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May 28th, 2020:

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

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. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.

Our students need laptops

The pandemic has made this clear.

Houston ISD officials hope to provide every student with a district-issued laptop in 2020-21 and beyond, an ambitious target that would deliver much-needed technology to children but require voters to approve a bond package in the next several months.

Interim Superintendent Grenita Lathan said HISD officials are “working toward a goal” of buying computers throughout the upcoming school year for all 150,000-plus elementary and middle school students. HISD high school students already get computers under an initiative, known as PowerUp, started in 2014.

The laptops would assist families struggling with a lack of at-home technology amid the novel coronavirus pandemic, which pushed most instruction online for the last 10 weeks of this school year and likely will cause some classes to remain virtual into 2020-21.

Once the pandemic subsides, the laptops also would help bridge the so-called “digital divide,” providing more opportunities for students from lower-income families to access the internet and other educational programs.

“The goal is, as soon as we get them in is deploy them out,” Lathan said. “It will just take time to get the devices in. As we get them in, we’ll look to see if they’ll be given to middle school students first or elementary school students, or some at both levels.”

The initiative, however, would carry enormous costs that are not accounted for in HISD’s $2 billion spending plan for 2020-21.

District officials said they would have to spend $65 million on laptop hardware — not counting warranties, repairs, carts and replacement devices — to outfit HISD’s elementary and middle school students.

HISD leaders also would have to hire dozens or hundreds of staff members to maintain the laptops and eventually pay to replace older technology in the years to come.

District administrators still are calculating the price tag for supporting 150,000-plus additional students with laptops, but Chief Information Officer Scott Gilhousen told board members Thursday that early estimates put the bill at $90 million over five years for middle school students alone.

“The part we’re working on right now is the elementary schools and what it would take to outfit those students,” Gilhousen said.

In a statement Friday, HISD administrators acknowledged the district “would need to have a bond program” to pay for the laptops and recurring costs — a potentially tall task given multiple headwinds.

The HISD Board has been talking about a bond referendum for awhile, in the vicinity of $2 billion. That would mostly be for facilities. I don’t know if they might simply scrap that and substitute in a much smaller bond for the laptops and related equipment. A smaller bond would be easier to sell, but the facilities need would still be there. I’ll leave that to them to decide. I’ll just say, we all agree that this is a necessity now, right? Not just because of the current pandemic and any future ones we may face, but also because of weather-related disruptions and just the fact that a lot of the curriculum is done online now. However this proceeds, we need to support this initiative. It’s what the students need.

MLB’s latest startup proposal

The league still wants to stick it to the players.

Major League Baseball drew the ire of the players’ union Tuesday with an economic proposal that called for a significant cut in salaries that would affect all players and particularly the game’s highest paid, sources familiar with the proposal told ESPN.

The long-awaited plan, the first volley in an expected back-and-forth that will determine whether baseball returns in 2020, proposed a marginal salary structure in which the lowest-paid players would receive close to a full share of their prorated salary and the game’s stars receive far less than expected.

Players immediately bristled at the proposal, which includes an 82-game schedule that would begin in early July after a 21-day spring training, sources familiar with the plan said. Teams would play three exhibition games in the final week before starting a regular season that would finish Sept. 27.

The MLB Players Association is expected to reject the plan and counter in the coming days with a proposal that could include a longer season, according to sources.

The league’s proposal, which includes bonuses if postseason games are played, offers lower-salaried players a higher percentage of their expected wages and would give some of the game’s biggest stars a fractional cut of their salaries. The formula the league offered, for example, would take a player scheduled to make the league minimum ($563,500), give him a prorated number based on 82 games ($285,228) and take a 10% cut from that figure, leaving him with a $256,706 salary.

[…]

Although the proposal would keep a larger proportion of players close to their whole salaries — about 65% make $1 million or less and would receive more than 80% of their prorated salaries — players young and old objected to the plan, which they believe runs in contrast to a March agreement with the league that they believe legislated that players be paid full prorated salaries upon the return of baseball.

The league believes language in the deal calls for good-faith negotiations with the union about the economic feasibility of playing with no fans, which MLB expects to do upon a return. The league initially considered proposing a 50-50 revenue split with the players, citing massive losses due to the coronavirus pandemic. MLBPA executive director Tony Clark immediately rejected the idea, equating it to a salary cap.

See here for the background. Basically, this PR move by the owners is to stick to the highest-paid players, in an attempt to divide the union and make the players look as unsympathetic as possible to the public. I’ll outsource the analysis of this to Jay Jaffe, who sums it up as follows:

While this proposal does bear some resemblance to a progressive taxation scheme, the question that needs to be asked is why it’s the millionaires, whose careers have limited windows, bearing the brunt of the economic impact instead of the billionaire owners for whom annual profits — and for MLB, which has seen revenues grow for 17 straight years, there have been a whole lot of those — and losses pale in comparison to escalating franchise values. That’s without even considering the disproportionate risk the players are assuming by returning to play amid the pandemic. It’s not just their livelihoods that are at risk, it’s their lives. They can’t write those losses off.

Here’s a convenient timeline of the action so far, with some fact-checking as needed. By the way, while the owners as a whole are targeting the stars, one franchise is also sticking it to their minor leaguers, always a classy move. I’ll give a last word on this to Joe Sheehan:

More insidious, though, is the principle behind the plan. It’s asking Mike Trout to give money to Arte Moreno. Trout is rich; Moreno is wealthy. When Moreno had leverage, he paid Trout as little as he could. Now he’s asking Trout to give him back basically all the money Trout made in the first four years of his career.

Of course, any possibility of baseball or any other sport relaunching at this time is highly dependent on testing and keeping the players and coaches and umpires and staffers and everybody working at the stadiums COVID-free. Michael Baumann digs into what that means.

I asked Abdul El-Sayed, an epidemiologist and the former health commissioner for the city of Detroit, whether we know enough about COVID-19 to plan for games in October and November. “Yes, we do know enough about the virus,” El-Sayed says, “to know that we can’t make decisions five to six months in advance.”

One thing baseball has going for it compared to other major team sports—football, basketball, and so on—is that the actual gameplay isn’t particularly conducive to COVID-19 transmission. “An outdoor sport like baseball where [players are] not breathing heavily in each other’s faces seems like a good candidate for a sport that can return,” says Laura Albert, an associate professor of industrial and systems engineering at the University of Wisconsin whose research includes the optimization of emergency and public health systems.

While Albert isn’t worried as much about the in-game component of MLB’s plan to return in July, though, she has other concerns. Namely, even if the league prohibits sunflower seeds, tobacco, and spitting, there would still be plenty of scenarios during which a player with the virus could spread it to others. “There will be positive cases and there will be transmission between players,” she says. “And I anticipate it happening on airplanes and buses, in the locker rooms or bathrooms. It’s not totally clear how we can change those spaces to be safe if there’s a bunch of people using them.”

[…]

MLB’s return, whenever it happens, is already being heralded as a sign of things returning to normal. Indeed, as much as baseball fans miss the game itself, that touchstone to a more comfortable time is a huge reason why even a limited season is such an attractive proposition. But MLB has already accepted that if the league is going to have a prayer of making it to the World Series this year, the game won’t look, feel, or sound the same as it has in the past.

“Our lives are not going back,” Albert says. “They’re not returning to what they were like before, and there’s not one way we could really control the spread of COVID-19—there’s many things we have to do. And so it’s great that the leagues are embracing this. It’s not window dressing. I think it’s important for us to get used to these things.”

There’s a limit not only to what MLB and the MLBPA can do to ensure that the game is safe, but also to what they can know and predict. It will certainly be difficult for such a powerful industry to comprehend that idea, but it will be necessary for the baseball world to understand and embrace it. Given how COVID-19 works, the data on infection rate leaves investigators and public officials to work on a lag.

“We’re not dealing with linear dynamics here. That’s the hard part that I think is confounding so many of our best efforts to respond reasonably,” El-Sayed says. “You’re talking about exponential growth. Everything that we see today is information about the dynamics of the virus two weeks ago. And so all of a sudden you could be having exponential growth dynamics that only start showing up after it’s too late for you to act to stop them.”

As much as everyone is tired of having the course of the country and the economy determined on a fortnightly basis, [Thomas J. Duszynski, the epidemiology education director at the Richard M. Fairbanks School of Public Health at Indiana University–Purdue University Indianapolis] says that’s about as far ahead as we can responsibly plan right now. He’s open to the idea of MLB coming back—but only if the league is willing to stop the season if conditions change. “If they go down this road and start to play games, which personally I hope they do, and we see a shift in that science that says, ‘Hey, wait a minute, the disease is getting worse again,’ is MLB going to be able to pull this back?” he says. “Are they going to be able to shut it down and still survive?”

Both El-Sayed and Duszynski believe that it’s possible that a leaguewide infection could progress to the point where MLB simply can’t press on.

“God forbid a player dies because of this,” Dusynski says. “What kind of ripple effect would that have through Major League Baseball?”

I’m actually not that worried about a player dying. It could happen, but it would be unlikely. I’m much more worried about a coach, or an umpire, or a stadium staffer dying. Or a member of a player’s family, or a family member of one of these other groups. That could happen regardless – about 0.7% of players have already had COVID-19, per the MLB antibody study. Clearly, the risk is greater if the games are played. The players have the most leverage to assess and try to mitigate the risk to themselves and their families. I hope that’s sufficient for everyone else.

Texas blog roundup for the week of May 25

The Texas Progressive Alliance has a nervous eye on those post-reopening projections as it brings you this wee’s roundup.

(more…)

Have you missed having Stan Stanart to kick around?

Well then, I have good news for you.

Former Harris County Clerk Stan Stanart will run again for his old job, he confirmed Wednesday, joining two other Republicans seeking their party’s nomination for the November special election.

Incumbent clerk Diane Trautman, who defeated Stanart in 2018, announced she would resign May 31 because of undisclosed health concerns.

The Democratic and Republican parties must nominate candidates to fill the remaining two years of her term.

“I’ve got eight years’ experience, and the name ID necessary to win in November,” Stanart said in a phone call. “I’m calling precinct chairs and doing very well asking for their endorsement.”

Stanart’s announcement Wednesday was the result of a mix-up; he said he thought he was talking to a Harris County Republican Party precinct chair when a Houston Chronicle reporter called him. He said he had planned to go public with his candidacy next week.

The other Republican candidates to date are former Houston city councilman Bert Keller and former Harris County judicial candidate Michelle Fraga.

Emphasis mine. We’ve all missed that Stan Stanart touch around here, haven’t we? Not to mention the glorious headshot. I feel like he missed his calling as a spokesman for BrylCreem, but we must look forward from here.

Anyway. As the story notes, no Dems have publicly announced their interest in the nomination as yet. I expect Teneshia Hudspeth to throw her hat in the ring, but as yet I’ve heard nothing. I presume we’ll know more by the time of the next CEC meeting.