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July 11th, 2020:

Greg Abbott has no one to blame but himself

Let’s be very clear about this.

Gov. Greg Abbott is under increasing political fire from fellow Republicans as well as Democrats as he responds to a sharp rise in coronavirus deaths — a record 112 on Wednesday and 106 on Thursday — by implementing more restrictions on Texans and increasingly warning of another shutdown if people fail to wear masks.

Prominent Democrats are blasting Abbott for reopening too quickly and shrugging off early warning signs. On the other side, county Republican Party committees are passing censures of Abbott for some of his latest orders, including one requiring people to wear masks in counties reporting at least 20 people infected with COVID-19. Those who violate the order face $250 fines, but no possibility of jail time.

On Wednesday, the Montgomery County Republican Executive Committee voted 40-0 to censure Abbott, joining at least three other county executive committees that have taken similar steps.

Even Republican state lawmakers are beginning to press Abbott to call a special session to cede some of the decision-making to them. State Sen. Charles Perry, R-Lubbock, said in a Fox News Channel interview that it’s time for the Legislature to be more involved and not just leave it all up to the governor.

“We have information and a lot of misinformation out there, honestly, that needs to be vetted by a legislative body,” Perry said.

It’s all coming as Abbott warns the daily number of deaths is going to keep rising.

“I think the numbers are going to look worse as we go into next week,” Abbott told Fox 26 in Houston during an interview Thursday night. “We need to make sure there are going to be plenty of hospital beds available in the Houston area.”

[…]

The criticism from Democrats comes days after Harris County Judge Lina Hidalgo said Sunday on ABC’s This Week that she and other county and city officials need Abbott to give them the authority to issue stay-at-home orders again, calling it the surest way for them to get out of the crisis. She said leaders need to be taking bold aggressive steps because of how serious things have become in Houston and Texas overall. Abbott has so far declined.

“We don’t have room to experiment,” Hidalgo said. “We don’t have room for incrementalism, when we’re seeing these kinds of numbers, nor should we wait for all the hospital beds to fill and all these people to die before we take drastic action.”

I have many thoughts about this.

– The original sin in all this, from whence all other bad decisions and unenforceable actions flow, was the inexcusable, unfathomable, and completely self-inflicted Shelley Luther saga, which the Chron’s editorial board correctly identifies as a primary failing. It’s not just that Abbott took the teeth out of his own executive orders the very first time they ran into resistance, taking Luther off the hook like that – hell, turning her into a goddam folk hero, paying her court fees, bowing and scraping to her – it’s that this sent a very clear message that there are no consequences for violating any laws or orders related to coronavirus. You can draw a straight line from this to sheriffs saying they can’t or won’t enforce the current mask order, even as Abbott is now practically begging everyone to wear a mask. Turns out undermining the rule of law is a bad idea. Who knew?

– The problem with the Shelley Luther incident wasn’t just the undermining of the rule of law, or the evisceration of any consequences for pro-COVID behavior. It was the message it sent, from the top, that the people who didn’t feel like doing their part to fight the virus, who felt that their feelings and personal definition of “liberty” mattered more than anything else, were legitimate and needed to be handled as special and exceptional. Abbott could have very reasonably expressed empathy for Shelley Luther, said words to the effect of “I know this is hard, I know small businesspeople like her are suffering, but we have to bear down and really beat this virus back so that we can get back to normal life and business like we all want”. The fact that he didn’t is a clear and ongoing failure of leadership on his part.

– Yes, I know, that same message about “my feelings are bigger than your face mask” as well as pressure to “reopen the economy” came from Donald Trump as well, and Abbott had to be concerned about the heat he was getting from his fellow Republicans. I will note that other Republican governors, like Mike DeWine in Ohio, managed to figure this out. No one ever said that being Governor was going to be easy. If Greg Abbott didn’t have the fortitude to withstand the carping from the Steven Hotze wing of his party, then he has no business being Governor.

– Another self-inflicted wound in all this has been Abbott’s abrogation of the executive powers that Mayors and County Judges had exercised in the early days of the pandemic. Remember when cities and counties were issuing stay-at-home orders, and Abbott used that as justification for him not doing the same statewide because different counties have different needs? Abbott eventually and correctly bowed to pressure to issue a statewide stay-at-home order, but in doing so he basically took away all of the local decision-making power that Mayors and County Judges had. That has come back to bite him, as the big urban counties have been complaining for weeks about their need to respond to local conditions. The capper to this was the utterly ludicrous “you solved my riddle”, in which Abbott revealed that County Judges had the power all along to order businesses to require masks for their employees and customers, but he wasn’t going to tell them that, they had to figure that out on their own even though they had been loudly saying that getting more people to wear masks was the main thing they could do to help with the pandemic. Letting local authorities have more power to make local decisions was not only the better call for fighting the virus, it would have shifted a lot of the heat Abbott now feels from him to them, with “them” mostly being Democrats. When Abbott took their power away back in April, it was seen as him coming in to take credit for their work. Too bad for him that work wasn’t finished, because it’s all on him now.

– Let’s also not forget the fact that when Abbott announced his intent to reopen, he announced four criteria that were supposed to guide the reopening timeline. Those were declining case rates, declining positive test rates, enough contact tracers, and sufficient hospital capacity. Only that last one was ever met, and because the other three were completely ignored, the hospitals are now overwhelmed. A more far-sighted leader would have counseled patience, saying we need to reach these benchmarks before we get to do the things we want to do. But as established, Abbott isn’t a leader at all, and so here we are.

– Finally, and I have said this before as well, I do agree that at some point Abbott should have called a special session, partly to clarify his own executive powers and thus blunt some of the lawsuits that have been filed over stay-at-home and face mask orders, and partly to share the responsibility with the legislative body. Abbott has repeatedly shown that he likes to operate in a bubble, where he does his thing and no one gets to ask him any questions unless they’ve been pre-approved and invited to do so. I get that hating on the mainstream media is a standard part of the Republican playbook, but I think Abbott’s self-imposed isolation isn’t serving him well simply because he’s not hearing from anyone who isn’t in his inner circle. The Lege can serve as a foil, or at least a partner in taking the blame, but not when you’re a one-man show.

Every step of the way, Greg Abbott could have made better decisions. It was clear at the time he was making those decisions that he was choosing poorly. Now we are all facing the consequences of those bad decisions. Greg Abbott bears the responsibility for what happened. Never forget that.

Dems ask some Supreme Court justices to recuse themselves from convention appeal

Stay with me here, this will all make sense.

The Texas Democratic Party on Friday called for four of the state’s nine Supreme Court justices to recuse themselves from a case involving the Texas Republican Party’s in-person convention, claiming each had a conflict of interest.

The campaigns of Chief Justice Nathan Hecht and Justices Jane Bland, Jeffrey Boyd and Brett Busby each sponsored the convention, according to an archived list of sponsors that since has been removed from the Texas GOP’s website.

[…]

Texas GOP officials are seeking a writ of mandamus from the court that would block Turner from canceling the convention, a day after a Harris County judge denied the party’s attempt to do so in state district court.

Democratic Party Chairman Gilberto Hinojosa said the four justices, each of whom is up for re-election in November, are “faced with an obligation to do the right thing and choose the law over political allegiance.”

“A justice who funds a dangerous convention should not judicially decide the fate of that same convention,” Hinojosa said in a statement. “All four have interests in the case coming before them and all four should recuse.”

See here for the background. The allegation is that by sponsoring the convention and being on the November ballot, these judges have a conflict of interest. A press release from the TDP provided the following justification for the petition:

Canon 3(B)(1) of the Texas Code of Judicial Conduct provides that Texas judges “shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”

Texas Rule of Civil Procedure 18(b) requires a judge to recuse themself from a case when “(1) the judge’s impartiality might reasonably be questioned” or “(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”

I’m not qualified to assess this claim, but I will note that if the four Justices do recuse themselves, there’s still enough justices left to issue a ruling, and since all nine are Republicans it doesn’t change the dynamic. Given the compressed timeline for this litigation, I presume we’ll get an answer quickly.

How can you vote if you currently have coronavirus?

There is one way, if it is approved.

Thousands of Harris County voters who recently have tested positive for coronavirus and now are quarantined should be allowed to vote online in the primary runoff election, County Attorney Vince Ryan argued in an emergency court filing Thursday.

The novel voting method has never been used in Harris County, but was permitted for the small-scale North Texas Ebola outbreak in 2014.

If approved by a state district judge, the estimated 10,000 residents who have tested positive for COVID-19 after the July 2 deadline to apply for a mail ballot would be allowed to submit a ballot via email. Forcing infected residents to vote in person would risk “putting thousands of other voters at risk,” Ryan wrote.

“The effect of this is to leave thousands of Harris County voters with a choice: 1, violate their quarantine and risk exposing poll workers and other voters to a deadly virus, or 2, become disenfranchised and lose their constitutional right to vote,” Ryan said. “That is a choice no Texan should be forced to make.”

A hearing [was] scheduled in the 80th District Court for 4 p.m. Friday. Ryan filed the brief on behalf of County Clerk Christopher Hollins.

The Dallas County elections administrator in 2014 obtained a court order allowing residents quarantined by the Ebola outbreak to submit mail ballots via email.

The Texas Election Code also permits counties to receive emailed ballots from some active duty members of the military stationed overseas.

[…]

Ryan said Harris County’s request follows COVID-19 elections guidance issued in April by Secretary of State Ruth Hughs, which said counties may want to consider seeking court orders to expand voting options for quarantined voters. A spokesman for the secretary of state did not immediately respond to a request for comment.

I admit, I did not know that this was a possible option. It makes sense, and in practical terms it’s likely that only a small number of people would actually vote in this fashion. I mean, even with record-breaking turnout in this primary runoff, we’re still going to fall short of ten percent of all registered voters in Harris County. More to the point, given that most of the people who would have voted in this election already have, we’re talking maybe two or three percent turnout among those who have not yet cast a ballot, so maybe 200 or 300 people total. I’d still take the under on that bet. But the principle is solid, and if the law allows for this, then by all means let’s do it. I assume we’ll get a quick ruling on this, I’ll keep my eyes open for confirmation of that and will update this post as needed.

UPDATE: And the answer is no.

A state district judge on Friday denied a request by Harris County Clerk Christopher Hollins to allow thousands of voters who recently tested positive for coronavirus, and now are quarantined, to vote online in the primary runoff election.

The novel voting method never has been used in Harris County, but was permitted for the small-scale North Texas Ebola outbreak in 2014.

Judge Larry Weiman, however, said he shared concerns raised by the Harris County Republican Party that online voting was not secure. Weiman, a Democrat, also said at the emergency telephone hearing that the county clerk had not produced an example of a voter being disenfranchised by exposure to coronavirus.

“The plaintiff hasn’t shown any injured party,” Weiman said.

[…]

The Harris County Republican Party and Texas Attorney General’s office argued against the plan. Assistant Attorney General Anne Mackin said Hollins’ proposal amounted to a “rewrite of the Texas Election Code,” which already provides ill voters a method to vote by mail after missing the application deadline, so long as they are able to physically produce a doctor’s note.

Hollins sought to have that requirement waived in favor of an emailed statement certifying a voter has been exposed to COVID, saying infected residents or members of their household risk infecting county employees by delivering a form to a public building.

“It’s inappropriate to substitute a new process,” Mackin said.

The Election Code permits counties to receive emailed ballots from some active duty members of the military stationed overseas. Attorney and state Rep. Briscoe Cain, R-Baytown, and attorney Kevin Fulton argued on behalf of the Republicans that method requires service members to use secure email addresses which allow elections administrators to verify their identities.

Weiman said he shared these concerns about security. He invited the Texas Legislature to make changes to the Election Code if lawmakers feel they are needed.

It was a nice idea while it lasted, but there would have been issues. The fact that there were no named voters asking for this is a legitimate point. It would have been very nice to be able to test something like this in a low-stakes primary runoff, in case it’s needed in November, but I think we probably do need to have the Lege address some issues first. There are ways to make this process secure, none of which I suspect would have been available now, and the need for a written-on-paper doctor’s note is obviously archaic. If this experience can serve as a template for updating the relevant bits of the election code, it will still have been a useful exercise.

Will college football shift to the spring?

Maybe.

[Dell] Billings, who graduated from A&M in 1995, also realizes it’s looking more like the brakes are about to be mashed on any “full speed ahead” approach, perhaps within a few weeks.

“I can’t see how we would be in the stands at Kyle Field when you have situations like ‘The Basketball Tournament’ that’s happening on ESPN right now and there are no fans,” Billings said. “That’s just a small tournament. How are you going to put 100,000 people inside a stadium in September?”

That is the multimillion-dollar question, one A&M, the Southeastern Conference and the rest of college football likely must answer by the end of this month.

“We said from the onset of this pandemic that circumstances around the virus would guide our decision-making, and it’s clear recent developments related to COVID-19 have not been trending in the right direction,” SEC commissioner Greg Sankey said this week. “There are important decisions to be made in the coming weeks, and by late July there should be more clarity about the fall season.”

The Ivy League on Wednesday is expected to announce that it will shift its football schedule to the spring semester. One Power Five administrator told The Athletic that could lead to a domino effect in college football.

“My suspicion is the majority of presidents in the (Football Bowl Subdivision) are uncomfortable with the notion of playing football this fall, but for various reasons don’t want to be the first to step out and say that,” the administrator told the website, adding that the Ivy League’s bold salvo “provides the cover” for others to follow suit.

The Ivy League has in fact suspended its fall sports schedule, including football. Other conferences are now taking baby steps in that direction.

The ACC will delay the start of competition for all fall sports until at least Sept. 1, the league announced Thursday. The move, which follows a similar decision by the Patriot League, will affect several sports, including soccer and field hockey, but not football.

The league said that affected games might be rescheduled and that there’s an understanding that cancellation of nonconference games will not result in financial penalties.

The ACC’s decision to delay the start of the fall season is the first by a Power 5 conference. The Patriot League has pushed its start back until Sept. 4, and the Ivy League announced the cancellation of all fall sports earlier this week.

The ACC’s football schedule is set to begin on Sept. 2 when NC State visits Louisville.

The decision was unanimously approved by the ACC board of directors.

As that story notes, while the football schedule hasn’t been affected yet, multiple schools have had to suspend workouts due to COVID-19 outbreaks. The Big Ten has taken a different tack, cancelling all non-conference games. I don’t know what’s going to happen – pushing everything off till spring seems like a remote possibility at this time, at least for the big conferences – but having stadia packed with fans seems even crazier now. I’ll say this much – if the various pro sports leagues are successfully operating as of August, then maybe the NCAA can do so as well. But if the pros can’t do it, there’s no way in hell the collegians can do it.