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August 29th, 2020:

SOS objects to Hollins’ mail ballot application plan

I suppose this was inevitable.

In a letter dated Aug. 27, Keith Ingram, director of elections for the Texas secretary of state, told Harris County to “immediately halt” its plans to send every registered voter in the county an application for a mail-in ballot for the general election. Ingram demanded the county drop its plan by Monday to avoid legal action by the Texas attorney general.

Sending out the applications “would be contrary to our office’s guidance on this issue and an abuse of voters’ rights under Texas Election Code Section 31.005,” Ingram wrote, citing a provision of state law that gives the secretary of state’s office power to take such action to “protect the voting rights” of Texans from “abuse” by local officials responsible for administering elections.

[…]

“Providing more information and resources to voters is a good thing, not a bad thing,” Harris County Clerk Chris Hollins said in response to the state’s letter. “We have already responded to the Secretary of State’s Office offering to discuss the matter with them.”

[…]

The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older to avoid confusion about eligibility. But there appears to be no state law that specifically prohibits sending out applications to all voters.

On Friday, Harris said the county’s mailing would also include “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.” While the Texas Supreme Court has ruled that a lack of immunity to the new coronavirus alone doesn’t qualify a voter for a mail-in ballot based on disability, a voter can consider it along with their medical history to decide if they meet the requirement. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without personal assistance or the “likelihood of injuring the voter’s health.”

“Voters will, of course, make their own decisions about if they qualify to vote by mail,” Hollins said.

In his letter, Ingram raises the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

In applying for a mail-in ballot, voters must check off which of the state’s eligibility criteria they meet. (The secretary of state allows any voter to request an application for a mail-in ballot through its online portal without asking whether the voter meets the eligibility requirements.)

See here for the background. As the Chron story notes, Ingram’s plan is to get Ken Paxton involved if Hollins doesn’t back down by Monday. The thing is, though, as both stories note, there’s no actual law that says what Hollins did was illegal. Remember what the State Supreme Court opinion said when the original TDP lawsuit that made the claim that the pandemic itself was a condition that qualified voters for the disability provision in the mail ballot law:

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.

If “the decision to apply to vote by mail based on a disability is the voter’s”, and “election officials have no responsibility to question or investigate a ballot application that is valid on its face”, then what exactly is the problem with an election official giving each voter the explicit opportunity to make that decision for themselves? If you think that the two sentences that wrap around the ones I quoted from make the whole paragraph somewhat contradictory, I understand. Perhaps the lawsuit Paxton is no doubt itching to file would clear that up. The point is, this is not at all clear as the law now stands.

I’ll be honest, it will be all right by me if Hollins does back down, and instead limit himself to sending mail ballot applications to everyone 65 and older, and everyone who applied for a mail ballot in either the March primary or the July runoff. I do think that his effort here has the chance to confuse some folks, and the plethora of voting locations as extended early voting hours goes a long way toward mitigating any concerns about coronavirus risk for in person voting. That said, Hollins has taken a strong stand for making it as easy and convenient to vote as possible for everyone, and it’s shocking how bold that actually is. How is it that such a stand represents so powerful a departure from the way things had always been done? I think from a purely strategic viewpoint, Hollins can walk this back, having made his point and laying down a marker for the next Democratic Legislature in Texas. If he refuses to back down from this very honorable and principled position, everything will be immediately cranked up to 11, and I fear that the distraction will do more harm than good. But whatever Hollins does choose to do next, he has shown us what voting in Harris County, and all of Texas, should look like. Let’s not forget that.

Republicans go to Supreme Court to remove Libertarian candidates

If at first you don’t succeed, make up a new statutory deadline that you claim is the real date that matters.

About a week after Texas Democrats took several Green Party candidates to court and had them knocked off the ballot for failing to pay candidate filing fees, state and national Republicans are taking a similar case to the state’s highest civil court.

The Third Court of Appeals ruled against three Green Party candidates, but in the case of the Libertarians, the court dismissed the case as moot, saying it was no longer timely because the Aug. 21 deadline to declare a candidate ineligible had passed. The Republicans’ petition was filed Aug. 21.

This latest lawsuit filed by the Republicans names 40 Libertarian candidates, including two candidates for Texas Supreme Court, three for Texas Senate, 10 for Texas House and 25 for Congress.

The high court doesn’t have much time to take action: Friday was the deadline for the Secretary of State to certify candidates for the ballot.

“It’s a last-ditch effort on their part,” said Libertarian Party of Texas Chair Whitney Bilyeu. “They’re clearly desperate to do everything they can to remove voter choice at the polls to continue to have a one-party state here in Texas.”

The Libertarians say their candidates chose not to pay the fee for various reasons: some were taking a personal stand against a law they believe to be unconstitutional, some filed with the Secretary of State during a window of time when a judge had temporarily blocked the law, and others simply did not have the funds.

The filing fees in Texas are $3,125 for the U.S. House, $1,250 for Texas Senate and $750 for Texas House. Fifty-three of 70 Libertarian candidates paid theirs, state data shows.

Lawyers for the Republicans wrote that “timing is of the utmost importance” because “each day closer to September 19 — the date ballots are mailed — makes relief less practical.”

[…]

At the Texas Supreme Court, the Texas House Republican Caucus PAC and National Republican Congressional Committee, as well as 27 of their candidates and the GOP parties in Harris, Travis and Tarrant counties, are arguing that while the deadline to challenge eligibility may have passed, the deadline to challenge a candidates’ application is Sept. 18, the day before any mail-in ballots are sent out.

See here for the background. Patrick Svitek has a copy of the writ of mandamus, and honestly the “Relief Requested” section of the document, starting on page 18, explains why this is different in a fairly clear manner:

When a candidate fails to submit the required filing fee, there is confusion whether the appropriate challenge is to the application, under Chapter 141 or the eligibility under Chapter 145. The statute is less than crystal clear on this point, providing that “To be eligible to be placed on the ballot for the general election . . . a candidate must” pay a filing fee or submit a petition in lieu of a filing fee. TEX. ELEC. CODE § 141.041(a) (emph. added). At the same time, Chapter 141 provides that a challenge under this section, to provide the application, is not “a determination of a candidate’s eligibility.” TEX. ELEC. CODE § 141.034(b).

Adding to the confusion, courts and parties have intermingled these two challenges. See In re Davis. No. 03-20-00414-CV, 2020 Tex. App. Lexis 6663 (Tex. App.—Austin, Aug. 19, 2020, orig. proceeding) (granting mandamus relief challenging a minor candidate’s eligibility under Chapter 145 based on a candidate’s failure to pay the required filing fee).

Candidly, in the tight window to seek mandamus relief, many of the Relators fell in the same trap last week when they challenged certain Libertarian candidates eligibility under Chapter 145. The Third Court of Appeals denied that relief, finding it untimely.

But, as an analysis of the statutory scheme and case law bear out, a challenge to a candidate’s failure to submit the application with the required filing fee is a challenge arising under Chapter 141.

This distinction is important because challenges to application— versus eligibility—have different timing requirements. The Third Court of Appeals concluded that a challenge to eligibility must be completed by the 74th day preceding the election. On the other hand, a party can challenge a candidate’s application, including the failure to pay the filing fee “the day before any ballot to be voted early by mail is mailed . . .” TEX. ELEC. CODE § 141.032. That date is September 18.

Relators institute this new original proceeding under Texas Election Code Section 273.061, challenging the candidates’ ability to appear on the general election ballot for failure to submit the required filing fee under Chapter 141. As this is a new action, requesting new relief, this is an appropriate original jurisdiction proceeding before this Court. In this action, Relators ask the Court to compel the Libertarian Party of Texas and its Chair to comply with their statutory duty to reject these applications and to notify the Secretary of State of the rejection. If the Secretary of State is made aware of the rejection, it can take appropriate corrective action.

There is no question of timeliness in this challenge, as it can occur at any time prior to September 18. Practically, though, after August 28, the Secretary of State will begin to make arrangements to print and distribute ballots. Thus, timing is of the utmost importance. Should this Court issue relief, the Secretary of State can take corrective action through early September. However, each day closer to September 19—the date ballots are mailed—makes relief less practical.

Basically, what this claims is that the challenge that the Third Court rejected was made under the wrong law, given the timing. This challenge is made under a different law, where the timing is not an issue, at least not yet. Will it fly? I have no idea, but points for effort.

Two other items of interest here. One is that the long list of relators (again, that’s what you call a plaintiff in a case like this) here includes multiple Republican candidates, presumably all of whom have a Libertarian opponent. You may recall from the previous challenge that the absence of Republican candidates in affected races raised the question of standing. The Third Court did not address that issue because they ruled that the motion was moot, but the Supreme Court would surely have to address it in any race where the candidate was not among the relators. Two, the story says that 53 of 70 Libertarian candidates did in fact pay the filing fee, but the Republicans named 40 of them in this writ and claimed none of them paid the fee. Both of these facts can’t be true, so we’ll see what the court says. My guess is we’ll get an answer in short order.

Once again, please pay some attention to the Railroad Commissioner race

It does matter.

Chrysta Castañeda

The Republican candidate running to join the Texas oil and gas regulatory agency has run afoul of state environmental rules and is embroiled in a series of lawsuits accusing him of fraud in the oil patch.

Jim Wright, owner of an oilfield waste services company, says he has done nothing wrong and that he’s the victim of a Democratic Party smear job.

If nothing else, South Texas court filings and public records showing more than $180,000 in state fines levied against Wright point to the fractiousness of the oilfield.

Wright, who lives on a ranch outside Orange Grove, 35 miles northwest of Corpus Christi, faces Democrat Chrysta Castañeda, a Dallas oil and gas attorney and engineer, in November for a spot on the three-member Texas Railroad Commission.

At the center of the disputes is DeWitt Recyclable Products, a company Wright started nearly a decade ago near Cuero to take oily muds and other drilling site byproducts and recycle them into crude oil, diesel fuel and cleaned-up dirt.

[…]

James McAda, who has run an oilfield services company for more than three decades and is fighting Wright in court, said he is owed more than $200,000 by Wright.

“I think a man who wants to do that kind of job should be following the rules of the agency that he’s going to help run,” McAda said. “This wasn’t just some little small type infraction violation; this was a pretty major deal involving disposal of waste.”

“I’m a dedicated Republican voter, but I don’t think Jim Wright is the man for the job,” he added.

Another company that had sued Wright over cleanup issues, Tidal Tank, settled with him after his March primary victory.

In a separate case, oilfield services firm Petro Swift LLC of Kerrville has accused Wright, his partners and DeWitt Recyclable Products of failing to pay for construction work the Kerrville company did at the Cuero-area site.

Petro Swift attached a lien to the property, but company officials accuse Wright of “fraudulent transfers” of the property through different companies to avoid payment.

Petro Swift co-owner Travis McRae told the American-Statesman that going after Wright was “like chasing a ghost through the woods.”
He said Wright owes Petro Swift about $205,000 on the original bills, plus at least $70,000 in attorney’s fees.

“If the guy can’t follow the rules of his own permits — if he doesn’t have respect for rules that are assigned him that he has to comply with — what makes anyone think he’s going to try to enforce rules when he holds that office?” McRae said.

McRae described himself as a “hardcore conservative, Republican all the way down the ticket.”

But, he said, “I’m not voting for Jim Wright.”

“I always thought the Democratic side is anti-oil, anti-fracking, so let’s have a Republican on the Railroad Commission,” he said. “In this particular case, based on personal experience, I don’t want that dude running anything — even if that means voting Democratic.”

We’ve seen these allegations before, and there’s not a lot of new factual information in this story. The main difference is these quotes from two people who know Jim Wright from being in the same industry and would normally vote for him as the Republican candidate for RRC, except they know who he is and won’t vote for him as a result. I’m not so naive as to think that the negative opinion of two Republicans in an election where we might see upward of ten million votes is in any way a factor in this race. But the differences between the two candidates is a factor in Chrysta Castaneda’s favor, as her recent poll indicated, and thus it’s why she hopes to raise enough money to get that message out. The next time you happen to talk politics with one of your less-engaged friends, this is the kind of race you should make them aware of. It’s the best chance we have.

Food trucks and bars

I approve of this.

The Texas Alcoholic Beverage Commission approved rules Tuesday intended to make it easier for bars to legally operate as restaurants during the COVID-19 pandemic.

The state agency greatly expanded rules that had already offered a limited lifeline for some bars to temporarily reclassify themselves and generate a sliver of sales during the coronavirus crisis. The goal is to provide more ways for businesses to qualify as restaurants under Gov. Greg Abbott’s executive order GA-28, which prohibits bars from reopening but allows restaurants to remain open at 50% capacity.

TABC’s amendments to Rule 33.5, which deals with food and beverage certificates, go into effect immediately.

The amended rules mean that bars can now reopen whether or not they have commercial-grade kitchens. Off-site food will also be allowed to be sold at the bars. This would include packaged items.

Additionally, bars will be able to more easily partner with food trucks. Sales from these food orders will be able to count toward the TABC’s rule that alcohol must account for less than 51% of the establishment’s gross revenue in order for it to open as a restaurant.

As we have discussed before, the 51% rule is more than a little arbitrary, and bars have deserved more flexibility to operate. I don’t want to downplay the risks here – you are still much better off avoiding indoor spaces and taking any food or drink to go if there isn’t an outdoor seating arrangement. If they comply with the limited capacity rules that apply to restaurants, then I favor approaches like this that let more bars be classified as restaurants, because they need the help. In the absence of federal help, this is the best we can do at this time. (To be fair, not all bar owners agree with this approach. A more serious review of the TABC’s 51% formula is still needed.) Reform Austin, the Dallas Observer, and the Current have more.