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Travis County

Fifth Circuit flips the switch

It’s what they do.

A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers if it will issue an injunction nullifying it during the entire appeals process.

Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.

[…]

In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail remained in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, Paxton argued that Biery’s injunction threatened “irreparable injury” to the state “by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections.”

The appeals court ordered the Democrats to file a response to the state’s request to block the ruling by Thursday afternoon.

See here for the background. I mean, this was to be expected, so let’s move on to the other thing that happened yesterday, also from this story.

In a virtual hearing Wednesday, the justices’ interrogations of Paxton’s lawyer and those representing the counties returned frequently to a gaping hole in Paxton’s request — when voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.

Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on their application that indicated they feared infection but were “otherwise healthy.”

Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.

“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.

Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require a voter to include information the nature of their disability in their applications — both of which would go beyond the Texas Election Code.

Still, the solicitor general asked the court to order election officials to abide by the state’s direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request a mail-in ballot on that basis.

Barbara Nichols, an attorney representing Dallas County, argued it was unnecessary for the Supreme Court to order anything of the county’s election administrator because she had not indicated she would go beyond existing laws for voting by mail.

“As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her,” Nichols said. “And the state cannot point to any such evidence in the record.”

See here for the previous update. Harris County was also a respondent in this hearing – I have a copy of their brief here. I mean, the law here is pretty clear, so much so that even the Solicitor General had to admit it. The question is, what will the Supreme Court do about it? I will note that this is a writ of mandamus, not an appellate action, so they could just swat it away and let the lower courts do their thing before they weigh in. Remember, the state lawsuit hasn’t even been heard yet, we’ve just had a ruling on the motion to allow people to apply for mail ballots while the litigation is in progress. Just take a pass, that’s all I’m saying. We’ll see what they say. The Chron and the Signal have more.

Could we get an elections administrator along with a new County Clerk?

Maybe.

Diane Trautman

A week after Harris County Clerk Diane Trautman announced she would resign due to health concerns, Commissioners Court on Tuesday plans to debate whether to appoint an independent administrator to run county elections.

After Precinct 1 Commissioner Rodney Ellis inquired about how to do so, the County Attorney’s office prepared a four-page memorandum last week detailing how to switch to an elections administrator, which most major counties in Texas have done.

Ellis said partisan elections administration can unfairly inject politics into what is supposed to be an apolitical process.

“In more extreme cases, the politicization of decisions may paralyze the entire process,” Ellis said in a statement.

The move would put a single office in charge of running elections and managing the voter roll, both gargantuan tasks in the state’s largest county, which has 4.7 million residents. Voter registration is currently the responsibility of the tax assessor-collector, owing to the office’s historic role collecting poll taxes. The county clerk’s office administers elections.

The nonpartisan model is successful because a centralized elections department can more efficiently update voting infrastructure, like machines and poll books, based on changes to the roll, said Hidalgo County Elections Administrator Yvonne Ramón.

“I don’t care how perfect our elections are running, how the machines and everyone is trained — if my voter registration data base is not up to date… then we’re not as good as we should be,” said Ramón, who also is president of the Texas Association of Elections Administrators.

The position of elections administrator is created by Commissioners Court.

A majority of the county election commission, comprised of the county judge, county clerk, tax assessor-collector and the chairs of the county Republican and Democratic parties, is needed to select an elections administrator.

See here for the background. Then-Judge Ed Emmett floated the idea back in May of 2010, at a time when then-Clerk Beverly Kaufman was known to be retiring and then-Tax Assessor Leo Vasquez had lost in the Republican primary. It was approved for a study that June, then fell off the radar before a brief revival in 2012. One of the concerns I had at the time was how do you remove an Elections Administrator if one proves to be not up to the task. The answer to that question, at least as articulated in that last link, appears to be “with a four-fifths majority of the election commission”, which concerns me as anything that requires a supermajority does. I’m open to the idea – you can read my thoughts about it from back then at those links – and if we go forward with it I would still want someone who fits my criteria for a County Clerk that has those same responsibilities. So for, no one other than Ellis has spoken in favor of this, but he just announced the idea over the weekend, so it’s early days. As the story notes, only Harris and Travis Counties don’t have an elections administrator, at least among the big counties, so we’d be joining the crowd if we do this. If there’s any future to this idea we’ll find out at today’s Commissioners Court meeting.

Supreme Court sticks its nose in

I suppose this was to be expected.

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

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

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

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

[…]

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

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

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

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

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

[…]

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Paxton tries a Supreme shortcut

They sure are keeping busy.

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

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

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

[…]

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

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

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

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

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

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

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

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

Criminal complaint filed against AG Ken Paxton

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

MOAR MUG SHOTS

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

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

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

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

[…]

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

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

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

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

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

TDP petitions appeals court to get Paxton to knock it off

Good.

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

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

[…]

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

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

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

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

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

Paxton threatens county clerks over vote by mail instructions

Seems to me this should get a bit more attention.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

Hotze sues Abbott and Paxton

Just another day at the office for this guy.

A group of conservative activists and pastors that’s challenging Harris County’s stay-at-home order is now also suing Gov. Greg Abbott, claiming his recent executive order to stem the spread of Covid-19 infringes on their constitutional rights.

In a suit filed in Travis County on Thursday, Steve Hotze , a longtime conservative activist, and multiple Houston-area pastors accuse the governor of “imposing draconian, unconstitutional requirements” on Texans. Attorney General Ken Paxton is also a defendant in the suit.

“Once government and its constituents start operating on the basis of fear rather than facts, they are willing to take whatever medicine is prescribed, no matter how harmful the side effects may be,” the suit says. “Churches and small businesses are shut down, and Texans right to move about freely is restricted. For all practical purposes, the governor’s executive orders constitutes a ‘lock-down.’”

[…]

Multiple legal experts said that the order struck a fine balance between public health concerns and religious liberties, and many congregations said they would continue meeting online .

Jared Woodfill, the former Harris County GOP chairman who is representing the plaintiffs, said that Abbott’s order did not go far enough.

“I don’t think the governor has a right to say when people can worship or the manner in which they can worship,” Woodfill said.

The new suit also challenges the authority granted to Texas governors or local authorities under the state’s disaster act. Woodfill accused Abbott and local leaders of “suspending” laws and thus setting a poor precedent for future disasters.

“Think about the authority that this one statute gives to so many individuals,” Woodfill said. “…They can effectively do what they’ve done: Destroy an economy.”

See here and here for the background. The first couple of pages of the lawsuit can be seen in this Jasper Scherer tweet, but it’s all preamble and background, and cuts off before it gets to the actual allegations about what actions or laws they claim are illegal. I Am Not A Lawyer, but it is my understanding that governors in general do have fairly broad powers in times of emergency, as we saw recently following Hurricane Harvey. This particular emergency/disaster is quantitatively different than the usual weather-based disasters we’re used to, and as such we’ve never seen an invocation of powers like this before. For sure, there has been overstep by Abbott, with the backdoor abortion ban (that was somewhat curtailed) and the assault on bail reform, which remains unsettled. I’m certainly open to the idea that these powers are perhaps too broad, that they have been applied in inconsistent or unjust ways, and that there needs to be some check on them to ensure that “emergencies” are not declared on a whim or extended well past reasonable deadlines.

That said, this is not a good faith attempt to define reasonable limits or find a better balance between public safety and executive authority. The only thing Steven Hotze cares about is himself, and the only principle at stake here is his own belief that “your laws don’t apply to me”. Hotze’s argument is that he and people like him represent a special protected class that gets to do what they want without legal constraint, and without any concern about the effect on the health, safety, or rights of anyone else. I’m sure you can tell from my description how I feel about this, but I really want to underline how corrosive this is to society as a whole, especially in times of crisis. The only tool we have right now for mitigating this virus is collective action that puts the health and wellbeing of others ahead of our own personal interests. Your actions benefit everyone else, and everyone else’s actions benefit you. We don’t need to do this forever, but the better we are about doing it now, the sooner we can get back to behaving normally. The main threat to this is exactly what Hotze is doing, elevating his own interests and actions above everyone else’s, because if that guy gets to do whatever he wants to do, why can’t the rest of us? It’s a short step from there to back where we were in early March, when the baseline “if we do nothing” models for coronavirus predicted upwards of two million deaths. I know we all have short attention spans, but I’d hope we still remember that.

In the meantime, we’ll see what the courts make of this. I’ll be very interested to see what kind of response Abbott and Paxton make to this complaint. I don’t expect Hotze to get a favorable ruling at the district court level, but I do expect him to push this all the way to the Supreme Court, no matter how long it takes. Any lawyers out there who have an opinion on the merits of this petition, please leave a comment.

TDP gets initial win in vote by mail lawsuit

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: More from Texas Lawyer:

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

RIP, Ronnie Earle

The iconic former Travis County District Attorney has passed away.

Ronnie Earle

Ronnie Earle, who served as Travis County district attorney for more than 30 years and was best known for prosecuting some of Texas’ top politicians and for championing the community justice system, died Sunday after a long illness. He was 78.

“He was a great guy,” said friend and former Austin Mayor Bruce Todd. “He always wanted to get things right and he had a good sense of what was right for community. That was what he always wanted to be the goal and objective.”

Todd said Earle’s health has been declining for some time.

Through the county’s Public Integrity Unit, which he founded, Earle prosecuted some of the state’s top politicians — including then-Texas Attorney General Jim Mattox, then-U.S. Sen. Kay Bailey Hutchison and then-U.S. House Majority Leader Tom DeLay — with mixed success.

A jury acquitted Mattox and the case against Hutchison became a high-profile failure when charges were dismissed. DeLay was convicted of a money laundering charge, but that conviction was later overturned by the Texas Court of Criminal Appeals.

But closest to Earle’s heart were his efforts at the forefront of community justice, a catchall name for programs that had caught on in prosecutors’ offices nationwide that aim to attack crime by, in his words, “engaging the community in its own protection.”

Earle established programs for crime prevention, alternative sentencing and the reintegration of former offenders into society. He also brought officials from a range of fields together.

He also ran for Lt. Governor in 2010 but lost in the primary. The late and lamented Public Integrity Unit was a weird way of prosecuting crimes committed by state officials, but it worked pretty well, and we have seen quite clearly since the Republicans killed it off that we didn’t have any better alternatives at hand. If the PIU were still a thing, we would get some kind of resolution to the Ken Paxton saga, not this ridiculously drawn-out process that has been at the mercy of Paxton’s cronies in Collin County and may yet end up in a forfeit. Whatever you think of the case against him, that ain’t no way to do justice. Ronnie Earle would have handled it better. Rest in peace, sir.

Intervening in the mail ballot expansion lawsuit

From the inbox:

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

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

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

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

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

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

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

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

A copy of the motion to intervene is available here.

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

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

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

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

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

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

Secretary of State Ruth Hughs office’s response states:

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

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

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

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

Here come the shelter-in-place orders

The shutdowns are getting shut-down-ier.

Be like Hank, except inside

Many of Texas’ biggest cities and counties are ordering residents to shelter in place whenever possible.

San Antonio Mayor Ron Nirenberg and Bexar County Judge Nelson Wolff on Monday evening ordered residents to stay in their homes as the state grapples with the rapid spread of the novel coronavirus. The move came one day after Dallas County issued a similar order. Meanwhile, the Austin City Council and Travis County will team up Tuesday to issue a stay-at-home decree, Austin Mayor Steve Adler told The Texas Tribune on Monday. And Fort Worth city officials said Mayor Betsy Price and Tarrant County Judge Glen Whitley will do the same at a Tuesday morning press conference.

By lunchtime Tuesday, residents in at least four of the state’s five biggest cities are expected to be under such orders. The only possible holdout is Houston, the state’s most populous city, which hasn’t publicly announced any plans. But the Houston Chronicle has reported Harris County officials began drafting a shelter-in-place order over the weekend.

“Our message is simple: You must stay at home,” Nirenberg said at a press conference in San Antonio on Monday evening. “The best way to reduce the spread of the coronavirus is through strict social distancing.”

San Antonio’s “Stay Home, Work Safe” order is effective 11:59 p.m. Tuesday through 11:59 p.m. April 9.

You can add in Galveston County and some other places as well. If Greg Abbott isn’t going to do it, then it looks like everyone else will. As for Houston, here’s that Chron story:

Harris County officials over the weekend began drafting an order to place further restrictions on public activity in order to curb the spread of the novel coronavirus, according to sources with direct knowledge of the discussions.

Doctors and health experts across the country have said such orders are necessary to prevent COVID-19 from spreading so rapidly that it overwhelms the nation’s health care system. Texas Medical Center president and CEO William McKeon said Monday morning the presidents of TMC hospitals and other institutions were “unanimous in our strong recommendation to move to shelter in place.”

[…]

Harris County Judge Lina Hidalgo said at a news conference Monday morning “it may be that we issue a stay-at-home order or something of the sort.” She said county officials are still assessing whether to do so, and seeking the advice of other local leaders including Houston Mayor Sylvester Turner.

Judge Hidalgo and Mayor Turner are holding a joint press conference with local health leaders this morning “for a COVID-19 related announcement”, which sure sounds like the prelude to a shelter-in-place announcement, but we’ll see.

What this means is that most businesses are ordered to shutter, minus “essential services” like grocery stores, pharmacies, and of course health care facilities. You’re either working from home, or you’re on a break, likely for two weeks initially (what Bexar County ordered), though it could get extended. You can go outside to exercise as long as you maintain social distancing, and there may be civil enforcement for violations. I’m making some assumptions here – who knows, maybe Judge Hidalgo and Mayor Turner have something else to say, though I can hardly imagine what it could be – but this is what we have seen in cities that have already gone down this road. So, on the likelihood that this is what’s in store, get ready to hunker down a little harder. It’s what everyone thinks is our best hope right now.

UPDATE: The shelter in place order for Harris County is now in effect, effective tonight at midnight through April 3.

Primary precinct analysis: Who did what in the RRC race

The Railroad Commissioner primary was a bit like the Senate primary – multiple candidates (though not nearly as many), not a whole lot of money, but the candidate who did best in fundraising was also the leading votegetter. Here’s a look at the top 25 counties in terms of votes cast for the Railroad Commissioner’s race:


County    ALONZO   CASTAÑEDA    STONE   WATSON      Total
=========================================================
All        503,666   592,770  380,236  277,578  1,754,250
HARRIS      77,618    85,166   59,552   40,428    262,764
DALLAS      56,824    57,822   48,718   36,255    199,619
TRAVIS      30,199    97,284   37,641   20,290    185,414
BEXAR       50,228    62,708   22,880   16,583    152,399
TARRANT     35,318    36,767   28,238   25,021    125,344
COLLIN      15,227    22,793   18,487    9,250     65,757
EL PASO     25,353    21,426    6,750    7,065     60,594
FORT BEND   12,550    14,895   16,826   12,685     56,956
DENTON      10,804    21,541   14,966    6,851     54,162
WILLIAMSON  11,031    19,375   10,852    9,924     51,182
HIDALGO     24,057    15,382    6,617    3,699     49,755
CAMERON     11,849     9,267    3,691    3,558     28,365
WEBB        13,080     7,841    2,455    1,850     25,226
HAYS         5,161     6,451    6,152    4,059     21,823
MONTGOMERY   4,820     5,963    5,248    3,898     19,929
NUECES       7,364     5,914    3,146    2,424     18,848
BRAZORIA     4,643     4,659    4,961    4,502     18,765
GALVESTON    4,020     5,225    4,914    3,127     17,286
BELL         4,818     4,619    4,056    3,577     17,070
JEFFERSON    4,640     3,132    3,704    4,813     16,289
LUBBOCK      3,462     3,858    2,741    2,081     12,142
MCLENNAN     2,308     3,078    3,623    2,290     11,299
SMITH        2,536     2,512    2,466    2,985     10,499
BRAZOS       3,000     3,429    2,571    1,488     10,488
ELLIS        2,524     2,266    2,410    1,737      8,937

Chrysta Castañeda

Chrysta Castaneda, who led the pack with nearly 34% of the total vote, also led the way in 13 of these 25 counties, including the top six and eight of the top ten. That’s a pretty good recipe for success in the runoff as well. She led in Dallas County, which is the home of runnerup Roberto Alonzo, who represented a State House district in Dallas County for 26 years. Alonzo led in the five big predominantly Latino counties – El Paso, Hidalgo, Cameron, Webb, and Nueces – plus Bell and Ellis Counties. Castaneda leads Alonzo by five points going into the runoff, which is hardly insurmountable, and other than Travis County her lead over him in the biggest counties was small. I feel like Castaneda’s big lead in Travis County is a significant advantage for her for the runoff. It’s hard to project anything based on past primary runoffs because the data set is so small, but given that there will be a Senate runoff as well, and given that Travis County was also a strong performer for MJ Hegar, it could deliver a decent margin for Castaneda in May. If that happens, it may be hard for Alonzo to make up the ground elsewhere.

Of the other candidates, Kelly Stone led in Fort Bend, Brazoria, and McLennan Counties, while Mark Watson topped the field in Smith and Jefferson. There’s another similarity to the Senate race – everyone got to be a leader of the pack. I have no idea how their voters might go in the runoff – neither has made any endorsement, as far as I can tell, and in all honesty that likely would be just a marginal factor. Turnout always drops quite a bit in primary runoffs, and with the coronavirus situation happening now, who knows what effect that may have. I see Castaneda as the solid favorite in this race, but Alonzo can pull it off if he can get his own message out.

We already have the power to do more voting by mail

KUT points to a path forward that could get a lot more people voting by mail in Texas.

Texas has one of the most restrictive vote-by-mail laws in the country, but it is open to some of the state’s most vulnerable populations.

Grace Chimene, the president of the League of Women Voters of Texas, says she hopes the state and counties encourage eligible voters to mail in their ballots.

In Texas, people over 65 can apply for mail-in ballots, so the state’s older population can obtain a ballot ahead of elections.

People with underlying health issues can also apply. Whether those people qualify, however, largely depends on the county election officials who administer elections in the state.

Chimene said it’s possible many people with some health issues could qualify as disabled, which is one of the categories of people allowed to vote by mail here, but those qualifications could be clearer.

“I would like the secretary of state’s office to really explain who qualifies, who can vote absentee,” Chimene said. “I think it’s not super clear.”

Travis County Clerk Dana Debouvoir said that a disability can be a “fungible” thing that changes often throughout a person’s life. She says this could be a category that would allow people who should stay away from large groups because of COVID-19 concerns to vote at home.

“Here at the elections office we are not doctors,” Debouvoir said. “So if you say on one of those forms that you have a disability, we are going to believe you. I am not going to reject an application for ballot by mail on the basis that I think or don’t think someone has a disability. That’s not going to work right now.”

Chimene said she thinks state officials should make it clear if “sick” or disabled could apply to many of these voters who have underlying health issues, like a chronic disease or immunodeficiency.

“What qualifies as sick should be something that we are encouraging the secretary of state to expand on,” Chimene said.

As the story notes, not a lot of people 65 and older, who are eligible to vote by mail no questions asked, take advantage of it now. Travis County Clerk Dana Debouvoir puts the figure at 10-15% there, and I’d bet it’s similar in Harris County. We could already have a lot more people voting by mail right now if they wanted to. The HCDP has a program where it sends a vote by mail application to all of its known-to-be-Democratic voters and then calls them to remind them to send it in (I’ve participated in that), and you can see the effect it has had in recent elections. Thanks to the high level of turnout in this year’s primary we have a lot more Dems identified, and we could get a lot more mail ballot applications sent out. It’s up to the voters themselves to take it from there.

I should note, since I pointed this out before, that having more people vote by mail will also mitigate the effect of not having a straight ticket voting option, in that it will not add to the lines at voting locations. That’s another pretty big consideration after this year’s primary, too. What I’m saying here is: If you’re a Dem and you’re 65 or will be by this November, please consider getting a mail ballot. Pester your eligible friends about it, too. Yes, I know, I love going to the polling places, and I’d greatly miss it if I didn’t do that. And Lord knows, we should very much be on the other end of the coronavirus curve by then – if not, we’re in much deeper trouble than we’re in now – but still. This is a thing you can do that would help on more than one level. Give it some thought.

Even more so, if you’re a person with health issues, especially if you’re in any way immuno-compromised, you can request a mail ballot as well. Your County Clerk ought to oblige. Again, we’ll very likely be mostly out of the pandemic woods by November, but again, why not take advantage anyway? It’ll be good for you, and good for the wait times at polling places. What’s not to like?

Now having said all that, there are potential drawbacks to expanding vote by mail, and we need to take them seriously. One, as Josh Levin, the election protection fellow at the Texas Civil Rights Project notes, vote by mail applications can be rejected due to signature mismatches, and elections officials aren’t good at notifying applicants when this happens. That was noted in the earlier story about the possibility of an all-mail primary runoff election. You’ll need to be persistent and pester your county clerk if you don’t get your mail ballot in a timely fashion. Two, if you do go this route, please don’t then show up at a polling place and vote again in person. Every cycle some people get confused about this, and it is a thing you can be prosecuted for. Three, if the GOP suspects that Democratic voters are trying to game the system somehow by getting mail ballots to people who are not 65 but are claiming a health exception, they will surely take some kind of legal action to stop it. It’s hard to say how big a deal that could be, but we really don’t need further attacks on the legitimacy of our elections.

Finally, Campos raises a good point:

On the mail ballots for everyone thing, we need to be careful on this. I am all for going to a vote by mail system in the future. Last week, I watched a CNN piece on how the state of Washington handles their vote by mail system. It is pretty elaborate with a lot of special equipment and a physical layout to handle the volume. I don’t think the folks who conduct our elections in Texas have the infrastructure in place to handle 16 million mail ballots. I just don’t think we jump into this system under emergency circumstances. Convince me otherwise. We saw what happened a couple of weeks ago today.

Yeah, I agree with that. I think we can encourage people who are already eligible to vote by mail to consider doing so if they haven’t already – there’s a clear benefit to that and the system should have no trouble handling it. Anything bigger than that will require planning and coordination, and we’re not there yet. We don’t want to risk having a worse outcome because we weren’t able to deliver on our promises.

On balance, there’s no reason why folks who are clearly eligible to get a mail ballot not to do so, and many reasons why they should. The first order of business is to make sure they know that they can, and then follow up from there. We can do that this year. It’s already in our power. Daily Kos and TPM have more.

You periodic reminder that every vote matters

2020 Republican primaries edition.

One vote still separates second and third place in the GOP primary for Texas House District 47, but a revised total released Wednesday pushed Justin Berry ahead of Don Zimmerman for the final spot in the May runoff election.

Zimmerman had held a one-vote margin over Berry in the western Travis County district when unofficial election results were released after the March 3 primary.

All Travis County votes have now been counted, according to updated election results from the county clerk’s office, but Zimmerman can still call for a recount.

Texas election laws allow candidates to petition for a recount if they are trailing an opponent by less than 10% of the total votes received by the opponent.

The updated results showed Berry with 4,105 votes and Zimmerman with 4,104.

Craig Murphy, a spokesman for Berry, said the campaign was not surprised to see a late change, adding that he did not expect the results to change with a recount.

“They’ve done some of the things they would have done during a recount, so it’s less likely to change,” he said, referring to the counting of mail-in, overseas and provisional ballots. “This is one of those rare occasions where every single person in the race for us made a difference.”

The second-place candidate will face attorney Jennifer Fleck in the May 26 runoff.

I noted this in my runoff roundup. Basically, some mail ballots arrive after Tuesday – they just have to be postmarked by then to count – and some provisional ballots get cured, so the final official vote total ticks up a bit. Usually, these things are too small to have an effect on an outcome, but when the margin is one vote, anything can happen. I’ll be a little surprised if Zimmerman doesn’t ask for a recount – which, like the late-counted ballots almost never changes anything, except here we’re talking the very smallest of differences – and he’ll have a few days to decide. The fun never stops. The Trib has more.

Let’s talk turnout

Just a few random bits and pieces about turnout from the primaries. On the one hand, I think it’s great that Dems got the turnout that we did, in Harris County and around the state. On the other hand, I spent a lot of time pooh-poohing the notion that Republicans’ 1.5 million to 1 million advantage in the 2018 primaries didn’t mean anything for that November, and I’m not going to change that tune now that Dems outdrew them this March. Primary turnout and November turnout are two different things, so let’s appreciate the turnout we got this March on its own merits.

There were 2,076,046 votes cast for Democratic presidential candidates, and 2,008,385 votes cast for Republicans. The crappy election night results pages do not break these out by vote type, so I can’t tell you how many early or mail votes were cast for each candidate, which also means I can’t tell you what Election Day overall turnout looked like compared to early voting for each party. I can give you that picture for Harris County:


Year    Mail    Early    E-Day  E-Day%
======================================
2008   9,448  169,900  231,560   56.4%
2010   7,193   33,770   60,300   59.5%
2012   8,775   30,136   35,575   47.8%
2014   8,961   22,727   22,100   41.1%
2016  14,828   72,777  139,675   61.5%
2018  22,695   70,152   75,135   44.7%
2020  26,710  114,501  180,692   56.1%

Final Harris County turnout for Dems 321,903, and for Republicans 192,985. Well short of 2008, and thus of my own projections, but still pretty darned strong.

Of some interest is turnout in other counties, though again that is not to be mistaken for a deeper meaning about November. Be that as it may, Democrats saw a lot more action in the suburbs.

Democratic primary turnout was up 59% across metropolitan Dallas-Fort Worth.

OK, so the region probably isn’t flipping blue anytime soon, not with Republicans in power and an incumbent president and U.S. senator up for re-election this fall.

But something unusual is happening.

In notoriously conservative Collin and Denton counties, Democrats doubled turnout and outvoted Republicans — in Collin, by 15,429 votes.

“I think the Democrats have been working real hard the last several years,” said Denton County Republican Chairman Jayne Howell, a rural Denton County realtor.
this huge Democratic turnout will wake some people up.”

Democrats saw hard-fought campaigns at the top of the ticket while Republicans only had to choose local nominees, so maybe the numbers aren’t surprising.

But overall, Democrats outvoted Republicans by 22% across the four core metropolitan counties, three of them traditionally solid red.

Republican turnout was down 43% from 2016, when the Ted Cruz-Donald Trump and Hillary Clinton-Bernie Sanders races ignited both parties.

Here are the Presidential numbers in select counties:


County        2016D    2016R    2020D    2020R
==============================================
Bexar       114,524  132,583  170,762   80,785
Brazoria     12,942   39,247   21,661   35,667
Collin       40,034  116,676   84,350   68,909
Dallas      159,086  175,122  231,688   83,304
Denton       32,506   96,060   67,092   66,621
El Paso      54,742   28,805   68,132   18,343
Fort Bend    39,206   68,587   69,540   57,212
Harris      222,686  327,046  321,903  192,985
Hidalgo      58,366   18,666   59,486   12,378
Montgomery   12,677   90,740   25,487   64,138
Tarrant     104,440  213,993  152,676  122,802
Travis      144,144   84,844  223,233   42,043
Williamson   31,141   67,392   60,677   43,868

Couple of points to note here. One is that Republicans really do get a lot of their strength in the smaller counties, since overall they had almost as many votes as Democrats in the primaries. Two, it’s very likely they didn’t have all that many races of interest, not just at the top but also fewer hot primaries for Congress, the Lege, and maybe county offices. Lots of things can drive turnout, and in their absence you mostly get the hardcore voters. And three, Travis County really punches above its weight. Respect, y’all.

I was to take a closer look at how the various candidates did around the state in future posts, but after a few minutes of poking through the Presidential numbers, I recognized it was pointless. The top counties by vote total for any candidate you looked at, from Biden to Tulsi, was basically just a recitation of the biggest counties. The best percentages for the non-Biden and Bernie candidates were generally in the very smallest counties – Bloomberg, for example, got 50% of the vote in King County. That represented exactly one vote out of two cast; Bernie got the other one. It just wasn’t worth a full post. I think there may be some more interesting info in the Senate race, but the SOS’ crappy election night returns site doesn’t have a county-by-county canvass yet. I’ll get back to that later, and of course after I get the canvass from our County Clerk, I’ll do my usual thing here as well.

Primary early voting: Comparing 2020 to 2016

The Chron looks into the early voting numbers around the state.

Experts cautioned that early voting data should be taken with a grain of salt — for one because the subset of people who vote early aren’t necessarily representative of the entire state.

Texans who vote early tend to be older, economically well-off and better educated and tend to live in urban and suburban areas as opposed to rural ones, according to a 2010 study by Austin Community College.

A lot could change by Super Tuesday, March 3 — in particular how South Carolina’s primary on Saturday might affect undecided Democratic voters in Texas. An untold number of Texans declined to vote early as they held out for those results; others who may not have voted otherwise may be spurred into action by a shift in the race.

“Let’s put it this way: So much happens every day in politics, voters want to wait until the last minute to decide,” Rottinghaus said. “So we could see turnout bigger on election day because you’re going to see more things happen between the end of early voting and election day.”

Voting has also become more accessible for a wider swath of Texans after four of the top five largest counties in 2019, including Harris and Bexar, moved to allow countywide vote centers, meaning polling places are open to all voters no matter where they live. That switch could also boost turnout.

Republican strategist Derek Ryan said the high numbers of voters casting Republican ballots early surprised him, especially with a noncompetitive presidential primary.

“There isn’t really anything necessarily motivating people at the top of the ticket,” Ryan said. “But turnout right now on the Republican side is above what it was in 2008 and 2012. It’s actually closer to what turnout was at this point in 2016 with a contested presidential primary.”

Ryan said he attributes that to the strength of Trump supporters who are “trying to send a message that they’re behind him,” as well as the number of competitive congressional races across the state.

While Democrats’ numbers are high, Ryan said he expected to see the presidential race propel even greater turnout, and he noted that they are still nowhere near the explosive turnout of 2008 when Barack Obama and Hillary Clinton were going head-to-head for the presidential nomination. That year, turnout in the primary was at about 23 percent for Democrats, with 2.8 million casting ballots, compared to about 11 percent for Republicans, or 1.3 million votes.

Rottinghaus, however, said that year may not be the best comparison point, considering that an unknown number of Republicans were said to have voted in the Democratic open primary as part of “Operation Chaos” to hurt Obama’s chances. Obama and Clinton were also much different candidates, both very well-known and with strong establishment support, compared with the assortment of candidates available to 2020 voters, he said.

With all due respect, I’m not sure how much stock I’d put in a 2010 study of early voting patterns, as we’ve had quite a bit more data since then. Remember, in the November 2008 election, projections of final turnout in Harris County and statewide were wildly optimistic because early voting wound up being a much bigger percentage of final turnout than expected, and that was because we had been used to it being a small share of the electorate. That’s no longer the case, though as we’ve discussed here which type of election it is factors greatly into the calculation. I would expect that a 2020 version of that 2010 study would find different patterns now.

As for the claims about Republican voting in the 2008 Democratic primary, surely by now we can approach a more objective answer to this question. How many people who had a previous Republican primary history but voted Democratic in 2008 then went on to vote in the Republican primary again, in 2010 or 2012? My guess is that it’s a relatively small number, but my point is that someone can actually calculate that number, so no one has to guess any more. In his final email on the primary early vote, Derek Ryan takes a crack at it. I think there’s still work to be done there, but at least he made the attempt, which I appreciate.

We know two things going into Tuesday. One is that overall, nearly as many people voted in the Democratic primary as the Republican primary: 1,085,144 on the Republican side and 1,000,288 Democratic, in each case with a few small counties not having reported yet. And two, where each party’s votes come from is very different.

Let’s take a closer look at that latter statement. Here’s how the top 15 counties performed in 2020 primary early voting:


County   Republican  Democratic
===============================
Harris      104,787     139,256
Dallas       40,996      94,048
Tarrant      68,485      69,508
Bexar        47,101      90,162
Travis       22,901     108,721
Collin       41,400      40,664
Denton       41,366      33,672
El Paso       9,119      33,071
Fort Bend    37,812      34,146
Hidalgo       7,093      46,327
Williamson   23,555      29,621
Montgomery   35,936      10,673

Total       480,551     729,869

Democrats got 73.0% of their total early vote from these big 15 counties. For Republicans, it was 44.3% from the big 15. That’s a significant difference, and I’d say a continuation of the trends we saw that began in 2016 and really blossomed in 2018 where the vote shifted very heavily in the cities and suburbs towards Democrats and in the rural areas towards Republicans. We don’t have early voting information for the other counties in 2016 so we can’t say how big this effect is for the primaries, but we certainly saw it in action in November of 2018.

Now here are the same top 15 counties in 2016:


County   Republican  Democratic
===============================
Harris      131,145      85,793
Dallas       64,274      57,436
Tarrant      95,088      44,308
Bexar        61,139      54,651
Travis       32,350      61,014
Collin       59,739      17,662
Denton       46,298      13,420
El Paso       8,242      17,799
Fort Bend    28,999      14,518
Hidalgo       9,542      43,458
Williamson   31,745      12,981
Montgomery   41,491       4,606

Total       610,052     427,946

It’s important to remember that Republican primary turnout in 2016 was 2.8 million, and for Democrats it was 1.4 million, so we should expect to see bigger Republican totals in almost any subgroup from 2016. To me, the most interesting bit is the big increases in Democratic early voting numbers in Tarrant and the big, historically red suburbs. I would not call what we are seeing here as a clear indicator of continued Democratic growth in these places, but it sure beats the alternative of being stagnant from 2016. I’ll take a much closer look at these numbers after the election.

For grins, I looked at nine more counties, mostly larger, mostly Republican though Dems made gains in 2016 and especially 2018. Many of these feature at least one competitive State House race for November. Here are the EV numbers for these counties in 2020:


County   Republican  Democratic
===============================
Brazoria     24,318      10,163
Nueces        7,865       9,531
Bell         10,964       7,668
Lubbock      18,848       7,047
McLennan     11,430       5,213
Hays          9,315      12,818
Brazos        8,333       4,571
Comal        12,156       4,879
Guadalupe     9,759       4,356

Total       112,988      66,246

Here are those same counties from 2016:


County   Republican  Democratic
===============================
Brazoria     18,313       4,882
Nueces       11,234      11,344
Bell         14,398       3,554
Lubbock      22,919       5,120
McLennan     12,282       2,624
Hays          9,213       6,629
Brazos        9,535       2,328
Comal        13,067       2,370
Guadalupe     8,704       2,321

Total       119,665      41,172

Again, some growth on the Democratic side, with a small decline for Republicans, as before with the caveat about overall turnout. I don’t really have a point to make here, I just got curious and wanted to see this for myself. If nothing else, it’s given me some things to look at again once all the voting is over.

Trib overview of the CD10 primary

I have three things to say about this.

Mike Siegel

When Mike Siegel made a long-shot bid to unseat U.S. Rep. Michael McCaul, R-Austin, two years ago, few were watching — until he surprised political observers and came within 5 points of flipping the longtime Republican seat. Now the seat is up for election again, and national Democrats are paying attention.

Siegel’s 2018 result means the 10th Congressional District, which stretches from metro Austin to the northwest outskirts of Houston, is finally considered in play after a 2003 redistricting left it deeply gerrymandered and solidly red. Many more eyes are now on the race, including the Democratic Congressional Campaign Committee’s. But for Siegel, that has translated to tougher competition.

A former lawyer for the city of Austin, Siegel is vying for the Democratic nomination along with two newcomers: labor and employment lawyer Shannon Hutcheson and physician Pritesh Gandhi, both also from Austin.

A primary runoff is likely in TX-10, but with two weeks to go until Super Tuesday, it’s still uncertain who will make the cut. Siegel and his supporters put the district “on the map” last cycle after “the state and national party had left [it] for dead,” Siegel told The Intercept in June.

“People across this district remember me for showing up when for decades Democrats hadn’t really shown up, in some of these rural communities in particular,” Siegel told The Texas Tribune. “They appreciate that we brought this race so close without a lot of outside support.”

Siegel faced even more primary opponents in 2018 but won the nomination relatively easily. He garnered more than double the votes of each of his opponents in the first round of voting and went on to win the runoff by nearly 40 percentage points.

But Siegel holds views that might raise questions about whether he’s the right candidate to flip a traditionally red district. Because he is the most progressive candidate and the only one who supports “Medicare for All” and the Green New Deal, his bid could be seen as a riskier choice to challenge McCaul in the historically Republican district.

Hutcheson and Gandhi have taken more moderate positions, and each is getting some national support. Hutcheson has been endorsed by EMILY’s List, the influential group that works to elect Democratic women who support abortion rights. Gandhi, meanwhile, has the backing of 314 Action, which backs scientists running for office.

Fundraising in the primary has been competitive, especially between Gandhi and Hutcheson. In the fourth quarter, Gandhi and Hutcheson raised $257,000 and $216,000, respectively, while Siegel has trailed behind with $96,000. This was the first quarter Gandhi out-raised his opponents.

1. I feel like we all need to aim for a higher level of precision when we use the word “gerrymandering”. A district that heavily favors one party is not necessarily “gerrymandered”. The old, pre-2003 CD10, which was a nice, compact, entirely-within-Travis-County district, was a safe Democratic seat and not at all “gerrymandered”. CD13, which hews almost entirely to state and county borders and is ridiculously Republican, is almost the exact opposite of “gerrymandered”. A funny-looking district isn’t necessarily “gerrymandered”, either. CD18 is an African-American opportunity district, and has been drawn the way it is to encompass many African-American neighborhoods. For sure, Texas is a longtime and notorious hotbed of gerrymandering, and we should expect more of it in 2021. But context matters, and it would be helpful to have a clear idea of why a particular district’s boundaries are offensive or illogical or just plain nakedly partisan, if only to pick the right battles.

The current CD10 was certainly drawn with ill intent, partly to defenestrate Lloyd Doggett (oops) and partly to deprive the city of Austin of representation. The irony here is that, at least based on the 2018 election, the end result was to conjure up a fairly competitive district, which was not at all what the Republicans had in mind. A combination of booming growth in Travis County, and a one-two punch of demographic change and Trump-inspired suburban shifting in Harris County – compare CD10 2012 and CD10 2018 to see the effect – has worked to threaten what Tom DeLay once envisioned. None of that undoes the malice in the map, but it does show that the best-laid plans can (maybe) be undone by sufficiently rapid increases in population and diversity.

2. It’s important to remember, though, that as hard as CD10 swung towards Democrats in 2018, it was not at all clear it would be as competitive as it turned out to be following the 2016 election. Trump still carried CD10 by a 51.9 to 42.8 margin, and no other Democrat reached 40% in the district. As the 2018 cycle went on, and it became clear what the political environment was like, it made sense to put some resources into longer-shot districts like CD10. Mike Siegel did raise almost $500K in the 2018 cycle, which sounds like nothing now but was one of many record-breaking hauls at the time. He was also on the low end of the spectrum, raising less money than candidates like Julie Oliver and Jana Lynne Sanchez. The DCCC has to make choices about where it spends its money, and CD10 wasn’t at the top of the list in 2018. Maybe a million bucks or two dropped on that district might have helped, who knows. I don’t think it was outrageous the way priorities were made last cycle .

3. Siegel is doing better on fundraising this time around – as of the January 2020 report, he had almost matched his entire total from the 2018 cycle. It’s just that this time, he has opponents who are doing even better on that score. Several repeat candidates from 2018 are far outpacing their opponents in fundraising – Gina Ortiz Jones, Sri Kulkarni, Julie Oliver – but Mike Siegel is not in that class. He can very much win this primary, and whoever does get the nomination will justifiably have establishment support going forward. He happens to have drawn strong opponents this year. That’s the way it goes.

Sen. Kirk Watson to retire

Well, this was unexpected.

Sen. Kirk Watson

State Sen. Kirk Watson, an Austin Democrat, is retiring from the Texas Senate.

His resignation is effective at midnight on April 30, the Austin American-Statesman first reported Tuesday. Watson is leaving office to become the first dean of the University of Houston’s Hobby School of Public Affairs.

“This is a chance to build a world-class public affairs and policy school essentially from the ground up,” Watson said in a statement. “It is transformative work at a creative and ambitious university, located in one of the country’s largest and most diverse cities. … Only a unique opportunity to serve this state — and a compelling platform for that service — would cause me to leave.”

Watson, an attorney and former mayor of the city of Austin, represents Senate District 14, a historically Democratic seat. It covers Bastrop County and parts of Travis County. He was first elected to the seat in 2006, taking office in early 2007.

Watson’s early departure will set off a special election to serve the rest of the term, which will end in 2023. Watson delivered his resignation letter this morning to Gov. Greg Abbott, who will later set the date for a special election.

The race to replace Watson is likely to be a crowded one and could include multiple members of the Texas House’s Austin delegation.

Here’s Watson announcing his departure on Twitter:

Watson was re-elected in 2018 with 72% of the vote, so this is a safe Democratic seat. The special election, which will be for the remainder of this term ending in 2021, will almost certainly be in November, so it won’t be a low-turnout affair, either. I will be shocked if we don’t see at least a couple of current members of the Lege from Travis County take a shot at this. For one, it’s a freebie – you’ll still be on the ballot for your current seat, and won’t need to step down unless you win. For another, opportunities like this don’t come along very often – Watson was first elected in 2006, after all, following the departure of Gonzalo Barrientos. Every State Rep in SD14 should be giving this serious thought.

And if one of the current State Reps eventually wins this, we’ll be in for another round of Special Legislative Elections Happening During A Legislative Session. Assuming no one wins the SD14 special in November, there would be a December runoff. That would mean a special State House election in mid-to-late January, and a runoff if needed in late February or early March. Is it wrong that I’m just a tiny bit giddy about that?

Anyway. Watson was a terrific Senator, and he will be missed. I look forward to seeing him around Houston. Chuck Lindell has a thread with reactions from various potental candidates, and the Statesman and the Chron have more.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.

State Rep. Poncho Nevarez busted for cocaine possession

It’s been a week, hasn’t it? I have three things to say about this.

Rep. Poncho Nevarez

Authorities issued a warrant Thursday for the arrest of state Rep. Poncho Nevárez, an Eagle Pass Democrat, on felony drug possession charges. A state special investigator claims in the warrant, which was obtained by The Texas Tribune, that Nevárez was caught on surveillance footage in September dropping an envelope with cocaine as he was leaving the Austin airport.

A magistrate judge in Travis County signed the warrant Thursday afternoon. Nevárez faces a charge of third-degree felony possession of a controlled substance, which carries a maximum punishment of 10 years in prison.

Neither Nevárez’s office nor the Travis County District Attorney’s Office immediately responded to a request for comment.

Thursday’s news came hours after an affidavit detailing the allegations, filed Oct. 29 in Travis County court by the Texas Department of Public Safety, was revealed and later obtained by the Tribune and other news outlets. The affidavit was attached to a warrant seeking to conduct a test to determine whether Nevárez’s DNA was on the envelope. The document says that the envelope had Nevárez’s official House seal and held “four small clear baggies” containing a substance found to include cocaine.

Nevárez, who chairs the House Homeland Security & Public Safety Committee, announced last week he was retiring from the lower chamber. And in a statement to the Tribune Thursday morning before the warrant was issued, Nevárez confirmed that the “news is true” — and that the events detailed in the affidavit prompted his decision to not seek reelection.

“I do not have anyone to blame but myself,” he said, noting that he plans to seek treatment. “I accept this because it is true and it will help me get better.”

1. Nevarez had previously announced he was not running for re-election, which I think we can all agree is for the best. Sometimes, regardless of other considerations, stepping back in order to get one’s life together is the stronger course of action.

2. And I really do hope he gets his life back together. Addiction is a terrible thing, and it has real costs not just on the addict but on the addict’s family and friends. Even if I am grossly overstating the issue here – I am making some big assumptions – I stand by the main point about the personal cost to all involved.

3. I hope we take this as an opportunity to further reflect on how the criminal justice system handles drug usage and possession. I would not advocate for decriminalization of cocaine, but I would hope we would all by now recognize that a ten-year jail sentence for possessing a small amount of it is ridiculous and serves no worthwhile purpose. It’s needlessly punitive, exorbitantly expensive, and surely does not have a positive effect on addiction and drug abuse. And we should reflect on the fact that while someone like Rep. Nevarez is unlikely to spend much if any time in jail, many many people in Texas and around the country are not so fortunate. Our drug laws are harmful and woefully out of date. We really should do something about that. If Rep. Nevarez’s situation helps even one legislator realize that, then at least one good thing will come out of this.

The need for voter registration never ends

A small step back, but I expect a big step forward next year.

Still the only voter ID anyone should need

Democrats in Texas see registering new voters as crucial to winning statewide elections in 2020, but the number of registered voters in Harris County, the state’s largest, has declined since last year.

Harris County’s voter roll has shrunk by 4,146 voters since Election Day in November 2018, when Democrats swept every countywide and judicial post.

The deadline to register for next month’s municipal elections is Monday.

Two of the state’s five largest counties this week reported fewer registered voters than 11 months ago. Dallas County lost 19,400, while Bexar County increased by 7,554. Tarrant County gained 1,406 voters and Travis County added 13,454. Texas as a whole added just more than 30,000 voters between November 2018 and September, according to the most recent tally by the secretary of state.

Voter registration officials in Dallas and Bexar counties said voter rolls typically dip after general elections in even-numbered years. They said that period is when counties remove inactive voters, who have not participated in two consecutive federal elections nor responded to a letter from the voter registrar, from the rolls. The number of registered voters usually rebounds as new voters submit applications, they said.

“That’s why you see numbers fluctuate,” Bexar County Elections Administrator Jackie Callanen said. “We may purge 40,000.”

[…]

Harris County removed 127,852 voters from the roll between November 2018 and August, according to a cancellation list published by the secretary of state. Bennett’s office did not respond to a request to disclose how many voters have registered in the county since this past November.

Bennett shared a slideshow presentation with the Chronicle that noted her office had signed up a record 4,100 volunteer deputy voter registrars this year and has held registration drives at local high schools and colleges.

The Harris County voter roll has grown in each annual November election since 2012, according to election reports published by the Harris County Clerk. The last year-over-year decrease was in 2011, when there were 48,000 fewer voter than the previous year.

Here are the yearly totals since 2012, which marks the beginning of the modern registration expansion period:


Year   Registered
=================
2012    1,942,566
2013    1,967,881
2014    2,044,361
2015    2,054,717
2016    2,182,980
2017    2,233,533
2018    2,307,654

The big gains are in the even years, but even this year there’s been a lot of activity. If 128K people were removed but the rolls only dipped by 4K, that’s a lot of new and renewed registrations. People do move and they do die, it’s just that now we have a chief voter registrar who’s interested in building things up rather than holding them down. You want to do your part, sign up to be a volunteer deputy voter registrar and get us on the road to 2.5 million for 2020.

MQS says he will release the Bonnen tape

Well, well, well.

Hardline conservative activist Michael Quinn Sullivan said Thursday he will release a secret recording of his controversial meeting with House Speaker Dennis Bonnen and another top GOP member next week.

“I have been given the green light to do so by my legal team,” Sullivan wrote in his morning “Texas Minute” email to subscribers. “Later today I will announce that the audio will be released next week.”

Sullivan could share the recording ahead of an already-scheduled House GOP caucus meeting on Oct. 18, which will mark the first official Republican gathering since the head of Empower Texans accused the speaker of planning to politically target members from his own party. That allegation has, for the past couple of months, thrown the 150-member House into turmoil.

[…]

In August, at the request of a House committee, the Texas Rangers Public Integrity Unit launched an investigation to look into the allegations surrounding that June 12 meeting. It’s been unclear when that investigation could wrap up. Earlier this week, the Rangers were hand-delivering letters to House offices at the Capitol requesting members to provide “any testimony, recordings, documents, records, or other information relevant” to the investigation by Oct. 17.

Before then, on Oct. 15, Sullivan is scheduled to appear in a Travis County court as part of a lawsuit spearheaded by the Texas Democratic Party, which has sued over the recording. A couple of days later, the House Republican Caucus will be in Austin for its annual retreat, which was on the books before Sullivan’s allegations first surfaced.

See here for more on that Travis County court action, and here for previous blogging on this saga. It has always been my belief that MQS would release the tape when and if he decided it was better for him to have it out there than to have people continue to speculate about it. I still believe that, and while it’s possible that the court could have forced him to turn it over, that hasn’t happened yet, and he’s not known for walking away from a fight. So we’ll see what this means. The Texas Signal has more.

Other counties also considering property tax rate hikes

I have four things to say about this.

A statewide property tax relief plan that takes effect next year is prompting hefty tax increases this fall in many of the biggest cities and counties in Texas, even in places that have historically kept rates flat or decreased them.

Elected officials in some cities and counties say they have no choice but to raise taxes as high as they can this year to brace for the implementation of property tax reforms that Republican Gov. Greg Abbott and the Texas Legislature called historic earlier this summer. The average effective tax rate for single-family homes in Texas was 2.18 percent in 2018, third-highest in the nation, according to a study by ATTOM Data Solutions.

Starting next year, cities and counties will be barred from increasing property tax collections more than 3.5 percent in any year without a vote of the public. Currently, the state has an 8-percent limit, called the rollback rate, that state lawmakers say has allowed cities and counties to overtax homeowners. The lack of a state income tax makes Texas municipalities especially reliant on property tax revenue.

A look around the state shows many counties and cities are pushing rates to the 8-percent rollback rate this year to bank money or, in a few cases, even to fund pay raises for themselves, in reaction to the new law. El Paso, Harris, Tarrant, Webb and Travis counties are among those pushing to the current rollback rate, or near it. And cities including El Paso, Arlington, Corpus Christi and Austin are similarly considering rates at or near the 8-percent limit.

“I think a lot of cities and counties know that we are putting them on a diet and they are going on one last bender before it happens,” said State Rep. Dustin Burrows, R-Lubbock, who was a key player in crafting the property tax reforms as the leader of the House Ways and Means Committee.

[…]

In Harris County, which hasn’t raised the tax rate in decades, county officials say the state’s new restrictions are forcing them to react by raising the tax rate by 2.26 cents per $100 of assessed value. County Judge Lina Hidalgo said the county needs to create a contingency fund to ensure it can pay for services, such as health care, transportation and flood control, once the state’s 3.5-percent cap goes into effect. The rate increase, if approved next month, would allow Harris County to collect more than $200 million extra in tax money than last year.

1. There are some extremely bitchy quotes in the story from Sen. Paul Bettencourt, who pushed the bill that led to this in the Senate. I may have rolled my eyes so hard that they will never unroll.

2. The counties and cities that are considering this are acting in what they believe is their best interest, and the best interest of their residents. Plenty of expenses that counties and cities face, from disaster relief to health care to salaries and pensions, aren’t subject to any kind of rate limit. HB3 radically changed their long term financial picture. They had no choice but to adjust.

3. Just as a reminder, there are plenty of things the Legislature could have done to improve our property tax system without putting the squeeze on local governments. The Lege could also greatly help counties on the expenditure side of the balance sheet by expanding Medicaid, which would do a lot to reduce the cost of health care on counties. The whining from the likes of Bettencourt on this is just beyond rich. All that is without even pointing out that having a property tax-based system, in which the main expense is completely disconnected from people’s annual incomes, instead of an income tax-based system, is always going to have problems like this.

4. The same voters who will be given the power to approve or reject future tax collection levels also have the power to approve or reject the local officials who may be raising tax rates now ahead of that. They also have that power over people like Paul Bettencourt and Dustin Burrows and Greg Abbott and so forth. Maybe some day that power will be exercised.

Voting centers everywhere

In Dallas:

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

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

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

[…]

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

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

In San Antonio:

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

We talk once again about straight ticket voting

We have a new study, so we have a new reason.

The state’s decision to kill straight-ticket voting could cut turnout in down-ballot races in the 2020 elections — even if more voters show up to the polls.

Sure, those additional voters will cast ballots for president and U.S. Senate. But voter interest and knowledge gets thinner and thinner as the ballots go on and on.

Without straight-ticket voting — where voters register support for all of their parties’ candidates with a single vote — down-ballot candidates will have to win with the support of the relatively few voters who make it past the marquee contests.

Two-thirds of Texans voted straight ticket in 2018. In 2020, candidates for offices like constable and justice of the peace will need all the help they can get from friends and family; it won’t be enough to rely on the straight-ticket voters.

In particular, Democratic candidates depending on a growing base of voters may suffer, according to a study done by the Austin Community College Center for Public Policy and Political Studies.

“Most analyses of the election contend that straight-ticket voting helped the Democratic Party candidates in certain types of counties — metropolitan and some suburbs,” authors Stefan Haag and Peck Young wrote. “And we agree that the increased competitiveness of Democrats in many counties was abetted by straight-ticket voting.”

It’s not so much that Democrats were depending on straight tickets for their strength; it’s that strong candidates at the top of the ticket — like Democrat Beto O’Rourke — were making it easier for the rest of the party’s candidates to win some votes.

[…]

“The greatest effect of the elimination of straight-ticket voting will probably not be the elimination of Texans voting for all candidates of one political party — the essence of straight-ticket voting,” the two wrote. “The effect will be that people will spend more time in the voting booth.”

You can see the study here, and you can read everything I’ve had to say on the topic here. The authors get some things right, in my opinion, including the conclusion that I quoted at the end there, but I’m not convinced yet that there will be a huge effect on downballot races. I’m especially not convinced that this is going to help Republicans win judicial races in Harris County again. The Harris County GOP has much bigger problems than that.

The main effect is to make voting take longer, which (it is hoped by the GOP) will not only make some (Democratic) people skip some races, but will also make lines longer and thus discourage some (Democratic) people from getting in to vote at all. There are other techniques they are employing towards this end as well.

The Texas Legislature never seems to pass up a chance to make voting harder, scarier, or more confusing. True to form, Texas was one of several states this year that restricted—rather than expanded—access to the polls.

HB 1888, which Governor Greg Abbott signed into law in June, goes into effect this week, effectively banning the use of mobile polling places, a strategy adopted by some counties to facilitate early voting in communities where people may have a harder time getting to a polling site. Travis County, for instance, has for the past several years operated dozens of temporary polling places at various times during the state’s two-week early voting window, opening up temporary sites at colleges, rural community centers, and senior living facilities. More than 28,000 people voted at those rotating polling sites last year, or nearly 6 percent of all Travis County votes cast during the 2018 midterm election.

However, since the county can’t afford to turn all of those temporary polling places into permanent early voting sites, as required by HB 1888, some areas accustomed to having early voting won’t get it during the 2020 election, according to Travis County Clerk Dana DeBeauvoir. “We’re struggling with what to do for some of these communities now,” DeBeauvoir told the Observer. “We won’t be able to open polling places that some people have gotten used to.”

It’s all of our responsibility to find ways to keep lines manageable and give everyone the best chance to vote in a timely manner. A couple of suggestions come to mind:

1. If you are 65 years old, or will be by Election Day, you are eligible to vote by mail. Take advantage of it.

2. The best days to vote early are Tuesday through Friday of the first week of early voting, and the Monday and Tuesday of the second week. If you’ve made it to Thursday of the second week of early voting, go ahead and wait till Election Day. Those last two days of early voting, especially the very last day, are by far the busiest. Don’t make it more so.

3. If you really want to go the (literal) extra mile, find the lower-volume early voting locations and vote at one of them. You can look back at my daily EV reports to see which places to seek out. Vote first thing in the morning (7 AM during the second week), later in the morning (like between 9:30 and 11), or early afternoon (say between 1:30 and 3) to avoid the commute and lunchtime crowds.

4. If you have the time, sign up with your county to be an election judge, so that if they do want to open another EV location, they will have the staff for it.

Every little bit helps. When we finally take over state government, we can work on actually fixing this. Until then, do what we can to not make things worse.

Boosting student turnout at UT

Cool story.

Between 2013 and 2016, Texas eliminated more than 400 polling locations, the largest drop in any state during that time. In 2013, after years of litigation, it implemented a strict voter ID law. The law, which lists seven kinds of acceptable IDs, became infamous for its brazenly partisan implications—handgun licenses are okay, for example, while student IDs are not.

All of which makes the following statistic so surprising: at the University of Texas at Austin, the state’s flagship university, undergraduate turnout increased from almost 39 percent to 53 percent between 2012 and 2016. Over that same time period, national youth turnout stayed roughly constant. The National Study of Learning, Voting, and Engagement at Tufts University, which calculates campus voting rates, has not yet released numbers for last year’s midterms. But at UT Austin’s on-campus polling locations, the number of early ballots cast was more than three times higher than it was in 2014. (Travis County only provides polling site specific data for early voting.)

[…]

On August 5, 2015, a federal appeals court ruled that Texas’s voter ID law violated the Voting Rights Act. The state’s attorney general vowed to enforce it anyway.

Later that month, a friendly and fast-talking former journalist named Kassie Phebillo arrived in Austin to begin a PhD in political communications at the University of Texas. To support herself financially, she took a job overseeing TX Votes, the nonpartisan organization charged by the university with increasing turnout. At the time, the group barely existed. It had just one returning member, and both of Phebillo’s would-be supervisors had left the school before she even showed up.

Still, Phebillo was drawn to the opportunity to learn more about her field and to mentor students. “I’m a first-gen college student,” she said. “Having those relationships changed my life, and so I try to do that for others.” She sat down with the sole returning TX Votes member—then senior Zach Foust—and began discussing how to restructure the group. They studied how other schools worked to get out the vote and found themselves particularly interested in colleges where students partnered with diverse groups to boost registration and turnout. The two decided to establish a civic engagement alliance and began recruiting a host of student clubs, political and nonpolitical alike, to come on board. By the end of the 2015–16 school year, a small but eclectic group of campus organizations had joined—from the Longhorn League of United Latin American Citizens to the chess club.

Phebillo and Foust asked that clubs in the alliance have one member become a volunteer deputy registrar, part of a broader strategy to create a network of students who could register voters across campus. To accomplish that, Phebillo brought county officials to campus to hold registrar training sessions and asked TX Votes members to bring their friends. Like any good college event planner, they provided free pizza to attract a bigger audience. The events were popular. Between September 2015 and the 2016 election, TX Votes helped train well over 100 volunteer deputy registrars. Together, they registered more than 17,000 voters.

I met Phebillo at UT Austin in early July 2019, in the middle of one of the university’s many freshman orientation sessions. She gave me a partial tour of campus. Inside the offices of the Annette Strauss Institute for Civic Life, she showed me a shelf stocked with national turnout awards and trophies won by TX Votes. One award was for having the most improved undergraduate turnout rate of any college in the country.

Later, I joined Phebillo at the student activities fair, where representatives of TX Votes were trying to recruit new members. Rising sophomore Janae Steggall was especially busy, hustling for the attention of what seemed like every incoming freshman who passed by. “What’s your major?” she would shout. Whatever the reply, Steggall would motion the student closer and deliver her pitch: “Awesome! We’re TX Votes, a nonpartisan organization on campus focused on voter registration and education.”

As I chatted with Phebillo and her team, it became clear that TX Votes has developed a sizable footprint on campus. Phebillo told me that during the 2016–17 school year, TX Votes deepened its involvement in the network of national organizations that help universities bolster turnout. It participated in both the ALL IN Campus Democracy Challenge and the Voter Friendly Campus program, drawing up a detailed plan that both created new initiatives and evaluated past work. After the 2016 election, the group further expanded its civic engagement alliance, which now has more than 100 organizational members. In March 2017, Phebillo became certified to train volunteer deputy registrars herself, allowing TX Votes to increase its training output.

One year later, in March 2018, several TX Votes members successfully campaigned to get the county to open a second polling place on campus. The group also devised a new strategy for registering students: visiting classrooms. Class, they reasoned, is where college students go (or, at least, are supposed to go), and students might be more tempted to register if everyone around them were registering as well. But to take advantage of this, TX Votes first needed permission from the university’s faculty.

“We emailed every single professor teaching a course at this university in fall 2018,” Anthony Zhang, the group’s incoming president, told me. “We had to manually compile that list, starting with accounting and going all the way down to Yiddish.”

I asked how long it took to get contact information for the school’s roughly 3,000 faculty. Zhang shook his head. “I honestly don’t even want to think about it,” he said.

There’s more, so go read the rest. As the story notes, TX Votes was helped by having a great working relationship with Travis County elected officials, in particular the two that are directly involved with elections, the County Clerk and the Tax Assessor. Thanks to the 2018 election, we now have a County Clerk in Harris County that is invested in helping people vote – the recent announcement about early voting centers coming to the UH and TSU campuses being a prime example of this – so now we also have an opportunity to follow TX Votes’ example. Let’s see if we can get those two added to the Best Colleges for Student Voting list next year. In the meantime, you can follow TX Votes on Facebook and Twitter.

McCaul’s hustle

Turns out, running for re-election is hard work.

Rep. Mike McCaul

Rep. Michael McCaul does not have to be here, at Carl’s BBQ on the side of a highway, in a wood-paneled backroom, seated at a bare table in front of a stuffed, life-size buck whose antlers hold a sign saying, “NEVER moon a werewolf.”

He doesn’t have to drive east two and a half hours from his home in Austin to find brisket this good, but here is where his voters are. And after the last election, his worst in his 15-year political career, the Republican congressman decided he needs to campaign for them like never before.

McCaul could be forgiven for retiring. In the past four weeks, four of his fellow Texas Republican colleagues have done so — a political phenomenon nicknamed “Texodus” — including two members who represent suburban districts similar to McCaul’s. The Democrats flipped the House in 2018, suddenly making life miserable for GOP members now in the minority, and targeted half a dozen of the members of Congress in Texas, including him. To win, McCaul has to, for the first time, actually try; His once-safe district stretching from Austin to Houston is changing faster than he expected, threatening to throw him out.

But when faced with fight or flight, McCaul chose the former. He changed his campaign staff, including hiring Corry Bliss, who led the top Republican-affiliated super PAC for House races in 2018, as a general consultant. Last quarter, McCaul claimed a personal fundraising record. His team boasted the earliest field program of any incumbent Republican in America, one it says has already knocked on 10,000 doors. In the past week, McCaul met with local chamber of commerce officials, AARP constituents and local journalists. He toured car dealerships. He led a consortium on how to address human trafficking. And he hit three barbecue joints in three days.

“I decided if I’m going to do this again, I’m going to work it hard, maybe harder than I ever have,” McCaul told CNN.

In a 25-minute interview this week, McCaul blamed the Texas Republicans’ drubbing last cycle “in large part” to the top of the ticket. GOP Sen. Ted Cruz lost the big four metropolitan regions — “something no top-of-the-ticket Republican nominee had done since Barry Goldwater in 1964,” who faced native son and President Lyndon B. Johnson, according to a University of Houston study. McCaul noted that Cruz, who was “not as likeable” and unable to “fully” energize his party’s base voters, lost his district to then-Democratic Rep. Beto O’Rourke, who created a following McCaul called “Beto-mania.” (A source close to the Cruz operation responded that McCaul raised more than triple the amount of his Democratic opponent and still “almost lost.”)

[…]

In recent years, the populations of Latinos, African Americans and Asians in McCaul’s district have boomed. Between 2012 and 2017, Latinos grew from 26% to 29% of the population as over 60,000 moved there or were born, according to American Community Survey figures pointed out by Potter. The white population increased but more slowly than other races, and shrunk as a percentage of the district from 58% to 52%.

Rep. Marc Veasey, a Texas Democrat, said the population explosion could yield the state two or three more congressional seats after the next census. But he said that rapid demographic change was just one reason why these suburban seats have become competitive after so long, saying the voters “have really had enough of this President — and Republicans not pushing back against a lot of what they see as wrong for the country.”

Siegel, physician Dr. Pritesh Gandhi and Shannon Hutcheson, a lawyer whose clients include Planned Parenthood, are all vying to be the Democratic nominee to take on McCaul. Democrats are confident that the mix of Trump at the top of the ticket, fundamental demographic changes and a message centering on health care and protecting the Affordable Care Act will flip the seat.

The Democrats also don’t think McCaul is well-known even after winning eight terms in office and call his claims of a reinvigorated field campaign overblown. According to a copy of McCaul’s schedule of the past two weeks obtained by CNN, the congressman had one door-knocking event but canceled it. When CNN toured the block, which included a home hoisting a Trump flag out front, a couple potential voters said they didn’t recognize McCaul’s name, but they would vote for him so long that he was Republican.

I love both the faux-blockwalking story and the Ted Cruz shade. Who says politics is boring? The story is cool and all, but I’m going to boil this all down to a couple of tables:


County    McCaul   Cadien     Diff
==================================
Harris    68,540   22,459   46,081
Travis    37,493   51,400  -13,907
Others    53,750   21,851   31,899

Total    159,783   95,710   64,073

County    McCaul   Siegel     Diff
==================================
Harris    71,717   40,820   30,897
Travis    30,857   80,864  -50,007
Others    54,592   22,350   32,242

Total    157,166  144,034   13,132

Mike McCaul got slightly fewer votes in 2018 than he did in 2012, while Mike Siegel got nearly 50K more votes than Tawana Cadien did. All of the improvement in Siegel’s vote totals came from Harris and Travis counties. The small rural counties in between produced essentially the same totals and margins each year. If Dems can squeeze a bit more out of the two big counties (*), they can win this seat. As before, that’s going to be a combination of relentless voter registration and GOTV, which I can guarantee will involve actual blockwalking. The path forward is clear.

(*) For what it’s worth, Siegel improved slightly on Cadien’s performance in Bastrop County, reducing the margin there from 2,353 for McCaul in 2012 to 1,691. It’s worth expending some effort there, in part because every vote will matter and in part because I at least still have hope that Bastrop will start to go the way of Hays County, but the fat part of the target remains the two biggest counties.

Our all-important metro areas

Another look at the trouble Republicans face in Texas now.

The key to Texas’ political future is whether it finally follows the geographic realignment that has transformed the politics of many other states over the past quarter century.

Across the country, Republicans since the 1980s have demonstrated increasing strength among voters who live in exurbs at the edge of the nation’s metropolitan centers or beyond them entirely in small-town and rural communities. Democrats, in turn, have extended their historic dominance of the nation’s urban cores into improved performance in inner suburbs, many of them well educated and racially diverse.

Both sides of this dynamic have accelerated under Trump, whose open appeals to voters uneasy about racial, cultural and economic change have swelled GOP margins outside the metropolitan areas while alienating many traditionally center-right suburban voters.

In Texas, only half of this equation has played out. In presidential elections since 2000, Republicans have consistently won more than two-thirds of the vote for the two parties in 199 mostly white nonmetropolitan counties across the state, according to a study by [Richard] Murray and Renee Cross, senior director of the University of Houston’s Hobby School of Public Affairs. (Trump in 2016 swelled that number to three-fourths.) The GOP has attracted dominant majorities from those areas in other races, from the Senate and US House to the governorship and state legislative contests. Democrats consistently amassed big majorities in 28 mostly Latino South Texas counties, but they have composed only a very small share of the statewide vote.

The key to the GOP’s dominance of the state is that through most of this century it has also commanded majorities in the 27 counties that make up the state’s four biggest metropolitan areas: Dallas/Fort Worth, Houston, San Antonio and Austin. Demographically similar places in states along the coasts and in the upper Midwest have moved consistently toward the Democrats since Bill Clinton’s era. But in Texas, Republicans still carried 53% to 59% of the vote in those metropolitan counties in the four presidential races from 2000 through 2012, Murray and Cross found.

In the Trump era, though, that metro strength has wavered for the GOP. In 2016, Hillary Clinton narrowly beat Trump across the 27 counties in Texas’ four major metropolitan areas. Then in 2018, Democrat O’Rourke carried over 54% of the vote in them in his narrow loss to Sen. Ted Cruz, Murray and Cross found. O’Rourke won each of the largest metro areas, the first time any Democrat on the top of the ticket had carried all four since native son Lyndon B. Johnson routed Barry Goldwater in the 1964 presidential race, according to Murray and Cross.

Looking just at the state’s five largest urban counties — Harris (Houston), Travis (Austin), Bexar (San Antonio), Tarrant (Fort Worth) and Dallas — the change is even more stark. In 2012, Obama won them by a combined 131,000 votes. By 2016, Clinton expanded the Democratic margin across those five counties to 562,000 votes. In 2018, O’Rourke won those counties by a combined 790,000 votes, about six times more than Obama did in 2012. Along the way, Democrats ousted Republican US House incumbents in suburban Houston and Dallas seats and made substantial gains in municipal and state house elections across most of the major metro areas.

“We have now turned every major metropolitan area blue,” says Glenn Smith, a longtime Democratic strategist in the state.

Yet that, of course, still wasn’t enough for O’Rourke to overcome Cruz’s huge advantages in smaller nonmetro communities. That outcome underscores the equation facing Texas Democrats in 2020 and beyond: They must reduce the GOP’s towering margins outside of the major metropolitan areas and/or expand their own advantage inside the metro centers.

Few in either party give Democrats much chance to record many gains outside of metro Texas, especially given Trump’s national strength with such voters. O’Rourke campaigned heavily in Texas’ smaller counties and made very limited inroads there, even relative to Clinton’s abysmal performance in 2016. Exit polls conducted for a consortium of media organizations including CNN found that O’Rourke carried just 26% of white voters without a college education, only a minuscule improvement from the 21% Clinton won in Texas in 2016.

O’Rourke’s very limited rural gains have convinced many Texas Democrats that while they can’t entirely abandon smaller parts of the state, their new votes are most likely to come from the metropolitan centers.

“It’s a matter of emphasis,” says Smith, a senior adviser to the liberal group Progress Texas. “You’ve got to do urban/ suburban areas first. You’ve got to maximize your advantage there.”

The stakes in the struggle for Texas’ big metro areas are rising because they are growing so fast. While the four major metro areas cast about 60% of the statewide votes in the 1996 presidential election, that rose to about 69% in 2016 and 2018, Murray and Cross found. Murray expects the number to cross 70% in 2020.

And the concentration of Texas’ population into its biggest metropolitan areas shows no signs of slackening. The Texas Demographic Center, the official state demographer, projects that 70% of the state’s population growth through 2050 will settle in just 10 large metropolitan counties. Those include the big five urban centers that O’Rourke carried as well as five adjacent suburban counties; those adjacent counties still leaned toward the GOP in 2018 but by a much smaller cumulative margin than in the past. Overall, O’Rourke won the 10 counties expected to account for the preponderance of the state’s future growth by a combined nearly 700,000 votes.

We’ve been talking about this literally since the ink was still wet on the 2018 election results. I touched on it again more recently, referring to a “100 to 150-county strategy” for the eventual Democratic nominee for Senate. None of this is rocket science. Run up the score in the big urban areas – winning Harris County by at least 300K total votes should be the (very reachable) target – via emphasizing voter registration, canvassing apartments, and voters who turned out in 2008 and/or 2012 but not 2016. Keep doing what we’ve been doing in the adjacent suburbs, those that are trending blue (Fort Bend, Williamson, Hays), those that are still getting there (Collin, Denton, Brazoria), and those that need to have the curve bent (Montgomery, Comal, Guadalupe). Plan and implement a real grassroots outreach in the Latino border/Valley counties. We all know the drill, and we learned plenty from the 2018 experience, we just need to build on it.

The less-intuitive piece I’d add on is a push in the midsize cities, where there was also some evidence of Democratic growth. Waco, Lubbock, College Station, Abilene, Amarillo, Killeen, San Angelo, Midland, Odessa, etc etc etc. There are some low-key legislative pickup opportunities in some of these places to begin with. My theory is that these places feature increasingly diverse populations with a decent number of college graduates, and overall have more in common with the big urban and suburban counties than they do with the small rural ones. Some of these places will offer better opportunities than others, but they are all worth investing in. Again, this is not complicated. We’ve seen the data, we will definitely have the resources, we just need to do the thing.

Raising money to register Republicans

Just keeping an eye on things.

Still the only voter ID anyone should need

A new super PAC focused on registering new Republican voters in Texas has raised nearly $10 million from some of the state’s biggest GOP donors, according to its first report to the Federal Election Commission.

Filed early Wednesday morning, the disclosure shows that the political action committee, Engage Texas, took in $9.6 million between when it registered with the FEC in mid-April and when the reporting period ended June 30. It spent $336,000 and has $9.3 million in the bank.

“This significant investment in resources will help us reach Texans in every corner of the state to educate them about Texas’ successful, conservative principles and engage them in the political process,” Engage Texas Chairman Mano de Ayala said in a statement.

Engage Texas launched in mid-June with the promise of signing up and turning out hundreds of thousands of new GOP voters to help keep the state red in 2020. The super PAC is led by Chris Young, a former top staffer at the Republican National Committee.

[…]

It appears Engage Texas has wasted little time getting to work, reporting 17 people on payroll through June in addition to Young. One of them is Kristy Wilkinson, who was deputy campaign manager for Gov. Greg Abbott’s reelection bid last year and previously the Republican National Committee’s Texas state director.

The group says it has already opened offices in Austin, Houston and the Dallas-Fort Worth area. It also has dispatched organizers to begin work in Bell, Blanco, Collin, Dallas, Denton, Fort Bend, Harris, Hays, Lampasas, Tarrant, Travis and Williamson counties.

See here for the background. This to me falls somewhere in between “legitimate threat to Democratic efforts in 2020” and “awesome get-rich-quick scheme for Republican consultants”, I just don’t know exactly where yet. I don’t think a lack of registered voters has been the issue for Republicans in the last couple of elections, but if this is more of a turnout effort then I think they could have a real effect. It would have been a much bigger disaster for them in 2018 if they hadn’t had near-Presidential levels of turnout on their side. Like I said, worth keeping an eye on but to be determined how big a deal this is.

It’s up to cities to make the Census work

The Lege shirked its duty, so this is what’s left.

Across the country, states are spending millions on making sure they get a better headcount of their residents. For example, California officials announced they are investing as much as $154 million in the 2020 census.

But not all states are making investments or even coming up with statewide plans to improve the count.

This year, Texas lawmakers failed to pass legislation that would have created a statewide effort aimed at making sure all Texans are counted. Measures that would have ensured millions of dollars in funding for the census in Texas also failed.

“California is eating our lunch on the census,” says Ann Beeson, the CEO of the Center for Public Policy Priorities in Austin. “And what’s that going to mean is more representation and more dollars for California than Texas.”

Beeson said this is particularly concerning because the state’s population has continued to explode. In fact, many of the country’s fastest growing cities are in the Lone Star State.

By some estimates, Texas is set to gain three to four congressional seats after the census. But that’s only if there’s an accurate count, Beeson says.

“Texas is already at a high risk of an undercount,” she says. “That is because we have a higher percentage of what are considered hard to count populations.”

[…]

In the absence of state action, though, local officials in Texas say it’s up to them now to make sure people are getting counted.

“So much in the state of Texas relies on local government stepping up,” says Bruce Elfant, the tax assessor and voter registrar for Travis County here in Austin.

Elfant is a member of the city’s Complete Count Committee, which is a city-led group focused just on improving the census in Austin.

“This is a time where local government is going to have to step up again and I am really proud of what we have here in Travis County,” he says.

Elfant says school districts and other municipal government — as well as local businesses — plan to pitch in. In fact, he says he the city plans to create a fund for the census. He says that fund will largely rely on money from the private sector.

And nonprofits say they are also gearing up to fill the gap left by state inaction, says Stephanie Swanson with the nonpartisan League of Women Voters of Texas.

“We realized that basically is going to be up to us,” she says. “We will have to rely on our cities and it will also fall on the shoulders of nonprofits and the community to get out the count.”

See here for the background. You’d think with the way our state leaders hate California that they wouldn’t want to let the Golden State outshine us like this, but here we are. Don’t ask me to explain what Greg Abbott and Dan Patrick are thinking, that way madness lies. The city of Houston is doing its part. I just hope this collective effort is enough. The Chron has more.

Our measles risk

Do I spend too much time worrying about stuff like this, or do I not spend enough time on it?

Harris County is one of the nation’s most vulnerable counties to a measles outbreak, according to a new study based on international travel and the prevalence of non-medical vaccine exemptions.

The study, published Thursday in the journal Lancet Infectious Diseases, ranks Harris County as the county 9th most at risk of having clusters of people contract measles, the highly contagious, potentially fatal virus that has re-emerged as a public health threat after having been largely eradicated at the turn of the century. Tarrant and Travis counties also are at high risk of an outbreak, according to the study.

“Texas’ showing is on par with the other 16 states that allow vaccine exemptions for conscientious or personal reasons,” said Sahotra Sarkar, a University of Texas Austin professor and the study’s lead author. “You can expect the state, like other parts of the nation, to see more cases.”

Sarkar said Harris County’s vulnerability is mostly the result of its considerable international travel. The county’s number of non-medical vaccine exemptions was not among the state’s highest in a Texas health department report released earlier this week.

[…]

The new study was conducted by Sarkar and a Johns Hopkins University researcher using risk assessment models similar to one they used to correctly predict that Zika, the mosquito-born virus that can cause serious birth defects, would first affect Texas and Florida after it began spreading from the Southern Hemisphere midway through this decade. It also correctly predicted areas already experiencing measles outbreaks, such as Washington, Oregon and New York.

The authors didn’t consider the locations of measles cases already recorded. Instead, they looked at non-medical vaccine exemptions, international air travel and the incidence of measles in countries from which people came to the United States, particularly India, China, Mexico, Japan, Ukraine, Philippines and Thailand. In all, some 112,000 people have been diagnosed with measles outside the U.S. this year, according to the World Health Organization.

Peter Hotez, a Baylor College of Medicine professor of infectious disease and vaccine advocate, called the new study an advance over research he published last year that identified “15 hotspots” of vaccine exemptions among a subset of states. Harris County ranked seventh on that list.

“I think this is a nice refinement on our first attempt,” said Hotez. “It confirms the high risk of Texas counties to measles, something that we’ll need to consider seriously when planning for epidemics.”

It’s not clear what if anything can be done to mitigate this particular risk, so I’m back to wondering how much I should worry about it. Keep working to close the gap in vaccination rates, I guess. It annoys the crap out of me that we have to worry about this sort of thing in 2019, but here we are.

Austin’s scooter study

Be careful riding these things, and for crying out loud wear a helmet.

A first-of-its-kind study on injuries related to dockless electric scooters found that most incidents were preventable, and now Austin city officials are hoping to use their findings to inform future policy.

The city’s health and transportation departments collaborated with the Centers for Disease Control and Prevention to review 271 reports of possible scooter related injuries filed from Sept. 5 to Nov. 30, 2018. The study, however, only confirmed 190 cases involved scooter riders, one involved a pedestrian and one involved a cyclist. The rest were determined to be hurt while riding a gas-powered scooter, moped or device that uses three wheels, or didn’t involve a device at all, said Jeff Taylor, an Austin Public Health epidemiologist.

“If anything, this study also helped prove out that, that we need to be more precise in our language when we’re recording data that a scooter is not just a scooter. We mean something very specific,” Austin Transportation Department Director Robert Spillar said Thursday.

The CDC said the study found “a high proportion of e-scooter related injuries involved potentially preventable risk factors, such as lack of helmet use or motor vehicle interaction.” City officials also said almost half the head injuries documented could have been prevented.

The study drew data from Austin-Travis County EMS incident reports and information from nine area hospitals, as well as from interviews with some who were injured. Taylor said it was important to interview the injured so the data could be more specific.

Among the findings:

• 20 people for every 100,000 scooter trips taken were injured, and most were first-time riders.

• 48% were between 18 and 29 years old. Researchers recommend targeting educational materials to that age group going forward.

• 39% of injuries happened between the hours of 6 p.m. and 6 a.m.

• 29% told researchers they had been drinking before they rode.

• Only one person of the 190 riders hurt was wearing a helmet.

• More than half of the riders were injured in the street and a third were hurt while riding on the sidewalk.

• More than a third said speed contributed to them crashing.

Having more accurate data about the scooters and how they’re affecting Austin residents could help inform policy discussions in the future, said Dr. Christopher Ziebell, emergency department medical director for Dell Seton Medical Center. The hospital does not have a uniform way to record the number and type of scooter injuries coming into the emergency room, he said.

[…]

During a period comparable to the one the CDC studied — four months in 2018, between May 7 and Sept. 6 — the Texas Department of Transportation found that in Austin 1,945 people were injured in a vehicle and eight were killed; 105 were injured on motorcycles and five were killed; 60 were hurt using bicycles. Scooter injuries during that time tallied 28, according to the city of Austin.

Lessening the number of injuries related to scooters could start with messaging and education, Ziebell said. Patients have told him they thought hopping on a scooter would be a quick, fun thing, but they end up hitting a pebble and crashing.

“I still hear patients who come in and say, ‘I had no idea,’ ” he said. His patients range in age from their 20s to 70s.

See here for the background. I don’t know why there’s such a wide disparity between the CDC and TxDOT studies in terms of the number of scooter-related injuries over similar time spans. My guess is that only a fraction of scooter injuries in the latter period were reported to TxDOT. Be that as it may, while the scooters caused their share of (I daresay mostly preventable) mayhem, they’re a drop in the bucket next to motor vehicles. Let’s do what we can to make scooters safer, but let’s not lose sight of the bigger picture. Mother Jones has more.