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Christian Menefee

Court blocks phony “defunding” claim again

Mar 12th, 2023
by Charles Kuffner.
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From the inbox:

A Travis County District Court temporarily blocked Texas Comptroller Glenn Hegar’s determination that Harris County defunded the Precinct 5 Constable’s office in violation of state law. The order means the Comptroller’s determination as to Harris County’s budget is currently legally ineffective; he’s prohibited from reinstating it.

“I’m glad the courts are blocking Comptroller Hegar from his misguided attacks on Harris County,” said Harris County Attorney Christian D. Menefee. “Comptroller Hegar violated the law. It’s clear. We’re prepared to fight this in the courts until he does the right thing by the people of Harris County and withdraws his determination. We’re seeing a pattern of state officials trying to get in the business of disrupting Harris County government to score political points. We are not going to stand for it; the five million residents of Harris County deserve better.”

Today’s ruling blocks Comptroller Hegar’s determination that Harris County violated Chapter 120. He made that determination by taking the Precinct 5 budget for the County’s 2022 short fiscal year, annualizing it, and then reasoning that because that annualized number was greater than Precinct 5’s budget for fiscal year 2023, the county violated Chapter 120. That is legally incorrect, even applying the Comptroller’s own math. Chapter 120 requires that if a county’s overall budget decreases from one budget year to the next, a prohibited funding reduction occurs only if the police agency’s share of the county’s overall budget has decreased over that same period. Harris County did not violate that standard because using the Comptroller’s math, Harris County’s overall budget decreases from his annualized version of the 2022 short fiscal year budget to the County’s fiscal year 2023 budget, while Precinct 5’s share of the County’s budget increases.

The next hearing is set for March 23, 2023. A copy of the county’s lawsuit is available here.

See here and here for the background. There’s a Chron story, but it’s mostly this press release plus some others. As was the case the last time around, it looks like this flimsy pretextual claim by the Comptroller is going to get stopped. Hopefully he’ll concede and withdraw the claim like he did the last time. And then hopefully he won’t go for a three-peat. Hopefully.

I-45 project is back on

Mar 8th, 2023
by Charles Kuffner.
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Though it will still be several years before there is any real construction.

Nearly two years to the day that federal officials paused TxDOT’s plans for rebuilding Interstate 45 and downtown Houston’s freeway system, national and state highway leaders have come to an agreement that will let the rebuild proceed, but with several concessions aimed at addressing the project’s impacts on low-income and minority neighborhoods.

The Federal Highway Administration and Texas Department of Transportation announced Tuesday they had reached an agreement, similar to those TxDOT reached with Harris County and Houston in December, outlining commitments related to the planned $9.7 billion rebuild of I-45 from downtown Houston north to Beltway 8.

The agreement immediately lifts the federal pause placed on the project on March 8, 2021, and resolves the audit conducted by federal officials related to TxDOT’s adherence to federal environmental rules.

“This agreement moves forward an important project, responds to community concerns, and improves (I-45) in ways that will make a real difference in people’s lives. Through this agreement the community will have a greater voice in the design and throughout the project’s life cycle,” said Federal Highway Administrator Shailen Bhatt, in a statement.

[…]

Unlike the agreements with the city and county, the deal reached with federal officials holds TxDOT to both oversight and enforcement of many of the specifics. As part of the agreement, TxDOT will:

  • conduct twice-annual public meetings during development and construction, expected to take more than a decade, to update the community on the progress and plans for detours during construction.
  • add another $3 million to the $27 million TxDOT already committed to help the Houston Housing Authority develop new affordable housing opportunities, mirroring the promise TxDOT previously made to the city.
  • commit $1.5 million to create parks and trails, in particular to replace park space near the Kelly Village public housing complex.
  • support the creation of the Emancipation National Historic Trail, a proposed federally-sponsored historical route chronicling the journey of freed slaves from Galveston to Houston, including trail links and planning for historical displays along the footprint of I-45.
  • coordinate detours near two Houston Independent School District schools to take students’ bicycle and pedestrian routes into account during construction

Longtime skeptics of the project, however, said they fear the promises of partnership will erode as TxDOT proceeds.

“They are doing what federal agencies do, using the term enforcement when historically we have seen no follow-through,” said Joetta Stevenson, president of Houston’s Super-neighborhood 55 and one of those who had accused TxDOT of skirting federal civil rights laws, prompting the review by FHWA. “Trust has been broken for generations, and by signing off on the choices of the state, only enforcing after harm has been done, they continue a painful legacy. So far, I see no tangible changes that don’t rely on TxDOT’s good faith participation.”

In a statement the group formed to oppose the project, Stop TxDOT I-45, said “Houston deserves a project that prioritizes safety, centers the lived experience of those most impacted by the project, actually relieves traffic, and moves us toward a more equitable future. We will not stop fighting for our city and our lives.”

Air Alliance Houston and LINKHouston, which have advocated for sweeping changes to the plans, said they were reviewing the details but initially indicated the details alone leave the project short of expectations.

“While we hoped the federal government would maximize its leverage over TxDOT to push for a more equitable project, we are encouraged to see that the Federal Highway Administration will hold TxDOT accountable in ways that the City of Houston and Harris County memorandums of understanding could not,” LINKHouston Executive Director Gabe Cazares said.

Parts of the agreement commit TxDOT to elements that are less specific, for now, but eventually could have sweeping effects on the communities impacted by the freeway. TxDOT has agreed to re-evaluate drainage studies for the freeway rebuild to reflect ATLAS-14, the national rainfall analysis released by the National Oceanic and Atmospheric Administration in 2018 that places more of Houston in areas at flood risk.  TxDOT already had agreed to do this as part of its agreements with the city and county. The change potentially could mean more flood control, such as detention ponds or channels for neighborhoods near the freeway.

See here and here for the background on the city/county deal with TxDOT. If the skeptics and opponents remain unconvinced, then there continues to be reason to not want this to happen. If it mostly comes down to how close the federal oversight and enforcement of the deal will be, then at least we know where to concentrate future efforts. A statement from County Attorney Christian Menefee is beneath the fold, a statement from Commissioner Adrian Garcia is here, a Chron story recapping the saga so far is here, and the Trib and Campos have more.

(more…)

You still have time to donate to the Democratic judges’ legal fund

Mar 2nd, 2023
by Charles Kuffner.
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Just a reminder:

See here for the background. That link takes you here, and while the in-person fundraiser mentioned there is now over, the Donate link remains. But due to a change in state law, you only have until March 8 to make a contribution. That’s a new statutory deadline for all judicial fundraising – it used to be the case that judges who were involved in lawsuits could continue past that deadline, but the law was changed in the last session, so here we are. Please give a few bucks if you can and help them all out. Thanks!

Harris County settles Juul lawsuit

Feb 23rd, 2023
by Charles Kuffner.
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From the inbox:

Christian Menefee

Harris County Attorney Christian D. Menefee announced a settlement of the county’s lawsuit against e-cigarette company JUUL Labs, Inc. over claims that JUUL deceptively marketed its products to children. The county received the second largest settlement for a local government in the nation.

“I’m proud of this outcome settling our lawsuit against JUUL. We’re bringing real money to the county to ensure we’re protecting our youth from e-cigarette use,” said Harris County Attorney Christian D. Menefee. “This case was always about reducing youth nicotine addiction in our communities. I want kids across Harris County to go on to live long, healthy lives. That’s one of many reasons why I plan to do everything I can to protect public health.”

In 2021, Harris County became the first governmental entity in Texas to file suit against JUUL. Harris County’s settlement is part of a global settlement with JUUL Labs, Inc resolving numerous cases brought by government entity plaintiffs, including school districts, cities, and counties. The distribution of Harris County’s settlement funds will be decided by Commissioners Court.

See here for the background. Googling around, I saw a news item from September about Juul settling with the state of Texas, which was part of a larger class action settlement, and a news item from December about a $1.7 billion settlement of over 5000 lawsuits nationwide. This was separate from all of those, which I confirmed with the County Attorney Office. I was also told that the settlement amount was $20 million, which was discussed at this week’s Commissioners Court meeting. And now you know what I know.

Harris County votes to sue Hegar again

Feb 17th, 2023
by Charles Kuffner.
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Phony Defunding Claims II: Electric Boogaloo.

Harris County Commissioners Court on Thursday voted to sue Texas Comptroller Glenn Hegar‘s office in response to his comments accusing the county of defunding law enforcement.

Hegar’s claim is a repeat of a fight that already played out between the comptroller and Harris County last August.

“They were wrong back when they tried this the first time — the comptroller and his allies — and they’re wrong again now,” County Judge Lina Hidalgo said before the court met in executive session Thursday.

Commissioners Court convened the special meeting to decide on a response to Hegar’s claim. In a 4-1 vote, the court authorized County Attorney Christian Menefee to pursue a lawsuit against the comptroller’s office. Precinct 3 Commissioner Tom Ramsey, the lone Republican on the court, voted against the measure.

In a statement, Menefee confirmed his office will file a lawsuit against Hegar.

“Once again, Comptroller Hegar has abused his authority,” the county attorney said. “His math is wrong. His application of state law is wrong. There’s no explanation for it — he’s just flat wrong. If Hegar’s goal was to make headlines while insulting the basic intelligence of Harris County residents, I guess he achieved that. But we don’t plan to let him abuse his power. We’ll see him in court.”

[…]

The debate over law-enforcement funding in Harris County stems from the county’s decision to shift its fiscal year and budgeting schedule to start in October instead of March.

In 2022, the county passed a shortened seven-month budget that was in effect until the new schedule began in October. That short fiscal year has made it difficult to make year-to-year funding comparisons, and has resulted in the county and the comptroller’s office using different methods to analyze whether the constable’s funding has increased or decreased.

Under Hegar’s calculations, Heap’s “annualized” budget would have been about $48.9 million over 12 months — nearly $2.3 million more than the $46.7 million figure calculated by the county.

Hidalgo said Hegar came to an incorrect conclusion by dividing Harris County’s 2022 short fiscal year budget by seven months and multiplying that number by 12 to get the annualized budget. Instead, Hidalgo said, the comptroller should have calculated on the basis of pay periods rather than the number of months. That would require dividing the short fiscal year by 16 pay periods and multiplying that by 26 to cover the whole year, she said.

“We have 26-pay-period accounting and Comptroller Hegar should know that,” the judge said.

See here for the background. If the facts as stated above are accurate, then this really is another case of political math being used in place of, well, math. Which is what the Chron editorial board concluded a few days ago. No matter how you get there, bullshit still walks. The Press has more.

The furniture guy files a lawsuit

Feb 15th, 2023
by Charles Kuffner.
6 comments

Spare me.

Houston furniture magnate Jim “Mattress Mack” McIngvale has filed a lawsuit against the Harris County Elections Administrator’s office accusing it of refusing to turn over public records related to the November 2022 election, adding to an array of GOP litigation aimed at the county’s elections process.

According to the petition filed Monday night, Wayne Dolcefino, a media consultant and former TV journalist, submitted multiple requests for public information on behalf of the Gallery Furniture owner, who was a major donor supporting Republican candidates including County Judge Lina Hidalgo’s opponent Alexandra del Moral Mealer.

In response to each of the requests for public information, the elections office responded by seeking an opinion from the Texas Attorney General’s office allowing it to withhold the information due to ongoing litigation, the lawsuit states.

The petition also acknowledges the county has provided some of the requested documents.

In a statement Tuesday, Harris County Attorney Christian Menefee’s office said: “The requests for these documents were handled the same as any other requests for documents related to ongoing litigation against the county. We’re evaluating the lawsuit and will let the courts sort it out.”

The Harris County Elections Administrator’s Office also issued a statement, saying it readily has responded to requests that do not require documents subject to the litigation, and has sought an opinion from the attorney general’s office on those that do.

“According to the Public Information Act, the attorney general’s office has 45 working days from the day after the request to respond. As of today, the office has not received an opinion on how to proceed with these particular public information requests. Any suggestion that the Harris County Elections Administrator’s Office lacks transparency is false,” it said.

The lawsuit is an example of why the Texas Legislature should repeal the “litigation exception” provision in state law that offers public offices an option to withhold records during litigation, said Bill Aleshire, an Austin attorney who works with the Freedom of Information Foundation of Texas.

“There is no justification for denying the public information about a controversy just because it involves litigation,” Aleshire said. “In fact, when something controversial enough happens to be the subject of a lawsuit, that is exactly when the public most needs to know what the record shows. Yet, the way the (Texas Public Information Act) is written, no one — except those involved in the underlying lawsuit — can get access to the public information.”

The “litigation exception” typically is upheld by courts, so McIngvale’s lawsuit is unlikely to produce the requested records, he said.

However, state law does not prevent the county from providing the records, but rather gives the county discretion to decide.

“It does not make the records ‘confidential’ (where it would be illegal to disclose the information); it just means the government is not required to disclose the information,” Aleshire said. “But they could if they are willing to do so.”

So if I understand this correctly, the Elections Office could provide these documents on demand, but legally they don’t have to until they get an opinion on it from the AG’s office. That may be a bad feature of the law as it now exists, but it is the law and a district court is highly unlikely to deviate from the normal course of behavior. Which makes this entire spectacle little more than a plea for attention and a waste of everyone’s time. Have I got that right? The Press has more.

You can help Democrats being sued by election losers

Feb 13th, 2023
by Charles Kuffner.
7 comments

From the inbox, sent to me by former HD133 candidate Sandra Moore:

Below is a list of the judges and electeds being sued by the Republicans. These are nuisance suits but the Judges and Lina have had to hire attorneys to represent them against the claims. Marilyn and Tenesha have pro bono attorneys but the others are not allowed to be represented pro bono due to conflicts of interest. The judge hearing the case is in San Antonio which complicates matters re time to get there and back for hearings. The travel time alone for the attorneys will be in the thousands when ZOOM meetings are not allowed! The average attorney charges $500 per hour. The fee can’t be lowered due to “appearance of impropriety” issues. The judges listed as well as Lina have little in their campaign coffers. That’s how it is for the judges. One judge whose race is being challenged, David Fleisher, lives in 133. This is the state house district in which I ran back in 2018 and 2020.

I was on several endorsements interviews with some of these judges through a different organization. This is how I learned how little was in their campaign accounts. The Republicans picked the judges with some of the smallest accounts.

It is believed that the purpose of these suits is to drag out the cases, have judges dip into personal resources, and be exhausted financially and emotionally by the time of their next race.

The Harris County Democratic Party is NOT doing anything to assist the 22 electeds. If even one is bounced, Abbott could appoint a replacement for those in the criminal courts. Judges are being sued “in their individual capacity.” That is why each person named in a suit has to retain their own attorney.

CLUBS IN ACTION is trying to raise 95K to donate to them. The maximum that a judge can receive from a PAC is $5000, so that is the goal for each judge and for Lina. We all know that Lina received very little in campaign contributions, especially compared to Mealer.

During the election CIA knocked on 300,000 doors. WHD knocked on about 1500. We worked hard to make this happen. No one wants all this hard work to go to waste. So, if you are willing to make a donation to CIA that would be great.

I was invited to this meeting because of the effort to create and carry out block walking events.

If you decide to make a contribution a check can be sent to:

CLUBS IN ACTION
2504 Rusk St. #110
Houston, TX 77003.

CIA plans to hold a fundraiser, hopefully on Feb 19. But I will send out word when I learn more. There is a deadline of MARCH 8 to raise funds!!

[…]

1 Cause No. 2023-00964; Alexandra Mealer v. Lina Hidalgo. Alexander Mealer is represented by Elizabeth Alvarez. Judge Hidalgo is represented by Neal Manne.

2 Cause No. 2023-00925; Michelle Fraga v. Judge Christine Weems. Michelle Fraga is represented by Elizabeth Alvarez. Judge Weems is represented by John Raley.

3 Cause No. 2023-00924; Elizabeth Buss v. Judge David Fleischer. Elizabeth Buss is represented by Elizabeth Alvarez. Judge Fleischer is represented by John Raley.

4 Cause No. 2023-00841; Tami Pierce v. Judge DaSean Jones. Tami Pierce is representing herself with co-counsel, Paul Simpson. Judge Jones is represented by Oliver Brown.

5 Cause No. 2022-79328; Erin Lunceford v. Judge Tami Craft. Erin Lunceford is represented by Andy Taylor. Judge Craft is represented by Steve Kherker.

6 Cause No. 2023-00927; Bruce Bain v. Judge Corey Sepolio. Bruce Bain is represented by Elizabeth Alvarez. Judge Sepolio is represented by John Raley.

7 Cause No. 2023-00932; Chris Daniel v. Marilyn Burgess. Chris Daniel is represented by Elizabeth Alvarez. Clerk Burgess is represented by Neal Manne.

8 Cause No. 2023-00930; Mark Goldberg v. Judge Erika Ramirez. Mark Goldberg is represented by Elizabeth Alvarez. Judge Ramirez is represented by John Staley.

9 Cause No. 2023-00934; Brian Staley v. Judge Monica Singh. Brian Staley is represented by Elizabeth Alvarez. Judge Singh is represented by Anthony Drumheller.

10 Cause No. 2023-00936; Mark Montgomery v. Judge Kelley Andrews. Mark Montgomery is represented by Elizabeth Alvarez. Judge Andrews is represented by John Raley.

11 Cause No. 2023-00937; Matthew Dexter v. Judge Genesis Draper. Matthew Dexter is represented by Elizabeth Alvarez. Judge Draper is represented by John Raley.

12 Cause No. 2023-00952; Nile Copeland v. Judge Latosha Lewis Payne. Nile Copeland is represented by Elizabeth Alvarez. Judge Payne is represented by John Raley.

13 Cause No. 2023-00958; Rory Olsen v. Judge Jason Cox. Rory Olsen is represented by Jared Woodfill. Judge Cox is represented by Cris Feldman.

14 Cause No. 2023-00955; James Lombardino v. Judge Audrie Lawton-Evans. James Lombardino is represented by Jared Woodfill. Judge Lawton-Evans is represented by Anthony Drumheller.

15 Cause No. 2023-01202; Stan Stanart v. Clerk Teneshia Hudspeth. Stan Stanart is represented by Elizabeth Alvarez. Clerk Hudspeth is represented by Neal Manne.

16 Cause No. 2023-01066; Dan Simons v. Judge Sedrick Walker. Dan Simons is represented by Elizabeth Alvarez. Judge Walker is represented by John Raley.

17 Cause No. 2023-301111; Will Archer v. Judge James Horwitz. Will Archer is represented by Elizabeth Alvarez. Judge Horwitz is represented by John Raley.

18 Cause No. 2023-01103; Kyle Scott v. Carla Wyatt. Kyle Scott is represented by Elizabeth Alvarez. Ms. Wyatt is represented by Neal Manne.

19 Cause No. 2023-01076; Aaron Adams v. Judge LaShawn Williams. Aaron Adams is represented by Elizabeth Alvarez. Judge Williams is represented by Anthony Drumheller.

20 Cause No. 2023-01067; Dan Spjut v. Judge Juanita Jackson. Dan Spjut is represented by Elizabeth Alvarez. Judge Jackson is represented by John Raley.

21 Cause No. 2023-01052; Sartaj Bal v. Judge Toria Finch. Sartaj Bal is represented by Elizabeth Alvarez. Judge Finch is represented by Anthony Drumheller.

I will pass along information about the fundraiser when I have it. You can also contribute to any candidate you like directly – just google them or find their campaign Facebook page to get to a suitable Donate link for them. It’s deeply annoying that we have to do this – as a reminder, these cases are stinking piles of nothing and the losers pursuing them damn well know it – but it’s where we are. Let’s make it a little less hard for these Dems who clearly and correctly won their races.

Here we go again with the “defunding” baloney

Feb 13th, 2023
by Charles Kuffner.
2 comments

I was all set to have a peaceful weekend when I came across a press release from Commissioner Ellis’ office on Friday afternoon about this.

Texas Comptroller Glenn Hegar on Friday accused Harris County of defunding law enforcement, rekindling a feud from last fall in which Republican state officials threatened to block the county’s annual budget.

At issue is a new state law passed by the GOP-controlled Legislature, Senate Bill 23, that bars large counties from cutting law enforcement spending without getting approval from voters. Hegar, responding to a fresh complaint from Harris County Constable Ted Heap, said county officials had reduced the budget for Heap’s Precinct 5 office by some $2.4 million in their most recent budget.

Hegar said in a statement that the county will be barred from increasing property tax collections — plus revenue from properties added to the tax roll last year — until it resolves the discrepancy. It could also ask voters to approve the “funding reduction” in a referendum, Hegar said.

Harris County Attorney Christian Menefee said the county would challenge Hegar’s finding in court if necessary.

“We’ve seen this show before — Comptroller Hegar misconstruing the law and playing political games to make headlines,” Menefee tweeted. “His math was wrong then and it’s wrong now.”

[…]

As happened last fall, Hegar and County Administrator David Berry have used different methods to project out Heap’s seven-month budget to a full year. Under Hegar’s calculations, Heap’s “annualized” budget would have been about $48.9 million over 12 months — nearly $2.3 million off from the $46.7 million figure calculated by the county.

Adding to the confusion, Hegar and the county are separately at odds over Heap’s current budget, which was adopted by the Democratic-controlled Commissioners Court last fall. According to Hegar, Heap’s office was allotted about $46.6 million for the 2023 fiscal year. Berry’s office said Heap actually received $48.5 million.

Hegar, a Republican, said he hopes Heap and county officials can resolve the situation themselves “long before Harris County begins budget deliberations for fiscal year 2024.” He also predicted that county officials would “once again use a convoluted approach” to argue they had not reduced Heap’s funding.

“The root cause of that debate, however, remains unresolved,” Hegar said in the statement, referring to the defunding spat from last fall. “Judge Lina Hidalgo and the Harris County Commissioners Court are defunding the police.”

Hidalgo’s office did not immediately respond to a request for comment.

For his part, Berry noted that the county had already been forced to adopt the property tax revenue freeze for its current budget because Commissioners Court was unable to reach a quorum needed to set a tax rate.

Same shit, different year. Last time around, Hegar folded like a cheap suit after Harris County took the matter to court. Neither he nor Ted Heap seems to have gotten any better at math or more truthful in general, so most likely this will play out in similar fashion. But boy it sure would be nice to have a state government that wasn’t a constant threat to our local matters? Even for a few weeks. Oh, and if this is one of the final straws that leads to Constable precinct redistricting, I won’t complain.

January 2023 campaign finance reports: Harris County

Feb 1st, 2023
by Charles Kuffner.
2 comments

Previously: City of Houston

January 2022 reports are here, July 2022 reports are here. I did not get around to doing the 30-day and 8-day reports from 2022, so what you see here in these reports is not contiguous for those who were on last November’s ballot.

Lina Hidalgo, County Judge

Rodney Ellis, County Commissioner, Precinct 1
Adrian Garcia, County Commissioner, Precinct 2
Tom Ramsey, County Commissioner, Precinct 3
Lesley Briones, County Commissioner, Precinct 4

Kim Ogg, District Attorney
Christian Menefee, Harris County Attorney
Ed Gonzalez, Sheriff
Joe Danna, Sheriff
Ann Harris Bennett, Tax Assessor

Alan Rosen, Constable Precinct 1
Jerry Garcia, Constable Precinct 2
Sherman Eagleton, Constable Precinct 3
Mark Herman, Constable Precinct 4
Ted Heap, Constable Precinct 5
Sylvia Trevino, Constable Precinct 6
Phil Sandlin, Constable Precinct 8

Teneshia Hudspeth, County Clerk
Marilyn Burgess, District Clerk
Carla Wyatt, County Treasurer

Alexandra Mealer, County Judge
Jack Cagle (SPAC), County Commissioner, Precinct 4
Steve Radack


Name             Raised      Spent    Loans    On Hand
======================================================
Hidalgo         612,111  1,095,479  101,400     36,568

Ellis            40,800    443,116        0  3,543,358
Garcia, A       175,027    340,089        0    291,697
Ramsey          550,625    149,433        0    944,935
Briones         819,495    331,782        0    667,234

Ogg             161,659     19,356   48,489    242,159
Menefee          36,826     30,700        0    193,291
Gonzalez              0      4,032        0      9,258
Danna             1,983     19,814   18,452        982
Bennett               0      1,022        0     14,527

Rosen           717,202     84,691        0  1,322,398
Garcia           33,177      8,498        0     54,177
Eagleton         51,665     23,158  119,650     59,159
Herman                0     96,574        0    518,009
Heap                  0     69,735   18,880     68,808
Trevino           3,150      4,270        0     26,871
Sandlin          38,580     28,502        0     79,998

Hudspeth          4,660     22,009        0      9,952
Burgess             940     14,710    5,207      5,403
Wyatt             1,950      2,110        0      2,258

Mealer          356,684    621,482        0    188,512
Cagle            64,225    186,970        0      5,056
Radack                0     71,246        0    794,652

I included Mealer and Cagle for post-election inclusion mostly out of curiosity. Jack Morman did not have a report filed or I’d have included him as well. Cagle’s July report showed over a million bucks on hand. Life comes at you fast. (Except for Steve Radack, who still has a nice chunk of change in his account.) On the other side of that, you can see that Judge Hidalgo left it all on the field. She’ll have plenty of time to build that treasury back up; she did a pretty good job of that this cycle, so I’d expect to see her total tick up in short order. I didn’t look closely at new Commissioner Briones’ report, but I’d bet a nice lunch that a substantial chunk of her cash arrived after the election. It’s good to be a Commissioner.

I don’t think I’ve seen reports for District Attorney on the county election site before. DA is technically a state office – for smaller counties, the DA can cover several of them at once – so I’d normally expect to see them on the Texas Ethics Commission site. Not that I’m complaining. I figure it’s just a matter of time before incumbent DA draws a primary challenger or two, so we’ll want to keep an eye on her fundraising totals. Nothing else of great interest in this group – I’d expect both Ed Gonzalez and Christian Menefee to start posting bigger numbers soon. As for Joe Danna, is there ever a time when he isn’t running for Sheriff?

I don’t know if we will get Constable/JP redistricting, but there are always some interesting primary contests here, and even with the same maps we could have interesting November races in Precincts 4 and 5. Along those lines, I note two potential future Constable candidates: Don Dinh, a Deputy Constable in Precinct 1 since 2020 who was for 24 years before that a sergeant in the Fort Bend County Precinct 2 Constable’s office, filed a designation of treasurer to run for Constable in Precinct 5. I’m going to guess he’d run as a Democrat, but I can’t say for sure at this time. A William Wagner, about whom I could find nothing, filed the same for Constable in Precinct 7. He would almost surely run as a Dem in this heavily Democratic precinct.

Oh, and the second place where there might be a Democratic primary fight worth watching is in Precinct 1. Alan Rosen had his eye on the Sheriff’s office back when Ed Gonzalez was a nominee for head of ICE, but that’s off the table now. He may or may not seek to run for something else – do remember that the minute he says something to that effect he’ll have to resign, so all we would have before then is speculation – but either way I won’t be surprised to see some competition for the Precinct 1 slot. One of his top staffers ran against Judge Hidalgo in the 2022 Dem primary, and I imagine there will be some kind of response to that. That would not be a cheap race as things stand now, as you can see.

Not much else to say at this time for 2024, but I will note that at least some of the Democratic judges whose election is being challenged by a sore loser are raising funds for their legal defense. If you have a favorite or two among them and a few bucks to spare, I’m sure they’d appreciate a contribution.

More on the lawsuit against Paxton’s deranged ballot access opinion

Jan 25th, 2023
by Charles Kuffner.
Comments are off for this post

There are actually three counties suing him, not just the one I had originally noted.

The only criminal involved

At least three Texas counties — Tarrant, Williamson, and Harris — have sued Attorney General Ken Paxton and are asking a judge to strike down a legal opinion he released last year that says anyone can access voted ballots right after an election. The lawsuits allege Paxton’s opinion violates state and federal law, contradicts his own previous direction on the issue, and exposes local election administrators to potential criminal charges.

For decades, the attorney general’s office advised counties that voted ballots were to be kept secure for 22 months after an election, a timeframe mandated by federal law and Texas state election code. But only months before the November 2022 general election, even though neither law had changed, Paxton released an opinion saying the documents could be released to anyone who requested them, almost right after the ballots were counted.

Now, counties and election officials across the state are stuck. They can follow Paxton’s new opinion — which is only a written interpretation of the law — and potentially open themselves up to criminal penalties for violating state law, or they can defy the state attorney general and open up themselves to costly lawsuits.

That’s why now the counties are asking a judge to step in and settle the question.

Paxton’s office did not respond to emails requesting comment. Paxton so far has filed a response only to Tarrant County’s lawsuit, which was filed in October and was the first of the three challenges. Paxton’s office denied the county’s claims.

Experts say the move by three different counties to challenge the Texas attorney general’s legal opinion speaks to the complicated position it has put local election officials in. His opinion, they say, has caused chaos, and has no basis in state law.

“These counties don’t have a choice. They have to worry about whether Ken Paxton is going to take action against them,” said Chad Dunn, an Austin-based attorney and an expert on Texas election law. Dunn said Paxton’s opinion “is laughable. The election code is clear. I’ll be just shocked if the state court system ends up agreeing with Ken Paxton and the ballots are public.”

[…]

The Texas attorney general’s office, including Paxton’s own administration, has affirmed this interpretation of the law since the 1980s. The practice of keeping the ballots preserved and confidential for 22 months, experts say, prevents the documents from being tampered with or compromised and protects the documents’ reliability in case there’s a request for recount or other election challenges.

Paxton released his opinion in August after a request from state Sen. Kelly Hancock and state Rep. Matt Krause, both Republicans, who said members of the public and legislators desired “to audit the outcome of Texas elections.” In a footnote, Paxton acknowledged that the attorney general’s office had issued a previous opinion in 1988, before he took office, saying unauthorized access to the ballots during the preservation period is prohibited. But the new opinion offers no clear explanation of his decision to change a decades-old precedent.

Paxton’s office “does not have the authority to make or change the law; that is a responsibility that solely rests with the Texas Legislature,” Tarrant County’s lawsuit says.

Paxton’s new opinion does not address the potential criminal exposure of election officials, who could be charged with a misdemeanor amounting to $4,000 in fines or up to a year in jail, or offer a clear timeframe of how quickly election clerks must provide the records to requesters.

“The Election Code provides a few limited circumstances where the custodian has express authority to access ballots prior to the 22-month expiration. Responding to [public information] requests is not one of those circumstances,” the Williamson County lawsuit says.

The three lawsuits are technically challenging Paxton’s Public Information Act decisions — which experts say is not an uncommon practice — and not his legal opinion directly. In order for counties to be able to challenge an attorney general’s opinion in court, the counties must have “standing and show a reason why it affects” them said Bob Heath, an Austin-based election and voting rights lawyer and a former chair of the opinions committee of the Texas attorney general’s office. The counties are doing so through the Public Information Act challenges that are based on Paxton’s decision, which Heath says is “wrong.”

“That’s a way to get to this opinion, and the opinion obviously poses a real problem for counties or for election administrators and county clerks,” Heath said.

See here, here, and here for the background. I don’t have much to add to what I’ve already said, I’m just waiting to see when the court will issue a ruling. After that, it’s a matter of what the Supreme Court will do. I have some hope, but these days that always has to be tempered with extreme anxiety. Stay tuned.

HD135 election contest dismissed

Jan 12th, 2023
by Charles Kuffner.
Comments are off for this post

From the inbox:

This week, Speaker of the Texas House Dade Phelan dismissed the election contest filed by Mike May, the candidate who lost to Representative Jon Rosenthal in the 2022 election for house district 135. The case was dismissed because May failed to timely pay the security of costs required by Texas law.

“This quick dismissal shows these election contests are largely about political posturing and undermining our democratic processes,” said Harris County Attorney Christian D. Menefee. “I thank Speaker Phelan and Representative Morgan Meyer for upholding the law and ensuring the will of the voters stands.”

Under Texas law, the Texas House of Representatives presided over this contest because it was filed by a candidate for that body. Unfortunately, more than 20 other election contests are still pending in Harris County—most of those races had greater vote margins than May’s. Those cases are expected to proceed over the next few months.

See here for the background. This one was particularly unserious, and the resolution shows how weak it was. Here’s County Attorney Menefee’s Twitter post, with a copy of the letter to May from Speaker Phelan:

My post about the HD135 election contest ran on December 3, so it was filed at least one day before then. The deadline for paying the required fee – I have no idea how much, but if there was even a sliver of a chance this was for real, this guy would have had no trouble getting some fat cat to pay for it as needed – was December 9. Maybe he could have gotten an extension if he’d asked and had some reason for it, but practically speaking this thing has been dead for a month.

This has no effect on the other challenges filed by other losing losers, as legislative contests are heard in the House while these others will be argued in a courtroom. They aren’t any more valid, they’re just in a different venue. From the County Attorney’s press release, they may take awhile to be resolved. I will of course keep an eye on them. The Trib, whose story published after I drafted this and which mostly recapitulates what I’ve got here, has more.

Additional Losing Candidates File Election Contests in Harris County

Jan 7th, 2023
by Charles Kuffner.
5 comments

That’s the subject of the following email I got in my inbox yesterday, and I can’t do any better than that for a post title.

Additional Losing Candidates File Election Contests in Harris County

Houston, Texas – Today, several losing Republican candidates filed election contests to void the more than 1 million votes cast in Harris County’s November 2022 election. Thus far, the Harris County Attorney’s Office has identified filings by (and we expect more filings to be made today):

  • Mark Montgomery, former candidate for Harris County Criminal Court at Law No. 6 (lost to Judge Kelley Andrews)
  • Matthew Dexter, former candidate for Harris County Criminal Court at Law No. 12 (lost to Judge Genesis Draper)
  • Brian Staley, former candidate for Harris County Civil County Court at Law No. 4. (lost to Judge Manpreet Monica Singh)
  • Mark Goldberg, former candidate for Harris County Criminal Court at Law No. 8 (lost to Judge Erika Ramirez)
  • Bruce Bain, former candidate for the 269th District Court (lost to Judge Cory Sepolio)
  • Michelle Fraga, former candidate for the 281st District Court (lost to Judge Christine Weems)
  • Elizabeth Buss, former candidate for the Harris County Criminal Court at Law No. 5 (lost to Judge David Fleischer)
  • Chris Daniel, former candidate for Harris County District Clerk (lost to Marilyn Burgess)

These filings are in addition to previously announced contests by:

  • Erin Lunceford, former candidate for the 189th District Court (lost to Judge Tamika Craft)
  • Tami Pierce, former candidate for the 180th District Court (lost to Judge DaSean Jones)
  • Alexandra Mealer, former candidate for Harris County Judge (lost to Judge Lina Hidalgo)
  • Mike May, former candidate for State Representative District 135 (lost to Representative Jon Rosenthal)

Below is the statement from the County Attorney released this morning:

“This is a shameful attempt by a group of losing candidates who couldn’t win the hearts and minds of Harris County voters and are now throwing nonsensical legal theories at the wall to see what sticks. Each of them should be deeply embarrassed and these claims should not be taken seriously by the public,” said Harris County Attorney Christian D. Menefee. “These losing candidates are finally laying bare what we all know to be true – for them, it’s not about improving elections or making sure our elections are secure, it’s about playing games with our democratic systems and refusing to accept the will of the voters.”

The contests being filed request that the more than one million votes cast in Harris County be voided and the county hold another election for the races being challenged (e.g., Harris County Judge, 189th District Court, 180th District Court, etc.).

“These election contests are frivolous attempts to overturn the votes of more than a million residents in the third largest county in the country. The county will now have to spend substantial resources handling these contests, time that could instead be spent serving the people of Harris County,” added County Attorney Menefee. “Voters have moved on. Public servants have moved on. These losing candidates should move on too.”

See here and here for the background. The judge in the Lunceford contest was assigned on December 13, I don’t know what has happened since then. I do know that at least one more loser has filed a loser’s contest, but I don’t care to give any of this any more validity. You can read the Chron story here and their explainer about election contests here. I think the Trib story contains the most relevant bit of information:

The Election Day problems were unlikely to have been substantial enough to swing the results of the Harris County judge’s race, according to Bob Stein, a political science professor at Rice University.

Nearly 70% of voters cast their ballots during the early voting period, but Mealer only cites issues on Election Day itself.

“I’m extremely doubtful that there is a legitimate legal challenge here,” Stein said. “It’s not like voters were told they couldn’t vote or that they had to go home. They were discouraged because the lines were long, or because they were told they’d have to wait.”

Those challenges do not amount to voter suppression, Stein said, but merely suggest that Harris County should operate fewer, better-resourced polling locations.

To make its case, Mealer’s legal team will have to find evidence that more than 18,000 voters were unable to cast ballots on Election Day, and that all of those voters planned to vote for Mealer, Stein said.

And every voter who might have been discouraged by issues at one location could have gone to another one, which would have been at most a couple of minutes away by car. Even at the highest end of the estimate of locations that had issues, more than 90% of them did not. We have multiple locations at which anyone can vote precisely as a hedge against problems at any one specific location. In the old days, when you had to vote at your precinct location, you really were screwed. Now you can just go somewhere else. Even in the case of the loser who lost to DaSean Jones by 449 votes, it’s extremely hard to imagine there could have been enough people who encountered problems and could not vote anywhere else and would have voted for the loser to make a difference. This is all bullshit and should be seen as such. Campos and the Texas Signal have more.

Agreement reached on I-45 expansion plans

Dec 20th, 2022
by Charles Kuffner.
4 comments

I remain skeptical, but we’ll see.

The bottleneck of design differences that has divided officials about remaking Interstate 45 north of downtown Houston is easing, officials said Monday, clearing the way for construction on the $10 billion project, perhaps in less than two years.

“There is no perfect design,” Houston Mayor Sylvester Turner said. “On balance, with the improvements … I think you have an excellent project that will move forward and move the greater good.”

The agreement outlines plans for widening the freeway by adding two managed lanes in each direction from downtown Houston north to Beltway 8, along with various frontage road and interchange alterations.

“We are ready to move forward together,” said Texas Transportation Commissioner Laura Ryan.

After spending months at loggerheads, but working on some consensus, the Texas Department of Transportation committed to a handful of concessions, such as increasing the money it will pay the Houston Housing Authority for relocation and development of affordable housing, and assurances to design the project as much within the current freeway footprint as possible. The project also connects to trails for running and biking, adds air monitoring in certain areas, adds features aimed at encouraging transit use and commits to stormwater design changes sought by the Harris County Flood Control District.

“Not all the things we wanted materialized, but that is compromise,” said Harris County Pct. 2 Commissioner Adrian Garcia.

The agreement announced Monday does not remove the pause the Federal Highway Administration placed on the project in March 2021. But with blessing of local, state and federal elected officials, it is likely TxDOT and the FHWA could come to a separate agreement and work could proceed, people involved in the deal said.

[…]

The agreements are a rare case of a major Texas highway project receiving major changes, prompted by community opposition, after officials had essentially greenlit its construction. The deals, however, also give TxDOT room to consider alternatives that reduce the number of homes and businesses displaced, but also do not hold them to any specific reductions.

“We expect TxDOT to uphold its end of this historic agreement, and not only to evaluate the impacts over the next year but to agree to and fund real solutions that address concerns about displacement, pollution, flooding and impacts on the public transportation network,” said Harris County Pct. 1 Commissioner Rodney Ellis.

The difference in visions has dogged the project for more than two years, but progress on remaking the freeway hit two large potholes in March 2021, after critics of the widening convinced some local officials to step in and federal highway officials paused work. Around the same time, Harris County sued TxDOT, saying the designs did not adequately address the impacts of noise and pollution in some communities, notably the North Side and Independence Heights.

In the roughly 20 months since, officials chipped away at the differences, postponing action on the county’s lawsuit and awaiting the federal review, while exploring what changes TxDOT could make to appease concerns. In the interim, Harris County Judge Lina Hidalgo and Garcia, who both were outspoken about the need for changes to the design, were reelected.

The two new agreements, one between TxDOT and the city and another between TxDOT and Harris County, specify the commitments both sides are making. Turner signed the city’s agreement Monday, after it was signed by TxDOT Executive Director Marc Williams. The county’s agreement can only be approved after a Commissioners’ Court meeting, scheduled for Thursday. Approval of the deal would automatically trigger a request by county officials drop the lawsuit against TxDOT.

Most of the new details are similar to requests Turner made in August 2021, and correspond with requests county officials raised more than a year ago, which state highway officials said they could not approve because they locked TxDOT into commitments on side ventures that were not included in the project.

Opponents of TxDOT’s design, finalized in 2019, said they needed to review specifics of the two agreements, but remained opposed to some of the fundamental features included in the plans.

“TxDOT has yet to adequately respond to community concerns about induced demand — the phenomenon by which wider highways make traffic worse,” the group Stop TxDOT I-45 said in a statement.

“We want a project that does not displace, and we know that wide freeways do not relieve traffic,” the group said. “We are excited to remain an active partner in this planning and development process.”

The city’s press release is here. On the one hand, I have faith that local political leaders who have been vocal in their opposition to TxDOT’s previous plans have done their best to get as good a deal as they can. They couldn’t hold out forever – there’s a lot of pressure to make I-45 renovation and expansion happen – and no one gets everything they want in a negotiation. If I trusted them before I have no reason not to trust them now. That doesn’t mean I’ll agree with every decision they made, but I start out with the belief that they did their best to act in our interest.

On the other hand, I and others who live close to I-45 and will be directly affected by whatever does happen in some way – and let’s be clear, lots of people will be much more directly affected than I will – are under no obligation to like this agreement, no matter how reasonable it may be and no matter how unprecedented it may be for TxDOT to bend as much as they apparently did. I don’t care how long it takes some dude to drive into town from The Woodlands. I’m perfectly happy telling them all to take one of the commuter buses in, and if the service for that is inadequate to push for it to be improved. I have no interest in prioritizing those needs over anyone else’s. I appreciate that Mayor Turner, Congresswoman Jackson Lee, Judge Hidalgo, Commissioners Ellis and Garcia, County Attorney Menefee, and everyone I’m forgetting eventually had to say Yes to a sincere and meaningful counteroffer. I really do believe they did the best they could and that we’re overall in a much better place than when we started and that we worked hard for it. But I still don’t have to like it. I’ll try to learn to live with it. That’s the best I can do. CultureMap has more.

Judge assigned to hear election loser contest

Dec 14th, 2022
by Charles Kuffner.
Comments are off for this post

From the inbox, a press release from Harris County Attorney Christian Menefee:

Judge David Peeples will preside over the election contest filed by Republican candidate Erin Lunceford to void the results of her race for the 189th District Court in the November 2022 Harris County General Election. Judge Peeples has set an initial status conference for today, Tuesday December 13, at 3:00 p.m.

“This will be an important case, and I’m glad to see it’s progressing,” said Harris County Attorney Christian D. Menefee. “The County will participate in the case, and we plan to make clear that it would be a grave injustice to throw out more than a million legally cast votes, especially given Ms. Lunceford’s completely baseless theories. Each of those votes represents a Harris County resident who participated in our democratic process. That is a sacred act, and we’re going to fight to protect it.”

Judge Peeples is based in San Antonio, and was appointed by the Honorable Susan Brown, the Presiding Judge of the Eleventh Administrative Judicial Region of Texas. Texas law disqualifies the judges in a county from presiding over an election contest filed in that county.

This contest is one of two current requests by losing Republican candidates to throw out the results of the November 2022 election in certain races. The other challenge is regarding State Representative District 135, which will be heard in the State House of Representatives.

“This election took countless hours of work not only by county employees, but by election judges and workers from both parties. We should be looking for ways to support these public servants rather than constantly undermining the hard work it takes to run an election in the third largest county in the country,” added County Attorney Menefee.

See here for the background. If the name sounds familiar, it may be because Judge Peeples was the jurist who ruled that the abortion bounty hunter law SB8 violated the state constitution last December, though he did not issue a statewide injunction against it. I did not see any news items related to this, so what you see here is all I know. Hopefully we will hear more about how this is progressing quickly.

And now we have a judicial loser contesting the election

Dec 9th, 2022
by Charles Kuffner.
8 comments

The Republicans did warn us they’d be sore losers.

Republican judicial candidate Erin Lunceford filed a petition Wednesday seeking a new election in Harris County’s 189th judicial district court race after losing by 2,743 votes out of more than 1 million ballots cast.

Lunceford’s opponent, Democrat Tamika Craft, won the election by 0.26 percent of the vote.

The petition, which names Lunceford as the contestant and Craft as contestee, claims numerous violations of the Texas Election Code, including a failure to provide a sufficient amount of ballot paper to 25 polling locations.

Harris County Republican Party Chair Cindy Siegel indicated there could be more election contests to come.

“During the last month, we’ve had a lot of our candidates that were in very close races that have been talking to us wanting to know the information that we’ve accumulated and have reported,” Siegel said. “Several of them are considering election contests.”

Andy Taylor, general counsel for the Harris County GOP, is representing Lunceford.

Taylor accused Harris County Elections Administrator Cliff Tatum, who took over the office starting in August, of intentionally causing ballot paper shortages in Republican-leaning neighborhoods.

“If it was just mismanagement, it was just gross incompetence, wouldn’t one think that the lack of paper would apply equally and uniformly across the map, so that there would be roughly an equivalent number of Democratic stronghold precinct neighborhoods as well as Republican precinct stronghold neighborhoods?” Taylor said. “And, yet, that’s not the way it’s breaking.”

Taylor alleged 80 percent of polling places with paper shortages on Nov. 8 were in areas considered Republican strongholds.

“I want to send a message to the Harris County elections administrator,” Taylor said. “Mr. Tatum, your day of reckoning has just started.”

In a statement, Harris County Attorney Christian Menefee said his office will keep a close eye on Lunceford’s election contest.

“I’m disappointed to see another losing candidate challenging the results of their election. Judge Lunceford previously served on the bench, so I trust she understands the seriousness of asking a court to disregard the votes of over a million residents across Harris County,” Menefee said. “This case will focus on the details of every aspect of the November 8 election in Harris County. My office will be involved in the case every step of the way to ensure people’s votes are protected.”

The petition is filed in Harris County, but the case will be heard by a judge from outside the county, according to Menefee’s office.

So many things to say, so I’ll bullet-point it:

– This is different from the ridiculous election contest filed in HD135 by a candidate that lost by 15 points and over 6,000 votes. That one would be heard in the House by a House committee, if Speaker Phelan for some reason doesn’t toss it as a frivolous waste of time. This one will be heard in a courtroom.

– As a reminder and a general principle, never believe a word Andy Taylor says.

– To put it another way, good luck proving intent. Also, reports from the field on Election Day about paper issues were very much coming from Democratic sites. The Texas Organizing Project didn’t file its lawsuit to extend voting hours because of problems in The Villages and Cy-Fair.

– Random fact: In 2020, Democrat Jane Robinson lost her race for Chief Justice of the 14th Court of Appeals by 1,191 votes out over over 2.3 million cast, a margin of 0.06 percent of the vote. You know what she did? She conceded gracefully and went on with her life.

– Another reminder: There were 782 voting locations on Election Day, and you could vote at any of them. There were a half-dozen voting locations within walking distance of my house on Election Day. Anyone who ran into a problem at one location could have gone to another. By all accounts, there were maybe 20-25 sites that have paper issues. That left a mere 750 or so alternatives, including ones that would have been very close by.

– In other words, please find me the people who showed up to vote at a location that was having paper problems, and did not wait for them to be fixed, did not go to another location, did not come back later, and as a result did not vote. You really gonna claim that there were over two thousand of them, and all of them were going to vote for Erin Lunceford?

– Did I mention that the Republicans opposed the extension of voting hours in Harris County (and not in red-voting Bell County, which also had voting location issues), and also opposed the counting of provisional ballots cast by people who voted after 7 PM? As I said before, the obvious way to deal with delays in opening a given voting location is to push back the closing time for it. But the Republicans opposed that at every turn.

– Can you imagine what the Republican response to this would be if it were a Democrat complaining about voting location problems? You could have voted elsewhere! You could have voted early! It’s your own damn fault you didn’t vote! Look at how zealously they opposed all of the efforts to expand voting access in the pandemic, including the third week of early voting that Greg Abbott ordered. You’re immunocompromised and you want to vote by mail or from your car because you’re afraid of a deadly disease? Too bad!

– The remedy, if they somehow win on these laughable claims, would be to redo the entire damn election. To say the least, that is a massive, massive upending of the regular democratic order. The amount of evidence they’d need to provide to come close to justifying such an ask, I can’t even begin to comprehend.

– But really, this is all about making noise and trying to cast doubt on the election administrator’s office and government in general in Harris County. It’s just the Big Lie in a slightly sanitized package.

Candidate who lost by 15 points files election contest

Dec 3rd, 2022
by Charles Kuffner.
1 comment

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

Nov 23rd, 2022
by Charles Kuffner.
10 comments

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?

Nov 10th, 2022
by Charles Kuffner.
1 comment

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”?

Nov 10th, 2022
by Charles Kuffner.
Comments are off for this post

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

Nov 8th, 2022
by Charles Kuffner.
3 comments

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

Oct 22nd, 2022
by Charles Kuffner.
Comments are off for this post

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

Oct 4th, 2022
by Charles Kuffner.
2 comments

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

Aug 26th, 2022
by Charles Kuffner.
2 comments

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

Aug 19th, 2022
by Charles Kuffner.
1 comment

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

Aug 18th, 2022
by Charles Kuffner.
2 comments

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

Aug 11th, 2022
by Charles Kuffner.
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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?

Aug 4th, 2022
by Charles Kuffner.
3 comments

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

May 25th, 2022
by Charles Kuffner.
7 comments

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

May 15th, 2022
by Charles Kuffner.
1 comment

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

Apr 24th, 2022
by Charles Kuffner.
Comments are off for this post

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

Apr 5th, 2022
by Charles Kuffner.
1 comment

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

Mar 25th, 2022
by Charles Kuffner.
Comments are off for this post

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

Feb 25th, 2022
by Charles Kuffner.
Comments are off for this post

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

Feb 24th, 2022
by Charles Kuffner.
1 comment

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.

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