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Election 2020

A matter of timing

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

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

[…]

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

CD03 poll: Taylor 44, Seikaly 43

From Nate Cohn:

All we get is Twitter for this one, any other info about the poll is behind the National Journal paywall. It’s in line with an earlier poll that had Taylor leading 43-37 and Biden up by two in the district. Seikaly’s improved performance is likely due to greater name recognition at this stage of the campaign.

I can’t analyze the poll in any meaningful way, but I can add some context to Nate Cohn’s assertion that if Biden carries CD03 he’s likely to have won Texas. Here’s a review of recent elections:

In 2012, Mitt Romney carried CD03 by a 64.2-34.1 margin, as he won the state 57.2 to 41.2.

In 2016, Donald Trump carried CD03 by a 53.8 to 39.9 margin, as he won the state 52.2 to 43.2.

In 2018, Ted Cruz carried CD03 by a 51.3 to 47.9 margin, as he won the state 50.9 to 48.3.

As you can see, CD03 was more Republican than the state as a whole, though that margin had narrowed by 2018. But if the pattern of CD03 being more Republican than the state overall holds, then it’s trivial to see that a Democrat winning in CD03 would also win statewide.

That comes with a raft of assumptions, of course. Maybe CD03 will be less Republican than the state this year. It’s been trending in that direction, and as a heavily suburban and college-educated district, that trend should continue. Perhaps this year the lines will intersect, and a Dem running in CD03 will have to win it by a certain margin in order to be able to win the state. If Biden really is winning CD03 by three points, you’d think that would be enough slack for him.

There’s one more piece of objective evidence that both this district, and by implication the state as a whole, is perhaps doing better for the Democrats than people realize:

Those are the three districts most recently added by the DCCC to their target list. You might say, the DCCC is in the business of talking up opportunities, so why should we take this as anything more than hype? Mostly because the DCCC already had its hands full in Texas – those three districts came after seven others currently held by Republicans, plus the two where Dems are playing defense. The DCCC is going to prioritize the districts where it thinks it can win, both to maximize its resources and keep its donors (and members) happy. They’re not going to go off on flights of fancy. It may be on the optimistic end of their spectrum, but if they believe there’s action there, you can expect there is.

Voter registration during a pandemic is hard

Especially when online voter registration is not an option.

Still the only voter ID anyone should need

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

Meanwhile, in other election innovations:

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

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

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

Appeals court sides with Hollins in mail ballot applications case

It’s up to SCOTX now.

A Texas appeals court on Friday upheld a district court ruling that denied Attorney General Ken Paxton’s request to block Harris County officials from sending mail ballot applications to the county’s 2.4 million registered voters.

Despite the decision, Harris County Clerk Chris Hollins remains barred from sending out the applications under a Texas Supreme Court ruling earlier this week. Paxton has sought a writ of mandamus and an injunction from the high court to permanently block the mailout, both of which remained pending Friday.

In the appellate ruling, 14th Court of Appeals Justices Charles Spain, Meagan Hassan and Meg Poissant wrote that the state failed to prove Hollins’ plan would cause irreparable injury to voters. State officials have argued that by sending mail ballot applications to every registered voter, Hollins would be “abusing voters by misleading them and walking them into a felony.” County attorneys noted that Hollins planned to attach a brochure to each application informing voters of the eligibility requirements to vote by mail.

“The State’s argument is based on mere conjecture; there is, in this record, no proof that voters will intentionally violate the Election Code and no proof that voters will fail to understand the mailer and intentionally commit a felony, or be aided by the election official in doing so,” the justices wrote.

The justices also cited an exchange between Hollins’ attorney and Texas Elections Director Keith Ingram, during which Ingram was asked how a voter could knowingly or intentionally cast a fraudulent ballot after reading the information on the clerk’s brochure.

“I don’t know the answer to that question. I mean, for most voters, I agree this is sufficient, but not for all of them,” Ingram said, adding that some voters may “have the attitude, well, I’m not really disabled, but nobody is checking so I’m going to do it.”

The justices cited Ingram’s response in concluding that a voter who “intends to engage in fraud may just as easily do so with an application received from a third-party as it would with an application received from the Harris County Clerk.”

See here, here, and here for the background. The 14th Court’s opinion is here, but you can just read the excerpt in Jasper Scherer’s tweet to get the main idea. Basically, the court said that the state needed more evidence than just Keith Ingram’s claims of mass hysteria if Hollins sent out the applications. It’s not a whole lot deeper than that.

So now it goes to the Supreme Court, and as noted in the story, the previously granted order preventing Hollins from moving forward with the sendout of applications to the not-over-65 voters is still in effect, until such time as SCOTX rules on the appeal (we know it will be appealed, because of course it will). This provides them an opportunity to play politics without necessarily appearing to play politics. Hollins had intended to begin sending out the applications by now, because as we all know, people are going to want and need to get and return their mail ballots early in order to ensure that they get counted. As such, a ruling from SCOTX on, say, September 25 is a lot more meaningful than the same ruling on October 25. Will they take the weasel’s way out and slow-walk this to a resolution, or will they dispose of it in a timely manner? Only one way to find out. The Trib has more.

Adding to the team in Texas

Shot:

Chaser.

Joe Biden’s campaign is expanding its staff in Texas, bringing on 13 more people as the state continues to look competitive with just over seven weeks to go before the November election.

The Democratic nominee’s latest hires, shared first with The Texas Tribune, include several experienced Democratic operatives from the state. They include Dallas Jones, a Houston political consultant who will serve as Biden’s Texas political director, and Jackie Uresti and Jerry Phillips, who will each serve as political advisers to the campaign in Texas. Uresti was Hillary Clinton’s 2016 state director, while Phillips brings deep experience around Texas House politics and previously was executive director of the House Democratic Campaign Committee.

Biden’s campaign has also named Bethanie Olivan as digital organizing director and Terry Bermea as organizing director. Olivan recently held similar roles for the state party and Julián Castro’s presidential campaign, while Bermea is the former organizing director for Battleground Texas and was deputy state director for Michael Bloomberg’s White House bid earlier this year.

The campaign also said David Gins will serve as state operations director. Gins is a former U.S. Senate staffer who has since worked for the LGBTQ Victory Fund and the data science company Civis Analytics.

The campaign announced that Victoria Godinez, a former staffer to state Rep. Diego Bernal of San Antonio, is being hired as communications associate.

Rounding out the hires are six deputy coalitions directors, most with varying levels of Texas political experience: Deidre Rasheed, Karim Farishta, Dominique Calhoun, Teri Ervin, Lola Wilson and Joseph Ramirez.

That’s 19 paid staffers, and while I don’t know offhand how much Team Biden is spending in Texas, I do know that there’s plenty of national money coming in for Congress and the Lege. There’s a lot more happening here now than we’re used to seeing.

For what it’s worth, Trump has a 1.1 point polling lead in Texas, according to FiveThirtyEight. That site projects Trump to carry the state by 3.6 points. The Economist projects a 3.2 point win for Trump. In 2018, FiveThirtyEight projected a 4.9 point win for Ted Cruz (in their Classic model; two other models had him up 5.2 and 5.3 instead). That overshot the mark by about two and a half points, as Cruz actually won by a 2.56 point margin. To be fair, they nailed it in 2016, predicting an 8.5 point margin. The point is, it’s close. Closer than any time in recent memory. May as well play it that way.

Endorsement watch: Three to get started

But first, why do endorsements, anyway?

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

[…]

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

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

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

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

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

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

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

Chrysta Castañeda

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

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

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

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

[…]

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

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

Next, Michelle Palmer for SBOE.

Michelle Palmer

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

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

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

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

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

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

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

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

Finally, there’s Natali Hurtado for HD126.

Natali Hurtado

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

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

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

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

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

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

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

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

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

[…]

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

The court asked Paxton’s office for its opinion.

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

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

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

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

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

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

Harris County preps to print mail ballots

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

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

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

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

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

[…]

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

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

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

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

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

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

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

CD25: Williams 45, Oliver 43

The Congressional polls, they keep coming.

Julie Oliver

Progressive Democratic candidate Julie Oliver is in a close race with her GOP incumbent opponent Rep. Roger Williams, a new internal poll finds.

The poll of 400 likely voters by EMC Research shows Oliver only two percentage points behind Williams, 45 to 43, with a 5-point margin of error.

The same poll shows Williams has higher name ID recognition compared to Oliver (53 to 42 percent) but the incumbent lawmaker suffers from favorable-unfavorable ratings that are almost equal (23-20).

[…]

Monday’s poll is the second survey this cycle showing the competitiveness of Texas’ 25th congressional district, held by Republicans since 2013.

A DCCC in-house poll in July showed the same margin between William and Oliver, 45 to 43.

See here for more on that previous poll, and here for the polling memo. The main difference between these two polls is that Biden led Trump 47-46 in the July poll, and Trump leads Biden 49-45 in this one. The latter seems like a more realistic result – as noted, Trump won this district 55-40 in 2016, and Beto got 47% in 2018. He lost by five to Ted Cruz, so I can buy Trump beating Biden by four here. That would also bode pretty well for Biden’s statewide ambitions, even if it means Julie Oliver will likely lose, albeit by a smaller margin this time. But she’s running a strong race, she’s got the DCCC on her side, and she’ll almost certainly do better with the resources to make her case to the voters than without them.

I should note that Roger Williams’ campaign released a poll of its own last week, which showed the incumbent leading 52-40. That was a rare Republican poll release for this cycle, and it’s a pretty decent result for Rep. Williams. My guess is that this understates Oliver’s level of support – we have no details about this poll, so we really are just guessing – but it’s not completely out of the question. Hugely disappointing if accurate, but not impossible. That poll, which of course came via Patrick Svitek on Twitter, did not include a Biden/Trump matchup, or at least the public information released about that poll did not include such a question. Make of it what you will.

SCOTX puts Greens back on the ballot

That sound you hear is my head spinning.

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

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

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

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

A state appeals court upheld the 2019 law last week.

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

[…]

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

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

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

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

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

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

Hegar targets open carry

I’m all in for this.

MJ Hegar

Former Air Force pilot MJ Hegar, a Democrat challenging Republican U.S. Sen. John Cornyn, is calling for an end to open carry.

The issue has never attracted the same sort of urgency from gun safety advocates as expanding background checks or banning assault-style weapons. But advocates say that is changing as protests rage on. They point to the Austin case and other high-profile shootings, including in Kenosha, Wis., where 17-year-old Kyle Rittenhouse is accused of killing two protesters and injuring a third with an AR-15-style rifle.

Like Texas, Wisconsin state law allows for rifles to be carried openly, though the state requires the carrier to be 18, meaning Rittenhouse likely was breaking the law. Police didn’t stop him before the shooting, despite video showing them offering him water.

“These cases are exactly why we need to curb open carry,” Hegar said. “Open carry in this day and age only serves to escalate the division and violence in our communities. Recent incidents show us that open carry is no longer about freedom but violence.”

[…]

Gun violence prevention groups that have backed Hegar — and plan to spend heavily in her favor — say it’s a position that will appeal to suburban voters, especially suburban women, a key demographic Hegar will need to carry if she is to be the first Democrat to win a statewide race in Texas in a generation.

Hegar’s backers believe she’s an ideal messenger on the issue as a mother, gun owner and decorated war veteran.

“We haven’t seen statements like this in a long time, and it goes to her experience,” said Brian Lemek, executive director of the Brady PAC, a group that supports candidates pushing for new gun laws. “How many people out there can say … ‘I took on fire from the Taliban, I have scars to show it.’ She understands the dangers.”

Pro-gun groups say Hegar is just trying to find anything that will help her gain traction as she trails Cornyn in polling and fundraising.

“She’s looking for anything she can get and she’s targeting probably new people who have moved to Texas, probably urban people, urban mothers or women,” said Mike Cox, legislative director of the Texas State Rifle Association. “She’s looking for anything.”

But Hegar — who owns five guns, including a semi-automatic assault-style rifle — has been calling to end open carry since at least last year, well before she won her party’s nomination, when she called open carry “an assault on every bystander within range.”

While the coronavirus and economic downturn have dominated much of the campaign season so far — and Hegar says they will remain the most important issues of the race — polling in Texas has shown support for gun laws, including universal background checks, red flag laws and banning assault-style weapons, especially after mass shootings in El Paso and Midland-Odessa last year.

Polling data shows a solid majority in favor of “sensible gun laws”, but that leaves a lot of room for interpretation. It’s also not clear how much a specific position might persuade someone to cross over to vote for a candidate they otherwise wouldn’t have supported, or how much a strong position on this issue affects turnout on either side. Be that as it may, the only path forward for new gun laws at the federal level begins with a Democratic majority in both chambers of Congress, and so for obvious reasons a Senator MJ Hegar advances that possibility. Federal laws and policies can also influence state laws, but that will depend on a whole other set of elections here. All of that said, I think we can agree that it’s a new day in Texas when a serious contender for statewide office can openly embrace stronger gun laws as a key part of her candidacy. I feel confident saying that hasn’t happened before. Even if she loses, this won’t be a one-off event. Expect to see more of this in the 2022 elections, when serious change at the state level is on the ballot.

The case for voting in person

From Wired, an argument for worrying less about voting by mail because voting in person is still a fine way to do it.

Casting a ballot in person, it turns out, isn’t so dangerous after all. Early in the pandemic, this might have seemed a crazy thing to suggest. The Wisconsin primary, back in March, was widely described in apocalyptic tones. The New York Times called it “a dangerous spectacle that forced voters to choose between participating in an important election and protecting their health.” After state Democrats fought unsuccessfully to extend the deadline for mailing back absentee ballots, the ensuing photos of long lines at Milwaukee polling places seemed to presage an explosion of Covid-19 cases.

But the bomb never blew. As I observed in May, there was no noticeable rise in coronavirus cases thanks to the Wisconsin primary. A follow-up study by researchers at the City of Milwaukee Health Department and the US Centers for Disease Control and Prevention concluded, “No clear increase in cases, hospitalizations, or deaths was observed after the election.” In fact, case numbers in Milwaukee were lower in the weeks after the election than in the weeks before it. There are caveats: In-person turnout was low overall thanks to broad use of mail-in ballots, and we don’t know how coronavirus prevalence in March will compare with November. Still, it’s telling that there have been no credible reports of virus spikes attributable to any other election this year, even though ill-considered polling place closures have led to further instances of Milwaukee-style overcrowding.

Why might voting be safer than expected? We now know that the coronavirus spreads mostly when people are in sustained indoor contact—settings like a restaurant, a bar, or a shared home or office. The risk of transmission in fleeting encounters, by contrast, is small. Outdoors, it is vanishingly so. Even the massive protests following the killing of George Floyd, which even sympathizers feared would seed outbreaks, did not, according to several large studies. The pandemic is really an indoor problem. Even the defining image of the danger of voting during a pandemic—lines around the block—serves to illustrate why there’s little to fear. For most people, standing in a spaced-out line, outdoors, while wearing masks, entails at most a paltry risk.

“I think if carefully done, according to the guidelines, there’s no reason I can see why that’d not be the case,” said Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, at a recent National Geographic event. “If you go and wear a mask, if you observe the physical distancing, and don’t have a crowded situation, there’s no reason why you shouldn’t be able to do that.” Likewise, a recent report from the Brennan Center for Justice advises, “In-person voting can be conducted safely if jurisdictions take the necessary steps to minimize the risk of transmission of Covid-19 to voters and election workers.”

This assumes that any lines one may have to wait on will be primarily outside. That’s not been my experience in past elections, but I feel reasonably confident that outdoor lines will be the norm this time around. In Harris and Bexar and Dallas and hopefully other counties, there will be some larger venues, like convention centers and sports arenas, being used as voting locations, which will also help. Point being, I tend to agree with the assessment that the risk of in person voting, assuming widespread mask usage, is fairly minimal.

There are also practical considerations about voting by mail. Jamelle Bouie wrote in the Times that a key piece of Trump’s Election Day strategy is to delegitimize any votes that are not counted on Election Day. Remember how many elections Democrats won in 2018 due to mail ballots that weren’t counted until after Election Day? That’s been called the “blue shift”, and Donald Trump will scream from the rooftops that those mail ballots don’t count and amount to stealing the election if he’s in any position to claim a win on the evening of November 3, regardless of the lie of his statement. The best way to prevent that is to have as many votes counted by the time the news people start giving us numbers from around the country. That means voting in person. Note that in some states, even if your mail ballot is received way early, it may be the case that it won’t be officially tallied until Election Day, which could still lead to this situation. Voting in person will not have that problem.

Other concerns include the unknown potential for mail delivery delays, which G. Elliott Morris tried to quantify, and problems with mail ballots being rejected due to alleged signature mismatches or other issues, which is something that of course happens at a higher rate to Black and Latino voters. (Black voters are, understandably, more dubious about voting by mail.) The recent court order helps in this regard, but it’s still a factor, and we don’t know yet if there will be an appeal. I know it sounds ridiculous, but younger voters are just simply not used to using the postal service, and may have problems with mail ballots as a result. All of this may turn out to be minor, but maybe it won’t. We just don’t know. Again, the remedy here is to vote in person if that is a reasonable option for you.

Of course, to some extent in Texas, this is an academic point. The large majority of us cannot vote by mail, something the state leadership has done everything in its power to ensure will still be the case. I have said and will continue to say, if you do qualify for a mail ballot, by all means apply for it and use it. Having more people vote by mail not only keeps them safe, it also means shorter lines and faster processing times at voting locations, which is something we all want. Just be very prompt about it, and track your ballot to make sure it is received. Use a dropoff location if practical. The real point here is that we all actually do need to make a plan to vote, and that plan needs to encompass the when, the where, and the how. Be part of the solution to ensure that everyone can vote as easily and safely as possible. I don’t need to say how much is riding on that.

County’s plan to make in person voting safer is having an effect

So says this poll.

Voters with the highest risk of suffering COVID-19’s worst effects say they’re more likely to vote early this November, according to a Rice University study.

A poll of nearly 6,000 Harris County voters found roughly 80% said they will vote in the presidential election regardless of the threat from COVID-19. That jumped to 90% among African Americans, according to Rice University political science professor Bob Stein, who authored the study.

“Among African Americans, Hispanics, and Asians, there’s a greater fear of COVID-19 – for obvious reasons, they have suffered more,” Stein said. “Yet, they were more likely to vote given what the county clerk has been doing.”

Stein said that’s largely the results of steps Harris County Clerk Chris Hollins took to make voting safer during the July primary runoff – such as providing PPE for poll workers, as well as hand sanitizer and finger coverings for voters.

The study, however, found substantial confusion among voters about how to cast a mail-in ballot – with more than a third wrongly believing they could hand in a mail-in ballot at an in-person polling location.

Stein said that confusion is in no small part because of the legal wrangling over voting by mail. Texas election law allows registered voters to request a mail-in ballot if they meet one of four conditions: if they are older than 65, if they are disabled, if they will be out of their home county during voting, or if they are in jail but otherwise eligible to vote.

The poll data is embedded in the story, so click over to see. In short, if you go all in on expanding voting access, people will respond positively. Funny how that works. I’m not too worried about the confusion over returning mail ballots – there will be a number of dropoff locations as it is, and I expect there will be plenty of messaging over how to return them. The bottom line is, this is how it should be done. Kudos to County Clerk Chris Hollins, County Judge Lina Hidalgo, and County Commissioners Rodney Ellis and Adrian Garcia for making it happen.

CD31 poll: Carter 43, Imam 37

Another interesting Congressional race poll.

Donna Imam

With less than two months to go until Election Day, an increasing number of eyes are looking toward Texas, where Republicans are fighting to keep their grip on the once-reliably conservative state.

There is perhaps no better sign of Texas’ shift toward Democrats than what’s happening in the state’s 31st Congressional District. The previously deep red district north of Austin has shifted dramatically in recent years, and a new poll obtained exclusively by COURIER shows incumbent Rep. John Carter (R-Texas) is vulnerable.

The poll, conducted by Public Policy Polling (PPP), found Carter leading challenger Donna Imam by only six points, 43-37 among 831 voters in the district. Libertarian Clark Patterson and Independent Jeremy Bravo tallied 10% of the vote combined, while 11% of voters remained undecided.

Imam performs particularly well with independent voters, leading Carter 44-28. She also appears to have significant room to grow, as 53% of voters said they were unsure whether or not they had a favorable opinion about her.

The poll also surveyed voters on the presidential race and found that President Donald Trump holds a narrow one-point lead (48-47) over Democratic nominee Joe Biden, a substantial shift from 2016 when Trump won the district 54-41.

[…]

While Democrats have set their eyes on several prizes across the state, the recent blue shift in the 31st has been particularly notable. Between 2002 and 2016, Carter won each of his elections by at least 20 points. But in 2018, Carter faced the fight of his career and narrowly edged out his Democratic challenger, MJ Hegar, by only three points. Hegar is now challenging Cornyn and finds herself down only 2 points in the district (48-46), according to the PPP poll.

You can see the poll data here. It’s a solid result in a district where Beto got 48.4% of the vote. Hegar ran just a shade behind Beto – he lost to Ted Cruz 50.5 to 48.4, while Hegar lost 47.6 to 50.6 – and this district has been on the radar for the DCCC (and for the Republicans, and for the national race-raters) from the beginning of the cycle. The problem has been finding a standout candidate, as there was a rotating cast of players in the primary, with nobody raising any money or making much noise until the runoff, when Imam finally started to edge forward. She still has to establish herself as a fundraiser – the DCCC is in town, but they’ve got plenty of fish to fry. I’ll be very interested in Imam’s Q3 finance report.

This poll is reminiscent of the polling in CD21, another near-miss district from 2018 with a similar demographic profile. In 2018, Joe Kopser lost to Chip Roy 50.2 to 47.6, Beto lost the district by a tenth of a point, and in 2016 Hillary Clinton lost it to Donald Trump 52-42. These latest polls have Biden up by one in CD21 and down by one in CD31, consistent with statewide polling that has Texas as a real tossup.

They key here has been the shift in voter preferences in Williamson County, which comprises a bit more than two-thirds of the district. Here’s how the Williamson County vote has gone in recent elections:


2012       Votes    Pct
=======================
Romney    97,006  59.4%
Obama     61,875  37.9%

Cruz      92,034  57.3%
Sadler    60,279  37.5%

Carter    96,842  60.9%
Wyman     55,111  34.6%


2016       Votes    Pct
=======================
Trump    104,175  51.3%
Clinton   84,468  41.6%

Carter   112,841  56.8%
Clark     74,914  37.7%


2018       Votes    Pct
=======================
Cruz      99,857  48.0%
Beto     105,850  50.8%

Abbott   112,214  54.1%
Valdez    90,002  43.4%

Patrick  101,545  49.2%
Collier   98,375  47.6%

Paxton    98,175  47.7%
Nelson   100,345  48.7%

Carter    99,648  48.2%
Hegar    103,155  49.9%

The story of 2018 was of the huge gains Democrats made in suburban areas like Williamson, but the thing here is that Dems gained about as many votes from 2012 to 2016 as they did from 2016 to 2018, with Republicans barely growing their vote at all outside of a couple of races. It wasn’t so much a shift as an acceleration, and it took WilCo from being on the fringes of competitiveness, where you could see it off in the distance from the vantage point of 2016 but figured it was still a few cycles away, to being a true swing district just two years later. If Dems can even come close to replicating that kind of growth in 2020, then CD31 is likely being undersold as a pickup opportunity. Obviously, the pandemic and the ambient chaos and pretty much everything else is a variable we can’t easily quantify. But the numbers are right there, so if CD31 does go Dem, we can’t say we didn’t see it coming.

One more thing: That 10% total for the Libertarian and independent candidates combined is almost certainly way too high. Libertarian candidates actually do pretty well overall in this district. The Lib Congressional candidate in 2012 got 3.7%, while a couple of statewide judicial candidates in races that also had a Democrat topped five percent. In 2016, the Libertarian in CD31 got 5.2%, with Mark Miller getting 7.1% in the Railroad Commissioner’s race. They didn’t do quite as well in 2018, however, with the Congressional candidate getting 1.9%, and the high water mark of 4.1% being hit in the Land Commissioner’s race. I’d contend that’s a combination of better Democratic candidates, with more nominal Republicans moving from casting a “none of the above” protest vote to actually going Dem. My guess is 2020 will be more like 2018 than 2016 or 2012, but we’ll see. In any event, I’d put the over/under for the two “other” candidates at five, not at ten. The Texas Signal has more.

Now we wait on SCOTX

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

Chris Hollins

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

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

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

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

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

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

CD21 poll: Davis 48, Roy 47

Second poll in this district.

Wendy Davis

Between August 31 and September 4, Garin-Hart-Yang interviewed a representative sample of 401 likely general election voters in Texas-21st CD. The survey, which was conducted on both landlines and cell phones, was fully representative of an expected November 2020 general election by key factors such as gender, age, geography, and race. The survey’s margin of error is +5%. The following are the key findings:

1. Joe Biden slight advantage in the presidential race is basically unchanged since our mid-July poll. The Vice President leads Donald Trump by 49% to 47%, compared to the 50% to 47% margin in the last survey.

2. The mid-July survey had the congressional candidates virtually tied, with Congressman Chip Roy ahead by one point. In the latest poll we find Wendy Davis with a one-point lead. Realistically, the Davis-Roy match-up continues to be extremely competitive and likely to remain a dead-heat.

One important finding is that despite several weeks of Club for Growth negative TV ads, Wendy’s initial TV ads emphasizing her inspiring personal story and bipartisan work in the Texas Senate are resonating with voters. Since our last survey, we find an increase in voters attributing positive sentiment to Wendy, including sizable gains for her among Independent voters.

See here for some background, and here for the Patrick Svitek tweet that you knew would be the source. CD21 has been a pretty good bellwether for the state as a whole these last couple of elections:


2016      District    State
===========================
Smith        57.1%
Wakely       36.5%

Trump        51.9%    52.2%
Clinton      42.1%    43.2%

Christian    53.9%    53.1%
Yarbrough    34.6%    38.4%

Keasler      56.7%    55.0%
Burns        38.1%    40.9%


2018      District    State
===========================
Roy          50.2%
Kopser       47.6%

Cruz         49.6%    50.9%
O'Rourke     49.5%    48.3%

Abbott       55.0%    55.8%
Valdez       42.8%    42.5%

Patrick      50.6%    51.3%
Collier      46.8%    46.5%

Craddick     53.3%    53.2%
McAllen      43.4%    43.9%

Hervey       54.3%    54.2%
Franklin     45.7%    45.8%

Closer correlations in 2018 than 2016, but they’re both in the ballpark. Ted Cruz underperformed relative to his peers. Lamar Smith ran ahead of the typical Republican, both in the district and statewide, while Chip Roy ran a little behind them. Don’t know if any of this means anything for 2020, but I’ll venture that CD21 will resemble the state as a whole fairly well. I don’t think Wendy Davis needs Joe Biden to carry the state to win, but as with any of the other hot races, the better he does, the better her odds are likely to be.

One lawsuit about voting locations thrown out

This was filed just a couple of months ago.

Continuing to fend off attempts to alter its voting processes, Texas has convinced a federal judge to dismiss a lawsuit that sought sweeping changes to the state’s rules for in-person voting during the coronavirus pandemic.

U.S. District Judge Jason Pulliam dismissed a legal challenge Monday from Mi Familia Vota, the Texas NAACP and two Texas voters who claimed the state’s current polling place procedures — including rules for early voting, the likelihood of long lines and Gov. Greg Abbott’s decision to not require voters to wear masks — would place an unconstitutional burden on voters while the novel coronavirus remains in circulation.

In his order, Pulliam noted that the requests were not unreasonable and could “easily be implemented to ensure all citizens in the State of Texas feel safe and are provided the opportunity to cast their vote in the 2020 election.” But he ultimately decided the court lacked jurisdiction to order the changes requested — an authority, he wrote, left to the state.

“This Court is cognizant of the urgency of Plaintiffs’ concerns and does respect the importance of protecting all citizens’ right to vote,” Pulliam wrote. “Within its authority to do so, this Court firmly resolves to prevent any measure designed or disguised to deter this most important fundamental civil right. At the same time, the Court equally respects and must adhere to the Constitution’s distribution and separation of power.”

The long list of changes the plaintiffs sought included a month of early voting, an across-the-board mask mandate for anyone at a polling place, the opening of additional polling places, a prohibition on the closure of polling places scheduled to be open on Election Day and a suspension of rules that limit who can vote curbside without entering a polling place. Other requested changes were more ambiguous, such as asking the court to order that all polling places be sufficiently staffed to keep wait times to less than 20 minutes. The lawsuit named Abbott and Texas Secretary of State Ruth Hughs as defendants, but the suit targeted some decisions that are ultimately up to local officials.

The plaintiffs argued the changes were needed because the burdens brought on by an election during a pandemic would be particularly high for Black and Latino voters whose communities have been disproportionately affected by the virus.

See here for the background. As noted in the story, there is now a third week of early voting, and at least the larger counties like Harris have been making plans to greatly expand the number of in-person voting locations, both for early voting and Election Day, so the plaintiffs didn’t walk away with nothing. Harris County will also have expanded curbside voting; I don’t know offhand what other counties are doing. That’s not the same as a statewide mandate, but it will be good for the voters who can experience it. The mask mandate seems like the most obvious and straightforward thing to me, and anyone who would argue that being forced to wear a mask in order to vote is an unconstitutional violation of their rights will need to very carefully explain to me why that’s a greater obstacle than our state’s voter ID law. I would have liked to see this survive the motion to dismiss, but at least we are all clear about what the to-do list for expanding voting rights in the Legislature is. Reform Austin has more.

County Clerk can send his vote by mail applications

Good.

Chris Hollins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

This is pretty much the end of the line, at least as far as the courts are concerned.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Thursday that Texas can keep its strict eligibility rules for voting by mail.

Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age.

The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.

“In sum, the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age,” the panel wrote. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”

The federal panel vacated a lower court’s sweeping ruling that found Texas voters would face irreparable harm if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. On Thursday, state Democrats indicated they would push forward with their challenge at the lower court, where the appellate court sent the case for further consideration of the party’s remaining arguments against the state’s restrictions.

[…]

“Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” the judges wrote.

The panel was made up by Judges Carolyn Dineen King, who was appointed to the bench by President Jimmy Carter; Carl Stewart, who was appointed by Bill Clinton; and Leslie H. Southwick, who was appointed by George W. Bush.

Dissenting in part to the majority opinion, Stewart wrote that the state’s eligibility rules fail to “treat members of the electorate equally with regard to mail-in voting.”

“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart wrote. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”

See here for the background, and here for a copy of the opinion. Michael Hurta has a good brief analysis of it. As to what happens next, Rick Hasen thinks the original trial judge will find for the plaintiffs again, which will trigger another appeal. As such, this isn’t really the end of the line as I’ve suggested above, but it seems very unlikely to me that there will be a ruling that favors the plaintiffs any time before the November election. Whatever ultimately happens with this will not happen until at least 2021. I don’t care for this ruling, and this was about as friendly a three-judge panel as we were gonna get. It’s hard for me to see how the outcome changes.

Which means, as I have been saying over and over again, the ultimate fix rests within the legislative process. Just add this to the ever-increasing list of things that a Democratic Legislature, in conjunction with a Democratic Governor, will need to fix. The Republicans have made their position crystal clear. There’s no bipartisan solution. The only way out is through, and that means electing a better government. The Chron has more.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Turning to the enforcement of the Advisory, […]

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

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

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

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

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

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

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

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

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

Another look at the County Commissioner race

It’s the most consequential local race on the ballot this year.

Michael Moore

Every four years since 1968, Harris County residents have been able to count on a Republican winning the Precinct 3 commissioner’s seat.

In that half century, a parade of Democrats have been trounced. Some years, the party did not even bother to field a candidate in the traditionally conservative district, which covers the western portion of the county. The past three Democratic presidential nominees carried Harris County, but no challenger in those cycles came within 16 points of Precinct 3 incumbent Steve Radack, who has held the post since 1989.

Of course, 2020 has been anything but normal. The COVID-19 pandemic has upended normal life. The Astros play in front of cardboard cutouts. And Democrats say they finally will capture Precinct 3, an open seat since Radack decided not to seek a ninth term.

They said the unpopularity of President Donald Trump in Harris County, against the backdrop of a mismanaged coronavirus response by state leaders and demographic shifts that favor Democrats will help the party’s nominee, political strategist Michael Moore, defeat his Republican opponent, former Spring Valley Village Mayor Tom Ramsey.

[…]

Demographic shifts in Precinct 3 give Moore an advantage, Democratic consultant Keir Murray said. When Radack first was elected, the west Harris County district largely was white and rural. It since has grown rapidly and diversified, with an increase in non-white and college-educated residents. Both groups favor Democrats.

“Precinct 3 now is probably about half white, and that’s a massive change from 15 years ago,” Murray said. “Forty percent of the voters are probably people of color now.”

He said Harris County’s shift to reliably Democratic also affects Precinct 3. Recent elections bear that out.

In 2016, Democratic presidential nominee Hillary Clinton lost the precinct by less than 1 point. The 2018 election, in a midterm year where Democrats traditionally struggle, U.S. Senate candidate Rep. Beto O’Rourke won the district by 4 points.

A wave of Texas Republicans, including six members of Congress, have decided against seeking re-election in 2020. University of Houston political science Professor Jeronimo Cortina said that suggests the party privately is pessimistic about its prospects this year, especially after Democrats made significant inroads in suburban communities in 2018.

“From a political perspective, it’s easier to retire than lose an election,” Cortina said.

I skipped over a bunch of back-and-forth about who’s gonna win, because that doesn’t tell us anything. We know about the Moore poll that shows both him and Joe Biden leading by double digits. Tom Ramsey claims to have his own poll that shows otherwise, and maybe he does, but we have no numbers to go with it, so. The 2016 and 2018 results tell a good story for Dems (see the Moore poll link for links to earlier precinct analyses), and I don’t think the current environment does Republicans any favors. Oh, and there’s some dire warnings in the story from a Republican about how those dumb Dems can’t count on straight-ticket voting to carry them anymore. I think you know what I think of such arguments.

On a side note, as Harris County’s registered voter population has grown over the past few years, so has the RV population in Commissioners Court Precinct 3:


Year      County RVs      CC3 RVs
=================================
2008       1,892,656      507,839
2012       1,942,566      501,988
2016       2,182,980      568,512
2020       2,370,540      622,890

The dip in RV population from 2008 to 2012 is due to redistricting. CC3 as a share of the total number of RVs in Harris County has grown slightly, from 25.8% in 2012 to 26.3% as of July, 2020. The main takeaway from that is that this precinct really is a different place than it was as recently as eight years ago. The precinct has 25% more voters than it did in 2012, and that’s pretty significant. As a whole, Harris County has gotten more Democratic as its number of registered voters has increased. Seems like that’s the same phenomenon in CC3, it’s just a question of whether it’s enough.

Where are we with the lawsuit to stop Harris County from sending out vote by mail applications?

Thanks for asking, we had the hearing in district court yesterday.

Voting in person will be safe across Texas in this fall’s general election despite the ongoing coronavirus pandemic, the state’s elections director asserted in a Harris County courtroom Wednesday

Keith Ingram, with the Texas Secretary of State’s office, made the statement while testifying against Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county.

“Voters who want to vote by mail, and qualify to vote by mail, they should. And voters who want to vote in person, we would encourage them to do so,” Ingram said. “It’ll be safe for them to do so, and the counties will have a good experience for the voters.”

The Attorney General’s Office called Ingram as a witness in an injunction hearing seeking to halt Hollins’s plan while the underlying case makes its way through the courts. Attorney General Ken Paxton sued Hollins on Aug. 31.

State District Judge R.K. Sandill made no immediate ruling on the injunction, though at times appeared skeptical of the state’s arguments.

At the heart of the case is whether Hollins would exceed his authority as county clerk by sending mail ballot applications to each voter, which Harris County never has done. In the four-hour online hearing, lawyers for the state and county described starkly different consequences of carrying out the plan.

Ingram said Harris County’s plan would confuse voters and encourage some to vote fraudulently, undermining the public’s trust in the integrity of elections. He noted that lying on a mail ballot application is a state jail felony and residents could be prosecuted well after this fall’s election.

“When something strange, or unusual happens, voters are very concerned that this is an opportunity for fraud, and when they think the other side is cheating, they tend to stay home, Ingram said. “That’s the concern about a mass mailing like this.”

Hollins said he simply is trying to help as many eligible voters cast ballots as possible, especially during the COVID-19 pandemic when many would feel safer voting by mail. The top of each application would feature a checklist explicitly explaining the eligibility rules. Hollins dismissed the state’s argument that voters would be confused as absurd.

“It would be a very bizarre and highly unlikely outcome that somehow, someone would unfold this fully, go to the very bottom, and think ‘I need to fill this out,’ without ever having looked up here,” Hollins said, pointing to a draft mailer in his hand.

See here and here for the background. You already know how I feel about this, and there’s nothing in this story to suggest that the state has improved on its weak arguments. I’m glad to see that Judge Sandill pointed out to the state that they had no objections before when Hollins sent applications to every over-65 voter in the county. There’s an edge of desperation in this lawsuit, and while one could argue it’s not the best use of the county’s money to do this, the law as interpreted by the Supreme Court seems pretty clear.

Several organizations have taken action to support the County Clerk or oppose the state. The League of Women Voters of Texas, the ACLU of Texas and the Texas Civil Rights Project filed an amicus brief, as HEB executive Charles Butt had previously done. The NAACP of Texas and the Anti-Defamation League Southwest Region filed a petition to intervene in opposition to the state, saying an injunction would harm the people they represent. Clerk Hollins’ response to Paxton is here. We should get the ruling by tomorrow, but we all know it will be appealed.

Speaking of such thing, here’s Hollins’ response to Hotze, from that ridiculous mandamus. The arguments are what you’d expect, and given the courtroom action in Houston I’d expect the Supremes to deny the writ, since there clearly is the time to litigate the matter. When they take action is of course anyone’s guess. Stay tuned.

Here comes Forward Majority

Wow.

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

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

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

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

[…]

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

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

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

PPP/Giffords: Trump 48, Biden 47

From Evan Smith:

I could not find a news story, press release, or even a tweet from anyone else, so this is all you get, this plus the poll data. A few tidbits of interest:

– As this poll was done by the Giffords: Courage To Fight Gun Violence group, there are multiple questions about universal background checks and who does or does not support them. The poll shows strong support for universal background checks in Texas, 77% to 13% in favor, with 64% more likely to vote for a candidate who supports universal background checks versus 8% more likely to vote for a candidate who opposes them.

– Going down into the crosstabs, Biden won 2016 Clinton voters 94-3, while Trump carried his 2016 supporters 91-7. That’s actually one of the better results for Trump of this kind. Biden won the “other/did not vote” cohort 47-27. Similarly, MJ Hegar did pretty well here, going 78-7 with Clinton voters, while Cornyn was at 80-8 among Trump voters. Hegar has usually lagged in same-party support, which is why I note this. She was at 43-26 among the “other/did not vote” crowd.

– That said, it’s 88-5 for Biden among Democrats and 89-9 for Trump among Republicans; Biden actually has a bit of room to grow here, with 6% “not sure”. Indies split 46-46 for President. In the Senate race, it’s a more-typical 74-7 among Dems for Hegar (19% “not sure”) and 83-7 among Republicans for Cornyn (11% “not sure”); Hegar does win indies 44-38.

– An interesting split between the approval and vote-for numbers with men and women. Women give Trump a 44-54 approval rating, but only give Biden a 50-45 lead in their vote. Men approve of Trump 50-47, buy vote for him at a 52-43 clip. And for the first time that I’ve ever seen, this poll has a “Gender non-binary” category, with Biden leading 59-29 among them; this mirrors their approval rating for Trump exactly. I have no idea what the sub-sample size is for that cohort, but it’s cool to see.

– And because we always have to talk about this, Latino voters have a ridiculous 16-81 approval rating for Trump, and they support Biden over him by 71-23. For Black voters, it’s 10-89 on approval and 80-10 for Biden; for white voters it’s 69-29 on approval and 29-69 for Biden; for “other” it’s 16-66 on approval and 62-16 voting for Biden. That’s better Latino numbers for Biden than we’ve generally seen, and better white numbers for Trump. Make of that what you will.

– PPP has conducted multiple polls of Texas so far, in each case doing them on behalf of a group. There was at least one poll from them that I missed, as FiveThirtyEight has a result from August 24, also on behalf of a group (can’t tell from the page who) that had Biden up 48-47. PPP polls have generally been decent for Biden in Texas.

– The Giffords group did that earlier poll about Latino engagement in Texas, which did not include any horse-race numbers.

That’s all I got. Until the next poll…

They just don’t want you to vote by mail

It’s okay if you’re a Republican, of course.

As states across the country scramble to make voting safer in a pandemic, Texas is in the small minority of those requiring voters who want to cast their ballots by mail to present an excuse beyond the risk of contracting the coronavirus at polling places. But the ongoing attempts by the White House to sow doubt over the reliability of voting by mail has left Texas voters in a blur of cognitive dissonance. Local officials are being reprimanded by the state’s Republican leadership for attempting to proactively send applications for mail-in ballots, while the people doing the scolding are still urging their voters to fill them out.

What was once a lightly used and largely uncontroversial voting option in Texas — one even Republicans relied on — is now the crux of the latest fight over who gets to vote and, equally as crucial in a pandemic, who has access to safe voting.

“Ensuring vulnerable populations can vote by mail during a pandemic is designed to protect human life & access to the vote,” Harris County Judge Lina Hidalgo said on Twitter this week after the county’s mailing plan was temporarily blocked by the Texas Supreme Court. “Those who stand in the way—using voter suppression as an electoral strategy—are throwing a wrench in democracy. We’ll keep fighting.”

[…]

Lt. Gov. Dan Patrick characterized efforts to expand mail-in voting during the pandemic as a “scam by Democrats” that would lead to “the end of America.” In a rolling series of tweets, President Donald Trump has pushed concerns of widespread fraud — which are unsubstantiated — in mail-in ballots. Texas Attorney General Ken Paxton quoted a local prosecutor saying voting by mail “invites fraud.”

Meanwhile, the Texas GOP sent out applications with mailers urging voters to make a plan to request their mail-in ballots. Fighting in court against Harris County’s plan, Paxton’s office argued “voting by mail is a cumbersome process with many steps to limit fraud.”

Luke Twombly, a spokesperson for the Texas GOP, confirmed the party had sent out ballot applications “like we do every year” to older voters and voters with disabilities that would allow them to qualify. Twombly did not respond to a follow up question on how the party determined voters who would be eligible based on a disability, nor did he respond to questions asking for specifics on the party’s get-out-the-vote efforts tied to voting by mail.

“The cynical explanation is that the intent here is to make it as easy as possible for Republicans to vote by mail but discouraging others and casting doubt over the process following the lead of the president,” said Rick Hasen, an elections lawyer and professor at the University of California-Irvine. “I think that’s a real fine needle to thread.”

It might be in the GOP’s best interest to “encourage voters to vote safely” by mail, particularly as the state’s vote-by-mail rules allow many of their base voters to be automatically eligible for an absentee ballot, but the president is complicating matters for them, Hasen said

“They are caught between a rock and a hard place,” Hasen said.

Some Texas Republicans quietly express frustration that party leaders are casting doubt on a system that they have worked for years to cultivate. West and other prominent Texas Republicans have floated unsubstantiated concerns that increased mail-in voting creates opportunities for widespread voter fraud. In interviews with multiple Republican operatives and attorneys who have worked on campaigns in the state, all suggested privately that the modernized system precludes such a scenario. None of these Republicans would go on the record, for fear of alienating colleagues.

There are some documented cases of fraud in mail-in voting in Texas. But like voter fraud overall, it remains rare.

“This issue … of fraud and voting fraud and all that was brought up years ago, 19 years ago when I was secretary of state,” said U.S. Rep. Henry Cuellar, a Laredo Democrat who was appointed Texas secretary of state by former Gov. George W. Bush, a Republican. “I looked at it as secretary of state, and it was so rare, so rare.”

[…]

In an effort to combat confusion among voters, Harris County said it intended to send the applications for mail-in ballots with “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” In its mailers, the Texas GOP instructs voters to “take immediate action” by confirming they meet the eligibility requirements and filling out an application proactively sent out by the party.

[Derek] Ryan, the Republican voter data expert, suggested that a past Republican campaign emphasis on vote-by-mail lends credibility to the objections Republicans are raising in Harris County.

“Voting by mail is our bread and butter,” said Ryan, the Republican voter data expert. “I kind of dismiss that more ballot by mail votes automatically favor the Democrats over the Republicans. That might not necessarily be the case. I think that kind of says the Republicans who are opposed to it aren’t necessarily doing it because they think it benefits the Democrats. They’re doing it because of election integrity.”

But in light of those objections, the Texas Democratic Party painted the GOP’s mailings to voters who did not request them as “a shocking display of hypocrisy.”

“It seems if Republicans had their way, the only requirement for Texans to cast a mail-in ballot would be ‘are you voting for Donald Trump?’,” Abhi Rahman, the party’s communications director, said in a statement this week.

I don’t know that I have anything to say here that I haven’t said multiple times already. There’s no valid principle behind the Republicans’ zealous objections to vote by mail, which is something they have used and still use but apparently cannot believe that anyone else would dare use against them. The screeching claims of fraud are just the usual shibboleth, packaged for today’s needs. We know that national Republicans have largely given up on their ability to win a majority of the vote. It’s just kind of morbidly fascinating to see Republicans in Texas adopt the same stance. Who knew they had so little faith in themselves?

HISD may do remote learning on Election Day

Makes sense to me.

Houston ISD’s administration wants to hold online-only classes on Election Day this November, citing safety concerns at more than 100 campuses that are expected to be used as polling locations.

“While it is not unusual for our school sites to be used as polling locations, the COVID-19 pandemic makes the safety of our students and staff more challenging when significant numbers of voters would be entering the schools throughout the day,” district officials wrote in documents provided to the school board.

HISD trustees are expected to vote Sept. 10 on the request.

[…]

It is not immediately clear whether the Texas Education Agency will penalize HISD for not offering in-person classes on Election Day, which is Nov. 3.

Under current TEA guidelines, public school districts can keep campuses closed up to eight weeks at the outset of the school year, though they must start to offer some in-person classes after the fourth week. Election Day falls on HISD’s ninth week of classes.

Districts that violate TEA guidelines risk losing state funding. However, TEA officials have said they plan to remain flexible amid the pandemic on safety matters.

As we know there will be 808 voting locations in Harris County on Election Day, which is nearly one per precinct. Schools have always been used as polling places – the elementary (Travis) and middle (Hogg) schools in my neighborhood are voting locations, as are nearby Crockett and Field elementaries. It is completely sensible to keep the kids home on a day when these schools will be full of strangers, in this time of pandemic. I would very much hope that the TEA will see it that way, but given some of the desperate shenanigans that are being pulled right now, I will need to hear it from them before I believe it. I hope HISD has been checking in with the TEA on this, and I hope the trustees are fully informed on this when they vote. We’ll find out next week.

UT-Tyler/DMN: Trump 48, Biden 46

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

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

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

Trump’s lead is 48-46.

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

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

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

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

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

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

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

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

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

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

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

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

Libertarians will stay on the ballot

Sorry, Republicans. You were too late after all.

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

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

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

[…]

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

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

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

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

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

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

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

Data for Progress: Biden 48, Trump 45

From the inbox:

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

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

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

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

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

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

And from the poll data:

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


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

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


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

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


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

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


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

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

Turning out more Asian-American voters

Keep an eye on this.

A national progressive group focused on getting Asian Americans to vote says it is going “all in” on Texas, looking to spend $1 million in the state where Asian Americans are the fastest growing segment of the population.

It’s the first time that AAPI Victory Fund, a super PAC focused on mobilizing Asian American and Pacific Islanders, has focused its efforts on Texas, which the group believes Democrats can win if they are able to get enough Asian Americans to vote.

“We’ve just decided to go all in on Texas,” said Varun Nikore, the group’s executive director.

Much of the spending will likely be directed at the Texas suburbs, where growth in the Asian American population is especially prevalent — a development that Democrats see as providing a path to victory in November. Nikore said that a string of recent polls showing President Donald Trump and former Vice President Joe Biden neck and neck in Texas convinced the PAC it needs to start investing there.

“Texas is emerging as the battleground right underneath everyone’s noses,” Nikore said. “From a funder perspective, everyone thought this was a pipe dream but … at some point somebody’s got to say there’s something tangible going on here that we can’t completely ignore.”

The number of eligible Asian American voters in Texas grew by nearly 50 percent from 2012 to 2018, far outpacing the statewide voting population growth of 12 percent during that time, according to AAPI Data, a nonpartisan group that tracks demographic trends. Asian Americans now make up 5.5 percent of the state’s electorate, according to AAPI Data.

There was a Chron story from May on this topic as well, if you missed it. I noted that the selection of Kamala Harris as Joe Biden’s running mate has had the effect of firing up Asian-American voters, which makes an effort like this all the more worthwhile. Asian-American voters have been reliably Democratic in recent years, but as is often the case with a community that contains a lot of immigrants they do not turn out at high levels. They’re also a very heterogeneous community, and require a more nuanced and tailored approach to engaging with them. But the reward is quite clear, as there are over 700K Asian-American voters in Texas, so a boost of 100K turnout could net 50K or so votes for Dems, based on past results. More like this, please. Here’s a nice little fact sheet if you want more (source).

Why endorse Sarah Davis?

It’s a good question.

Rep. Sarah Davis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ann Johnson

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

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

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

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

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

CD17 poll: Sessions 45, Kennedy 42

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

Rick Kennedy

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

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

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

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

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

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

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

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

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

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

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

When HEB is on your side

Who could be against you?

Charles Butt, the billionaire owner of the San Antonio-based grocery chain H-E-B, sent a letter to the Texas Supreme Court this week, siding with Harris County on its plan to send mail ballot applications to all registered voters ahead of the November election.

In the letter, Butt argued that Harris County Clerk Chris Hollins’ plan was permissible under the Texas Election Code.

“Clerk Hollins’s efforts to make absentee ballots widely available trusts voters, protecting those who are vulnerable from unnecessary exposure in this new Covid world in which we’re living,” Butt wrote. “It’s always been my impression that the more people who vote, the stronger our democracy will be.”

[…]

“Based on our experience at H-E-B, many people, including those of all ages, are nervous about contracting the virus,” Butt wrote. “By extension, in my opinion, many would be anxious about voting in person. Clerk Hollins has reasonably given these voters a chance to guard against perilous exposure in a manner consistent with this Court’s opinion and the Election Code.”

Butt previously has weighed in on political debates, and he is a top contributor during election cycles. His campaign contributions cross party lines.

That letter was being quote-tweeted all over the place on Wednesday. One could look at this and furrow one’s brow at the intervention by a wealthy individual, one who does play a fair amount in Texas politics, in a court case like this. One could also shrug one’s shoulders and say that this looks an awful lot like an amicus brief, except it was released on Twitter instead. I lean towards the latter, and given the overheated and frankly harmful rhetoric being unleashed by Trump and Paxton and the like, I’m glad that Charles Butt decided to speak up and inject a little sanity into the discourse. Your mileage may vary. Reform Austin has more.

Supreme Court issues possibly pointless stay in mail ballots case

This story doesn’t quite say what it seems to say, as we will see.

The Texas Supreme Court has temporarily blocked Harris County from sending mail-in ballot applications to all its voters for the November election.

The decision Wednesday came in response to a lawsuit filed days ago by Republicans in the state’s largest county. Attorney General Ken Paxton has since launched his own legal challenge to the plan.

Harris County Clerk Chris Hollins announced last month that the county would send applications to its more than 2.4 million registered voters, an effort to make it easier to participate in the election due to the coronavirus pandemic. After being sued by Paxton, Hollins said he would only send applications to voters 65 and older, who are eligible to vote by mail under state law, pending the litigation.

The Harris County GOP lawsuit alleges that Hollins is a “rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County.” The lawsuit was brought by the county party, conservative activist Steve Hotze and judicial candidate Sharon Hemphill.

See here and here for the background. Before we go on, let’s look at the actual order released by SCOTX:

The Emergency Motion for Temporary Relief is GRANTED in part. In conformance with the Rule 11 agreement in State of Texas v. Hollins (No. 2020-52383, 61st Judicial District Court, Harris County), Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins. The Real Party in Interest should inform the Court of any developments in State of Texas v. Hollins that may affect this order.

[Note: The petition for writ of mandamus remains pending before this Court.]

Emphasis mine. This is of course what Hollins had agreed to do, so functionally there are no changes since yesterday. The reason for this stay is that it came from the Hotze mandamus action, whereas Hollins’ agreement to suspend any mailings to under 65 voters came from the state lawsuit. Note also that this does not in any way affect the mandamus itself – as the Court says, that’s still pending. There should be a hearing on the state lawsuit early next week, which corresponds with the timeline for this order as well. Bottom line, nothing has changed here.

One more thing:

Amid the latest legal chapter Wednesday, Democrats called Republicans hypocrites for apparently sending out their own mail-in ballot applications while fighting Harris County’s plan in court. Hollins tweeted pictures from a mailer, paid for by the Texas GOP, that says President Donald Trump “is counting on you” and urges recipients to fill out an attached mail-in ballot application after confirming they are eligible.

“Much like Trump, Texas Republicans have been exposed as hypocrites to the highest degree,” state Democratic Party spokesperson Abhi Rahman said in a statement. “Voting by mail is safe, secure, and convenient.”

Remember how much the Republicans whined about straight-ticket voting in 2018, even as they were exhorting their own voters to vote a straight Republican ticket? It’s like that. Pay no attention to the noise machine.