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Christian Menefee

Candidate who lost by 15 points files election contest

Utterly ridiculous, and will hopefully be treated that way.

Rep. Jon Rosenthal

A losing Republican candidate for the Texas House of Representatives is challenging his defeat and asking the Legislature to void the results of the election.

Republican Mike May this week filed what’s known as an election contest with the Texas secretary of state’s office, citing reports of scattered paper ballot shortages at “numerous” polling places on Election Day. May lost to incumbent Democrat Jon Rosenthal by more than 6,000 votes in his bid to represent House District 135 in the Houston area.

The secretary of state’s office on Tuesday delivered May’s petition to House Speaker Dade Phelan, who can refer the contest to a committee for investigation and appoint another member of the House as a “master” to oversee discovery and evidence related to the contested election. If they side with May and void the results, another election would be required to decide the district’s representative. The House can also toss the contest by declaring it “frivolous.”

Election Day issues once again pushed Harris County’s election officials back under scrutiny, including from the state’s Republican leadership. Voting in Harris County was extended by court order for an extra hour after about a dozen polling places were delayed in opening. The county’s elections administrator Clifford Tatum has also acknowledged issues with insufficient paper ballots at some polling places, though he said election staff was dispatched to deliver additional ballots.

The fumbles prompted a lawsuit by the Harris County GOP, which alleged voters were disenfranchised by the paper shortages. The Harris County district attorney has since launched an investigation into allegations of “irregularities.” The Texas Election Code includes criminal penalties for various violations, including illegal voting, the unsolicited distribution of mail-in ballot applications by local election officials and the failure to distribute election supplies.

In his petition, May argued the results of the election were not the “true outcome” because election officials “prevented eligible voters from voting.” May did not immediately return a request for comment.

On Friday, Rosenthal’s camp framed May’s election contest as part of a national trend to “deny the outcome of an election when you lose.”

“This race demonstrated one of the largest percentage point differences in Harris County, it wasn’t even close,” Rosenthal’s campaign manager, Bailey Stober, said in a statement. “The opposition presented himself and his positions and was rejected by voters overwhelmingly. That is how democracy works.”

The statement came soon after Harris County Attorney Christian D. Menefee criticized the contest as an effort to “call into question the 2022 election in Harris County and lay the groundwork to force a redo.”

It’s unclear how Phelan will handle the contest. His office declined to comment Friday. But Menefee said he was hopeful that Phelan would throw out the challenge.

“And I trust that he will ensure a fair process before impartial legislators, without interference from the state leaders and other elected officials who have a history of making baseless claims against Harris County elections,” Menefee said.

The House took on a similar exercise in 2011 following a challenge by Travis County Republican Dan Neil, who, after a recount, lost to state Rep. Donna Howard, D-Austin, by 12 votes. The House eventually upheld Howard’s win. She remains in the Texas Legislature.

Up till then, the Legislature had seen 113 election contests since 1846, according to the Texas Legislative Council, an in-house legal and research arm of the Texas Legislature. The losing party, however, had not managed to turn the outcome of the election at least in the last 30 years. In the one case in which the House ordered a new election in 1981, the winner of the initial contest was again elected.

There was also an election contest following the 2004 win by Rep. Hubert Vo, then a challenger, over then-Rep. Talmadge Heflin. The contest examined a number of votes that Heflin claimed were illegal, including at least one vote cast by a non-citizen (a Norwegian national who stated that he voted straight ticket Republican), upheld most of them, and in the end Vo still won. In both cases, the number of votes separating the winner and the loser was miniscule. There’s no planet on which this challenge even remotely resembles those two.

The Chron adds some context.

Larry Veselka, a Houston lawyer who represented Democrat Hubert Vo when Vo’s 2004 election to the Texas House was challenged by his Republican opponent, said the legal standard for voiding an election result and ordering up a redo typically requires “clear and convincing” evidence that would be near-impossible for May to obtain.

“It’s too speculative,” said Veselka, who previously served as chair of the Harris County Democratic Party in the 1980s. “I mean, how do you say who walked away at this hour or at this one location where they were short of ballots? … Have they gone out and found people that can credibly swear, I left and didn’t vote somewhere else?”

May’s election challenge sparked outrage among Houston Democrats, including Rosenthal, who called it “more a political stunt than any type of serious complaint or concern.”

Harris County Democratic Party Chair Odus Evbagharu, who previously served as Rosenthal’s chief of staff, said the petition “reeks of Republican desperation.”

“The Republican candidate is attempting to alter a certified election with this baseless charge,” Evbagharu said. “Clearly, they’re running out of options in the election-attack playbook.”

Mark McCaig, a Houston attorney and conservative activist, also condemned the election contest in a tweet.

“There were HUGE problems with the election in Harris Co, but frivolous election contests like this are a gift to Dems (which is why Rosenthal is eating it up),” McCaig tweeted. “The focus needs to be on the very real problems that occurred.”

Jason Vaughn, former president of Houston Young Republicans, added: “I’m highly involved in Republican politics in Harris and didn’t even know this guy existed. The district was literally drawn to be a Democrat district.”

To put a few numbers on this, if you threw out every vote cast in the HD135 race on Election Day, Rosenthal still wins by 4,161 votes. Mike May collected 6,055 votes on Election Day. If you doubled that, if you somehow accept that the problems at a handful of voting locations prevented as many people who voted for him on all of Election Day from voting for him at all, without anyone who might have not voted selecting Rosenthal instead, he would still lose by 131 votes. This doesn’t come close to passing the sniff test. The only rational response by Speaker Phelan is to declare it frivolous. We’ll see. A statement from Rep. Rosenthal is here, and from County Attorney Menefee is here.

SCOTx allows provisional votes to be counted

Good.

The Texas Supreme Court ruled Tuesday that Harris County can include about 2,100 ballots cast during an extra hour of Election Day voting when officials certify the midterm results. But the state’s highest civil court also ordered Harris County to determine whether those late-cast ballots would affect the outcome of any races — and kept alive Attorney General Ken Paxton’s challenge to counting them.

It’s a win, at least temporarily, for Harris County officials in a fight against Paxton’s attempt to discard thousands of midterm ballots as election results are set to be certified Tuesday.

In an interview Tuesday, Harris County Attorney Christian D. Menefee said that about 2,100 provisional ballots cast after 7 p.m. Election Day should be counted. Those ballots were cast after a district court judge ordered Harris County polling places to remain open an extra hour because many locations had opened late that morning.

“The votes that were cast during that time period pursuant to a court order are still perfectly legal. And there’s nothing in the law that prohibits them from being counted,” Menefee said. “So our perspective is that those provisional ballots are no different than any other provisional ballots — they are to be counted.”

Harris County officials argued as much in a filing to the Texas Supreme Court on Tuesday. That came one day after Paxton petitioned the Supreme Court to toss the late-cast ballots.

[…]

In at least one race, the provisional ballots could impact the outcome. After provisional and mail-in ballots were counted, the incumbent for Harris County’s 180th Criminal State District Court, DaSean Jones, went from trailing Republican Tami Pierce to leading by less than 500 votes, the Houston Chronicle reported.

See here for the background and here for the court’s order. It’s just one page long, and the gist of it is this:

In this mandamus proceeding, which challenges Harris County election officials’ processing of the “later cast votes,” we grant the following temporary relief under Rule of Appellate Procedure 52.10(b):

  • Respondents are directed to conduct the canvass of the November 2022 election as required by the Election Code.
  • As part of the canvass, respondents are ordered to separately identify in the vote tabulations the number of “later cast votes” for each candidate in each race and for or against each proposition, so that candidates, the parties, and this Court may ascertain whether the “later cast votes” would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.
  • Respondents are ordered to provide the Court with a copy of the canvass results, including the separately tabulated “later cast votes,” as soon as they are available.

The petition for writ of mandamus remains pending before this Court.

I presume that last line is there in the event the provisional ballots have an effect on the 180th Criminal District Court race, in which event (again, I presume) the merits of the arguments will have to be addressed. Lawyers, please feel free to correct me as needed. The only other race that is close enough to be even theoretically affected by the provisional ballots is the County Criminal Court #3 race, where Porsha Brown trails by the even smaller margin of 267 votes. However, given that the provisional votes cast on Election Day favored Democrats, it’s even less likely for that race to be affected, and it would be impossible for both of them to be in a position to change.

I maintain as I said yesterday that it is highly unlikely that the 180th Court will be affected. If you throw out all of the Election Day provisional ballots, DaSean Jones still leads by 89 votes. There are apparently 2,100 provisional Election Day ballots in question, out of 2,555 total E-Day provisionals and 2,420 that included a vote in this race. The odds that Jones could lose the entire 360 vote net he got from the E-Day provisionals plus another 90 votes in this subset of the total ballots just strike me as extremely remote. I wish the stories that have been published about this would go into more detail about this as I have done – yes, I know, math is hard, but you could at least use “highly unlikely” language to offer some context. By the time this runs in the morning we’ll know what the official canvass says, and from there we’ll see if an election challenge will follow.

The Chron story, from a bit later in the day, has more details.

While the provisional ballots are included in the official count certified by Commissioners Court, the Supreme Court also is ordering the county to include in the final canvassed results a separate report that details the votes of the “later cast votes for each candidate in each race.” That way, candidates can determine whether this group of ballots would change the outcome of their race and “assess the extent to which further litigation is warranted.”

Given that Harris County voters cast more than 1.1 million ballots overall, the 2,000 provisional ballots have little chance of changing most election outcomes. However, a handful of candidates in tight races may consider legal challenges over election results.

“At this point, we do not anticipate that it impacts the outcome of any races,” Harris County First Assistant County Attorney Jonathan Fombonne said. “Of course the [Texas Supreme Court] proceedings remain pending and the court could rule on something. And of course there can always be election contests. Many of those races were close, and it wouldn’t surprise us to see candidates filing election contests.”

[…]

On Election Night, the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas obtained a court order from a judge requiring all Harris County polling locations to extend voting hours until 8 p.m. after the groups argued in a lawsuit that late openings at some polling locations prevented some residents from voting.

Voters who were in line by 7 p.m. were able to vote normally, while those who arrived between 7 and 8 p.m. were allowed to cast provisional ballots.

That evening, in quick succession, Paxton’s office filed its writ of mandamus asking the Texas Supreme Court to vacate or reverse the court order, and the Supreme Court responded by staying that order, saying votes cast after 7 p.m. “should be segregated,” without specifying whether they must be excluded from the final count.

Because the proceedings are still ongoing, it is too soon to know whether the ability to extend voting hours in the future could be impacted.

“The court hasn’t specified whether or not that’s legal,” Fombonne said. “The proceedings are pending. There may be an opinion in the future that addresses that question.”

Hani Mirza, legal director of the Texas Civil Rights Project’s voting rights program, was part of the team that sought the court order extending voting hours this year. The group also filed a lawsuit in 2018 obtaining a similar court order in Harris County. Mirza said in the case four years ago, Paxton’s office did not ask the Texas Supreme Court to intervene.

Nor did Paxton’s office intervene this year when voting hours were also extended by one hour in Bell County because of early morning glitches with check-in systems. The Bell County attorney confirmed last week that a court order there had not been challenged by the Attorney General’s Office or another party.

“It doesn’t make any sense outside of, obviously, cynical partisanship and these targeted actions against Harris County, the most diverse county in the state” Mirza said.

That sort of addresses my question above about the last line in the SCOTx order. We’ll just have to keep an eye on that. The election has been certified by Commissioners Court, which if nothing else avoids the drama of any further delays. As to who might file a contest, again we’ll have to see. Seems like a lot of fuss for something that is unlikely to go anywhere, but who knows.

So what if anything will come of that SCOTx ruling on the extra voting time?

I have no idea.

The Texas Supreme Court on Tuesday set the stage for a legal fight over whether to count ballots Harris County voters cast during an extended hour of voting ordered by a lower court.

That lower court ordered that the state’s most populous county extend voting hours until 8 p.m. after several polling places were delayed in opening. The state’s highest civil court blocked that ruling and ordered Harris County to separate ballots cast by voters who were not in line by 7 p.m., the normal cutoff for voting in Texas. The Supreme Court’s order followed a request by Texas Attorney General Ken Paxton to reverse the lower court’s order. The Supreme Court posted the order on Twitter at 8:30 p.m.

It’s unclear how many votes were cast during the extra hour of voting, but Harris County Attorney Christian Menefee raised the prospect that the state would ask for those votes to be thrown out. The attorney general’s office did not immediately respond to a request for comment on whether they would pursue such action.

Voters who got in line after 7 p.m. were required to cast a provisional ballot, which the county had already said would take more time to process and would not be initially counted in election night returns. Harris County is home to nearly 2.6 million registered voters.

The order to keep polls open an extra hour at nearly 800 polling places came after the Texas Organizing Project sued Harris County, citing issues at numerous polling locations that opened more than one hour late Tuesday. Many Harris County voting locations also experienced voting machine malfunctions that caused delays and temporary closures throughout the day, the lawsuit claimed. The county did not fight the request for extra voting time.

“We didn’t oppose the original relief because we want to make sure every single eligible voter in Harris County has the chance to cast their ballot, and there were polling places that had some issues,” Menefee said. “But the Supreme Court of Texas will decide what happens here.”

In its request for extra voting time, the Texas Organizing Project argued the delayed openings violated the Texas Election Code because polling locations that opened after 7 a.m. would not remain open to voters for 12 hours. State law says polls must be open from 7 a.m. to 7 p.m.

In a court motion filed earlier Tuesday, the attorney general’s office argued that a county’s failure to open polls at 7 a.m. does not justify ordering them to remain open past 7 p.m.

[…]

“We went to court because these closures and errors, especially in communities of color across Harris County, robbed voters of the opportunity to cast their ballot,” said Hani Mirza, the voting rights program director at the Texas Civil Rights Project, which filed the lawsuit. “These folks got to the polls early, wanting to do their civic duty, and they would have were it not for these issues.”

Earlier in the day, a state district judge also ordered polling places to remain open an extra hour in Bell County in Central Texas. It is unclear if the attorney general’s office is also challenging that extension.

See here for some background, and here for a Twitter thread from the TCRP about their filing. At this point, I don’t believe any election is close enough to be potentially affected by however many provisional votes there could be. (I have no idea what that number is now, we’ll find out after the election is canvassed.) It would be nice to settle this as a matter of law and precedent, of course, and I would strongly argue that the voters shouldn’t be put in a position to be disenfranchised because of issues with a polling location – sometimes things go very wrong and it’s nobody’s fault – but I’m under no illusion that the Supreme Court will see it that way. Honestly, they’ll probably declare it moot once the provisional ballot numbers are confirmed, and that may be the best result we can hope to achieve. At least then there will be hope for the next time these things happen.

UPDATE: From the Chron:

Harris County officials declined to provide the number of voters who cast ballots during the extended period. The state’s highest civil court ordered these ballots be set aside until it issued a final ruling. In the meantime, all the votes during this period remain in legal limbo.

The Harris County district judge ordered that votes after the original 7 p.m. closing time be cast as provisional ballots, which are not counted until election workers confirm a voter’s eligibility.

Harris County Election Administrator Clifford Tatum declined to state how many ballots were cast during the extended period, but said Wednesday he didn’t believe any races would be affected by those provisional votes – or any provisional ballots left to count for other reasons.

“I don’t believe there are enough provisional ballots,” he said.

[…]

As of unofficial results, at least four district and county judicial races that flipped from Democrat- to Republican-held were close, separated by vote margins in the thousands and one as small as about 500.

As noted above, incumbent judge Dasean Jones is currently trailing by 465 votes, the closest countywide race. Jones won on Election Day with 50.24% of the vote. That means that if there are 10,000 provisional votes resulting from the problems with voting locations – this is, I want to emphasize, a huge over-estimate of the number of provisional ballots, but it’s a nice round number and will be nicely illustrative – and they vote at the same percentage for Jones, he’d have a net gain of 48 votes (524 to 476 for Jones). Of course, these problems occurred at specific locations which likely have more partisan characteristics – there’s no reason why they’d vote in exactly the same way as the county overall. Jones would need to win these 10K votes with 52.33% in order to pull ahead. If there are 5,000 provisional votes, he’d need to win them with 54.66% of the vote. If it’s 1000 provisional votes, it would need to be 73.3% of the vote. You get the idea. I don’t think it would be impossible for Dasean Jones to win with these votes, but unless those are extremely Democratic locations, the math is pretty challenging. For the candidates who lost by larger margins, even if those margins are tiny in absolute terms, it quickly becomes impossible to make up the ground. This is why recounts basically never change the outcome of even the closest elections.

UPDATE: There were still votes being counted when I wrote this. Looks like mostly mail ballots – there are another 1,116 of them in the latest report. County turnout is just over 1.1 million now. The bottom line, since mail ballots were much more Democratic than in person ballots, is that as of this writing Dasean Jones is now trailing by 165 votes, having closed the gap by 300. However, I think this is the end of that line. But if indeed there are a significant number of provisional ballots and they are mostly accepted, then the chances that Jones could edge ahead are greater than what the math had suggested before. I still think it’s unlikely, but it’s less unlikely now.

What AG “task force”?

Who knows?

Best mugshot ever

The fact that Paxton – who helped lead the charge to overturn the 2020 national election results and promoted false claims that it was stolen – now planned to send people from his office to monitor Harris County elections was seen as an intimidation tactic by local Democrats and non-partisan voting rights organizations. Several implored the U.S. Department of Justice’s Civil Rights Division to send federal election monitors to watch the state election monitors, a request the federal government has since granted.

But for all the attention on the effort in the lead up to Election Day, very little was actually known about it. Who was on the task force and how big was the operation? What exactly would they be doing? Where in Harris County would they be stationed? Here’s what the Chronicle was able to learn.

[…]

Has anyone in Harris County seen or interacted with members of Paxton’s task force?

Spokespeople for the Republican and Democratic parties in Harris County reached out to their teams that manage election workers to ask this same question. They said nobody on their team had reported any interactions from Paxton’s office yet.

“Imagine they’re here, but no reports that I’ve heard yet,” said Genevieve Carter, the Republican Party spokesman in Harris County, in a text message.

“Just checked with our elections folks,” Elisha Rochford, of the Democratic Party in Harris County, wrote in a text. “We have not heard anything about the AG’s office task force being in HC. We haven’t had any election workers report seeing anyone from AG.”

Alan Vera, a well-known conservative activist who has made numerous complaints about election problems in Harris County, said “I have not heard from anyone.”

Paul Bettencourt, a Republican state senator from Houston who has often complained about how Harris County administers elections, said he wasn’t aware of a team being sent to Houston from Paxton’s office. He said he would make some calls, but didn’t learn anything more. He said he believes the AG’s office is working with the Secretary of State’s office “remotely.”

Does the task force actually exist?

The Chronicle wasn’t able to find any evidence of a team from the attorney general’s office dispatched to Harris County.

See here, here, and here for the background. I don’t know if there was ever supposed to be a real “task force”. Maybe it was but it failed to materialize due to incompetence, laziness, or a lack of employees. Maybe it was always a stunt. Maybe it was 11-dimensional chess intended to mess with our minds and get the feds all scurrying about, in which case, mission accomplished, I guess. All I know is that the absence of Ken Paxton is always better than the alternative, so I’m going to chalk this up as a win.

Justice Department agrees to send election monitors

Good.

The U.S. Department of Justice announced Monday it will send election monitors to three Texas counties — Harris, Dallas and Waller — to keep an eye on local compliance with federal voting rights laws on Election Day.

Monitors from the Justice Department are regularly deployed across the country for major elections, with Texas counties making the list for at least the past decade under both Democratic and Republican administrations. The three Texas counties are among 64 jurisdictions in 24 states that will have a federal presence Tuesday.

The department did not specify how it made its selections for monitoring, though Harris and Waller counties have made the list in the last four presidential and midterm elections. Harris and Dallas are the state’s largest and second-largest counties. Rural Waller County is home to Prairie View A&M University, a historically Black campus.

Voters can send complaints on possible violations of federal law to the DOJ through its website or by calling 800-253-3931. Polls open at 7 a.m. on Election Day.

See here and here for the background. When Ken Paxton and his minions are involved, you need all the help you can get. And while the early voting period was pretty calm, we know there’s a lot of bad stuff lurking. I feel better having these folks in the city. Politico and the Press have more.

Harris County asks for federal vote monitors

I agree with this.

Houston and Harris County officials are asking the U.S. Department of Justice’s civil rights division to send monitors to assist in the upcoming November election in response to a letter the county received from the Texas secretary of state’s office this week informing it that state election observers would be monitoring the county’s election and vote tally.

The request to the federal agency was sent Thursday by County Judge Lina Hidalgo, County Attorney Christian Menefee and Houston Mayor Sylvester Turner.

In a statement, Menefee questioned the state’s intentions in sending election monitors to the county.

“We cannot allow unwarranted disruptions in our election process to intimidate our election workers or erode voters’ trust in the election process,” Menefee said. “As the county attorney, I will be at central count on Election Night, ensuring outside forces do not interfere with our elections. I hope the Department of Justice will be there, too.”

[…]

In response to the local leaders’ request for federal election monitors, the secretary of state’s office said in a statement that suggestions made by local leaders were a “cynical distortion of the law.”

The office reiterated that its decision to send monitors to Harris County was a matter of routine.

“The Texas secretary of state’s office has sent election inspectors to Harris County every year and has never before seen a request for the Department of Justice to ‘monitor the monitors,’” the statement said. “This request is based on a completely false premise and misunderstanding of Texas election law and is being used to spread false information about the actual duties of our election inspectors — dedicated public servants who will be present in Harris County to observe only and to ensure transparency in the election process from beginning to end.”

Mary Benton, the mayor’s communications director, said: “Mayor Turner welcomes a discussion with the U.S. Department of Justice. He is confident that if they send election monitors to Harris County, they will operate effectively to ensure that no registered voter’s rights are trampled on as they attempt to cast a ballot legally.”

See here for the background. I don’t care if the SOS is miffed about this, but even if we take them at their word there’s still the Attorney General’s “task force”, which absolutely cannot be trusted and needs to be watched like a tachyon in a particle accelerator. This was absolutely the right move. Reform Austin and the Texas Signal have more.

At least one local voter purge effort has been thwarted

For now, at least. Like flies to garbage, though, you know they’ll be back for more.

Still the only voter ID anyone should need

The Harris County Elections Administrator’s Office received a flood of affidavits this summer challenging the eligibility of thousands of registered voters throughout the county, accusing them of not living at the addresses listed on registration records.

None of the affidavits led to county elections officials removing any names from the voter rolls.

The affidavits are linked to efforts by a conservative grass-roots organization called the Texas Election Network, which earlier this year attempted to get Sunnyside residents to sign forms verifying the identities of registered voters living at their addresses.

Each affidavit alleges that numerous registered voters in Harris County “do not reside at the addresses listed on their voter registration records,” as required by state election law. Upon receiving a sworn statement challenging a voter’s residence, election officials must send a “Notice of Address Confirmation” to the voter in question.

The challenges were first reported by The New York Times, which found the affidavits disputed the eligibility of more than 6,000 voters.

In all, the Elections Administrator’s Office received 115 affidavits, according to Leah Shah, a spokesperson for the elections office.

Of those, Shah said, 66 were rejected because they “did not meet statutory requirements and contained incomplete information.”

Another 49 challenges came in after Aug. 10, the 90th day before the election. The National Voter Registration Act of 1993, known as the “motor voter act,” bars election officials from performing most voter roll maintenance activities within 90 days of a federal election. The restriction applies to any program intended to “systematically remove the names of ineligible voters from the official list of eligible voters,” including “general mailings and door to door canvasses,” according to the Justice Department.

Each of the forms submitted by various Harris County residents cited voter registration data retrieved by the Texas Election Network, along with the residents’ own canvassing efforts.

“I have personally been told by persons actually residing at these addresses that the challenged voter does not reside at that address and is not only temporarily absent from that address with an intent to return,” the affidavits read. “I am requesting that the Harris County Elections Administrator take the actions required by the Texas Election Code.”

Shah said the office “will work in coordination with the county attorney’s office to review and determine the validity of all challenges on a case-by-case basis” after the midterm election.

When the Texas Election Network’s canvassing efforts in Sunnyside came to light in early July, County Attorney Christian Menefee’s office said it was “investigating this issue and exploring legal options to protect residents and prevent this from happening again.”

Asked about the status of the investigation this week, county attorney spokesperson Roxanne Werner said, “Although we have not found any further activity by this group, we are continuing to monitor the situation and will take action if appropriate. We won’t allow any group to engage in illegal conduct to try and remove registered voters off the rolls.”

See here (scroll down) for the background. I do hope the County Attorney’s Office keeps an eye on this activity, because we know it’s ill-intentioned bullshit and it deserves to be closely scrutinized. Don’t ever give them an inch.

Paxton issues deranged opinion on access to ballots

This is utterly chaotic. And completely out of the blue.

Best mugshot ever

A legal opinion released by Texas Attorney General Ken Paxton last week will almost certainly throw county elections offices into chaos after November, experts say, exposing election clerks to possible criminal charges and materially reducing the security of every ballot cast in the state.

Federal and state law require that ballots be kept secure for 22 months after an election to allow for recounts and challenges — a time frame Texas counties have had set in place for decades. Paxton’s opinion, which doesn’t stem from any change to state law, theoretically permits anyone — an aggrieved voter, activist or out-of-state entity — to request access to ballots as soon as the day after they are counted. Such requests have been used by activists all over the country as a way to “audit” election results.

The opinion from Paxton doesn’t carry the force of law, but experts say it will almost certainly serve as the basis for a lawsuit by right-wing activists. The opinion has already impacted elections administrators across the state, who told Votebeat that they’ve seen an onslaught of requests since Paxton released it.

“[Paxton’s office wants] to throw a monkey wrench into the operations of vote counting, especially if they think they might lose, and Paxton is in a close race as far as I can tell,” said Linda Eads, a professor at Southern Methodist University’s Dedman School of Law and a former deputy attorney general for litigation for the state of Texas. She said she was “shocked” by the opinion.

[…]

Paxton’s office sought input from the secretary of state’s office prior to issuing the decision, which was requested by state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans. In no uncertain terms, the secretary of state’s office  — which is run by a Republican appointed by Gov. Greg Abbott — recommended keeping the current waiting period.

“The voted ballots are the core of the election process and the prohibition on disturbing the ballots (except in limited circumstances as permitted by the Election Code) preserves the integrity of the election itself,” wrote Adam Bitter, general counsel for the office, in a letter obtained by Votebeat through a public records request. “Handling of the voted ballots themselves opens up the possibility of accidental or intentional damage or misplacement that could call into question the election after the fact.”

Paxton’s office did not respond to specific questions about why he disagreed with Bitter’s conclusion, nor did he respond to requests for comment.

For months, election administrators in Texas and across the country have been fielding records requests from activists intent on re-examining every ballot cast in every election since November 2020 — or, in some cases, even earlier. In Tarrant County, volunteers with a conservative group occupied a room in the elections office for weeks this summer, examining 300,000 ballots from the March 2020 primary, which were made available by the county 22 months after the election.

Ballots are kept in secure lock boxes for 60 days, and then transferred to another secure facility for the remainder of the waiting period in order to comply with the Civil Rights Act of 1960, a federal law which, in part, requires ballots be securely stored for 22 months. In 2017, the Republican-dominated Texas Legislature even amended state law to specify “22 months,” updating state standards to mirror federal requirements.

In the letter to the attorney general’s office, Bitter, the general counsel for the secretary of state’s office, wrote that an election clerk may effectively have to break state law in order to comply with a request for ballots so soon after an election.

Texas law says that if the ballots’ legal custodian, typically a local election official, “makes unauthorized entry into the secure container containing the voting ballots during the preservation period, or fails to prevent another person from making an unauthorized entry, the custodian has committed a Class A misdemeanor,” Bitter wrote.

Paxton’s opinion, experts say, does not appropriately address the potential criminal exposure.

Matthew Masterson, who previously served as the Trump administration’s top election security official and now is Microsoft’s director of information integrity, said that Paxton’s opinion will make it impossible for election administrators to appropriately ensure that ballots are kept secure. The security controls exist for a good reason, he said, and undermining them has serious implications.

“If you open up the floodgates and give anyone access to the ballots throughout that process, you have broken that chain of custody to the point where you would not be able to prove that this was the ballot a given voter cast,” Masterson said.

The opinion itself provides little guidance as to how long or for what reasons election administrators can block access to such ballots, leaving administrators across the state concerned about their ability to appropriately comply.

“If I read this literally as a layman, I think I’m required to provide ballots the day after an election before the results have even been canvassed,” said Chris Davis, elections director in Williamson County, who said such a release would make it impossible for counties to confidently conduct recounts that would stand up to legal scrutiny.

“I don’t know if the drafters of this opinion have a firm grasp on how ballot security and ballot processing is done at the county level,” he said.

There’s more, go read the whole thing, and add on this tweet thread from story author Jessica Huseman. There’s absolutely no justification for this – state and federal law are clear, and nothing has changed about them. It’s just chaos intended to give a boost to Big Lie enthusiasts, and as the story notes later on, it’s potentially a conflict of interest for Paxton since he himself is on the ballot this year, and everyone agrees it’s likely to be a close race.

County election officials around the state are already reporting getting a bunch of requests, some of which appear to be part of a coordinated effort. I think Harris County has the right response here.

Harris County Attorney Christian Menefee says the county is not releasing the ballots, arguing the opinion Paxton issued in the name of election integrity last week runs afoul of the law.

“Attorney General Ken Paxton is distorting the law to fuel conspiracy theories, encouraging reckless behavior that erodes public trust in our democratic process,” Menefee said in a statement. “The law is clear that these voted ballots are confidential and it’s a crime for anyone to access them unless authorized by law.”

Menefee said Harris County had received more than three dozen requests to inspect ballots since Paxton issued his opinion. The county attorney’s office did not respond to a request for more information about the requests, including who submitted them.

[…]

Federal and state laws requires ballots be securely stored for 22 months after an election, in part to preserve them for recounts or challenges to election results. Menefee said Paxton’s opinion “directly contradicts” a separate opinion his office issued last month, as well as an opinion issued by the AG’s office more than 30 years ago, which both concluded that ballots are confidential for 22 months following an election.

“Our election workers should not have to fear being criminally prosecuted because the attorney general wants to play politics and try to rewrite laws,” Menefee said. “Everyone who has closely read the law agrees the ballots are confidential: the Secretary of State’s Office, counties across the state, and his own office just a month ago. Harris County will continue to follow Texas law, not the Attorney General’s ‘opinion.’”

That’s what I, a non-lawyer who has no responsibilities in these matters, would have done. It is highly likely that a lawsuit will result. No one wants that, but sometimes having the fight is the most straightforward way to resolve the dispute. If that’s what we have to do, then so be it.

This is why elections administrators are under attack

What a lousy thing to do right now.

Harris County’s new elections administrator has not taken office yet, but the Harris County GOP is already trying to shape his reputation.

On Wednesday, State Senator Paul Bettencourt, R-Houston, tweeted an image of records showing Clifford Tatum has a federal tax lien of more than $100,000. Bettencourt questioned Tatum’s ability to run the office based on his tax records. According to the tweet, the records were obtained July 5, the date Tatum’s selection was announced.

The Internal Revenue Service filed the $108,209 lien against Tatum last October.

In response to Bettencourt’s tweet, Tatum said in a statement: “This is a personal tax matter and not related to my career as an elections administrator. I have been in touch with the IRS and expect the matter to be resolved by the end of the year. I have been a public servant for over 20 years and my personal life has never impacted my professional career.”

Tatum was selected by a unanimous vote of the five-member Harris County Election Commission in July.

[…]

On Tuesday, Harris County GOP Chair Cindy Siegel was the only person on the five-member Harris County Election Commission to vote against final approval of Tatum, which could not be completed until after he had established residency in Harris County. The commission met briefly to take the vote and adjourned in under 10 minutes.

“Why did the four Democrats on the Election Commission shut down debate on this yesterday?” Siegel said in a statement on Wednesday. “Why didn’t the recruiter do their job and disclose issues with Mr. Tatum’s background before the original offer was voted on? I’ve been asking the paid recruiter and the county attorney’s staff about this for a month.”

In response, Harris County Attorney Christian Menefee issued a statement: “The interview, offer, and selection process for the new elections administrator was thorough and all members of the Elections Commission participated. Mr. Tatum’s experience speaks for itself, and I look forward to working with him.”

See here for the background. Personal tax issues are standard fodder in election campaigns, mostly for the purpose of casting someone as untrustworthy or irresponsible. This isn’t an election, though, it’s a job application, and and having a personal tax issue is generally not an obstacle to getting hired. If there’s evidence that Tatum was dishonest about this to the recruiter and/or the Commission, then bring it forward and we can evaluate that. If not, if he answered honestly any questions he might have been asked about this, then it’s not that much different than telling me he’s got a big unpaid balance on his credit cards. Not great from a personal finance perspective, but not relevant to the job he’s been hired to do.

Also, too. Not to put too fine a point on it, but if you’re out there being a big public supporter of Ken Paxton and The Former Guy, dismissing all criticism as mere partisan attacks, I’m not very likely to take seriously your complaints about some other guy’s back taxes. We all love throwing the word “hypocrisy” around, but maybe try a little self-awareness. I’m just saying.

And look, while no public servant is above criticism or having their conduct scrutinized, now is maybe not the best time to be pointing and screaming at election officials for things that have nothing to do with running elections. Election officials around the country and right here in Texas are besieged by violent threats and harassment from the people that Paul Bettencourt is talking to when he says this stuff. Someone is going to get attacked, even killed, if this keeps up. Could you maybe refrain from throwing gas on the fire for a little while? Is that so damn much to ask?

New bail bond rule survives again

On to the appeals.

A judge rejected a second attempt by a bail bonding business to put an end to a Harris County rule requiring defendants accused of violent offenses to pay a minimum 10 percent fee to secure their release from jail, officials said Monday.

55th District Court Judge Latosha Payne ruled Aug. 9 against a temporary injunction stemmed from civil litigation lodged in April against the Harris County Bail Bond Board that attempted to prevent the premium policy from taking effect. A judge blocked the initial attempt as well.

All About Bail Bonds owner and plaintiff Sunya Claiborne argued in the lawsuit that the policy jeopardizes her business — calling the minimum fee requirement “classic price fixing and a per se antitrust violation.” The lawyer for the plaintiff, Kevin Pennell, said he plans this week to appeal the judge’s order.

Without the minimum fee, Claiborne planned to “offer competitive pricing of less than 10% of the face amount of the bond to consumers who desire to purchase a bail bond for themselves, or their loved ones charged with a designated offense and qualify for reduced payment terms,” according to court documents.

The Harris County Attorney’s Office — whose attorneys were unaware of the judge’s ruling until the order was uploaded Monday to the Harris County District Clerk’s Office — defended the Bail Bond Board against the lawsuit. The policy was prompted by a Commissioners Court resolution urging the board members to adopt rules regulating the minimum fee that a bondsman must collect to secure a defendant’s release on violent charges.

“People accused of violent crimes should not get any discounts while they await trial,” Precinct 2 Commissioner Adrian Garcia, who proposed the fee minimum to county commissioners, said in a statement. “This affects no one accused of the most minor, nonviolent offenses who would be stuck in jail because they aren’t able to pay.”

See here and here for some background. The original hearing was in the 269th Civil Court, and the second hearing was to have been on May 6. I don’t know why the change of court and I don’t know if the second hearing was delayed or if it just took that long for a ruling, but here we are. I thought the “price fixing” argument was weak and as such I’m not surprised at this outcome. I don’t see the appeals being successful, but maybe there’s some technical point of law on which they can get a rehearing. Given the speed of the appellate process, expect it to be a long time before the next update.

EPA to investigate TCEQ over concrete plant permits

Well, this ought to be interesting.

The Texas Commission on Environmental Quality is the subject of an investigation by the Environmental Protection Agency following complaints that the state agency violated civil rights laws in its permitting of concrete batch plants.

The Harris County Attorney and Lone Star Legal Aid, a nonprofit law group, alleged that the state environmental agency discriminated against racial and ethnic minorities and those with limited English proficiency through a revised permitting process to build new concrete batch plants.

Their complaints, filed with the EPA earlier this year, said TCEQ failed to provide information in Spanish and insufficiently protected communities of color who live in areas where concrete facilities are predominantly located.

The concrete plants are subject to permits that aim to limit pollution in the form of particulate matter and crystalline silica — which have been linked to respiratory diseases and cancer — but independent testing of concrete facilities by the complaint’s authors indicate that pollution levels exceed health-based limits.

Last year, TCEQ approved an amendment that included exemptions for emission limitations for concrete batch plants, in response to an application to construct a plant by a Fort Worth concrete company. Area residents had fought the company’s application, which was rejected on the grounds that it didn’t adequately study the impacts of pollutants. TCEQ later passed the amendment and approved the company’s application after what it called a “clerical error.”

The EPA’s civil rights compliance arm announced the investigation last Wednesday. The investigation will focus on whether the adoption of the amendment — and the permitting process — is discriminatory, and whether the state agency failed to seek meaningful public comment.

The Chron adds some more details.

County Attorney Christian Menefee and Lone Star lawyers alleged in separate complaints to the EPA earlier this year that the state agency discriminated against Black and Latino residents when they didn’t adequately ensure communities would be protected and didn’t appropriately seek input from people who aren’t fluent in English.

Local, state and federal leaders celebrated the EPA’s decision to look at the discrimination claims Tuesday. They saw it as a chance to win long-sought relief for people who have suffered from batch plants. Facility operators say the plants are safe and need to be close to construction sites. People near them, concerned for their health, plead for them to go far away.

“Time and again, the TCEQ has approved permits for additional plants in these very same neighborhoods, and failed to ensure that the pollution that comes out of these plants does not harm human health and the environment,” Menefee said. “We’re here today because the TCEQ failed to address these issues when it had the chance.”

[…]

Applications are frequently submitted to start up concrete batch plants in the Houston area. They elicit strong backlash from residents who often already know what it’s like to live by one. Residents in Aldine recently packed a room to tell TCEQ not to approve another new plant — only to find out that the deadline had already passed to ask the state agency to escalate the dispute to the next level.

EPA stepping in signaled a shift in that fight for residents who have little more than emotional appeals on their side, and what help they can get from frustrated government representatives.

“This is important to us,” said Huey German-Wilson, president of the Trinity and Houston Gardens Super Neighborhood, “and now we have someone to hear us loud and clear, for the small Black and brown voices in communities that have not been heard.”

Politicians at the news conference slammed the state environmental agency for valuing the needs of industry over the health of people. They said that it took President Joe Biden — a fellow Democrat — winning the White House for federal regulators to put pressure on this issue in the conservative Lone Star State. Recent bills proposed in the state legislature largely floundered.

Neighborhoods with batch plants lack deed restrictions and zoning to protect them, U.S. Rep. Sheila Jackson Lee said. And facilities are often in communities of color — not wealthy, white River Oaks — making what has been happening clear environmental racism, state Sen. Borris Miles said.

Menefee’s office asked the EPA to stop any new standard concrete batch plant permits from being issued until the investigation is finished, he said. A public meeting has been scheduled later this month for residents to weigh in on a plant that’s been proposed in Simonton, a small city west of Houston in rural Fort Bend County.

This isn’t a lawsuit, it’s an investigation. I have no context to guess how long it may take, though I’d expect that if the state doesn’t like what the EPA says we’ll get a lawsuit afterwards. Until then, we wait. Here’s a Twitter thread from Chron reporter Emily Foxhall with more quotes.

Who audits the auditors?

A novel idea. Not sure it will get anywhere, but it does send a message.

Harris County Commissioners Court, by a 3-2 partisan vote, agreed to explore legal options, including a possible lawsuit, to challenge the results of a random drawing by the Texas Secretary of State’s Office that means another round of election scrutiny for Texas’ largest county.

“It ought to be the state of Texas that is audited,” said Precinct 1 Commissioner Rodney Ellis, who proposed the lawsuit. “This place has gone back to the bad old days.”

Harris County learned last week it was one of two large counties chosen for an election audit by state officials, under new procedures lawmakers approved for election scrutiny. It is the second audit of Harris County, after another approved weeks following the 2020 general election.

[…]

Harris and Cameron counties were the two large ones chosen in a drawing from a bucket, the Secretary of State’s office announced; Eastland and Guadalupe counties were the two small counties selected.

Harris County Attorney Christian Menefee, however, questioned the authenticity of the drawing, saying the broadcast of the drawing “looks like a video out of a sketch comedy show.”

“The camera does not show the slips going into the bucket,” Menefee said, noting various aspects of the drawing that are not filmed. “They don’t even show the slips to the camera.”

See here for the background. Just as a reminder, while there have been issues in other elections in Harris County, the November 2020 election ran incredibly smoothly. And the SOS has already done an “audit” of that election, even if they never bothered to release a report on their “audit”.

My guess is that this doesn’t go anywhere, because I can’t see what grounds there are to sue. (Remember: I Am Not A Lawyer. There is an excellent chance that I am full of beans here.) One could argue that Harris County should have been exempted from this year’s drawing, as the law states that counties cannot be subjected to this audit in consecutive cycles. But the previous audit was not done under the auspices of that law, so the legal response to that would be some form of “tough luck”. Again, I don’t know what the actual attorneys who will be looking into the legal possibilities may find here, so take all this with an appropriate amount of skepticism. But if you were to bet me a dollar right now that 1) Harris County would file a suit as threatened, and 2) it would result in a temporary restraining order, I would take that bet.

If on the other hand the point of this is to denigrate the audit process, which was created in response to Big Lie mania, I’m fine with that. If the idea is to suggest that the state can’t be trusted to conduct a fair random drawing, let alone a fair audit process, that works for me. Judge Hidalgo spoke about the need to combat Big Lie hysteria, which is doing immense damage to the election process and a whole lot more, in the story. That’s a worthwhile mission. If it turns out there really is more to it than that, I’ll be happy to have been proven wrong.

The election night experience

Let me start off by saying that my heart breaks for everyone in Uvalde. I cannot begin to fathom the pain and loss they are experiencing. I don’t know when we as a society will act to protect people from gun violence, but we cannot act quickly enough. We certainly didn’t for Uvalde, or Santa Fe, or El Paso, or any of too many other places to name.

For the subject that I wanted to be thinking about yesterday, we start with this.

Harris County voters are in for a long election night, with full election results in primary runoff races not expected until well into Wednesday. The night also could be politically turbulent as a dispute plays out over one line in the state’s election code.

One reason for the expected slow count Tuesday is the Harris County Republican Party’s decision to break with the county’s ballot delivery plan, according to Harris County Elections Administrator Isabel Longoria. After closing the polls, election judges will hand off ballots to law enforcement officers and deputized county staffers, who will drive the equipment to the central counting station at NRG Arena on the judges’ behalf. The Harris County GOP argues the plan violates state law, so they are advising their party’s election judges to drive the ballots to NRG themselves. The Texas Secretary of State’s office agrees with the GOP’s assessment.

An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process. In the past, the responsibility of transporting the ballots to the counting station has fallen to these election judges, the final task at the end of their 15-hour day.

Despite the GOP’s criticism, at least 40 Republican judges are choosing to participate in the county’s plan.

The dispute seems to be more about politics than the law, Martin Renteria, a Republican election judge in Harris County, said. He has no problem trusting a law enforcement officer to deliver the ballots, especially in a primary election where a Republican candidate is going to win no matter what.

“A Republican is going to win during the primary election. It’s going to be Republican versus Republican,” Renteria said. “It’s just illogical to me, and this is a part of the story that nobody talks about.”

[…]

Under state law, ballots should be delivered by either the election judge or an election clerk designated by that judge.

At a May 11 hearing with the state House Elections Committee to address delayed election results, Longoria argued the plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

“The election code does not speak to the delivery other than the presiding judge must turn over those election records to our election office. So it doesn’t speak to who has to drive to meet the other person to do so,” Longoria said.

The Texas Secretary of State’s office has disagreed with her interpretation and urged the county to change its plan.

“Harris County’s decision to allow volunteers to transport election records — including voted ballots — to the county’s Central Count location on Election Night is incompatible with the Texas Election Code and violates well-established chain of custody protocols spelled out under Texas law,” Texas Secretary of State spokesperson Sam Taylor said in a statement on Friday.

However, Gerald Birnberg, an elections attorney and General Counsel to the Harris County Democratic Party, questioned the Secretary of State’s logic, pointing out that its own office deputizes others to perform certain duties.

“The same way that the Secretary of State is deputizing these people in his office to speak on behalf of the Secretary of State on statutory matters, to perform his statutory duties, the elections administrator is deputizing individuals to carry out duties and responsibilities and functions that are otherwise prescribed to be discharged by the elections administrator,” Birnberg said.

[…]

The Harris County Elections Administrator’s office maintains the Secretary of State’s office knew about the strategy and raised no objections when they implemented the ballot delivery plan during the May 7 election.

In a statement, Longoria said: “In April, the EA’s Office discussed the May 7 law enforcement and county driver program with the Secretary of State’s Office’s Managing Attorney of the Elections Division, specifically requesting guidance and recommendations. The SOS raised no concerns, legal or otherwise, with the program. Further, the EA’s Office discussed the plan for both May elections with both political parties as early as April 7. Both parties had the opportunity to ask questions, review the chain of custody document, and raise issues. Neither party raised concerns.

In fact, the first time any concerns were raised occurred during a public meeting May 11 at the Election Committee Hearing by the Secretary of State’s Office. One week later, just six days from election day, the Harris County Republican Party notified us that its judges would not participate in the program.”

See here for the background. Later in the day, we got this.

With voters walking into polling places and ballots set to arrive at NRG Arena in a few hours, Harris County’s Republican Party has challenged the process election officials will use to transfer ballots from locations to the central counting center, citing concerns with handing the machines over to anyone but precinct judges.

In the 18-page filing to the Texas Supreme Court around 2 p.m. on Tuesday, the local Republican party says despite assurances that election officials have it under control, state election law and past experience make them wary to hand over ballots to emissaries so they can ferry to a central location.

Cindy Siegel, chairwoman of the Harris County GOP, said officials are impeding on the democratic process.

“They are trying to make it as difficult as possible, and talking people out (of driving ballots themselves) by warning them there will be long lines,” Siegel said. “They are scaring people into creating this system that isn’t even legal.”

Lawyers for the GOP argue the county is ignoring state election laws and breaking the mandatory chain of custody for ballots.

“An essential component of the central counting station is the physical delivery of sealed ballot boxes and access to the central counting station is necessary (for) that process to take place,” the filing states.

The petition asks the high court to order Harris County to allow election judges to drive their own precinct ballots to the central counting center at NRG Park.

The request drew a fast rebuke from Democratic Party leaders and Harris County Attorney Christian D. Menefee.

“Their leadership has known about the County’s election day plans for some time, yet they waited until 6 hours before the polls close to now ask a court to throw the plans out the window and put residents’ votes at risk,” Menefee said in a statement. “And in their lawsuit, they flat out misrepresent the county’s plans to the court, making several statements that they know are demonstrably false.”

[…]

“(Longoria’s) office successfully used constables in the May 7 election, and the GOP had no problem at that time,” said Odus Evbagharu, chairman of the Harris County Democratic Party. “Now, someone wakes up on Election Day and suddenly thinks law enforcement officials and deputized election officers are an issue?”

Siegel said that is precisely why the GOP is suing.

It is the May 7 election, and widespread problems that day, that prompted the concerns in the first place. She said Republican judges only learned the day before that election that they would have to hand ballots over at polling sites, rather than drive them downtown themselves. In a handful of cases, no one came to pick up the ballots — leading the election judge to take them home — or couriers failed to drop them off in a timely manner. As a result, the county did not complete its count until Sunday morning, even though fewer than 115,000 ballots had been cast.

Again, I didn’t have a problem with the May 7 reporting. There’s clearly a difference of interpretation of the law here, and if that can’t be resolved on its own then a courtroom is the proper venue. I have a hard time believing that this couldn’t have been litigated before Tuesday afternoon, however. I started writing this post at 8 PM, and as of that time there had been no ruling from SCOTx. I don’t know when they plan on ruling, but at some point it just doesn’t matter.

UPDATE: It’s 10:30 PM, more than a third of the Tuesday votes have been counted, and I see nothing on Twitter or in my inbox to indicate that SCOTx has issued a ruling. So let’s think about this instead:

Well said. Good night.

UPDATE: Here’s a later version of the story about the GOP’s lawsuit over the results delivery process. I still don’t see any mention of a decision being handed down. And for all of the fuss, final results were posted at 1:26 AM, which seems pretty damn reasonable to me. The midnight update had about 98% of ballots counted on the Dem side and about 95% on the GOP side – 70,016 of 72,796 Dem votes and 105,486 of 116,100 GOP votes. Seriously, this was a fine performance by the Elections Office.

SCOTx ponders the questions the Fifth Circuit asked it about SB1

Seems like there’s not that much in dispute, but there’s always something.

Texas Supreme Court justices questioned during oral argument if they should answer certified questions from a federal appeals court about challenges to an election law that created penalties for soliciting voters to use mail-in ballots.

The case, Paxton v. Longoria, concerns a First-Amendment issue over how provisions in Senate Bill 1, a 2021 law, could lead to civil penalties and or criminal prosecution of county election administrators and volunteer deputy registrars.

During a Wednesday hearing before the court, the foremost issue that appeared to concern the justices was whether they should provide an advisory opinion to the U.S. Fifth Circuit Court of Appeals at all.

Since the case has progressed from federal district court to the Fifth Circuit and on to the state Supreme Court, the parties positions have changed and the justices find themselves in the unusual position of being asked to answer three questions where there is very little if any disagreement between the parties.

The Fifth Circuit asks the justice to answer whether a volunteer deputy registrar, or VDR, is a public official under the Texas Election Code; whether speech the plaintiffs intend to use constitutes “solicitation” within the context of the state code; and whether the Texas Attorney General has the power to enforce that code.

The plaintiffs are Harris County Elections Administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who assists people with mail-in ballots in Travis and Williamson counties.

The state, represented by Lanora Pettit, a principal deputy solicitor general with the Office of Attorney General, acknowledged in her brief that volunteer deputy registrars are not public officials subject to prosecution; the term “solicit” does not include merely providing information but instead requires “strongly urging” a voter to fill out an application that was not requested; and the Attorney General is not a proper official to seek civil penalties.

Sean Morales-Doyle of the Brennan Center for Justice at New York University School of Law submitted a brief that was in line with Pettit on the first and third questions, but had a nuanced distinction on the question of solicitation’s meaning.

Justice Jeff Boyd asked Morales-Doyle, “I’m just not sure why the dispute matters. If everybody agrees that the VDR is not a public official, so therefore has no standing, everybody agrees that Ms. Longoria has not … indicated any intent to violate in Williamson County, and everybody agrees the attorney general has no enforcement authority , where’s the case or controversy?”

Morales-Doyle said that Morgan began the case with a reasonable fear of prosecution and while the state has indicated a disinclination to prosecute she does not know the position of the Travis County district attorney, nor what future district attorneys would do.

If the questions are not answered, she would therefore still need to have the temporary injunction in place, he said.

On defining solicitation, because a felony criminal prosecution is possible, Justice Jane Bland asked if the state should limit its meaning to the penal code’s definition, which would restrict the term to situations where a public official induces someone to commit a criminal act.

Morales-Doyle supported that approach, noting that every criminal solicitation statute that he is aware of applies only to solicitation of criminal conduct.

“What is troubling everybody—and apparently troubling the attorney general who wants to give a definition of solicitation that I’m not aware existing in any criminal code—is the absurd result that someone could be held criminally liable for encouraging their fellow citizen to vote,” Morales-Doyle said.

On rebuttal, Pettit argued that sanctionable solicitation is not limited to criminal inducement. She cited the example of barratry, where lawyers unlawfully solicit clients for profit.

See here for the background. The bottom line is that the plaintiffs have asked for a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The motion was granted by a district court judge and then put on hold by the Fifth Circuit. I think the Fifth Circuit is evaluating whether to put the injunction back in place while the rest of the initial lawsuit is litigated, but we are in the weeds here and I don’t have certainty about that. Let’s see what SCOTx says first and maybe that will clue me in. (Any lawyers out there that want to help, by all means please do.)

New bail bond rules survive initial court challenge

There are a couple of stories all rolled into this, so my apologies for any confusion.

A ruling by a Harris County judge Friday will allow a recently-approved policy requiring bail bond agents to charge some defendants a 10 percent minimum to start Saturday after a last-minute lawsuit tried to stop it from happening.

Court records filed Friday showed a bail bondsman sued Harris County as an attempt to stop the new rule, which would require agents like her to charge defendants jailed on violent offenses a 10 percent minimum to secure their freedom after an arrest. But in court over Zoom late Friday afternoon, Judge Cory Don Sepolio rejected a temporary restraining order request, allowing the rule to take effect.

“The Bail Bond Board adopted this rule after hearing directly from the families of victims of violent crimes, community organizers, and law enforcement. Their decision was supported by Harris County Commissioners Court and leaders of both political parties,” a statement from Harris County Attorney Christian Menefee read. “I’m pleased with the court’s decision today to reject the request for a temporary restraining order that would have blocked this rule from being implemented.”

Regarding the temporary restraining order request getting rejected, Kevin Pennell — the plaintiff’s lawyer — said in an email Friday he had no comment.

The lawsuit follows the approval by the Harris County Bail Bond Board to require bondsmen to take in 10 percent or more of the surety bond minimum — set by a judge or magistrate — to make it more difficult for violent offenders to leave jail and go on to commit more crime. The proposed rule stemmed from concerns that defendants were being released on bail fees lower than the 10 percent and then being forced into payment plans.

[…]

The bail board, as the lawsuit points out, is designed to oversee the bonding business in Harris County. Up until March, the board primarily approved and renewed bail bondsman licenses. The Harris County Attorney’s Office determined that the board can do more than that and Commissioners Court passed a resolution urging its members to adopt rules regulating the minimum that a bondsman must collect to secure a defendant’s release from jail.

The board passed the rule April 13 after a failed vote the month prior.

I didn’t write about the initial failure of the board to pass a rule requiring that bail bond companies must charge a minimum of ten percent of whatever bail had been set. Bail band companies had been lowering that percentage from what had once been seen as a de facto standard of ten percent because of the misdemeanor bail reform. With fewer people needing bail bonds because fewer people were being assessed bail, bail bond companies saw their revenues decline and so they looked for new customers by lowering their fees so as to entice those who were still being required to pay bail but couldn’t afford their fees. It’s a complicated story. The Harris County Bail Bond Board, on its second attempt, passed a rule that made the ten percent minimum a requirement, and in response a bail bond company owner filed a lawsuit to stop it.

All About Bail Bonds owner Sunya Claiborne, plaintiff in the lawsuit, contends that her business is at stake because the minimum charge requirement is “classic price fixing and a per se antitrust violation without any grant of state authority to displace competition,” according to court documents. The county and Claiborne’s lawyers are expected later on Friday to debate whether a temporary restraining order and injunction should be granted.

“She reasonably fears that, unless she complies with these unlawful rules, her license will be suspended or revoked,” the lawsuit reads. “But if she does comply with them, she will be participating in an illegal price fixing scheme and violating her customers’ privacy rights.”

[…]

The new rule is at odds with how Claiborne, whose license the board renewed ahead of the most-recent vote, plans to conduct her business, according to the court documents.

“She intends to offer competitive pricing of less than 10% of the face amount of the bond to consumers who desire to purchase a bail bond for themselves, or their loved ones charged with a designated offense and qualify for reduced payment terms,” the lawsuit continued.

As a bail agent for the corporate surety Allegheny Casualty Co., she also worries that the new rule will put her at odds with the insurance company — which she fears could violate customer privacy. Part of the new rule requires that bail bondsmen have to report the premium amount collected ahead of the defendant’s release. The bondsmen would also have to report how the premium was paid and who paid it.

Premiums are, in some cases, documented in the public record. Affidavits of surety to surrender principal often list the premium and are filed by bail agents as an attempt to cut ties with a defendant’s bond, usually after a new charge. In filing the form, bail agents ask deputies to take the defendant into custody, while they keep the defendant’s bail deposit and stop being responsible for the person in the eyes of the court.

I’m pretty sure this is not what antitrust law was intended for, but what do I know? The initial request for a temporary restraining order was denied on Friday, and there will be a hearing for a temporary injunction on May 6. I don’t expect that to be any more successful, but we’ll see.

State wants feds to un-pause I-45

We all want things.

State highway officials held fast to their plans for rebuilding Interstate 45 in Houston on Thursday, offering a litany of benefits the project will bring and pressing federal officials to lift a 12-month-and-counting pause on development.

Members of the Texas Transportation Commission, however, stopped short of imposing a deadline or considering shelving the project, as they have in the past when removing the $9 billion plan from the state’s short-range plan was a possibility.

Instead, commissioners complained Thursday that the lack of progress is having undue effects on their ability to remedy what almost everyone in Houston agrees is an outdated, congested, dangerous freeway corridor.

“We have had their lives in limbo for a year,” Commissioner Laura Ryan said of Houston-area drivers.

[…]

Opponents argue the project’s design further divides communities it crosses, exacerbating decades of freeway expansion that has worsened air quality and safe street access for those neighborhoods in order to deliver faster car and truck trips for suburban commuters.

Those against the project often note it will result in the demolition of more than 1,000 residences, nearly 350 businesses and a handful of schools and churches.

While remaining supportive of parts of the project, Houston Mayor Sylvester Turner and city staff have suggested several changes to the project to eliminate some frontage road lanes, re-stitch neighborhoods divided by the freeway with better bike and pedestrian access, and increase commitments to community housing and flood control.

Turner sent a proposed agreement, in the form of a memorandum of understanding, to Bugg last August.

TxDOT officials and supporters of the project, however, counter that benefits are built into the project that will mitigate the losses and leave many communities better off.

In Independence Heights, the first city incorporated by Black residents in Texas, the project proposes drainage improvements to alleviate persistent flooding in the area. That, coupled with $27 million in affordable housing assistance TxDOT must provide to make up for lost apartments and homes, will allow many residents to stay in the area despite risk of gentrification, said Tanya DeBose, executive director of the Independence Heights Redevelopment Council, in a video about the project produced by TxDOT.

As the project has lingered, and faced opposition, some have argued it is forcing TxDOT to take a harder line, jeopardizing some of the gains. That has led some community leaders, such as activist and urban planner Abdul Muhammad, to urge federal officials and local opponents to work to find solutions and not reasons to stop the project.

“Somebody has to be in the kitchen, or else we’re all on the menu,” he said during a Dec. 8 panel discussion with federal highway officials and local opponents.

Just to review the timeline a bit, the federal order to halt I-45 construction did indeed come one year ago, a couple of weeks after Harris County sued TxDOT over many of the previously expressed concerns about the project. (That lawsuit is now on hold as negotiations continue.) The feds later asked TxDOT to pause other work on the project as well. The Texas Transportation Commission kept I-45 in its funding plans a few months ago, and some design work was allowed to continue, but now there’s another federal complaint filed against the project by various opponents. I don’t see a quick path to a resolution here.

What would I like to see happen at this point? I’d like to see enough of the concerns raised by the plan opponents be addressed in a way that they’re willing to let the project move forward. I’d like to see a whole lot more money spent on non-highway expansion – transit, sidewalks and bike trails, flood mitigation, that sort of thing – and a whole lot more effort and resources put into designing and building urban and suburban environments where people can live closer to where the work and shop and eat and go to school so that highway driving is less necessary. I really don’t think that’s too much to ask.

Fifth Circuit asks SCOTx for help on some SB1 issues

The Twitter summary:

To recap the history here, back in September a group of plaintiffs including Isabel Longoria filed one of many lawsuits against SB1, the voter suppression law from the special sessions. In December, a motion was filed to get a temporary injunction against the provision of that law that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. A federal district judge granted the motion, which would have applied to the primaries, and I’m willing to bet would have helped ease the confusion that led to all of those rejected mail ballots, but the Fifth Circuit, as is their wont, put a hold on the injunction.

It’s not clear to me where things are procedurally with this litigation – and remember, there are a bunch of other cases as well – but in this matter the Fifth Circuit wanted to get some clarity on state law before doing whatever it has on its docket to do. Let me just show you what that second linked file says:

The case underlying these certified questions is a pre-enforcement challenge to two recently enacted provisions of the Texas Election Code: section 276.016(a) (the anti-solicitation provision) and section 31.129 (the civil-liability provision) as applied to the anti-solicitation provision. The anti-solicitation provision makes it unlawful for a “public official or election official” while “acting in an official capacity” to “knowingly . . . solicit[] the submission of an application to vote by mail from a person who did not request an application.” The civil-liability provision creates a civil penalty for an election official who is employed by or an office of the state and who violates a provision of the election code.

Isabel Longoria, the Harris County Elections Administrator, and Cathy Morgan, a Volunteer Deputy Registrar serving in Williams and Travis counties, sued the Texas Attorney General, Ken Paxton, to enjoin enforcement of the civil liability provision, as applied to the anti-solicitation provision. And in response to the recent Court of Criminal Appeals case holding that the Texas Attorney General has no independent authority to prosecute criminal offenses created in the Election Code, they also sued the Harris, Travis, and Williamson County district attorneys to challenge the criminal penalties imposed by the anti-solicitation provision. The plaintiffs argue that the provisions violate the First and Fourteenth Amendments because the risk of criminal and civil liability chills speech that “encourage[s] voters to lawfully vote by mail.

After an evidentiary hearing, the district court granted the plaintiffs’ motion for a preliminary injunction, enjoining the defendants from enforcing and prosecuting under the provisions. Paxton and one of the district attorneys (Shawn Dick of Williamson County) appealed. Because the Harris and Travis County district attorneys did not appeal, only Longoria’s challenge to the civil penalty permitted by the civil-liability provision and the Volunteer Deputy Registrar’s challenge to the criminal liability imposed under the anti-solicitation provision were at issue in the appeal.

On its own motion, the U.S. Court of Appeals for the Fifth Circuit has certified the following questions to the Court:

(1) Whether Volunteer Deputy Registrars are “public officials” under the Texas Election Code;

(2) Whether the speech Plaintiffs allege that they intend to engage in constitutes “solicitation” within the context of Texas Election Code § 276.016(a)(1). For example, is the definition narrowly limited to seeking application for violative mail-in ballots? Is it limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies) or does it broadly cover the kinds of comments Plaintiffs stated that they wish to make: telling those who are elderly or disabled, for example, that they have the opportunity to apply for mail-in ballots?; and

(3) Whether the Texas Attorney General is a proper official to enforce Texas Election Code § 31.129.

The Court accepted the certified questions and set oral argument for May 11, 2022.

You now know everything I know. Let’s see what happens in May.

Some DAs refuse to enforce Abbott’s anti-trans order

More like this, please.

District attorneys in five of the largest counties in Texas on Thursday announced that they will not comply with Gov. Greg Abbott’s (R) and state attorney general Ken Paxton’s (R) directive that state agencies begin investigating gender-affirming medical care for transgender youths.

The district attorneys of Dallas, Travis, Bexar, Nueces and Fort Bend counties condemned the directive in a statement issued Thursday. The group, which is comprised of five Democratic district attorneys, slammed Abbott and Paxton’s characterization of gender-affirming care for minors as “child abuse.” They declared Abbott and Paxton’s recent rhetoric is an “onslaught on personal freedoms” that is on its face “un-American.”

“We also want to be clear: we will enforce the Constitution and will not irrationally and unjustifiably interfere with medical decisions made between children, their parents, and their medical physicians,” the district attorneys wrote. “We trust the judgment of our state’s medical professionals, who dedicate themselves to providing the highest degree of care not only for our transgender youth, but for all youth in our communities.”

The group of district attorneys also assured parents that they are “safe” to continue seeking gender-affirming care for their children.

“We will not allow the Governor and Attorney General to disregard Texan children’s lives in order to score political points,” they wrote.

See here for the background. A copy of the DAs’ letter is embedded in the story. Harris County Attorney Christian Menefee has issued a similar statement, but his is a civil law office, not a criminal law office. I’d very much like to know where Harris County DA Kim Ogg – and every other Democratic DA in this state – is on this. As others have noted, AG opinions are non-binding, and it’s not at all clear that Abbott’s order is enforceable – remember how he himself admitted that his no-mask-mandate executive order could not be enforced? This is entirely discretionary, so take a stand. Someone in power needs to be standing up for these kids and their families.

Abbott and Paxton step up their attack on trans kids

Brutal.

The state’s child welfare agency says it will begin investigating instances of transgender youth receiving gender-affirming health care as possible child abuse, after direction from Gov. Greg Abbott based on a recent legal opinion issued by Attorney General Ken Paxton.

Paxton, in a non-binding opinion issued Monday, concluded that sex “reassignment surgery,” as well as hormonal medications, fall under the state’s broad definition of child abuse that includes “mental or emotional injury” as well as physical injury.

“Children and adolescents are promised relief and asked to ‘consent’ to life-altering, irreversible treatment—and to do so in the midst of reported psychological distress, when they cannot weigh long-term risks the way adults do, and when they are considered by the state in most regards to be without legal capacity to consent, contract, vote, or otherwise,” Paxton wrote in the opinion.

The immediate ramifications were unclear Tuesday, as the office’s opinions are not law but rather interpretations of law. The Texas Department of Family Protective Services has said previously that it would deem some types of transgender health care as potential child abuse, but a spokesman said Tuesday that there are no pending cases.

The opinion runs contrary to the recommendations of the largest professional medical organizations’ in the state and nation. If it were to be adopted statewide, it would make Texas one of the most restrictive states in the nation for transgender youth seeking medical treatment.

Despite Paxton’s focus on surgery, that medical option is not recommended for patients who are under their country’s legal age of maturity, which is 18 in the United States, and who have not “lived continuously for at least 12 months in the gender role that is congruent with their gender identity,” according to the World Professional Association for Transgender Health, or WPATH, which advises doctors on best practices.

DFPS said Tuesday its Child Protective Investigations unit would look into any future allegations.

[…]

Already there are signs that the policy will be challenged.

Harris County Attorney Christian D. Menefee, whose office represents the state in civil child abuse cases in the county, said Tuesday that his office will not adhere to guidance from Paxton and Abbott, saying they are “ignoring medical professionals and intentionally misrepresenting the law to the detriment of transgender children and their families.”

“My office will not participate in these bad faith political games,” Menefee said. “As the lawyers handling these cases, we owe a duty of candor to the courts about what the law really says. We’ll continue to follow the laws on the books — not General Paxton’s politically motivated and legally incorrect ‘opinion.’”

Just a reminder, this is happening in a state whose foster care system is so deeply fucked up that a federal judge, who has been hearing litigation over this for literally a decade, has accused that same DFPS of not being able to keep track of where the kids supposedly in its care are. The cruelty, the shameful pandering to slavering primary voters, the ongoing trauma being inflicted on children and their parents who have done nothing wrong, it’s so infuriating I can barely see. I wish I had something more constructive to say than we have to keep fighting, but I don’t. Slate has more.

Of course the Fifth Circuit put a hold on the SB1 injunction

There is nothing more reliable in this world than the Fifth Circuit giving Republicans everything they ask for.

The 5th U.S. Circuit Court of Appeals has put a temporary hold on a preliminary injunction that had blocked enforcement of a rule that keeps local election officials from encouraging voters to request mail-in ballots, according to Harris County officials.

U.S. District Judge Xavier Rodriguez last week halted enforcement of a provision of Senate Bill 1 that made it a crime for election officials to solicit mail-in ballots. The judge said the law likely violates the First Amendment.

[…]

Harris County Attorney Christian D. Menefee on Thursday expressed disappointment in the decision by the 5th Circuit, which has blocked a number of court challenges to conservative policies.

“I am disappointed that the Fifth Circuit has undone the preliminary injunction that protected Administrator (Isabel) Longoria’s First Amendment rights,” Menefee said in a written statement. “As the district court already determined, this law is unconstitutional and prevents election officials from encouraging people to vote by mail, including our seniors, our neighbors with disabilities, and our active-duty service members. One thing that’s clear from the high number of mail-in ballot applications being rejected is that our election officials should be empowered to explain the process and encourage folks to apply to vote by mail if eligible. Today’s decision allows the threat of criminal prosecution to loom over election officials trying to help voters.”

See here and here for the background. This court is a sham and a disgrace, and the only way forward is to pack it with judges that will actually apply the law. Don’t ask me when that is likely to happen.

Because I have nothing better to say, here are a couple of tweets from Harris County Attorney Christian Menefee:

Good luck with that. I wish I felt more optimistic, but it’s not like the Fifth Circuit will care.

Injunction granted in lawsuit over criminal penalties for election officials who encourage voting by mail

That’s a somewhat complicated headline for this.

A new Texas law that keeps local election officials from encouraging voters to request mail-in ballots likely violates the First Amendment, a federal judge ruled late Friday.

Following a testy three-hour hearing earlier in the day, Federal District Judge Xavier Rodriguez temporarily blocked the state from enforcing the rule against Harris County’s election administrator until the rest of a lawsuit plays out. Although the scope of Rodriguez’s preliminary injunction is limited, the judge dealt the first legal blow to new elections restrictions and voting changes Republican lawmakers enacted last year.

The injunction applies to Texas Attorney General Ken Paxton and local county prosecutors in Harris, Travis and Williamson counties.

The state is expected to quickly appeal the ruling. The lawsuit was brought by Harris County election administrator Isabel Longoria and Cathy Morgan, a volunteer deputy registrar who is appointed to help register voters in Travis and Williamson counties.

Feb. 18 is the last day for counties to receive applications for mail-in ballots for the March 1 primary.

Rodriguez previewed his order throughout a Friday morning hearing during which he repeatedly pressed the state’s attorneys — with increasing exasperation — to fill in what he cataloged as ambiguities in the new law. The challenged provision makes it a state jail felony for election officials to “solicit the submission” of an application to vote by mail if the voter did not request it.

Rodriguez took particular issue with the lack of a clear definition for what constitutes soliciting when talking to voters, even those 65 and older who automatically qualify to vote by mail under the state’s strict rules.

“It has a chilling effect,” Rodriguez said while questioning a state attorney Friday morning. “They don’t know when they’re going to run afoul of this vague [law].”

His comments followed testimony from Longoria and Morgan, who said they feared the civil and criminal penalties that could come from violating the broad prohibition.

Longoria said her office was now taking a “passive” approach to voter outreach in regard to voting by mail, with staffers “gingerly” weighing their words while answering voters’ questions about their options.

“When it comes to voting by mail, I have to be very careful with my words,” Longoria said from the witness stand. “I stop mid-sentence sometimes at town halls. … I’m tentative to overreach at the moment.”

Morgan testified that she was concerned the law applied even to volunteers like her, given that her role is formally certified by county election offices. She offered examples of voters she no longer felt she could help navigate the vote-by-mail process. That included an 88-year-old voter whom Morgan would typically call at the start of every year to remind her that she has to reapply for mail-in ballots.

State attorneys said that the law did not apply to volunteers like Morgan and argued the government can prohibit interactions between local election officials and voters without running afoul of the First Amendment.

[…]

And even the state’s witness — Keith Ingram, the Texas secretary of state’s director of elections — indicated the threat of prosecution loomed over election officials. While Ingram was on the stand, Rodriguez presented him with hypothetical interactions between Longoria and voters, asking if she could recommend voting by mail to someone who appeared to qualify.

“I would be very careful about that,” Ingram responded. “You wouldn’t want to recommend” voting by mail as an option “because you’d be worried about prosecution,” he said.

Throughout the hearing, Rodriguez also pressed for the reasoning behind the anti-solicitation provision, interrupting the state’s questioning of Ingram in search of an answer. Ingram said he didn’t know the purpose of the provision.

Eventually, Will Thompson of the Texas attorney general’s office told Rodriguez that the provision was meant to limit “official encouragement” of voting by mail, indicating the state preferred people vote in person even if they qualify to vote by mail.

“We’re not taking the position that the Legislature is opposed to voting by mail,” Thompson said. “That doesn’t mean the Legislature wants resources to be used toward nudging people toward voting by mail.”

See here for the background, and here for a copy of the ruling. The Statesman has a couple of key bits from the ruling:

In his order, Rodriguez rejected Paxton’s argument that the solicitation ban targets government speech, which isn’t protected by the First Amendment because the state is allowed to regulate how public employees perform official duties.

But, the judge noted, Longoria and Morgan do not work for the state. Longoria is employed by Harris County, and Morgan is a volunteer registrar.

Rodriguez also rejected Paxton’s claim that granting the injunction would interfere with the orderly operation of Texas elections. The judge said his order does not affect any voting procedures, change the vote-by-mail process or affect voting deadlines or eligibility.

“Nor does it require that election officials start soliciting applications to vote by mail — it simply prevents the imposition of criminal and civil penalties against officials for encouraging people to vote by mail if they are eligible to do so,” Rodriguez wrote.

None of that will stop the Fifth Circuit from doing what the Republicans ask them to do since that’s what they believe their job is, but at least he tried. For anyone who thinks that it’s hysterical to imagine Longoria or Morgan being prosecuted for these actions, Rob Icsezen and Dana DeBeauvoir would like to have a word with you.

Reporter Edward McKinley and plaintiffs’ attorney Sean Morales-Doyle have good Twitter threads with more details, so go check them out. The main argument was that this provision of SB1 criminalizes speech on the basis of its content and the viewpoint expressed, since Longoria could talk all day about not voting by mail but risked arrest if she said the opposite. This is a preliminary injunction, and whether it survives the Fifth Circuit or not there will be a trial on the merits later this year, and you can bank on it going all the way to SCOTUS. The Supreme Court is occasionally solicitous of the First Amendment, if it approves of the speech in question, so who knows what they might do. In the meantime, we have a small victory, for now, against SB1. There will be a lot more litigation over the rest of that law to come. The Chron has more.

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Preliminary injunction sought against mail ballot restrictions

Of interest.

Today in U.S. District Court for the Western District of Texas, the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges, and the Harris County Attorney’s Office moved for a preliminary injunction in Longoria v. Paxton, their challenge to the provision in Texas’s restrictive voting law (S.B. 1) that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The Brennan Center, Weil, and the Harris County Attorney’s Office are seeking the injunction on behalf of Isabel Longoria, the Election Administrator for Harris County, Texas; and the Brennan Center and Weil are also representing Cathy Morgan, a volunteer election worker in Texas.

The motion filed today requests a preliminary injunction against the S.B. 1 provision no later than February 14, 2022. Texas has a primary election on March 1, 2022. To vote by mail in the primary, Texas voters must request mail ballot applications between January 1, 2022, and February 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” said Isabel Longoria, Harris County Election Administrator. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy –an option they have under Texas law.”

Under S.B. 1, Longoria, Morgan, and other election officials and election workers across Texas can be imprisoned for a minimum of six months and fined up to $10,000 if they encourage a voter to apply for a mail ballot application. As the motion filed today argues, this provision violates the First Amendment and undermines election officials’ and election workers’ ability to perform their duties.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” said Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the Governor have made it a crime to do so.”

Texas law allows voting by mail in certain circumstances, including when a voter is 65 years old or older, sick, or disabled, out of the country on election day, or confined in jail.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” said Christian Menefee, the County Attorney for Harris County, Texas. “This anti-solicitation provision of SB 1 not only makes it harder for these folks vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections Administrator and violates the First Amendment.”

“S.B. 1 makes it a crime for public officials or election officials to encourage voters to request a mail ballot application, even if the person would be eligible to vote by mail. By contrast, under Texas law, it is not a crime for a public official or election official to discourage eligible voters to vote by mail,” said Liz Ryan, partner at Weil, Gotshal & Manges. “There is no valid justification for such a one-sided restriction on speech.”

S.B. 1 went into effect on December 2, 2021. It is an omnibus law, containing the provision challenged in Longoria v. Paxton as well as restrictions on other aspects of voting and elections. The law has drawn multiple lawsuits in addition to Longoria v. Paxton. The Department of Justice has challenged S.B. 1 and, many other entities, including the Brennan Center (in LUPE v. Abbott), have also filed suit against various parts of the law.

The motion for a preliminary injunction in Longoria v. Paxton is here.

The complaint, and more background on Longoria v Paxton, is here.

The first lawsuits filed against SB1 were filed in September, with Isabel Longoria a plaintiff in a complaint filed by MALDEF on behalf of a large group. The Justice Department lawsuit was filed in November, and there were three others filed in between. This one was filed on December 10, and if there was any news coverage of it I am not able to find it. The amended complaint was filed on Monday, December 27. It’s the motion for preliminary injunction, filed on Tuesday the 28th, for which I received a press release from the Harris County Attorney’s office, which in turn led me to find the linked article from the Brennan Center (and this Twitter thread), that is trying to make something happen more quickly.

My read on this – I’ve sent some questions to the Harris County Attorney’s office to get clarification – is that Elections Admin Longoria would like a ruling from the court to settle the question of what exactly she is and is not allowed to do, given that as things stand right now saying the wrong thing could get her arrested. We have the primaries coming up real soon, which means mail ballots are going to be getting requested, and people will have questions about them. Raising this as a First Amendment issue makes sense to me, and maybe it will make sense to the courts as well. Hopefully, we’ll find out soon.

UPDATE: Later in the day I found this Statesman story, which added a few details.

The ban on sending unsolicited mail-voting applications was one of many provisions contained in Senate Bill 1, the sweeping GOP voting law that was passed Sept. 1 during the Legislature’s second special session.

Several other provisions of SB 1 have been challenged in a half-dozen lawsuits by civil rights groups and the Biden administration’s Justice Department, including bans on 24-hour and drive-thru voting, ID requirements for mail-in ballots and protections for partisan poll watchers.

Those challenges are awaiting a summer trial.

Longoria and Morgan, however, told U.S. District Judge Fred Biery of San Antonio that waiting until summer is not an option for a prohibition that will handcuff them in the weeks leading up to the March 1 Texas primaries.

“Longoria has planned to engage in speeches and hold voter-outreach events but has been unable to do so for fear of criminal prosecution and civil penalties,” said Tuesday’s filing, adding that Longoria also halted plans to promote mail-in voting with fliers and on social media.

Similarly, Morgan argued in the filing that her work as a voter registrar — particularly around the University of Texas in Austin — will be hampered if she “can no longer proactively suggest that eligible but unaware voters request an application to vote by mail … as she has in the past.”

They asked Biery to rule no later than Feb. 14, noting that to cast a mail-in ballot in the primaries, voters must fill out and return an application between Jan. 1 and Feb. 18.

Texas Attorney General Ken Paxton has not yet filed a response to the lawsuit, though his office opposes the request for an injunction and will respond to that in the future, as well.

So there you have it. My guess is that the state’s response will be some combination of “you can’t sue us” and “neener neener neener”, secure in the belief that the Fifth Circuit will undo anything Judge Biery does. I will of course keep an eye on it.

Some I-45 work to resume

Just some design work, for now.

Federal officials have lifted their pause on a small piece of the planned Interstate 45 mega-project that will remake downtown Houston’s freeway system and has divided state transportation planners, community groups and local politicians.

Giving the go-ahead to two parts of the $10 billion-plus project — work along Interstate 69 and at Texas 288 to rebuild where the three freeways converge near Third Ward — staves off the possibility of state officials removing all of the project’s funding from Texas’ 10-year highway plan and provides a glimmer of hope that officials locally, in Austin and Washington can find some common ground.

“Things are moving in what seems to be a positive direction,” said J. Bruce Bugg, chairman of the Texas Transportation Commission.

[…]

After weeks of meetings between state and federal highway officials, the Texas Department of Transportation can proceed with “detailed design work” of the southernmost stretches of the project, portions of the downtown redesign called Segment 3, removing them from the development pause put in place by federal highway officials in June. In a Nov. 29 letter from FHWA Chief Counsel Andrew Rogers, federal officials said recent discussions represent “a good start” but set parameters for any design work to proceed.

Specifically, Rogers said FHWA “is not prepared at this time to allow TxDOT to resume any right-of-way acquisition in Segment 3.” TxDOT, he added, could acquire properties from owners who approach it on a case-by-case basis “rather than relying on eminent domain.”

See here and here for some background; the story also references the lawsuit filed by Harris County that has been temporarily paused to allow the discussion that led to this agreement. It seems like the intent was to keep I-45 on the TxDOT project list for at least a little longer, to see if an agreement among all the parties can be reached. I don’t know how likely that is, but it never hurts to talk.

Though there is concern about the project’s impacts in Midtown, Third Ward and Eado, the most vocal opposition to the project emanates from north of downtown where TxDOT proposes to add two managed lanes in each direction to I-45. That widening, which requires the destruction of hundreds of homes and businesses adjacent to the freeway, has drawn scorn and accusations that highway officials are perpetuating decades of carving freeways through low-income and minority communities to the detriment of those neighborhoods.

“Wider highways are not an appropriate or effective intervention to expand commerce opportunities, and they do not expand opportunities for those bearing the greatest burdens of the expansion,” more than 15 groups wrote in a letter to Transportation Secretary Pete Buttigieg, released Tuesday. “Highway construction and expansion interrupt lives, displace people from their homes and businesses, and decimate generational wealth, especially in communities of color.”

The letter, a response to a letter sent by seven Houston-area Congressman urging Buttigieg to not impede the project, was drafted by Stop TxDOT I-45, which formed to oppose the project, along with Air Alliance Houston and 14 environmental, community or left-leaning groups.

See here for more on that, and here for the response letter, which also observes that the people who want to get the I-45 project going don’t represent those who will be affected by it. I doubt there’s an agreement that satisfies everyone, but there are definitely options that do a better job of minimizing harm and promoting equity. That’s what we need to aim for.

Harris County to pause the I-45 lawsuit

Gonna give talking a try. You never know.

Harris County will pause its lawsuit against the Texas Department of Transportation over the proposed Interstate 45 widening in hopes that it leads to a consensus that has eluded them for more than four years.

The pause, approved unanimously by Commissioners Court at a special meeting Monday, instructs County Attorney Christian Menefee to seek a stay on the lawsuit in federal court as he negotiates with TxDOT to resolve differences between the changes the county seeks to the project and the current plan.

The project, estimated to cost at least $9 billion, would rebuild and widen I-45 from downtown Houston north to Beltway 8, including the freeway’s interchanges with Interstate 69, Interstate 10 and Loop 610 in Independence Heights.

The stay and pause, officials said, would give an opening to officials to work out details of the planned freeway widening without backing off their opposition to what TxDOT is proposing.

“I am willing to consider a pause,” Precinct 2 Commissioner Adrian Garcia said. “Not a dismissal, but I hope that will demonstrate our commitment.”

Menefee said he will ask the court for a stay of 30 days, and then potentially extend that for an additional 30 days if the discussions are “fruitful.”

“The pause is a show of good faith by the county to remind TxDOT that we’re in this to find solutions and address community concerns,” Menefee said in a statement. “We expect TxDOT to work alongside us to achieve the same. If that does not happen, the county will resume the suit and we’ll let the courts decide.”

[…]

Skepticism remains high among project opponents that TxDOT can be a willing participant. Jeff Peters, a member of the Stop TxDOT I-45, said backers consistently have bullied people into accepting their design with the threat of doing nothing if they do not get their way. He urged the county to proceed with the lawsuit, rather than relent.

“This is a critical piece of leverage that can bring TxDOT to the bargaining table,” Peters told Commissioners Court before it approved the pause.

Highway officials, however, have said since March that the federal review and lawsuit leave them no choice but to stop talking. At an Oct. 21 forum sponsored by Transportation Advocacy Group-Houston Chapter, Texas Transportation Commissioner Laura Ryan said the pause by the Federal Highway Administration and county lawsuit were more of an obstacle to open dialogue because they impede TxDOT from designing alternatives.

“We can’t spend money to design and we can’t spend money to do those things,” Ryan said at the forum, which drew criticism because it was for paying guests only at an event sponsored by various engineering, construction and planning firms.

See here for the background. As noted recently, there are other obstacles to the project, though perhaps if Harris County and TxDOT can settle their differences, those can be handled as well. I’m fine with this approach – if there’s a path to meeting the needs of the many people and groups that have been objecting to the design of this project, then sure, let’s go for it – but I wouldn’t get my hopes up too much. There’s already been a lot of time for talk, and I don’t know how much latitude TxDOT has to give. There’s some risk here for Harris County as well, as the opponents of this project aren’t likely to be happy with half a loaf. But hey, lawsuits are time- and resource-intensive, and they often end in settlements anyway, so why not give this a try. You never know.

More on the Abbott max anti-vaxx order

Businesses will face a choice that they would rather not have to face.

Companies doing business in Texas face new and complicated challenges after Gov. Greg Abbott this week banned COVID-19 vaccine mandates for all entities in the state — including private businesses — for employees or customers.

The ramifications for businesses could begin as soon as Friday, when companies that enter into contract work with the federal government will be required to have all employees vaccinated under orders from the White House.

This conflicts with Abbott’s ban on vaccine mandates, putting the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

[…]

“This harms Texans directly,” Karen Vladeck, an employment lawyer in Austin, said of the new order from Abbott. “I just think it wasn’t well thought out.”

Abbott’s office did not reply to a request for comment.

On top of prohibiting any entity in Texas from requiring vaccinations, Abbott’s order also lists several expanded exemptions. Vladeck and other employment lawyers said that this adds to the vaccine dilemma facing businesses in Texas. Under Abbott’s new rule, people may opt out of a vaccine requirement for medical reasons, including if they prove they have had COVID-19 in the past, despite scientists widely agreeing that this does not protect people against contracting the virus.

“The executive order’s medical reason language is a bit strange because usually you exempt people for medical reasons if they have a severe allergic reaction to a vaccine,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. Abbott’s order is “meant to cover people who don’t want to get the vaccine because they believe, quite wrongly, that they’re completely protected by already having COVID.”

Abbott’s rule also allows people to opt out of a vaccine requirement if they prove they hold a deep personal belief against getting jabbed.

Any entity that fails to comply with Abbott’s rule could receive up to a $1,000 fine.

Abbott’s Monday order is a reversal from his position in August, when the Pfizer vaccine received final approval from the U.S. Food and Drug Administration. At the time, Abbott’s spokesperson said that businesses had the option of mandating vaccination for employees and “private businesses don’t need government running their business.”

“It’s all about company choice in Texas, except now it’s come to something that they don’t like what the companies are choosing,” Vladeck said. “It puts a big burden on employers.”

See here for the background. So far, businesses that are also federal contractors, including airlines and companies like IBM, will ignore Abbott’s order, while others are awaiting the OSHA rules before making a decision. Multiple business groups, the same organizations that often turn to the state for a legislative solution to local ordinances they don’t like, harshly criticized Abbott’s order for making their lives more difficult. Harris County Attorney Christian Menefee released a statement encouraging businesses that want to be able to get their employees vaccinated to file a lawsuit against Abbott over the order. And in the end, even wingnut talk radio hosts weren’t impressed by Abbott’s order. It’s almost as if he were a weak, gutless leader.

A little sandbagging from the SOS on the fraudit

Who’s running this show?

In the five days since the Texas secretary of state’s office announced it is auditing the 2020 general election in four counties, local officials indicated they were in the dark about what the reviews would entail.

Now, they’ve learned they cover some of the standard post-election procedures local officials are already required to undertake.

On Tuesday night, the state agency that oversees elections offered the first glimpse of what it has dubbed a “full forensic audit” of the election in Harris, Dallas, Tarrant and Collin counties, but it appears the scope of the effort may be more limited than what the term may suggest. The secretary of state’s documentation explaining the parameters of the reviews notes the first phase includes partial manual counts of ballots and security assessments, which all counties are already required to undergo.

The second phase, which is slated for “spring 2022,” will be an examination of election records “to ensure election administration procedures were properly followed.” That includes reviews of records of voting machine accuracy tests, rosters for early voting, forms detailing chain of custody for sealed ballot boxes and other election materials maintained by the counties.

But the secretary of state also indicates it will review records that counties already provide to the office, including the “reasonable impediment declarations” filled out by voters who indicate they lack one of the photo IDs the state requires voters to present to cast a ballot.

[…]

Officials in Harris County on Tuesday morning indicated they remained unaware of what the audits would cover despite comments by Abbott that the reviews “actually began months ago.” Now, it appears the governor was, at least in part, referring to processes counties are separately required by law to complete.

For example, the partial manual counts of ballots listed under the first phase of the reviews must be conducted within 72 hours of polls closing after every single election.

The reviews also provoked criticism that invoked the politically driven election review in Arizona that has been mired by ineptitude and described by the Arizona secretary of state as an exercise plagued by “problematic practices, changing policies, and security threats.” The report of the Arizona review, which confirmed President Joe Biden won the state, was compiled by Cyber Ninjas, a contractor that received $5.7 million from pro-Trump groups to fund the audit.

In releasing the details about the reviews, a spokesman for the secretary of state emphasized the office would not be “hiring or contracting with an outside firm to conduct these audits.”

See here and here for the background. I guess it’s good that we’re not throwing millions of dollars at a bunch of pro-Trump grifters who will come in and do a lot of damage, but the word for all this is still “pathetic”. If the purpose was to take these existing actions and package them as a true fraudit, so as to appease their god-king, it didn’t work.

Gov. Greg Abbott is failing to appease some inside his party — including former President Donald Trump — with the “forensic election audit” that the state announced Thursday.

Trump released a letter to Abbott on Thursday urging him to add audit legislation, which could allow a review of mail-in and in-person ballots across the state, to the agenda for the current special session agenda. Instead, the secretary of state’s office announced later that day that it was already starting to audit the 2020 election results in four of the state’s biggest counties.

In a new statement to The Texas Tribune on Wednesday, Trump said it is “a big mistake for Texas” not to pass the audit legislation, House Bill 16 by Rep. Steve Toth, R-The Woodlands.

“By allowing the Democrats to do what they do, it will make it much harder for the Governor and other Republicans to win election in 2022 and into the future,” Trump said. “Texas is a much redder state than anyone knows, but this is the way to make sure it turns blue.”

Trump assumes, with quite a bit of justification, that he can get Abbott to roll over and supplicate himself further. There’s only one reasonable response to this.

A resolution from Harris County Judge Lina Hidalgo denouncing the election audits for 2020 election results in four large Texas counties passed Tuesday night 3 to 2, with Democrats in favor and Republicans against.

Hidalgo has called the audit, which centers on Harris, Dallas, Tarrant and Collin counties, a “sham” and a political maneuver to fuel conspiracy theorists who keep pushing the false narrative that Donald Trump won the 2020 election.

[…]

Harris County Commissioner Tom Ramsey was one of the two Republicans who voted against the resolution Tuesday night, arguing “transparency is not a bad thing.”

A few days prior to the resolution, Hidalgo warned continuing the conversation around election results “lends some credence” to conspiracy theories that fraud exists.

“These are the kinds of folks that stormed the capital. They are not going to be persuaded that their conspiracy theories are false,” Hidalgo said in a Sunday Twitter video. “It can’t be that the strategy of one party is to burn it all to the ground when their candidate doesn’t win. That’s how you tear down a country, that’s how you tear down a democracy.”

Lina Hidalgo is a strong and competent leader. Greg Abbott is not. And Tom Ramsey is as much a disgrace as Abbott is. Draw him out of his undeserved position, y’all.

More on the fraudit

My God, Greg Abbott is a wimp.

Donald Trump’s letter to Texas Gov. Greg Abbott demanding he pursue an “audit” of the 2020 election set off a “mad dash” in the governor’s office as aides sought to figure out just how serious the former president was, according to two sources familiar with the situation.

In the letter, Trump called on Abbott to hold a “Forensic Audit of the 2020 Election” and pass HB 16, a bill recently filed in the Third Special Session of the Texas legislature, which would allow for an Arizona-style “audit” of the presidential election.

“Despite my big win in Texas, I hear Texans want an election audit!” Trump wrote in a public letter addressed to Abbott on Thursday. “Texas needs you to act now. Your Third Special Session is the perfect, and maybe last, opportunity to pass this audit bill. Time is running out.”

Just hours after Trump released the letter, a statement was put out by Sam Taylor, assistant secretary of state for communications, who said the office had “already begun the process” of reviewing 2020 votes in the state’s two largest Democrat and two largest Republican counties: Dallas, Harris, Tarrant and Collin. Trump only won Collin County, and Biden won Dallas, Harris and Tarrant counties in 2020.

During an interview with “Fox News Sunday,” Abbott said that the audits “began months ago”— a statement that echoed the claim made by the office of the secretary of state.

“State audits conducted by the Texas Secretary of State’s office have already been underway for months,” Renae Eze, press secretary for the governor, said in a statement. “Under federal law, county election officials only have to keep these materials for 22 months, and it is imperative that all aspects of elections conducted in 2020 are examined before the counties clear out these materials in September 2022.”

But in reports from both the Texas Tribune and CNN, local officials in counties targeted by the “audit” said they had not learned of the review until Thursday’s statement from the secretary of state’s office.

And behind the scenes, the Texas governor’s office was caught off guard by Trump, whose letter made no mention of “audits” already underway. There had not been contact between Trump and Abbott ahead of the release, and Abbott’s office was uncertain if they could meet Trump’s demands to pass HB16 without complicating the legislative agenda. One Texas political aide familiar with how the process played out said, “The secretary of state‘s decision to call for audits in the four largest counties in Texas was predicated on Trump’s statement mentioning Gov. Abbott.”

“There was a mad dash to determine if Trump was actually being serious with his statement and it was decided this was the best route to take without blowing up the special session,” the aide said.

The scramble among Abbott’s team to placate the president illustrated the degree to which Trump and his election conspiracies continue to set the rules of engagement for virtually all other GOP elected officials.

See here for the background. I wish I had something thoughtful to say, but I don’t. This isn’t really a situation that calls for calm analysis. It requires calling a thing what it is, and that is to say that this is a disgrace and an embarrassment. Greg Abbott is a sniveling coward.

In the meantime, someone owes us some answers about this crap.

The top civil lawyer for Texas’s most populous county issued a records demand seeking information on the origins of Gov. Greg Abbott’s (R) so-called “forensic audit” plans, including any communications between the secretary of state’s office and surrogates for former President Donald Trump.

“Governor Abbott and the Secretary of State are telling the public that this ‘audit’ has been going on for months, but this is the first time the County’s heard anything about it,” Harris County Attorney Christian D. Menefee wrote in a statement. “They’re on the news and issuing press releases about this ‘audit’, talking to everyone about it but us.”

“The administration has told us nothing about the purpose of or legal basis for this audit, what they’re requesting, or what the process will be,” Menefee added. “It’s my job to advise the County and the Elections Administrator on how to respond. I can’t do that without this basic information that neither the Governor nor the SOS has shared.”

In his two-page letter, Menefee addresses his records demand to the office of Texas’s Secretary of State, which is currently vacant. Menefee addressed the letter to the general mailbox for that office’s general counsel, requesting 14 categories of information.

Two of those categories relate to the governor’s office: One seeks “[a]ll communications between the SOS office and the Office of the Texas Governor or the Office of the Lieutenant Governor related to a complaint, allegation of fraud or misconduct, request for investigation or review, or question received by the SOS office regarding the November 2020 General Election in Harris County.”

The other demands “[a]ll communications between the SOS office and the Office of the Texas Governor or the Office of the Lieutenant Governor related to the ‘forensic audit’ of the November 2020 General Election in Harris County announced by the SOS on September 23, 2021 (as the SOS office’s announcement explicitly states the department ‘has already begun the process,’ this request also seeks communications dated prior to September 23, 2021).”

You can see the full letter embedded in the story. I fully expect this request to be stonewalled, and for Ken Paxton to slime his way in to defend not turning anything over. But it’s vital that we get as much information about this travesty and the ways in which our government has conspired to try to placate Donald Trump. This is what we elected Christian Menefee for. I have faith he is up to the task.

UPDATE: Hilarious and pathetic at the same time:

Someone who was his own person would be able to articulate what was happening in an accurate way. Someone who is a sock puppet, well. You know.

So we have a fraudit

What a load of crap.

The Texas secretary of state’s office announced late Thursday that it has begun a “full forensic audit” of the 2020 general election in four Texas counties: Collin, Dallas, Harris and Tarrant. But the statement from that agency did not explain what prompted the move.

There has been no evidence of widespread voter fraud in Texas in 2020.

Sam Taylor, a spokesperson for the office, did not immediately respond to a request for comment. No elections officials in the four counties immediately responded for comment.

The announcement came hours after Republican former President Donald Trump requested Gov. Greg Abbott add an election audit bill to this year’s third special session. While Trump lost his reelection bid, he did win in Texas.

It was unclear if his request was related to the announcement from the secretary of state’s office. But Taylor’s press release said the agency has “already begun the process in Texas’ two largest Democrat counties and two largest Republican counties—Dallas, Harris, Tarrant, and Collin.” While Tarrant has long been a Republican stronghold, Democratic President Joe Biden narrowly beat Trump there, according to the county’s election results.

Former Secretary of State Ruth Ruggero Hughs, who oversaw the 2020 elections, resigned when the Texas Senate refused to confirm her appointment. A deputy for Hughs called the 2020 election “smooth and secure” earlier this year.

Who knows what any of this even means, or what safeguards are in place to ensure integrity and transparency. I’d say that this was a rogue official going off on their own, but I think we all know that when Donald Trump tells a weak leader like Greg Abbott to do something, Abbott will comply.

In the meantime, county officials have responded, for the most part appropriately.

Harris County leaders on Friday blasted the Texas secretary of state’s decision to conduct a comprehensive “forensic audit” of the 2020 election in four counties, including Harris, as a political ploy to appease conspiracy theorists and former President Donald Trump.

County Judge Lina Hidalgo accused Gov. Greg Abbott of trying to curry favor with the former president, who on Thursday called for an audit of the Texas results, despite comfortably carrying the state in his unsuccessful bid for re-election. She likened the effort to audits in Arizona and Pennsylvania, which have failed to find major errors in vote tallying.

There is no evidence of widespread fraud or irregularities in Harris County’s 2020 election, where a record 1.7 million voters participated.

“This does not deserve to be treated as a serious matter or serious audit,” Hidalgo said. “It is an irresponsible political trick. It is a sham. It is a cavalier and dangerous assault on voters and democracy.”

Precisely who ordered the audits of election results for Harris, Dallas, Collin and Tarrant counties, as well as what they would entail, remains a mystery. The Secretary of State’s Office distributed a news release Thursday evening, though the secretary of state post has been vacant since May and spokesman Sam Taylor did not respond to a request for comment.

I’d forgotten that we don’t actually have a Secretary of State right now. I guess that “audit” must have gotten started on its own. Probably a computer glitch somewhere.

County Elections Administrator Isabel Longoria said she was surprised by the secretary of state’s announcement, noting she had spoken with that office’s staff hours earlier about an unrelated matter. Longoria said no state agency or department has provided her with any information about how the audit of Harris County’s election results will be conducted.

After the 2020 contest, Longoria said her office conducted a partial manual review of mail ballots and electronic records from voting machines. Eleven months later, Longoria said she has turned her attention toward preparing for future elections.

“I’m now being blindsided about an audit that we have no information on and no direction on,” Longoria said. “My job is protect the voters… not just open up the books to whoever has a new conspiracy of the day, and let you run rampant with confidential election records.”

County Attorney Christian Menefee said the Texas audit “is clearly being done in bad faith” since it was announced just hours after Trump requested it. All three Harris County officials said they will comply with the law and any potential rulings from judges, but would otherwise not take the audit effort seriously.

“The goal of this is to intimidate our election workers and the folks who volunteer in elections, to undermine our confidence in democracy and to pander to … a gentleman who lost an election 11 months ago,” Menefee said. “We’re going to continue to push back where appropriate.”

Commissioners Court is divided over party lines on the audit. The two Democratic commissioners, Adrian Garcia and Rodney Ellis, said they agreed with Hidalgo’s criticism. Republican Precinct 3 Commissioner Tom Ramsey said despite county elections officials’ assurances that the 2020 contest was conducted securely, he does not know if that is accurate.

“I think there’s enough questions there,” Ramsey said. “Obviously, you need to go back and look at the numbers. Just because there hasn’t been anything (found) at this point, doesn’t mean it didn’t happen. That’s why you do an audit.”

OK, I’m back on the “redistrict that guy into oblivion” train. Harris County deserves way better than that.

Not just our county officials, either.

“The conspiracy theorists who want to come up with all these ways or reasons why this election wasn’t right — they might very well find something else [to doubt],” said Republican Tarrant County Judge Glen Whitley. “It’s time to move on.”

Whitley and officials in Harris also said they have not been told what the audits entail or what prompted them. They said they learned about them from a late Thursday press release sent by a spokesperson in the secretary of state’s office. Harris County Attorney Christian Menefee said an audit can have many forms, but Harris County elections administrator Isabel Longoria said her office hadn’t heard any details of what the state’s plans are as of noon Friday. Longoria said the county has already confirmed the results of the elections several times.

“If people want to hear it again and again and again and again, that nothing’s wrong — great,” she said. “But at what point are you going to be willing to hear the truth, that nothing was wrong with the November 2020 elections?”

[…]

Dallas County Judge Clay Jenkins, a Democrat, echoed Hidalgo’s remarks.

“This is a weak Governor openly and shamelessly taking his orders from a disgraced former President. Governor Abbott is wasting taxpayer funds to trample on Texans’ freedom to vote, all in order to appease his puppeteer,” Jenkins said over text message.

Jenkins said in an interview that Dallas County will not resist the audit for now — but if the state asks for more than what the county thinks is suitable under the election code, he could see challenging it in court.

Collin County had no comment at the time. Courage, y’all.

I’m sorry, I don’t have anything coherent to say about this. It’s bullshit all the way down, and I have a hard time taking its premise seriously enough to engage with it. But I will say this much, these guys have amazing timing.

On Friday afternoon, the leaders of the unorthodox 2020 election audit in Arizona announced the results of their monthslong, Trump ally–sponsored hunt for voter fraud in Maricopa County, which Joe Biden won by fewer than 11,000 votes out of millions cast.

The timing of the release hints at the significance of the audit’s findings. For months, Donald Trump has been billing the investigation as the thing that will provide definitive proof of his victory in Arizona. If the audit was going to show that the election was stolen from Trump by Democratic goons in cactus-covered antifa ski masks, why release it late on a Friday afternoon at a time usually reserved for dumps of information people want to go uncovered?

leaked report on Thursday evening offered an answer. The ballyhooed and controversially conducted hand count of nearly 2.1 million Maricopa County ballots still showed Biden defeating Trump, and though the margin changed by 360 votes it was actually Biden whose margin of victory grew from 45,109 to 45,469.

“This is yet the latest in a string of defeats for Donald Trump saying the election was rigged and fraudulent,” longtime Republican election attorney Benjamin Ginsberg said in a press call with the elections group States United. “[This] was their best attempt. This was an audit in which they absolutely cooked the procedures, they took funding from sources that should delegitimatize the findings automatically. This was Donald Trump’s best chance to prove his allegations of elections being rigged and fraudulent and they failed.”

It turns out that not even a partisan-funded and -conducted recount using procedures out of a Pee Wee Herman film could change the outcome. “The Cyber Ninjas couldn’t do the thing they were on the hook to do,” said cochairman of States United Norm Eisen.

I look forward to a similar result in Texas. Daily Kos and NPR have more.

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

The status of the mask mandate lawsuits

The Chron does a roundup.

Texas courtrooms have become a busy place this August, with Attorney General Ken Paxton battling school districts, cities, counties and nonprofits to defend Gov. Greg Abbott’s ban on local mask mandates aimed at preventing the spread of COVID-19.

Tracking the status of lawsuits can be dizzying.

“The way I like to think about it is there are four big buckets of cases and then there are some little minor cases out there,” said Harris County Attorney Christian Menefee, whose county has sued both Paxton and Abbott over the ban on mask orders.

Those buckets include Harris County’s lawsuit; one brought by a group of school districts; one from Bexar County and San Antonio; and one from Dallas County. Those cases are the furthest along in the legal process, Menefee said, and he expects a final decision on Abbott’s mask order rules to come from one of those cases.

Harris County’s lawsuit and the school districts’ are proceeding along the same track, Menefee said. Local officials cheered a ruling late Thursday by the state Supreme Court, on a procedural question, that allowed the county’s mask mandate to stay in place for now.

The all-Republican high court could have ruled on the merits of the question, but chose not to, instead punting it to a lower court. This signals that the court isn’t yet prepared to offer a final decision on whether or not mask mandates across the state will be allowed to remain in place, he said.

“They could rule whenever. The fact that they haven’t issued a ruling I think is encouraging because I think that means they’re thinking about it,” Menefee said. “If they do that, that’s going to be the law of the land for Texas,” applying to all cases.

[…]

In Bexar County and San Antonio’s case, local officials won a temporary injunction from an appeal, allowing their mask mandates to remain in place while their case is pending. A trial is scheduled for December. Paxton’s office is likely to appeal that to the state Supreme Court.

Meanwhile, Dallas County is fighting for a temporary restraining order to allow it to keep the mask mandate in place for the short term, a step that precedes arguments over a temporary injunction. That decision would last longer, months rather than weeks.

The stragglers, as Menefee described them, include a Fort Bend County case and a lawsuit from the Southern Center for Child Advocacy over many of the same issues.

A Fort Bend County district judge on Thursday granted the county a temporary injunction it its legal challenge to Abbott’s ban on mask mandates. County Judge KP George said it “removed the hurdles that have prevented our municipalities and school districts from taking the same action to protect their communities and the children…”

Thursday’s ruling should remain in place until the issue goes to trial in at least 45 days. Or Paxton could appeal the lower court’s decision to the state Supreme Court, as he has others, leaving it up to them to decide.

Hope that helps a little. And as a reminder of the legal questions, Erica Greider talks to an expert.

Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.

The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.

The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soife blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.

“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.

Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”

At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.

“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”

Judge Soifer, you may recall, ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck is right about what will happen – however subtle some of the legal questions are, there’s also the politics of it, and the Supreme Court is much more likely to give Greg Abbott what he wants than not – but it’s not an obvious question to answer. We should know more pretty quickly.

SCOTx does what SCOTx does

Room service, as always.

The Texas Supreme Court on Sunday temporarily blocked mask mandates in Dallas and Bexar counties, marking a pivotal moment in the showdown between state and local government as coronavirus cases and hospitalizations surge in Texas.

The ruling comes after several school districts and a handful of counties across the state defied Gov. Greg Abbott’s executive order that restricted local entities from instituting mask mandates. On Friday, the 4th Court of Appeals in San Antonio upheld a lower court ruling that permitted Bexar County to require mask-wearing in public schools. Shortly after, the 5th Court of Appeals in Dallas upheld a more far-reaching order from Dallas County Judge Clay Jenkins that required masks in public schools, universities and businesses.

In a petition for a writ of mandamus to the Texas Supreme Court, Texas Attorney General Ken Paxton’s office said the Texas Disaster Act of 1975 gives the governor power to act as the “‘commander in chief’ of the state’s response to a disaster. Attorneys representing cities and counties that have sued Abbott over his executive order have argued that his orders should not supersede local orders.

“Let this ruling serve as a reminder to all ISDs and Local officials that the Governor’s order stands,” Paxton said in a tweet on Sunday after the ruling.

Abbott’s response to the decision was less pointed, specifying that his executive order does not prohibit mask-wearing.

“Anyone who wants to wear a masks can do so,” Abbott said in a tweet.

See here and here for the background. Abbott’s tweet is pathetic in its misrepresentation of the issue. Masking only works if the people who are sick – whether they know it or not – are in compliance. That means that the people who are most likely to be sick – unvaccinated adults and unvaccinated children, which is all children under the age of 12 – especially need to be masked, and as we very well know, that first group and their children are not ever going to do that voluntarily. My mask doesn’t protect me from you (unless I’m wearing an N-95), it protects you from me. If you’re not reciprocating, it’s not doing us any good. The problem with Greg Abbott is not that he doesn’t understand this, it’s that he values the opinion of the largely unvaccinated and completely indifferent Republican primary voters more than anything else. And so here we are.

As for Paxton, he’s wrong in two ways. First:

And second:

Austin Mayor Steve Adler and Travis County Judge Andy Brown last week required face coverings to be worn inside public schools and government buildings to deal with a surge in local COVID-19 infections. Both insisted the orders remained in effect because Sunday’s court action did not involve local rules.

“While we await a final decision, we believe local rules are the rules,” Adler said on Twitter. “Regardless of what eventually happens in the courts, if you’re a parent, please keep fighting to have everyone in schools masked. We stand with you.”

[…]

A number of other mask mandates rely on trial court orders not yet before the Supreme Court, including restraining orders issued Friday in Travis County for Harris County and a half-dozen South Texas school districts.

Harris County Attorney Christian Menefee said Sunday’s Supreme Court action did not affect his county, and he plans to move forward toward an expected injunction hearing like Dallas and San Antonio.

The Chron story makes the same point. To be sure, Paxton can pursue the same kind of writ against Harris and Austin and those other school districts – several others that have as far as I know not been involved in litigation yet have implemented mask mandates – and when SCOTx issues a final ruling it can and likely will encompass all of the other jurisdictions in its order. But until then, no one other than Dallas and Bexar Counties are directly affected. And for what it’s worth, it’s not clear to me what would happen if they just decide to tell Abbott and Paxton and SCOTx to go pound sand. They haven’t yet, and they may never, but don’t throw out the possibility. The San Antonio Report has more.

UPDATE: Interesting:

I mean, he’s not wrong. And this is what I’m saying about the state’s ability to enforce this. As above, Paxton could go after DISD and make them comply. But until and unless he does, what’s stopping them from continuing on as they had planned?

UPDATE: This too:

At this point it’s not clear to me that anyone truly feels bound by this SCOTx order.