agency with the resources necessary to conduct the investigation,” Moore said in a statement. “The entities complained against included the FBI and the Texas Department of Public Safety, so the only appropriate agency left to whom we would typically make the referral was the Office of the Attorney General.”

But the agency’s investigation into Paul’s complaint stalled. Multiple senior officials told The News on Wednesday they recommended not proceeding further with the probe because they found that the agency had no authority to investigate the claims in the complaint or that they lacked merit. They believed that Paul was attempting to use the office for personal and financial gain.

Paxton reached out reached to Cammack, the lawyer told The News, to pick up the investigation. On Wednesday, the statement from Paxton’s office said he decided to hire Cammack as outside counsel because his own employees impeded the investigation and “because the Attorney General knew Nate Paul.”

But multiple senior officials who would have needed to sign off on outside counsel told The News on Wednesday that they vigorously opposed Cammack’s hiring.

We should note that as some other outlets reported, Paxton made it sound like Travis County DA Margaret Moore approached his office to handle this complaint. Moore has released a statement making it clear that Paxton approached her, and the referral back to his office was because it was legally the only appropriate way to proceed. Once again, my jaw is hanging open.

The way Cammack was brought on is highly unusual, according to a person familiar with the agency’s policies and procedures, who said all contracts must be approved by several divisions and senior officials. It’s unclear whether that occurred in this case.

While Paxton has said he decided to bring on outside counsel because he knows Paul, the agreement released Wednesday does not give Cammack independence from Paxton and requires him to conduct an investigation only as directed by the Office of the Attorney General.

The hiring documents Paxton released Wednesday include an employment agreement and job description, which Paxton said “legally authorized [Cammack] to act.”

Paxton’s office also released emails between Cammack and one staff member, in which the two discussed a draft of a hiring agreement. That staff member, Deputy Attorney General for Legal Counsel Ryan Vassar, is one of the seven employees who lobbed criminal allegations against Paxton.

Cammack has said that his work is still going on. Who even knows what that means.

All that is a lot, but there’s still more. The Chron finds some more oddities about Brandon Cammack and how he came into the picture.

While a contract released by the attorney general’s office explains how outside counsel Brandon Cammack came to be hired, it leaves questions unanswered about how the arrangement allows Cammack to be independent of Paxton, who is at the helm of the agency and signed the contract.

“They may very well be allowed to do it,” said Larry McDougal, president of the Texas Bar and a former prosecutor. “I’ve just never actually seen it … Thirty years of being a lawyer, and I’ve never had that come up.”

We’re off to a great start. Now we look at the meeting with Travis County DA Margaret Moore again, and the way that Paxton’s office came to be involved in this investigation that he wanted.

Some lawyers interviewed said Paxton could also have declined the case or referred it to another law enforcement agency. All said it’s unclear what part of the law Paxton leaned on when bringing on Cammack.

Paxton’s office has described Cammack as “outside independent counsel,” but in at least on subpoena, obtained by Hearst Newspapers, he is called a “special prosecutor.”

“I was very surprised to hear that he was appointed as a special prosecutor only because I, candidly, don’t know that the Attorney General’s office has the authority to do so,” said Chris Downey, a Houston-based criminal defense attorney who has been an attorney pro tem three times before. “I think that’s a point of concern and potential exposure.”

The contract released Wednesday by Paxton’s office shows that Cammack was hired to investigate but not prosecute. That differentiation could mean legal consequences for Cammack if a court later finds that he was acting without authority.

In July 2020, the Fifth Circuit Court of Appeals ruled that prosecutors aren’t shielded with immunity from lawsuits when they are performing investigative functions.

Attorneys interviewed also raised questions about the choice of Cammack, who graduated from University of Houston law school in May 2015, was licensed in November of that year and has been in private practice for about five years. He’s also the chair-elect of the Houston Bar Association.

“Normally, when you do bring on someone as a special prosecutor, you do so because you’re trying to tap into that person’s unique skill set,” Downey said. “I would be surprised given that he’s been a lawyer for five years that he has a defined skillset that they couldn’t find within the attorney general’s office.”

Everywhere you turn, more and more questions. Many more questions than answers, that’s for sure.

My previous blogging on this topic can be found here, here, and here. I’ll have a separate post on the Nate Paul side of things, because this is all Just Too Much.

The Trib also covered this topic, but the DMN had the most comprehensive story, while the Chron has been running down other angles as well. One more detail in all this is that Paxton’s contract with Cammack pays him $300 and hour. You know who else is supposed to get paid that much? The special prosecutors against Paxton in the Servergy case. The same guys who have been fighting Paxton, his army of cronies and minions from Collin County, and the Republican-dominated courts to actually get that pay, which Team Paxton et al have claimed is extravagant. I expect the rotting corpse of Irony to turn up any day now.

UPDATE: Damn, there’s a lot happening with this story.

Five senior officials in the Texas Attorney General’s Office accused their boss, Ken Paxton, on Wednesday of subverting his office to serve the financial interests of a political donor, according to an email obtained by The Texas Tribune.

The aides are doubling down on accusations they made last week to law enforcement — that Paxton had committed crimes including bribery and abuse of office — even as the second-term Republican says he’ll forge ahead as the state’s top lawyer under a fresh cloud of criminal allegations and as some in his party call on him to resign.

“It would be a violation of our own public responsibilities and ethical obligations to stand by while the significant power and resources of the Texas Attorney General’s Office are used to serve the interests of a private citizen bent on impeding a federal investigation into his own alleged wrongdoing and advancing his own financial interests,” the aides aides wrote in the email. “We urge you to end this course of conduct immediately.”

[…]

The damning Oct. 7 email was addressed to Paxton and his new First Assistant Brent Webster and sent by five of the same senior aides and whistleblowers — Ryan Bangert, Blake Brickman, Lacey Mase, Darren McCarty and Ryan Vassar— who reported allegations of criminal activity to law enforcement last week. Two of Paxton’s aides, including former First Assistant Jeff Mateer who reported him to law enforcement have since resigned.

Their concerns stem from Paxton’s hiring of a special prosecutor to investigate claims made by Nate Paul, an Austin real estate investor and donor, of alleged impropriety by federal and state authorities. But several subpoenas served by the prosecutor, the aides said in the email, were “related to private business concerns of Nate Paul” — and were not the subject of the “narrow criminal referral” he was appointed to investigate.

“This office’s continued use of the criminal process, in a matter already determined to be without merit, to benefit the personal interests of Nate Paul, is unconscionable,” they wrote.

They’re bringing the heat, I have to say. It really is mind-boggling what these top assistants are saying about their boss, and sharing with the press. It’s also easy to imagine that there’s more coming. In the meantime, John Cornyn gets on the Concern Train, on which he will Wait And See before drawing any conclusions. Better buckle in, John.