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May 21st, 2020:

Fifth Circuit flips the switch

It’s what they do.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Meet your new County Clerk

Hello, Chris Hollins.

Chris Hollins

Harris County Commissioners Court on Tuesday appointed an attorney and Texas Democratic Party official as interim county clerk.

Christopher Hollins, vice finance chairman for the state party, will serve until a new clerk can be elected in November. Incumbent Diane Trautman, who was elected in 2018, announced May 9 she would step down because of health issues.

The court voted 3-2 along party lines to approve Hollins. Five public speakers urged court members to choose Teneshia Hudspeth, Trautman’s chief deputy. County Judge Lina Hidalgo and Precinct 1 Commissioner Rodney Ellis said Hollins’ pledge to serve only on an interim basis factored in their decision.

Hollins was selected after 10 p.m., more than 12 hours after Commissioners Court convened, and was unavailable for comment.

He previously worked as a senior manager at the consulting firm McKinsey & Company and intern at Goldman Sachs and the White House Office of Presidential Personnel during the Obama administration, according to his personal website. He has never held elected office.

See here for the background. You can find Hollins’ Twitter here and his bio here. He released a statement later last night here, and the County Clerk’s office released one here. From skimming Facebook, the folks I read seem to be positive about him and his appointment. Clearly, the Commissioners wanted the Clerk to focus entirely on running the election and not running for their own election. That is certainly a reasonable position to take, and it means that we precinct chairs will get to pick a candidate of our choice. Fine by me.

Also mentioned in the story was Commissioner Ellis’ proposal about an appointed elections administrator, which was discussed but no action was taken. I saw somewhere that the Harris County Republican Party Chair was opposed to the idea, which is his right. My guess is that this is the end of it, but you never know. Campos, Stace, and The Texas Signal have more.

And now a few words from our city transportation planner

Didn’t know we had one, did you? Well, we do, his name is David Fields, and he had a few things to say to Chron reporter Dug Begley in a recent Q&A:

As you look at upcoming plans and projects around the city, how is COVID-19 affecting them? Are there tangible things that are changing or are the changes more conceptual, in the sense we might not know what demand is going to look like 12-18-24 months out any longer?

Streets are funny things. Some people see them as having just two purposes: Movement and storage. That might be cars, bikes, transit, or walking, but for all of them, we often limit in our minds what this very physical and expensive infrastructure can do for us.

COVID-19 is reminding us that streets don’t need to do the same job, 24 hours per day, seven days per week, 365 days per year. If we limit streets to these two jobs, we’re not getting the full value out of our investment in our city. While our streets move people at some times of day, those same roads can be used as play spaces at other times. Businesses reminded us that space used for parking sometimes can be used for restaurant pick-up zones at other times.

Learning this lesson is a huge benefit for our city, because the more ways we can use our roads, the more value we provide to our community.

From a planning perspective, has the new coronavirus bought you a little time to sort things out? The challenge here historically has been projects rarely have kept up with traffic and often induced demand makes the shelf life of their benefits much shorter. So, is there a silver lining to a pause?

COVID-19 is a teaching moment. It’s time to take a hard look about what we thought could never change. One of those big topics is believing that everyone who commutes must commute five days every week, somewhere between 6 a.m. and 9 a.m. and 4 p.m. and 7 p.m. People are working from home more than ever, which means fewer people traveling to work each day. Businesses are learning to be flexible and technology is helping.

The takeaway is that traffic is not set in stone. If 10 percent of our workforce can work from home in the future, traffic becomes a very different conversation. The key for Houston and for our work is to find ways to encourage this behavior we’re learning now, so it’s a choice by our residents and businesses that ends up helping everyone. It’s also resulting in more people walking around close to home more on those days that they stay home to work.

The silver lining is the chance to remember that we control our transportation choices and nothing is set in stone.

There’s more, so go read it. The point of interest for me is the observation that if work from home becomes more widely adopted, it really changes traffic patterns, and potentially reduces the future need for road construction. This has always been a consideration for transportation wonks, but we’ve never seen it in action like this. I am certain that more people are going to resume commuting to work in the coming weeks – here we are hand-waving away the potential for further lockdowns – but I’m also certain that some number of people who have been working from home as a result of COVID-19 will continue to work from home going forward because they like it and it suits them. Who knows what our streets and highways will look like after that?

Again, this is not a revelation to transportation planners and their ilk. A steady increase in telework has always been factored into their calculations. The point is that this is likely to be a step increase in those numbers, which changes the shape of the curves in their models. Some plans are already in motion – the 59/610 interchange rebuild, for example – while others are not yet finalized – the ginormous I-45 project – but in either case what we once thought was true now may not be. What are we going to do about that?

On a somewhat random side note, another factor that transportation nerds have been eyeing has been the rise of autonomous vehicles. Autonomous vehicles that are shared by multiple riders are one option touted as a possible future mode for mass transit. I’ve been skeptical of stuff like this for a variety of reasons, but it’s not hard to imagine such a thing having more appeal in the future, at least as an alternative to buses, and assuming there’s a way to separate the passengers from each other. Also assuming that the ridesharing companies that would surely be among those providing this service survive the current economic environment, which, who knows. You’d think now would be the time for someone to be touting the benefits of this concept, but I at least haven’t seen such chatter.

Texas blog roundup for the week of May 18

The Texas Progressive Alliance gives a virtual salute to the Class of 2020 as it brings you this week’s roundup.

Off the Kuff has the latest developments in the state lawsuit over voting by mail.

DosCentavos reminds us that Texans are modeling their leaders’ behaviors as Texas continues to reopen amid COVID19.

SocraticGadfly said this year’s Democratic vice presidential nomination is the most important since 1944.

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And here are some posts of interest from other Texas blogs.

Stephen Young highlights that great Obamacare cheerleader, Sen. John Cornyn.

Paradise in Hell turns his Trump Translator Machine on again.

The Texas Living Waters Project interprets a SCOTUS decision having to do with the Clean Water Act.

Christopher Hooks wonders why Ken Paxton hates vote by mail so much.

Sanford Nowlin shows a study that warns 4 million Texans could lost health insurance as a result of the coronavirus pandemic.

Jeff Balke reminds us that hurricane season is still a thing that happens.