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Common Cause

Lots of mail ballot applications are being rejected now

This is a feature, not a bug.

Hundreds of Texans seeking to vote by mail in the upcoming March primary elections are seeing their applications for ballots rejected by local election offices trying to comply with stricter voting rules enacted by Texas Republicans last year.

Election officials in some of the state’s largest counties are rejecting an alarming number of mail-in applications because they don’t meet the state’s new identification requirements. Some applications are being rejected because of a mismatch between the new identification requirements and the data the state has on file to verify voters.

Under Texas’ new voting law, absentee voters must include their driver’s license number or state ID number or, if they don’t have one, the last four digits of their Social Security number on their applications. If they don’t have those IDs, voters can indicate they have not been issued that identification. Counties must match those numbers against the information in an individual’s voter file to approve them for a mail-in ballot.

In Harris County, 208 applications — roughly 16% of the 1,276 applications received so far — have been rejected based on the new rules. That includes 137 applications on which voters had not filled out the new ID requirements and 71 applications that included an ID number that wasn’t in the voter’s record.

In Travis County, officials said they’ve rejected about half of the roughly 700 applications they’ve received so far, with the “vast majority” of rejections based on the new voting law.

In Bexar County, officials have rejected 200 applications on which the ID section was not filled out. Another 125 were rejected because the voter had provided their driver’s license number on the application, but that number was not in their voter record.

“It’s disturbing that our senior citizens who have relished and embraced voting by mail are now having to jump through some hoops, and it’s upsetting when we have to send a rejection letter [when] we can see they’ve voted with us by mail for years,” said Jacque Callanen, the Bexar County election administrator.

[…]

Throughout last year’s protracted debate over the new voting law, state lawmakers were warned about potential issues that could arise from the new ID matching requirements, in part because the state does not have both a driver’s license and Social Security number for all of the roughly 17 million Texans on the voter rolls. Voters are not required to provide both numbers when they register to vote.

Last summer, the Texas secretary of state’s office indicated that 2,045,419 registered voters lacked one of the two numbers in their voter file despite the office’s efforts to backfill that information in the state’s voter rolls. Another 266,661 voters didn’t have either number on file.

Those numbers have since dropped. As of Dec. 20, 702,257 voters had only one number on file, while 106,911 didn’t have either, according to updated figures provided by the Texas secretary of state’s office.

Meanwhile, 493,823 registered voters didn’t have a driver’s license on file, which is the first number voters are asked to provide on both applications to register to vote and applications to vote by mail.

The new law is also tripping up voters who may be unaware of the new ID requirements. Callanen said she had to reject 30 voters who submitted an outdated application form that didn’t include the new ID field. Election officials in Williamson County, which has processed a total of 305 applications to vote by mail, said the same issue plagued a chunk of the applications that they rejected.

The sources of the outdated applications are unclear. While the Legislature banned county election officials from proactively sending out applications to vote by mail, even to voters who automatically qualify, voters can still receive unsolicited applications from campaigns and political parties.

This was both easily predictable and widely predicted. Since this election is a primary, and people have to request a specific party’s ballot, it would be very interesting to know how many rejections came from each party, and what percentage of the total number of requests for each party were rejected. Most likely it’s more or less evenly split, but you never know. Unintended consequences are everywhere.

I want to extend a little bit of grace to the employees of the Secretary of State’s office, who have had to do a massive update of their guidance for elections officials in a very short time. The fault lies entirely with the Republicans that shoved this travesty through, and with the raving lunatic former occupant of the White House, whose narcissism and dishonesty compelled his minions to pass such laws. But the lion’s share of the grace goes to the various elections administrators, who are on the business end of this mess. If you want a mail ballot, make sure you fill out the current form correctly, and get your request in ASAP.

Some commentary from Twitter:

That last one is more of a general comment, but you get the idea. In the meantime, Common Cause tells you how to take some control of the situation:

Voters who have applied for a mail ballot can check their status online at https://teamrv-mvp.sos.texas.gov/BallotTrackerApp/#/login. Voters who do not have internet access can call their county clerk’s office for information.

For voters planning to vote by mail in the March 1 primary election, the deadline for mail ballot applications to be received by the county’s Early Voting Clerk is Friday, February 18, 2022.

There’s more, so read the rest. Campos has more.

Redistricting litigation update

Reform Austin shows that the state’s legal defense strategy against the various redistricting lawsuits is “You can’t sue us!”

Because of the clear racial gerrymandering, multiple groups are launching legal challenges under the Voting Rights Act. The state has now responded to the one being brought by the League of United Latin American Citizens (LULAC), Mi Familia Vota, the Mexican American Bar Association, and others, asking for a dismissal. Among many other claims, the state alleges that private citizens do not have standing to sue under Section 2 of the Voting Rights Act.

“The Supreme Court has never decided whether Section 2 contains an implied private cause of action,” reads the filing.

Section 2 of the Voting Rights Act makes it illegal to gerrymander a district for the purpose of suppressing voting power based on race. Strictly political gerrymandering was deemed acceptable in a 2019 Supreme Court case, but the two intentions are often intermingled. The majority of minorities tend to vote Democrat, making any political gerrymandering also racial almost by definition.

The filing by the state does admit that some legal opinions have implied that Section 2 does give private citizens standing to sue but says that these implications are inconsistent with other Supreme Court decisions. The case specifically cited is Alexander vs. Sandoval, which found that regulations enacted under the Civil Rights Act of 1964 did not confer the right to legal action in a case of non-intentional discrimination. The filing also claims that the Voting Rights Act did not actually create a right to vote in spite of the discrimination, and therefor there is no right to be contested under its statute.

Not a whole lot to say here, as Texas has employed a variation on that strategy in a whole host of lawsuit defenses lately. I don’t know what the district and appeals courts will make of that, but I wouldn’t be surprised to see it get a warm welcome at SCOTUS. Hey, have I mentioned lately that a new and updated federal voting rights law would be a good idea? Just checking.

Reading that article made me go Google news hunting for anything else I could find on redistricting litigation, since not all developments make their way into the sources I read regularly. In doing so I found that all but one of the existing federal cases against the redistricting maps have been consolidated into one, the LULAC v Texas case, as it was the first one filed. You can see all of the filings related to this omnibus case here. When I read the order combining the cases, the motion for which had been partially opposed, I learned that there were two other lawsuits that I had missed the first time around. Let me sum up here. The cases that I knew about that are now under this banner: The LULAC/MALDEF suit, the Voto Latino suit, the federal MALC suit, the Senator Powell lawsuit over SD10, and the Fair Maps Texas Action Committee lawsuit.

The cases that I missed the first time around: The Lawyers’ Committee for Civil Rights Under Law, representing the Texas State Conference of the NAACP, and Damon James Wilson, formerly an inmate in Dallas County, representing himself as he was counted in one Congressional district while incarcerated but intends to return to his actual domicile in another CD when released, and says he should have been counted in that district.

The one federal case that remains separate from the others is the Gutierrez/Eckhardt suit, which the court rejected for consolidation on the grounds that about whether the Lege was allowed to draw maps at all, and not about the composition of the new maps.

So, for those of you keeping score at home, we now have two federal lawsuits challenging different aspects of Texas redistricting, and one state lawsuit that focuses on the county line rule and how it was allegedly violated in Cameron County in the drawing on HDs 35 and 37. You’ll be quizzed on this at a later date, so please make sure you take good notes.

ACLU and others sue over new redistricting maps

The count is now seven.

Civil rights groups filed a federal lawsuit Tuesday challenging new Texas state legislative and congressional district plans as unconstitutional racial gerrymanders violating both the Voting Rights Act and the U.S. Constitution. The suit details an inadequate redistricting process that lacked transparency and led to discriminatory voting maps that dilute the political power of communities of color, particularly Black, Latino, and Asian American & Pacific Islander (AAPI) voters.

The Southern Coalition for Social Justice (SCSJ), the American Civil Liberties Union (ACLU) of Texas, and the Asian American Legal Defense and Education Fund (AALDEF), brought the case on behalf of the Fair Maps Texas Action Committee, OCA-Greater Houston, the North Texas Chapter of the Asian Pacific Islander Americans Public Affairs Association, Emgage and 13 individual plaintiffs in the United States District Court for the Western District of Texas, Austin Division.

“Texas’ latest gerrymanders seek to blunt the rightful political power of fast-growing populations of Latino, Black and Asian American and Pacific Islanders voters by carving up the chance to elect their preferred candidates to the United States Congress, the Texas House of Representatives, and the Texas Senate,” Allison Riggs, Co-Executive Director and Chief Counsel for Voting Rights with SCSJ. “This intentional discrimination of voters of color in clear violation of the VRA and U.S. Constitution cannot stand.”

The Fair Maps Texas Action Committee includes the ACLU of Texas, Clean Elections Texas, League of Women Voters of Texas, Our Vote Texas, National Council of Jewish Women-Greater Dallas Section, Texans Against Gerrymandering, and Common Cause Texas.

“Today, the Fair Maps Texas Action Committee is honored to join our partners from across the state to challenge the unconstitutional district maps recently passed by the State of Texas. Lawmakers have willfully ignored the rich diversity of our growing state and have instead chosen to draw maps that discriminate against voters of color,” said organizations from the Fair Maps Texas Action Committee in a joint statement today. “From the very start of this legislative process, we worked to bring diverse people together so that all marginalized communities receive fair representation. Despite our best efforts to advocate for a fair and open redistricting process, the politicians in charge chose to shut the public out in order to force through blatantly gerrymandered maps. Now, we will take action together to challenge these unlawful maps because our democracy is threatened.”

[…]

The complaint specifically seeks to remedy discriminatory districts in many of Texas’ fastest-growing cities and suburban areas, where the political power of communities of color is exploited to the benefit of more conservative white areas. For example, the lawsuit identifies how Texas’ state House maps unfairly crack AAPI voters in Fort Bend and Collin counties among multiple districts, while House Districts 54 and 55 in Bell County brazenly split the city of Killeen, where 40% of residents are Black. The complaint also focuses on state Senate and congressional maps where new districts in the Dallas-Fort Worth and Houston metros intentionally divide AAPI, Black, and Latino voters. The suit also points out that Texas’ congressional maps create two new majority-white districts in a state where 95% of population growth stems from communities of color.

That’s from the ACLU press release. I’d gotten an email with a notice of the video conference they had about this on Tuesday, but as of Wednesday the only news story I saw about this was this one in Newsweek. Sometimes these things take a couple of days for that. Anyway, you can see a copy of the complaint here. It is limited to Congress and the two legislative chambers, so no claims about the SBOE.

The other litigation so far includes the Gutierrez/Eckhardt suit, the LULAC/MALDEF suit, the Voto Latino suit, the two MALC suits, and most recently the Senator Powell lawsuit over SD10. All but one of the MALC lawsuits, which is specifically about State House districts in Cameron County and alleges a violation of the county rule, are in federal court. I believe this is the first one to include a focus on Asian-American voters, but I’d have to go back and take a closer look at the other complaints. Beyond that, I would be really excited to have an attorney who has some familiarity with the law in this area take a look at all these actions and tell me how they are different and whether any of it matters as far as the courts are concerned. Until then, this is what we know. Reform Austin, which also rounds up all the lawsuits, has more.

More redistricting stuff

Just a roundup of some redistricting stories. We’ll start with the DMN.

The new map, part of a process of redrawing legislative boundaries every 10 years, makes significant changes in North Texas, where Democrats likely will gain a seat held by Republican Jeff Cason. The district would move to an area made up of mostly minority voters.

But the Republican proposal also adjusts the southern Denton County district represented by Democrat Michelle Beckley to make it more favorable for a GOP candidate. Beckley has opted to run for Congress in 2022 against Republican incumbent Beth Van Duyne in Congressional District 24.

Meanwhile, the North Dallas district represented by John Turner would move west and become a majority Hispanic district in Oak Cliff and Grand Prairie. Turner is retiring after his term ends, and had he stayed, he would have been paired with a Republican Morgan Meyer.

In North Texas, Republicans had the goal of protecting their incumbents who could be in trouble during the next decade. They made alterations that now have the Dallas County seats held by Republicans Angie Chen Button of Garland and Meyer, who lives in University Park. The new maps place them in areas won in 2020 by Donald Trump, but only at a 50% to 49% margin. Those districts will remain battlegrounds as Democrats try to make Dallas County a blue oasis.

Republicans bolstered their Tarrant County seats, except for the one held by Cason, which will become more Democratic. Cason also was one of only two Republicans who voted against House Speaker Dade Phelan in January. And they made the Collin County districts represented by GOP Reps. Matt Shaheen and Jeff Leach stronger for a Republican, but as with the case in Dallas County, the Collin County seats will remain targets for Democrats.

“Republicans did their best to cement their majority and, from a partisan gerrymandering standpoint, they played this very smart,” said David de la Fuente, a senior policy analysts for the center-left group called Third Way. “They didn’t go overly aggressive for new pickup opportunities for themselves because they know that a lot of this growth that’s happening in Texas is growth that could benefit the Democratic Party, so they tried to stop losses more than anything else.”

[…]

Rep. Jasmine Crockett, a Dallas Democrats who represents District 100, which includes parts of southern and eastern Dallas County, as well as West Dallas, is upset that her district is slated to incur a radical drop in its Black population. Under the new maps, the number of voting age Black residents District 100 will drop from 34.6% to 27%. The white voting age population would increase from 22% to nearly 37%. Crockett’s voting age Hispanic population drops from 41% to 29%.

“They have taken the voice away from African Americans in my district and that’s a clear violation of the Voting Rights Act,” Crockett said. “They are spitting on the legacy of HD 100. They went too far.”

Most of the Black population lost by Crockett will be moved to the nearby District 104 that is represented by Dallas Democrat Jessica González. Her new constituents would include residents from the historic Joppa neighborhood, a community built by freed slaves. District 104 has largely changed, González said. The district now extends to Mesquite and Garland.

While she would pick up Black population from districts represented by Crockett and Rose, González said the number of eligible voters with Hispanic surnames would drop from over 50% to about 48%. That could be a Voting Rights Act violation, analysts say.

Crockett and González were vocal participants of the quorum break by House Democrats to stall a controversial elections bill.

“I’m not too shocked that it ended up being me they targeted,” Crockett said. “I kind of wear it as a badge of honor…It is still a safe Democratic seat, but partisan gerrymandering is legal and when you slice and dice communities of interests, you end up with a problem.”

State Rep. Toni Rose, D-Dallas, would also have the Black population in her district sharply reduced, and she would lose Paul Quinn College. Rose’s district would see a drop in Black voting age population–from 34% to 26%. The Hispanic voting age population in the district would rise from 58% to 63%.

Black residents represented 25% of the growth in the Dallas/Fort Worth area, according to the U.S. Census Bureau.

Well, that answers my question about what Rep. Cason did to offend the redistricting gods. Gotta say, I was under the impression that doing what was done here to Rep. Crockett’s district was called “retrogression” and it was a no-no under the Voting Rights Act. It’s not clear to me if that slicing and dicing was done for strategic reasons or just out of spite. Wait for the lawsuits, I guess.

Here’s the Chronicle:

“The map gives Republicans a slight advantage,” said Ross Sherman of the advocacy group RepresentUs, which works with the Princeton Gerrymandering Project to grade redistricting proposals. “This seems to be a trend this cycle: another map producing safe seats and insulating politicians from their constituents.”

The Gerrymandering Project gave the proposed House map a “C” in fairness for its GOP advantages. It’s the highest grade a Texas map has received so far, after proposals for congressional and state Senate maps earned “F” grades.

[…]

Speaking in general about the maps, GOP strategist Brendan Steinhauser said the Republicans tried to “lock in the gains” they earned during the 2020 election, rather than “be too aggressive” and shift blue seats their way.

The House seats currently are divided almost equally between districts that favored Republican Donald Trump and Democrat Joe Biden in 2020. The current map includes 76 Trump-led districts and 74 Biden-led districts, but the new map shifts that support to 86 in favor of Trump and 64 in support of Biden.

Texas grew by roughly 4 million people over the past decade, a surge driven almost entirely by people of color, especially Latinos. Updating the political maps is required every 10 years, to account for such shifts.

Still, the proposed House map reduces the number of majority-minority districts by voting age population. Previously, 67 districts were majority-white; the new map proposes 72 districts that have mostly white voters.

Those numbers change dramatically when evaluating estimates for adult citizens. Using those figures, the House currently has 83 majority-white districts, compared with 89 under the new map. And while the current districts include 33 with Hispanic majorities and seven with Black majorities, those numbers would fall to 30 and four, respectively.

“These maps do nothing but preserve the status quo at the expense of Black and brown Texans,” said Anthony Gutierrez, the executive director of the good-government group Common Cause Texas.

Same observation about the reduction of majority-minority districts. I mean, I get that the Voting Rights Act may as well be written on toilet paper with this Supreme Court, but it’s still theoretically the law of the land. The Republicans may have had more challenges with the State House districts because of the law that requires districts to be entirely within counties where possible, which prevented them from putting pieces of urban counties in the same district with rural counties, which was not the case for the Congress or State Senate maps. Again, I figure the lawyers will have a lot to say about all this when the dust settles.

Speaking of Congress:

In a strongly-worded letter, U.S. Reps Sheila Jackson Lee and Al Green said they oppose the Republicans’ proposed redrawing of their districts and say they were not consulted before the map was released to the public.

The map “makes radical and unneeded changes to the two local congressional districts that include the majority of Black voters in Harris and Fort Bend counties,” the letter to the Texas Senate Redistricting committee states.

There are massive changes for Harris County in the congressional redistricting plan the Texas Senate released earlier this week. The county would still have nine members of Congress, but the district lines would be dramatically altered to improve the re-election chances of current Republicans and create a new congressional seat that appears to have been drafted to ensure another Republican would be elected to Congress.

The map would have a dramatic impact on the districts represented by Jackson Lee and Green, changing who represents 200,000 mostly Black residents.

Jackson Lee’s 18th Congressional District would not only lose the Third Ward, but also downtown Houston, the University of Houston and Texas Southern University — most of those areas would instead be shifted to the 29th Congressional District, represented by Democratic U.S. Rep. Sylvia Garcia.

And the Republican map would put Jackson Lee’s home in Riverside Terrace into Green’s 9th Congressional District, meaning she would not even be able to vote for herself unless she moved. It would also put Jackson Lee’s main district office for the 18th in Green’s district, forcing her to move it.

“No other member of the large Texas delegation is so severely impacted by the proposed map,” the letter notes, pointing out at Jackson Lee’s 18th Congressional District has roots that tie back to Barbara Jordan, who in 1972 became the first Black woman to represent Texas in Congress.

I said before that Reps. Green and Jackson Lee would easily win the new districts as drawn, but what was done to them is clearly an insult. For Sen. Huffman to claim that no one got in touch with her about the maps she was drawing is disingenuous, especially when she knows what effect those maps are going to have. You have the power, you have the responsibility. Spare me the whining.

More from the Statesman:

Nonwhite residents accounted for about 95% of the population growth that gave Texas two additional seats in the U.S. House.

Despite that, the number of predominantly Hispanic congressional districts in Texas would fall from eight to seven, while majority Anglo districts would rise from 22 to 23, in the Republican-drawn map unveiled this week, said Gloria Leal with the League of United Latin American Citizens.

[…]

“Toss-up seats, which presented an opportunity for Hispanics to elect candidates of choice, were cut from 12 to one,” Leal said. “This blatant attempt to increase partisanship in districts not only results in the suppression of minority votes, but it eliminates the opportunity for Hispanics to elect a candidate of their choice in violation of the Voting Rights Act and the U.S. Constitution.”

State Sen. Joan Huffman, R-Houston and chairwoman of the committee, said the map was drawn in a “color-blind way,” without taking into account the race of residents.

“We did not consider race in drawing the maps at all,” Huffman said. “Once we drew the maps, we provided them to our legal counsel … and we are advised that they were legally compliant” with the Voting Rights Act.

Michael Li, with the Brennan Center for Justice at the New York University School of Law, testified that creating the map without regard to race is not enough to insulate it from legal challenges, particularly if lawmakers know about its adverse impact on nonwhite Texans.

Li said the proposed map raised several “red flags,” particularly in the Dallas-Fort Worth area, where Black and Hispanic populations increased sharply in the past decade, yet no new districts were created to give nonwhite voters an opportunity to elect preferred candidates. At the same time, SB 6 would move a significant Latino population from a district held by U.S. Rep. Mark Veasy, D-Fort Worth, and into an Anglo majority district that includes seven rural counties, he said.

Li also questioned changes made to District 22 — centered on Fort Bend County, one of the most diverse suburban counties in America — where the voting age population would rise to 55% Anglo, up from the current 46%. Dismantling a district where rising numbers of Hispanic, Black and Asian voters were able to create voting coalitions “raises many red flags,” he said.

Have I mentioned that the lawyers are going to be busy? I don’t have much faith in the courts, but I believe in the lawyers.

Decision Desk:

Texas gained two Congressional districts through 2020 reapportionment. One district went into Austin, which the GOP previously divided between five Republican districts in 2010. All five ended up as marginal races by 2020. This new Democratic district releases pressure on the five seats allowing them to absorb Democratic voters from other parts of the state. The second new Congressional seat is roughly the successor to the old Seventh district in west Houston, with the new TX-07 traveling between Houston and her suburbs as a new, safe Democratic seat.

TX-03, TX-06, TX-07, TX-10, TX-21, TX-22, TX-23, TX-24, TX-25, TX31, and TX-32 were all potential competitive seats in 2020. TX-15, TX-28, and TX-34 became competitive because of newfound Republican strength among South Texas Hispanics. All but one of the districts are now uncompetitive. Republican Districts gain more Republican voters, and the few Democratic held seats become more Democratic. All of the former Republican suburban seats reach deep into the rural and exurban areas and drop Democratic suburbs. Former rural and exurban seats – TX-04, TX-05, TX-08, TX-13, and TX-36 – reach deeper into the suburbs to carve up Democratic areas. The result is  districts with obtuse borders where the Democrats gained the most voters, such as the north Dallas suburbs with the new TX-04.

In South Texas, past voting rights litigation prevents Republican map-makers from exploiting recent party gains. The resulting districts resemble the present lines and stretch northwards, but the most GOP-favoring Hispanic areas are now congregated in TX-15 which makes it a potential swing district. O’Rourke did win this seat by over 10%, so the district will not be competitive if the 2020 results end up as a one-off occurrence.

Texas mappers still found ways to cater to their protected incumbents. In TX-10, Senior Republican Michael McCaul gets a district that squiggles narrowly around Austin from his neighborhood west of the city to rural Texas. New TX-06 Republican Jake Ellzey’s district takes in more rural areas where he is better known and loses Arlington Republican voters who backed Susan Wright during the 2021 Special Election. TX-25 previously did not include Republican Roger Williams’ base in Weatherford, west of Fort Worth. Now it does.

Republicans also released their proposed Legislative and Board of Education district maps, which can be viewed here. Biden in 2020 and O’Rourke in 2018 won a majority or a near-majority of districts on the former maps for these bodies, so Republican mappers were even more desperate to gerrymander these lines. Both maps protect incumbents in a similar manner to the Congressional plan with the rural and exurban areas reaching into the suburbs. The legislative plans however go beyond incumbent protection and each attempt to carve up a marginally Democratic seat in the Dallas-Fort Worth Metroplex. 

The desire to protect incumbents may end up dooming State House Republicans in future years. County nesting requirements prevented the GOP from linking the Republican dominated rural areas to the suburbs. By giving former Biden-District Republicans seats Trump won, other, formerly safe Republican seats needed to take in Democratic voters. Even more districts than previously become marginal districts that could potentially swing heavily away from the GOP.

Voting rights litigation is a constant factor in Texas redistricting. For example, plaintiffs forced Texas Republicans to draw the new Dallas-based TX-33 into a Hispanic Democratic seat in 2010 (initial 2010 map here). This new Congressional gerrymander disadvantages minority communities across the state, especially since nearly all of Texas’s recent growth came from minority groups. The proposed TX-23 is only 60% Hispanic compared to the 80% or higher in other South Texas seats, limiting minority opportunity. TX-27 has several majority Hispanic counties, including the city of Corpus Christi, inside a seat where White voters historically pick the representative. TX-38 could be a second, overwhelmingly Hispanic seat in the Houston area. TX-18 was previously an African American district, but is here majority Hispanic, an example of regression. Fort Worth minority voters are distributed between four Districts and there could be a fourth minority seat in the region. A majority-minority coalition seat can be drawn in the suburbs north of Dallas. Expect this criticism and more to potentially be levied in future court cases.

I suspect he means that only CD15 is competitive, but CD23 is only Trump+7, which seems competitive enough to me. I also think that over time several others will become more competitive as well, if these districts are allowed to go into effect as is. I’m sure there will be changes, and then of course the lawsuits, though as we well know they will take years to resolve. What we eventually get here is what we’re going to have for awhile. The Current and the Trib have more.

Three more lawsuits filed against the voter suppression law

It’s a law now, and the legal machines are humming to do something about it.

Though delayed by Democratic quorum breaks, Texas has officially joined the slate of Republican states that have enacted new voting restrictions following the 2020 election.

Gov. Greg Abbott on Tuesday signed into law Senate Bill 1, sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options. The governor’s signature ends months of legislative clashes and standoffs during which Democrats — propelled by concerns that the legislation raises new barriers for marginalized voters — forced Republicans into two extra legislative sessions.

SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. But it could still be caught up in the federal courts. Abbott’s signature was both preceded and followed by a flurry of legal challenges that generally argue that the law will disproportionately harm voters of color and voters with disabilities.

On top of two federal lawsuits filed last week, three new lawsuits, including one in state district court, were filed Tuesday shortly after it became law.

[…]

The law already faces two legal challenges from Harris County and a coalition of community and advocacy groups that argue SB 1’s rewrite of Texas voting laws creates new hurdles and restrictions that will suppress voters and violates the U.S. Constitution and numerous federal laws.

Abbott’s signature Tuesday drew three more lawsuits that also argue the changes to elections in SB 1 are unlawful because they will disproportionately burden voters of color and voters with disabilities.

“SB 1 is an arduous law designed to limit Tejanos’ ability to exercise their full citizenship,” said Maria Teresa Kumar, CEO of Voto Latino, which is a plaintiff in a federal lawsuit filed in Austin on Tuesday. “Not only are we filing suit to protect the right to vote for all people of color, and the additional 250,000 young Latino Tejanos who will reach voting age in 2022, but to protect every Texan’s right to vote.”

Another legal challenge was filed in state district court in Harris County and raises claims that the law runs afoul of the the Texas Constitution, including its protection against racial discrimination.

[…]

As it worked toward getting the legislation across the finish line, the House also made changes Democrats had been pushing for, including requiring training for poll watchers. Republicans also ditched controversial provisions that would have restricted Sunday voting hours and made it easier for judges to overturn elections — both of which they tried to walk away from after Democrats first derailed the legislation in May during the regular legislative session.

Even with some of those changes, a group of plaintiffs in another federal lawsuit filed Tuesday in San Antonio, including Houston Justice and the Arc of Texas, say the legal intervention was needed to “ensure that the State does not continue to erect barriers” that have both the “intent and effect” of suppressing the votes of marginalized Texans.

“These provisions will harm all Texas voters, but consistent with Jim Crow era tradition, the burdens will be disproportionately borne by Black and Latino voters and voters with disabilities,” the plaintiffs said in their complaint. “S.B. 1 intentionally targets and burdens methods and opportunities of voting used by and responsive to the needs of voters of color, particularly Black and Latino voters, and other vulnerable voters, as evidenced by the 2020 elections.”

There are also questions on whether the U.S. Department of Justice will sue Texas over the new law, as it did Georgia earlier this year after lawmakers there passed a new law to tighten elections.

It remains unclear what, if any, Congressional action could affect the new law.

See here for more on the first two lawsuits. Before I get to the others, let me just say that if the John Lewis Act doesn’t have any effect on the new law, then either the authors of the bill are incompetent or the federal courts really have it in for us. But that assumes the damn thing can overcome the stupid filibuster, so let’s put that question off for later.

For the other lawsuits, here are the basics:

– The first lawsuit referenced is here, and it’s probably best just to print the announcement about it for the relevant details.

Minutes after Gov. Greg Abbott (R) signed voter suppression bill Senate Bill 1 into law on Tuesday, voting and civil rights groups sued to challenge the bill’s most disenfranchising provisions. The complaint, filed by LULAC Texas, Voto Latino, Texas Alliance for Retired Americans and Texas AFT, alleges that the new law imposes an undue burden on the right to vote in violation of the First and 14th Amendments, purposely intends to limit minority voters’ access to the ballot box in violation of Section 2 of the Voting Rights Act (VRA) and disproportionately impacts voters with disabilities and limited language proficiencies in violation of Section 208 of the VRA. The suit asks the court to prohibit the suppressive provisions from being enforced. This is the third lawsuit challenging S.B. 1, as two cases were filed last Friday before the bill was even signed into law.

The provisions challenged in this lawsuit include: criminalizing public officials’ efforts to encourage the submission of absentee ballot applications; additional ID requirements for absentee voting; the effective elimination of drop boxes, drive-thru voting and 24-hour early voting; new obstacles for voters to receive assistance to vote absentee or in person; and the empowerment of partisan poll watchers.

The complaint argues that the passage of S.B. 1 is in direct response to increased voter turnout in the 2020 election, particularly among voters of color, and is meant to “stem the growing tide of minority voter participation.” The lawsuit argues that “by surgically targeting election practices employed in Texas’s largest and most diverse jurisdictions—methods on which the State’s Black and Hispanic populations disproportionately rely—the [challenged provisions] were intended to disproportionately restrict access to the franchise for Black and Hispanic voters.” Furthermore, the suit alleges that certain provisions place an undue burden on the right to vote for elderly voters, voters with disabilities and voters with limited language proficiencies.

Read the complaint here.

All that is courtesy of Democracy Docket, which had promised litigation the minute that SB1 passed in the House.

– The other federal lawsuit comes from the NAACP Legal Defense and Educational Fund:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF)Reed Smith LLP, and The Arc filed a federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Inc., and The Arc of Texas challenging S.B. 1, a new Texas law targeting voting rights.  S.B. 1 includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether, particularly Black and Latino voters and voters with disabilities.The lawsuit, which was filed in the United States District Court for the Southern District of Texas, argues that S.B. 1 violates the First, Fourteenth, and Fifteenth Amendments of the United States Constitution and Section 2 of the Voting Rights Act by intentionally targeting and burdening methods and means of voting used by voters of color.

The Plaintiffs also claim that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the Voting Rights Act by imposing voting barriers that will discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s voting programs.

The lawsuit challenges multiple provisions in SB 1, including:

  • Limitations on early voting hours and a ban on 24-hour voting.
  • The elimination of drive-thru voting centers.
  • The prohibition of mail-in ballot drop-boxes.
  • Limitations on the distribution of mail-in ballot applications.
  • Limitations and possible penalties for voter assistants, including criminal felonies.

Read the lawsuit challenging S.B. 1.

You can read the press release for statements from the plaintiffs.

– The state lawsuit comes from another group we’ve heard from before.

The Texas State Legislature’s SB 1 legislation violates provisions of the Texas Constitution that protect the right to vote, the right to freedom of speech and expression, the right to due process, and the right to equal protection under law, according to a lawsuit filed Tuesday by civil rights advocates against Gov. Greg Abbott, Attorney General Kevin Paxton, Deputy Secretary of State Joe Esparza, and the future secretary of state, once that position is filled.

Despite the hardships of voting during a global pandemic, during the 2020 general election, Texas saw one of its highest voter turnouts in decades, particularly among Black voters and other voters of color.  SB 1 was passed on the heels of the successful 2020 election, with the intent to suppress these votes. The legislation includes provisions that expand the power of partisan poll watchers, limit county election officials’ discretion to adopt safe and secure methods of voting, make it more difficult for voters to receive assistance, and place restrictions on absentee ballots, ballot drop boxes, and early voting.

The lawsuit, Texas State Conference of the NAACP et al. v. Abbott et al., was filed in state district court in Harris County, Texas. The Lawyers’ Committee for Civil Rights Under Law and Dechert LLP are representing the Texas State Conference of the NAACP, Common Cause Texas, three election judges, one voter assistant, and one registered voter in Harris County.

“The scourge of state-sanctioned voter suppression is alive and well, and Texas just became the most recent state to prove it,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “With the passage of this bill, Texas legislators know exactly what they are trying to do – use brazen tactics to disenfranchise Black voters, Latinx voters, and other voters of color who are a growing part of the electorate and who turned out and made their voices heard in 2020. This bill violates Texas’ own state constitution and does not advance any legitimate state interests that would justify this wide-ranging attack on the right to vote.”

SB 1 expands the power of partisan poll watchers by instituting criminal penalties for election officials who obstruct their actions, stripping local election officials of the power to take executive action in emergency situations, and exposing voter assistants to increased surveillance and administrative complexities. Furthermore, the legislation restricts nearly every method of voting overwhelmingly used by voters of color in 2020: It limits early voting and ballot drop boxes, curbs how absentee ballots can be distributed and who can vote by mail, and bans drive-thru voting. While the provisions of SB 1 will hinder the ability of all Texans to vote, these new restrictions intentionally and disproportionately impact communities of color.

“Texas’s new voting restrictions targeting voters of color are an affront to our democracy,” said Neil Steiner, partner with Dechert LLP. “We remain committed to ensuring that all eligible voters have a true opportunity to participate in our elections by casting a ballot safely, securely and conveniently, with confidence that their votes will be counted.”

I have only given a brief glance to each of these lawsuits – as you know, I Am Not A Lawyer, I just occasionally try to interpret lawyer-y things on the Internet for other non-lawyers. All of them are quite long and will take me some time to try to understand. I do not offhand know why this one was filed in state court, or why that might be a more promising avenue for redress. That has been a successful tactic in some other states, mostly but not entirely for the battle against partisan gerrymandering, but as far as I know it has not been used in this context here before, other than the unsuccessful challenges to Texas’ age restrictions for voting by mail in the runup to the 2020 election. It’s worth a shot – let a thousand flowers bloom and all that – but I cannot articulate a reason why this way and not that way. If someone else can, I’d love to hear it. I will make an effort to read through these documents and try to answer that myself, but you know how that goes. The Current, the Texas Signal, and the Chron have more.

More on the poll watcher problem

It’s all right here. You just have to pay attention to what they’re saying.

As Texas Republican lawmakers seek to expand the powers of partisan poll watchers — and Democrats warn doing so will lead to intimidation of minority voters — newly uncovered video shows the Harris County GOP is recruiting thousands of the volunteers to monitor voting in Black and brown communities in Texas.

In the video, leaked by government accountability nonprofit Common Cause Texas, a county precinct chair giving a presentation describes the need for an “election integrity brigade” of 10,000 Republicans in Houston’s predominantly white suburbs to volunteer in the city’s racially diverse urban core.

“We’ve got to get folks in these suburbs out here that have, you know, a lot of Republican folks that got to have the courage” to cover the city, says the speaker, who’s not named in the video.

“If we don’t do that, this fraud down in here,” he goes on to say as he circles the city with a pointer, “this fraud down in here is really going to continue.”

It is unclear what the speaker is calling “fraud,” since there was scant evidence of wrongdoing uncovered in 2020, even as Republican Attorney General Ken Paxton doubled the resources for his elections integrity unit and aimed it at Harris County.

“What we see in this video is a concrete, real-world example of why it is a downright dangerous idea to expand poll watcher powers while removing the ability of election workers to kick a disruptive poll watcher out,” said Anthony Gutierrez, executive director of Common Cause Texas. “Volunteer poll watchers who have no ill intent and who do not plan to disrupt voting would have no need to be ‘courageous’ about going into predominantly Black and brown communities.”

See here for the previous mention of that video. It’s actually quite clear what the speaker means by “fraud”, and that’s “there are too many Black and brown people voting”. There’s a reason why he’s highlighting urban neighborhoods, just as there was a reason why the Trump-fueled allegations of “fraud” mostly centered on cities like Detroit and Philadelphia and Atlanta. The reason is that this speaker and a whole lot of other people like him don’t view Black and brown voters, or the votes they cast, as “legitimate” in the way their own votes are. They think that too many voters is a problem, and we’d be better off if we had “fewer but better voters”. Of course, the criteria for deciding which voters would qualify as “better” would be up to them. That much is obvious.

A House counterpart bill, House Bill 6, would prevent election judges from removing a poll worker for any reason other than voter fraud, effectively requiring them to get law enforcement involved if other disruptions were to occur.

Democrats and voting rights groups have decried the provisions of the bill as intended to deter minorities from voting, citing past examples of poll watchers in Texas yelling at and taunting voters.

Democrats and voting rights groups have decried the provisions of the bill as intended to deter minorities from voting, citing past examples of poll watchers in Texas yelling at and taunting voters.

In 2010, the Harris County Attorney received multiple such complaints of poll watchers at early voting polling places in predominantly minority neighborhoods including Kashmere Gardens and Moody Park. The complaints included poll watchers “hovering over” voters, “getting into election workers’ faces” and blocking or disrupting lines of voters waiting to cast their ballots.

The county Democratic Party blamed volunteers with ties to True the Vote, a Houston-based voter watchdog group that started as a project of a tea party organization. The group denied the accusations.

“It seemed like Republicans were targeting Black and brown voters when they sent out poll watchers in November,” the Harris County Democratic Party said in a statement to Hearst Newspapers. The GOP plan to add thousands of poll watchers and give them more power ahead of 2022 elections “confirms exactly what we suspected.”

Here’s a question to ask yourself: How do you think the people in those “predominantly white suburbs” that this speaker is attempting to recruit from would feel about ten thousand poll watchers from the neighborhoods that they intend to do their thing in showing up at their polling places to monitor them with the same level of suspicion and contempt that they intend to bring? Do you think they would accept that with equanimity in the name of “playing by the same rules” and “turnabout is fair play”, or do you think they’d lose their minds and demand a large police presence to keep them safe from those dangerous inner city rabble-rousers? I think we all know which is the more likely outcome. And that once again shows why enabling a vast army of poll-watchers with little to no accountability on them is a bad, racist, dangerous, and anti-democratic idea. The Trib has more.

House committee passes its voter suppression bill

I remain pessimistic about this, but we have no choice but to fight.

A Texas House committee on Thursday advanced an elections bill that would make it a state jail felony for local election officials to distribute an application to vote by mail to a voter who didn’t request one.

House Bill 6 is part of a broader Republican effort this year to enact wide-ranging changes to elections in Texas that would ratchet up the state’s already restrictive election rules in the name of “election integrity” despite little to no evidence of widespread fraud. The legislation was approved by the House Elections Committee on a party line vote with only Republicans voting in favor of it.

Like other Republican proposals, the measure would target Harris County’s initiatives from the 2020 general election, including a shift to proactively send out vote-by-mail applications. Various counties sent unsolicited applications to voters who were 65 years and older, who automatically qualify to vote by mail in Texas. But Republicans’ ire fell on Harris County officials when they attempted to send applications to all 2.4 million registered voters in the county with specific instructions on how to determine if they were eligible. The Texas Supreme Court ultimately blocked that effort.

HB 6, by Republican state Rep. Briscoe Cain, would also set up new rules for people assisting voters — like those with disabilities or those who speak languages other than English — in casting their ballots. Voters can select anyone to help them through the voting process as long as they’re not an employer or a union leader. But the bill would require those helping voters to disclose the reason they need help.

The bill now heads to the House Calendars Committee, which determines whether bills make it to the full Texas House for a vote.

[…]

The bill also picked up opposition from civil rights groups who raised the prospect that the legislation violates federal safeguards for voters of color who would be treated differently for being more likely to need assistance and concerns about the punitive nature of the bill against election workers. Advocates for people with disabilities worried it could violate the federal Americans with Disabilities Act and cautioned against complicating the voting process for voters with disabilities by creating new requirements for the individuals they select to help them.

“You can’t any longer help an elderly constituent by providing them with a mail in ballot application — this is truly incredible,” said Gary Bledsoe, president of Texas NAACP. “There’s only one reason to create criminal laws and that is to dissuade minority voters and [minority] voting officials.”

See here for the previous update. I’m going to spare myself a little work by pointing you to some other people who have done the work of highlighting how and why HB6 is just as dangerous as SB7. For example, the latest defensive maneuver by Dan Patrick and now Speaker Dade Phelan is to claim that the critics of these bills just haven’t read them, and to double-dog-dare them to point out any restictionist provisions they allegedly contain. Well, challenge accepted:

I presume she’ll follow with a thread for HB6, but give her a little time. Also, as a historical note, Jamelle Bouie reminds us that the Jim Crow laws of the old South never actually said they were intended to keep Black Americans from voting. They were just restrictions on voting that technically affected everyone but which the lawmakers knew and intended would have a much greater effect on Black voters (and which they could ensure via enforcement). Ignorance of history (real or feigned) is no excuse for trying to repeat it.

The real danger in these bills has to do with their elevating poll watchers into some kind of protected group. Why is that a problem? Because poll watchers are unvetted partisans, and in Texas their main role is making voters of color feel harassed:

What could possibly go wrong? This video has already generated some national coverage. One hopes that’s just the beginning.

Finally, while HB6 and SB7 are the big headliner voter-suppression bills, there are a lot of smaller, more targeted voter-suppression bills to watch out for as well:

So now you know. The Texas Signal and Popular Information, which goes deep on Dan Patrick, have more.

SCOTX upholds Abbott’s limit on mail ballot dropoff locations

I’m shocked, I tell you, shocked.

In what’s expected to be the final ruling on the matter, the Texas Supreme Court has upheld Gov. Greg Abbott’s order limiting Texas counties to only one drop-off location for voters to hand deliver their absentee ballots during the pandemic.

The ruling, issued Tuesday by the all-Republican court, is the final outcome in one of a handful of lawsuits in state and federal courts that challenged Abbott’s order from early this month. A federal appeals court also sided with the Republican governor in an earlier ruling, overturning a lower court’s decision.

The state lawsuit argued that the governor doesn’t have authority under state law to limit absentee ballot hand-delivery locations, and that his order violates voters’ equal protection rights under the state constitution. The suit was filed in Travis County by a Texas-based Anti-Defamation League, a voting rights advocacy group and a voter.

In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.”

See here for the previous update. In a narrow and technical sense, the Supreme Court is correct. Abbott did in fact expand voting options with his original order, which not only added that extra week to early voting but also allowed for mail ballots to be dropped off during the early voting period. State law only allows for that on Election Day, one of many problems that will need a legislative fix in the near future. But we all know that the purpose of his amended order, more than two months after Harris County Clerk Chris Hollins had announced his plan to have dropoff locations at all 12 County Clerk offices, and several days after people began using those locations, was to issue a rebuke to Hollins for having the nerve to innovate like that, and to throw a bone to the howling nihilists in his own party that were attacking him for taking any step to make voting easier. The limit served no legitimate purpose, and was done in haste and with politics in mind. It is what it is at this point, and as with every other ad hoc obstacle thrown in our path, the voters have adjusted. We’ll be coming for you soon, Greg. The Chron has more.

SCOTX reinstates Abbott’s mail ballot dropoff location limit

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

State judge halts Abbott’s mail ballot dropoff limit order

Remember there was a state lawsuit over the executive order that limited counties to one mail ballot dropoff location? That suit had a hearing this week, and the plaintiffs prevailed. For now, at least.

A Travis County state district judge on Thursday ordered a halt to Gov. Greg Abbott’s directive limiting Texas counties to one drop-off location for hand delivery of absentee ballots. The ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties..

On Monday, a federal appeals court upheld the Republican governor’s order under federal law, overturning a lower court’s ruling. The Travis County decision, however, applies to potential violations of state law.

A Texas-based Anti-Defamation League, voting rights advocacy group and a voter filed the lawsuit in Travis County district court last week arguing that the governor doesn’t have authority under state law to limit absentee ballot delivery locations. The lawsuit also claimed Abbott’s order violates voters’ equal protection rights under the state constitution.

In a short order Thursday, Travis County District Judge Tim Sulak ruled against Abbott and the Texas secretary of state.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

It’s unclear if and when additional mail-in ballot drop-off locations might be re-opened. Travis County had four drop-off locations before the Oct. 1 order, and Harris County had a dozen in place. But the decision is expected to quickly be appealed to a higher state court.

See here for more about the state lawsuit, which as we had heard was scheduled for a hearing this week. The Statesman has some more details.

In a letter sent Thursday afternoon, state District Judge Tim Sulak, who presided over a hearing in the matter on Tuesday, told lawyers that he will issue a temporary injunction against Abbott’s Oct. 1 order.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

As the Chronicle notes, this ruling is (very likely) stayed for the time being:

Paxton said his appeal in the case means an automatic stay of Sulak’s decision. The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.

Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.

Remember a million years ago when the Libertarian/Green challenge to filing fees was still in effect despite the lower court ruling because of superseding? That’s the principle here. I’ll leave it to the lawyers to explain if it should be the principle here or not, but that’s where it’s at. The question now is, how quickly does this get to SCOTX? It seems likely to me that the ruling would be upheld by the Third Court of Appeals, but we all know where this is headed. It’s just a matter of when. So offer a halfhearted cheer for now, but keep your expectations in check until it’s all over.

Third lawsuit filed against Abbott’s order to limit mail ballot dropoff sites

This one’s in state court.

Gov. Greg Abbott’s order limiting Texas counties to one mail ballot drop-off location has been challenged in court a third time.

The lawsuit filed in Travis County court on Monday alleges that Abbott’s order exceeds his authority under the state’s constitution and would make it unreasonably difficult for eligible Texans to use ballot by mail.

“The state of Texas should be working to ensure safe and accessible voting for all Texans. The governor’s order does the opposite,” Cheryl Drazin, vice president of the Anti-Defamation League’s Central Division, which includes Texas, said in a statement. “Limiting the number of drop-off sites available to absentee voters reduces the options Texans have to participate in the 2020 election without risking their health.”

Several Texas chapters of the Anti-Defamation League are plaintiffs in the case, as are the government watchdog group Common Cause Texas, and Robert Knetsch, a 70-year-old voter from Harris County.

[…]

The plaintiffs argue that Texas election code gives local officials, not the governor, authority to manage elections. So by limiting drop-off locations to one per county, Abbott was overstepping his authority.

The order also went against what the state had already said in other cases, plaintiffs said. In late September, Attorney General Ken Paxton’s office said in a filing to the Texas Supreme Court that the state election code allowed local officials to interpret “early voting clerk’s office” as extending to annexes of those offices and the secretary of state had already allowed that.

Because of projected increases in vote by mail and delays in the U.S. postal service’s mail delivery, taking away the option for multiple drop-off locations would harm voters, like Knetsch, who was at high risk for COVID-19 because of his age, plaintiffs said.

Knetsch had planned to drop off his ballot at one of Harris County’s multiple locations, but “now plans to risk voting in-person at his local polling place, despite the risk to his health” because he fears there will be large crowds at the remaining drop-off site.

“Many of the Texans who qualify to vote absentee have disabilities and are elderly, and they rely on public transportation,” Anthony Gutierrez, executive director of Common Cause Texas said in a statement. “With only one drop-off site per county, these voters would face challenges in travel that might make it impossible for them to vote. The drop-off site limit will also make the one site in each country prone to lines and crowds, endangering voters’ health.”

See here and here for background on the previous lawsuits, both of which were filed in federal court. A copy of the complaint for this suit is here, and a statement from the Brennan Center, which is representing the plaintiffs, is here; you can also see their Twitter thread. I have no idea if one or the others has a better chance of success, I just know that we need to get a ruling Real Soon Now for any of this to make a difference. You can see all the filings from the first federal lawsuit here, and for whatever it’s worth, the top Democratic Congressional leaders have written a letter to Greg Abbott asking him to repeal this order. I’m sure he’ll get right on that.

The federal stimulus package includes money for elections

What we’ll do with it remains unknown at this time.

Be like Hank, except inside

The $2 trillion coronavirus stimulus package Congress is working to pass this week includes $400 million for election costs states face in wrestling with how to hold high-profile 2020 elections in a time of social distancing.

Advocates estimate the that could mean as much as $20 million for Texas, where state officials have so far opted to delay election dates — including pushing back a runoff to pick the Democratic challenger to U.S. Sen. John Cornyn until mid-July — rather than expand vote-by-mail options or offer up online voter registration.

It’s unclear how the state would use the funding — which still has to clear Congress and get signed by President Donald Trump — but advocates were already pushing for state leaders to consider expanding mail-in voting and offering online registration, something 39 states do now.

“Every Texan needs should be able to safely register to vote and cast their ballot whether by mail or in person,” Anthony Gutierrez, Executive Director of Common Cause Texas, said in a statement. “The way we make that happen is to use these funds to implement online voter registration, expand vote by mail, extend early voting, recruit more election workers, and ensure all poll sites meets public health safety standards.”

I don’t know if $20 million is enough to accomplish that, but then I also don’t know what if any conditions there are on this money. I hope there are some and that they are clear, because I have no doubt that our state leadership would use the money in some way that they could claim was about supporting the 2020 elections but really wasn’t. I have no idea what that may be, but I have faith in their ability to conjure something.

Civil rights groups push back on bogus SOS letter

Good.

Still the only voter ID anyone should need

Lawyers with 13 organizations — including the Texas Civil Rights Project, the ACLU of Texas, the League of Women Voters of Texas and the NAACP Legal Defense Fund — are demanding that the state rescind an advisory sent to local election officials regarding the individuals whose citizenship status the state says the counties should consider checking. In a letter sent Monday, the groups requested a response by Jan. 30, claiming that the state’s data was flawed and demanding more information about the methodology it used.

Some of the groups are considering litigation against the state, said Beth Stevens, voting rights legal director for the Texas Civil Rights Project.

The letter comes three days after the Texas secretary of state’s office announced it would send local election officials a list of 95,000 registered voters who had provided the Texas Department of Safety some form of documentation, such as a green card or a work visa, that showed they were not citizens when they were obtaining driver’s licenses or an ID cards.

“Using such a data set to review the current citizenship status of anyone is inherently flawed because it fails to account for individuals who became naturalized citizens and registered to vote at any point after having obtained their driver license or personal identification card,” the lawyers wrote.

In their letter, the groups point to efforts in Florida that used similar methodology to create a list of approximately 180,000 registered voters that officials claimed were noncitizens based on records used when they obtained driver’s licenses. That fight ended up in federal court after more than 2,600 were mistakenly removed from the rolls after being classified as noncitizens. About 85 voters “ultimately proved actionable,” the lawyers wrote.

See here for the background. The letter to the SOS is here, and the letter they sent to all 254 county election administrators is here. The latter is both a public information request for “all records relating to the Advisory, including but not limited to the list of all individuals identified by the Secretary of State or Department of Public Safety as potential non-citizens, the Voter Unique Identifier for each of those individuals, and all communications and correspondence with the Secretary of State concerning the Advisory”, and a plea to not take any action “unless and until the Secretary of State has provided greater transparency on its procedures and ensured there are adequate safeguards for not identifying lawfully registered naturalized citizens.” The letter to the SOS lays out their demands for more information, and drops a little math on them:

Given that Texas Driver Licenses and ID Cards do not expire for a full six years after they are issued, the odds are quite high that this list of purported non-citizens includes tens of thousands of people who are now US citizens entitled to vote. Indeed, each year, between 52,000-63,000 Texans become naturalized citizens (roughly the same number of potential non-citizens you claim have voted in Texas elections over a 22-year period).1 Given that newly naturalized citizens have voter registration rates around 50%,2 it is reasonable to conclude that at least 25,000 newly naturalized Texans are lawfully registering to vote each year. Even if one assumes that not all naturalized citizens previously obtained driver licenses, and not all registered naturalized citizens registered immediately, it is easy to see how this would result in your office obtaining over 90,000 incorrectly identified matches.

Read them both. Given that Ken Paxton was sending out email earlier the same day screaming about thousands of illegal voters, I think the odds are very high this will wind up in court.

Trying again with online voter registration

Fingers crossed.

Still the only voter ID anyone should need

Texas voter registration might be heading to the internet if any of several bills filed for the upcoming legislative session finds its way to the governor’s desk.

Five bills, all filed by Democratic legislators, would require the state to create an online voter registration system if passed into law. Texas is one of just 10 states without such a system.

“This is not a partisan issue. This is a good government issue,” said Rep. Celia Israel, D-Austin, who filed House Bill 361 to create an electronic voter registration system in Texas. “I’m pledging to continue the fight, because now it’s embarrassing that so many states have it and Texas doesn’t.”

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[Anthony Gutierrez, the executive director of Common Cause Texas] said he thought there was a lot of bipartisan support building behind the idea of an online registration system. Rep. Lyle Larson, R-San Antonio, agrees.

“Just about everything in our lives has been enveloped with the digital age, and I don’t know why voting would be any different,” said Larson, who shares a seat on the House Elections Committee with Israel. “I think a lot of it is unwarranted fear,” he said of concerns that online registration could welcome fraud. “People are banking online, paying bills online. Everything is online and digital, and I think the state needs to evolve so our registration is the same way.”

Other states with online registration include Georgia, which adopted the practice in 2012, and Alabama, which made the change administratively in 2016. Arizona was the first state to create an online voter registration system, in 2002. Larson said he thinks other conservative southern states’ use of an online system provides a strong case to the Texas Legislature to pass a similar law.

“If we were the first large Republican state to try this, I could understand the snail’s pace to implementing this — but we’re not pioneering, we’re following,” Larson said.

Despite her previous efforts, Israel is confident the upcoming legislative session, which starts Jan. 8, will be different.

“Texas has a sad and tortured history of making it harder to vote, not easier,” Israel said. “One enthusiastic freshman (legislator) was not going to change the world, but that enthusiastic freshman is now a revived and rejuvenated, enthusiastic junior, who has found I can make friends and make a case for this bill.”

I don’t want to oversell this, but one other difference is that now the Harris County Clerk’s office will favor such a bill instead of opposing it. The Harris County Tax Assessor’s office also now favors such a bill, and has done so since the last session. This is one of those “elections have consequences” situations. That may not be enough – if Dan Patrick doesn’t want an online voter registration bill to pass, it will not get a vote in the Senate – but it can only help. And as always, now is a good time to contact your legislators and let them know that you support online voter registration.

Abbott signs bill to remove Public Integrity Unit from Travis County DA office

As expected.

Ignoring calls for a veto, Gov. Greg Abbott signed controversial legislation this week that will allow elected and appointed state officials and state employees to bypass Austin prosecutors when they are accused of public corruption.

Abbott, a Republican, signed the bill Thursday without making a statement or staging a public signing ceremony. His press office did not respond to requests for comment left via email and over the phone.

The unique carve-out for politicians and state employees drew fire throughout the recently concluded session of the Texas Legislature. John Courage, state chairman of the nonpartisan watchdog group Common Cause, said he believes the bill is unconstitutional and could be challenged in court by various watchdog groups.

“They’ve set up a separate legal process for the legislators,” he said. “It doesn’t make any sense. A normal person would be tried in the location where they committed the offense and not the legislators. It’s just an unfair, unbalanced system.”

That’s the first I’ve heard of a potential lawsuit. I get the rationale – Texas lawmakers have created a separate system of justice for themselves, which is arguably unconstitutional. I wish the Trib had quoted a law professor to get an opinion on that. There are other issues with having the DPS in charge of these investigations, and empowering local prosecutors may not be a better deal for legislators than what they have now. I continue to believe that this is a scandal waiting to happen. We’ll see how long that takes.