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coronavirus

Keep fighting, fellas

Primal scream time.

Two of Texas’ top Republicans took part [last] Saturday in a protest of Gov. Greg Abbott’s coronavirus restrictions outside the Governor’s Mansion, a striking display of intraparty defiance three days before early voting begins for a momentous November election.

The “Free Texas” rally featured speeches from Texas GOP Chair Allen West and Agriculture Commissioner Sid Miller, both of whom invoked the governor critically. At one point, Miller turned toward the mansion with a message for Abbott.

“Quite frankly, governor, your cure is worse than the disease,” Miller said.

West, who took over the party in July and has been an open critic of some of Abbott’s coronavirus decisions, read a resolution that the State Republican Executive Committee passed last month. The resolution tells Abbott: “No Exceptions, No Delays….Open Texas NOW.”

“We call upon the governor to do what is right by the people of the great state of Texas so that Texas can continue to be a leader,” West added. “And if the governor did not get this resolution, I’m gonna leave it right here, at the gates of the Governor’s Mansion.”

The protest drew at least 200 people, a virtually maskless crowd, to a parking lot steps away from the Governor’s Mansion in downtown Austin. After hearing from a lineup of speakers that also included state Sen. Bob Hall, R-Edgewood, the group marched on the streets and sidewalks surrounding the mansion, chanting, “Open Texas now!”

The audience was filled with signs expressing disgust at Abbott’s decisions to institute a statewide mask mandate and shut down certain businesses throughout the pandemic. One sign called Abbott the “#1 Job Killer in Texas,” while another called to “IMPEACH ABBOTT THE RHINO.”

I’ve been sitting on this for a few days in part because there’s so damn much other news that I’ve not been able to fit it in, and in part because it’s hard to add anything to “IMPEACH ABBOTT THE RHINO”. But we carry on.

West’s criticism of Abbott’s pandemic decisions has fueled speculation that he could run against the governor in 2022. As West prepared to start speaking at the rally, there were a couple chants of “West for governor!” which he sought to brush off, saying, “Oh, stop it, stop it, stop it.” Then there was another chant that drew cheers, prompting West to shake his head lightheartedly.

“Paid political announcement by a bunch of knuckleheads,” he said jokingly.

The idea of a carpetbagger like Allen West being a serious primary challenger to Greg Abbott is bizarre, to say the least, but we live in strange times. I do at this point believe someone will challenge Abbott in the primary, but who that might be and how seriously it will be taken remains unclear. Maybe this was Sid Miller’s audition for the job – he’s dumb enough to think he can do it, and clownish enough to appeal anyone who might think Allen West is some kind of savior. There’s plenty of room for this to get dumber, of that I’m certain. Dan Patrick as ever is the wild card, and likely the one Republican than Abbott actually fears. I don’t have any predictions – even if I did, it would be ridiculous to make them this far in advance – but I sure am interested in seeing how this plays out. We have a super consequential legislative session coming up, with redistricting and coronavirus and executive power and who knows what else that will dominate. How much does this kind of dissension affect Republican plans, or can they pull it together enough to support the things they all are supposed to like? Would a Dem Speaker remind them all of their real opponent? I don’t know, but these are the things I’ll be thinking about.

Back to the classroom for some

I sure hope this goes well, but I remain worried.

With the novel coronavirus still top of mind, HISD will welcome back an estimated 80,000-plus of its nearly 200,000 students to classrooms Monday, becoming the region’s final large district to reopen campuses for in-person instruction.

The return will come with new safety, scheduling and teaching protocols, some of which will vary across the district’s 280 campuses. All students returning to buildings must wear masks, while staff members will direct children to frequently use hand sanitizer and wash their hands. Many schools plan to stagger bell schedules, aiming to limit hallway traffic, while most teachers are preparing to provide in-person and online instruction at the same time.

The restart arrives as many districts across the state report only sporadic cases of students and staff stepping foot on campus while infected with COVID-19, a positive early sign amid the pandemic. As of Friday, seven Houston-area high schools had reported outbreaks involving more than 10 active cases at one time, with no elementary or middle schools reaching that threshold.

However, HISD’s return comes with some risks. About 85 percent of HISD students are Black or Hispanic, two demographic groups that have been disproportionately impacted by COVID-19. In addition, case counts and hospitalizations in Greater Houston have started creeping up in the past couple weeks after a major dip in the late summer.

“I’m a little nervous, because all of this with the virus is not good,” said Norma Vasquez Chavez, whose kindergartner and fifth-grader will attend in-person classes Monday at Brookline Elementary School on the district’s southeast side. “Every time my daughters go out, I’m telling them about using the masks, using the hand sanitizer. I’m trying to trust in them and all that the school is doing.”

The lingering concerns are reflected in the fact that about 60 percent of HISD students are expected to continue learning from home Monday, despite the district offering in-person classes to all families. Under state guidelines, HISD had until Nov. 2 to provide face-to-face instruction to all students who wanted it.

[…]

District leaders have not published metrics for when HISD will change its “gauge,” showing if and how in-person classes are held. HISD moved from “red,” which requires keeping campuses closed, to “orange,” which allows for in-person classes with mandatory social distancing, on Oct. 9, three days before staff were scheduled to return to buildings.

HISD also changed its desk distancing requirements from a mandatory 6 feet to “whenever possible,” citing “updated public health and educational guidelines.” The Centers for Disease Control and Prevention recommended spacing desks 6 feet apart “when feasible” in early September.

Wheatley High School teacher Kendra Yarbrough, however, called on district leaders to reverse the switch.

“This will greatly help reduce teachers’ stress,” Yarbrough said. “Many of us are struggling currently, trying to make decisions, figuring out how do we keep ourselves safe, as well as ensure that we’re providing for our own families who are at high risk.”

Our kids are still doing remote learning for now, as are some but not all of their friends. The 13-year-old gave me a running commentary on Monday about how it was going – short answer, a little weird because the kids that were there in school were not also on the Teams session, so it wasn’t clear how they were going to answer questions since they weren’t loud enough to be heard by the teacher’s microphone; also, the between-class duration was confusing – but I figure they’ll work out the odd bits this week, as they did when this year’s remote learning started. The main concern, of course, is keeping everyone safe. As far as that goes, well

Five Houston ISD schools temporarily have closed due to a confirmed or presumed COVID-19 case on campus, swift shutdowns on the day after the state’s largest district resumed in-person classes.

Bellaire High School, Daily Elementary School and Foerster Elementary School canceled in-person classes and transitioned to virtual learning this week, according to HISD officials.

Emails sent by the leaders of Lanier Middle School and Westbury High School and reviewed by the Houston Chronicle also show those two schools were closed Tuesday. HISD administrators have not yet confirmed the shutdowns and initially reported only three closures Tuesday morning.

In confirming the closures of Ballaire, Daily and Foerster, district officials said they received notice of a single positive or presumed COVID-19 case at each campus. HISD’s COVID-19 protocols call for shutting down a campus for a “recommended number of days to allow for disinfection and sanitization” after learning of a positive or presumed case. Interim Superintendent Grenita Lathan has said district leaders would consult with city and county health officials, the district’s communicable disease plan task force and district operations staff to determine need actions and length of closures.

And there were still more school closures later in the day. Not great, Bob. It’s early, these were based on single test results, it’s been so far so good in other districts, but with more kids back in classes now, the risk is necessarily higher, and this is happening at a time when the infection rate is increasing. We need to be prepared for the possibility that this will be a short-lived experience. The Press has more.

Still worried about the Census

There’s this.

The census came to an abrupt halt Thursday after a pandemic and a legal tug-of-war threw the massive survey into chaos. Officials around the country now fear they’ll lose their fair share of federal funding and political representation due to an incomplete count.

A George Washington University study indicates that a mere 1 percent undercount for Texas by the U.S. Census Bureau would amount to $290 million less per year in federal revenue. A lower-than-anticipated count in urban areas could also mean one or two less congressional seats and fewer electoral votes for the state, as well as a smaller share of free lunches, Medicaid and HUD dollars.

Houston is among a handful of gateway cities with growing immigrant populations that are most vulnerable to being undercounted, said Lloyd Potter, the state demographer for Texas. Low-income people, children, renters, people of color and immigrants are among the least counted; their communities then are underrepresented in government and must make do with less funding.

One in four Texans — more than 6 million people — live in hard-to-count communities, according to a 2019 report by the Center for Public Policy Priorities, an Austin-based nonpartisan organization. This demographic group includes people who may be difficult to contact, due to language barriers, or to locate, due to informal housing arrangements, or engage, due to fear.

By most estimates, Texas is on track to gain three congressional seats — more than any other state, said Richard Murray, a University of Houston political scientist specializing in Texas and U.S. electoral politics. But, it there is a significant undercount and the Trump administration excludes undocumented people, two of those new seats could be lost.

[…]

With the pandemic curtailing outreach and enumeration efforts and the stop-and-start of multiple deadlines, Potter, the state demographer, said, census workers have become worried about the repercussions of trying to tabulate the data on a drastically shortened timeline. “This is is just not like anything we ever would have expected.”

Congresswoman Sheila Jackson Lee is among an array of local officials who have encouraged people all year to respond to the census, but the pandemic and confusion over deadlines hampered many efforts at outreach.

“I think it’s vital we recognize we’re in a dire condition,” Jackson Lee during a last-minute plea outside the student-free Blackshear Elementary campus on Thursday morning.

“It’s such a huge logistical problem counting every person in the country and to have all these problems thrown in the spokes, it’s been very difficult,” said Potter, the state demographer, who also runs the Institute for Demographic and Socioeconoic Research at University of Texas San Antonio. “This particular year there is a perfect storm of challenges for an undercount.”

Others who study the census agreed, saying it could yield surprisingly low totals.

“This is going to be the most problem-plagued census in modern times,” said Murray, the political scientist. On the front end, there was the obstacle of people who didn’t want to open their doors to enumerators amid a public health crisis. The next major obstacle is that once the data is collected, he said, we’re facing “a rogue political administration that’s unprecedentedly messing with the census to try to get it to give their party more power going forward.”

And there’s this.

The Supreme Court announced Friday that it will review President Donald Trump’s attempt to exclude undocumented immigrants when calculating how congressional seats are apportioned among the states.

The unprecedented proposal could have the effect of shifting both political power and billions of dollars in federal funds away from urban states with large immigrant populations and toward rural and more Republican interests.

A three-judge panel in New York said Trump’s July 21 memorandum on the matter was “an unlawful exercise of the authority granted to” him by Congress. It blocked the Commerce Department and the Census Bureau from including information about the number of undocumented immigrants — it is unclear how those numbers would be generated — in their reports to the president after this year’s census is completed.

The justices put the case on a fast track and said they will hold a hearing Nov. 30. By then, it probably will be a nine-member court again, if Judge Amy Coney Barrett is confirmed, giving the court a 6-to-3 conservative majority. The administration says timing matters because it must present the plan to Congress in January.

It is unclear whether the matter would divide the court along ideological lines, but the issue is another mark of how the once-­a-decade census has been transformed from a largely bureaucratic exercise into the centerpiece of a partisan battle.

I don’t actually expect any of our state leaders to care about the loss of federal funds, because those funds just go to programs that help people, which they don’t like. I am a little surprised that they might sit back passively as the state could lose one or two Congressional seats, since that represents power. With every passing day, I am more convinced that President Biden should just say that the Census was hopelessly botched by the Trump administration, and that the data they collected is worse than useless, so we have to do it again. I see no other just and equitable path forward.

The virtual marathon

We’re still not ready for things to be normal.

The 2021 Chevron Houston Marathon and Aramco Houston Half Marathon will be virtual due to ongoing public health concerns with COVID-19.

The 2021 Virtual Houston Marathon Running Events will be held over the span of 10 days where runners will have the option to complete the race distance anywhere between Jan. 8-17, according to the Houston Marathon Committee.

Participants who have already registered for the 2021 marathon will be able opt for the virtual race experience, which will include a discounted registration for the Chevron Houston Marathon 50th Anniversary Celebration in 2022; or defer their entry to one of the following two years (2022 or 2023); or donate their entry to the Houston Marathon Committee, which is a 501 c(4) nonprofit organization.

Half marathon registrants and We are Houston 5K runners will receive an email with instructions on how to complete their registration selection, according to a news release.

“At this time, we recognize that there are many unknowns surrounding the COVID-19 pandemic, but the safety and well-being of our runners, volunteers, partners, spectators and local Houston community will always be our top priority,” said Wade Morehead, committee executive director. “While we are unable to celebrate the 2021 event together in the heart of Downtown Houston, we will be cheering for our runners around the world as they participate in a unique virtual race experience, embracing the incredible spirit of our RunHOU community.”

I mean, none of this should be a surprise. The Marathon is an event where everyone is packed together, and even if the spectators and officials and volunteers were all wearing masks, there’s no way that the runners could. Doing it like this, where everyone just picks their own 26-mile course and registers to submit an official time for it, is the only way. This is just a reminder that seeing the calendar turn over into 2021 doesn’t mean anything in terms of the virus or its containment. We’re still in need of an actual federal plan, with actual leadership, to try to contain it, and eventually a vaccine to finally achieve some level of immunity. If we’re lucky, that 2022 50th anniversary marathon will be able to be run like it always has in the past. But as of today, we can’t say for sure that it will.

(You can register for the Marathon here, if that’s your thing.)

Don’t look now, but COVID numbers are ticking up again

In the state as a whole.

Texas reported more than 4,100 people hospitalized with the coronavirus on Wednesday, its largest total in six weeks and one that comes amid rising infections in El Paso and North Texas.

Hospitalizations hit a low in late September after a summer surge, but have risen incrementally for the past 10 days, reaching 4,133 on Wednesday. Other key metrics were also up slightly from a week earlier, including the reported rolling average of new daily infections and the number of people testing positive for the virus.

Public health officials said the increase is likely due to a combination of factors, including pandemic fatigue and expanded reopenings, especially bars. Bars were only allowed to begin reopening in select counties on Wednesday, but many have already been opened for weeks after reclassifying as restaurants — a loophole that the state created in hopes it would lead to better social distancing.

[…]

The biggest increases appear to be in West Texas and areas in and around Dallas.

Dallas County Judge Clay Jenkins raised the county’s pandemic risk level back to red on Wednesday, and earlier this week Gov. Greg Abbott sent medical staff and supplies to El Paso to help respond to a wave of new COVID-19 cases.

“With a new and quickly escalating wave of COVID-19 cases hitting North Texas, it is more important than ever that we make good decisions,” Jenkins tweeted.

And here in the Houston area.

Houston-area COVID-19 numbers, trending in a positive direction for the last couple months, have taken a turn for the worse.

Four key coronavirus metrics all show an increase in the past week, according to the Texas Medical Center, which tracks the data for the complex’s seven major hospital systems. Those numbers had started trickling up the previous week in daily reports produced by the center.

The latest numbers from Wednesday’s report:

• The number of COVID-19 cases reported Tuesday, 671, represents a 62 percent increase over last week’s daily average of 412 cases per day.

• The number of COVID-19 patients admitted to TMC hospitals Tuesday, 102, represents an 18 percent increase over last week’s daily average of 86 patients per day.

• The TMC COVID-19 test positivity rate of 3.8 percent represents an 8 percent over last week’s daily average.

• The so-called R(t), or reproduction rate, the rate at which the virus is spreading, hit 1.16 Tuesday, an 18 percent increase in the past week. On Sept. 29, the number was 0.64, which meant the virus’ spread was then decreasing significantly.

The latest metric is probably the most concerning to health officials. A number below 1.0 means the virus is burning out in the area; a number above 1.0 means the spread is accelerating. After 32 consecutive days in which the metric showed the virus was burning out in the Houston area, it now shows the virus is again picking up steam.

And as was the case in the month of June, it’s already too late to stop this. The best we can do now is go back to what we had been doing before to bend the curve back in the downward direction. First and foremost, wear your goddamn masks, and practice social distancing. Don’t be this guy.

As for bars, I want them to survive, and I’ve been up front about the arbitrariness of the state’s definition of what a “bar” is versus what a “restaurant” is. I support the various ways that have been suggested to help bars survive by being more like restaurants, and by enabling to-go and outdoor service. And we really need a federal rescue bill for bars and restaurants and theaters and music halls and other public-gathering businesses that have been so devastated by this pandemic. But we have to be real and recognize that there are no circumstances under which crowding a bunch of people into indoor spaces is a good idea. How many times are we going to have to learn this lesson? 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.

And it’s off to SCOTX for the Republicans who want to stop drive-through voting

It was inevitable.

State and local Republicans have taken their challenge of drive-thru voting in Harris County to the Texas Supreme Court.

In separate petitions, the Texas and Harris County GOP are asking the state’s highest court to limit drive-thru voting, which Clerk Christopher Hollins opened this year at 10 sites and made available to all voters.

The GOP argues the new practice is a form of curbside voting, which only is allowed for people who are sick at the time, have a physical condition that requires personal assistance or are at risk of injured health if they venture inside a polling location.

[…]

“The aforementioned criteria for curbside voting is equally applicable to ballots by mail voting,” the petition said. “With respect to ballot by mail voting, the Texas Supreme Court has already held that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code, and therefore, is not a sufficient basis to permit a voter to validly vote by mail.”

The county argues its drive-thru sites are not a form of curbside voting. The 10 sites are contained within a parking garage or tent facilities, a quality attorneys argue satisfies the criteria to be polling sites in their own right.

“The basic requirement for polling places is that it’s in a building,” Assistant County Attorney Doug Ray said. “We’re interpreting that as long as we have a permanent or temporary structure,” it’s OK.

Even if it were curbside voting, Ray argued, it is up to the voter to decide whether he or she has a disability. The county does not have the legal authority to question disability claims, he said.

It is not clear how the votes already cast at drive-thru sites would be handled if the Supreme Court were to side with the plaintiffs.

The state GOP’s petition asks for a ruling forcing Hollins to “reject any curbside voting efforts” that do not comply with its interpretation of the law.

See here and here for the background, and here for both of the plaintiffs’ petitions. I have no idea how quickly the Supreme Court might move on this, but we’ve had three full days of drive-through voting so far, and going by the daily report, thousands of people have used it. I can’t imagine any ruling for the plaintiffs that wouldn’t be deeply disruptive, and that’s exactly the sort of thing that’s not supposed to happen with court rulings close to an election. But like I’ve said, the Supreme Court’s gonna do what the Supreme Court’s gonna do, and all we can do is adjust when they do it. Stay tuned.

Petition to stop drive-through voting dismissed

That was quick.

Drive-thru and curbside voting programs in Harris County can continue after a state appeals court Wednesday quickly threw out a last-minute lawsuit filed by the Texas Republican Party challenging the county’s efforts to provide more voting options during the coronavirus pandemic. The state GOP had filed suit Monday night asking the court to place limits on curbside voting and halt drive-thru voting.

The appellate judges said the party and a voter who filed the suit did so too late, and did not show how they specifically might be injured by the voting practices. The lawsuit was filed just hours before early voting polls opened and more than a month after the Harris County Clerk announced his plan for drive-thru voting.

“The election is currently in progress and the relators delayed filing this mandamus until over a month after learning of the actions of the Harris County Clerk’s Office,” the panel of three judges on Texas’ 14th Court of Appeals wrote in their ruling dismissing the case.

A Texas Republican Party spokesperson said it plans to appeal Wednesday’s ruling to the Texas Supreme Court “to ensure that no illegal votes would be cast and counted in this election.” In an unrelated recent voting lawsuit, the state’s high court ruled against another voting challenge because it was filed too late, saying changes during an ongoing election could cause voter confusion.

See here for the background, and here for the 14th Court’s ruling. It should be noted that the court dismissed the petition “sua sponte”, which is the fancy Latin phrase for “on its own initiative”. In other words, the court didn’t ask for the defendants to submit a response – the petition didn’t meet the bar for having a claim to be decided. That’s a pretty strong statement.

A bit from the ruing makes it clear what the problem was, and it wasn’t just the timing. The first two issues the court addressed were the standing of the plaintiffs to bring this challenge:

To have standing under section 273.061, a party must demonstrate that it “possesses an interest in a conflict distinct from that of the general public, such that the defendant’s actions have caused the plaintiff some particular injury.” In re Kherkher, 604 S.W.3d 548, 553 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding) (quoting Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001)).The claimant must show a particularized injury beyond that of the general public. Id. “Our decisions have always required a plaintiff to allege some injury distinct from that sustained by the public at large.” Brown v. Todd, 53 S.W.3d 297, 302 (Tex. 2001). “No Texas court has ever recognized that a plaintiff’s status as a voter, without more, confers standing to challenge the lawfulness of governmental acts.” Id. For example, a voter lacks standing to seek the removal of an ineligible candidate from the ballot because the voter has no special interest. See, e.g., Clifton v. Walters, 308 S.W.3d 94, 99 (Tex. App.—Fort Worth 2010, pet. denied); Brimer v. Maxwell, 265 S.W.3d 926, 928 (Tex. App.—Dallas 2008, no pet.).

Standing requires “a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman, 369 S.W.3d at 154. Texas has adopted the federal courts’ standing doctrine to determine the constitutional jurisdiction of state courts. Id. To maintain standing, petitioners must show: (1) an “injury in fact” that is both “concrete and particularized” and “actual or imminent”; (2) that the injury is “fairly traceable” to the defendant’s challenged actions; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ and that the injury will be ‘redressed by a favorable decision.’” Id. at 154–55 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

RELATORS’ FAILURE TO SHOW STANDING

Pichardo argues that he has standing to obtain mandamus relief under Election Code section 273.061 because, unless Hollins is compelled to enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting, Pichardo is at risk of having his vote canceled out by an ineligible vote. But that alleged harm is true of every member of the general public who is registered to vote. Pichardo lacks standing because he has not shown that he has an interest or a particularized injury that is distinct from that of the general public. See, e.g., Brown, 53 S.W.3d at 302; In re Kherkher, 604 S.W.3d at 553; In re Pichardo, No. 14-20-00685-CV, 2020 WL 5950178, at *2 (Tex. App.—Houston [14th Dist.] Oct. 8, 2020, orig. proceeding) (per curiam) (mem. op.).

The Republican Party of Texas argues that Hollins’s alleged intent to not enforce Election Code sections 64.009, 82.002, and 104.001 with respect to curbside voting will harm its mission and purpose of advancing limited government, lower taxes, less spending, and individual liberty and promoting compliance with state election statutes. The Republican Party of Texas lacks standing because it has not shown that it has an interest or a particularized injury that is distinct from that of the general public. See, e.g., In re Kherkher, 604 S.W.3d at 553. The Republican Party of Texas cites no authority that supports its standing argument.

In other words, neither the voter they dragged up to be a plaintiff, nor the Republican Party of Texas itself, can claim any injury that a court would recognize. Their complaint basically amounts to “but some people might vote in a way we don’t like”, and the court has no time for that. At least, this court had no time for it. I suppose SCOTX could do something different, but that’s always the risk. The fact that voting has in fact already started should also be a barrier to entry, but again, we’ll see.

Three minor points of note: One, the GOP was represented by our old buddy Andy Taylor – just search the archives for that name, and you’ll see why I’m laughing. Two, this ruling also cited the 2008 lawsuit brought by supporters of then-Sen. Kim Brimer in their attempt to knock Wendy Davis off the ballot, before she successfully knocked Brimer out of the Senate. And three, based on that “In re Pichardo” footnote, this particular plaintiff has served that role for whichever Republican group is seeking to stop some form of voting in court before, during this cycle. Put that name on your watch list for the future, these guys get around. The Chron has more.

Fifth Circuit upholds Abbott’s mail ballot dropoff limits

Because of course they did. Why would you have expected anything else?

In a ruling issued late Monday night, a federal appeals court upheld Gov. Greg Abbott’s order that limited counties to one mail-in ballot drop-off location.

A three-judge panel of the 5th U.S. Circuit Court of Appeals, all appointed by President Donald Trump, rejected arguments from civil and voting rights groups that claimed Abbott’s order suppressed voting rights by making it harder to cast a ballot, particularly for elderly and disabled voters who are the most likely to use mail-in balloting.

In reality, the judges said, Abbott expanded voting options by suspending a state law that allows mail-in ballots to be hand delivered only on Election Day — a July 27 order that Abbott merely refined on Oct. 1 by closing multiple ballot drop-off sites in Travis and three other large counties, the panel said.

“That effectively gives voters 40 extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it,” Judge Stuart Kyle Duncan wrote for the panel.

The ruling blocked Friday’s injunction from U.S. District Judge Robert Pitman, who said Abbott’s order placed an unacceptable burden on voters who are most vulnerable to COVID-19.

[…]

The panel criticized Pitman for vastly overstating the magnitude of the burden on voting rights caused by Abbott’s “partial refinement” of an earlier order that made it easier for eligible Texans to hand deliver a ballot before Nov. 3.

“How this expansion of voting opportunities burdens anyone’s right to vote is a mystery,” Duncan wrote. “Indeed, one strains to see how it burdens voting at all.”

Texans still have “numerous ways” to participate before the Nov. 3 election — by voting early beginning Tuesday because Abbott added six days to the early voting period as a pandemic safety measure, by hand delivering completed mail-in ballots before Election Day, and by dropping their ballot in the mail, Duncan said.

See here and here for the background. Never mind the fact that the state of Texas had previously affirmed that multiple dropoff locations were legal, never mind the fact that Abbott issued this order a week before early voting began and more than two months after Harris County had announced its plan for multiple locations, and of course never mind the global pandemic that has everyone seeking to mitigate their own personal risk. Abbott extended the early voting period, so what are you peasants complaining about?

I mean, look. The Harris County Clerk used legal means to make voting easier and more accessible. The Governor used a false pretext to overrule him, and did so late in the process after people had been led to expect what the Clerk had implemented. The fact that the Governor had indeed taken steps to expand voting access isn’t relevant. The fact that most other counties hadn’t taken similar action as Harris isn’t relevant – they could have and in many cases should have, and if the Governor thought that was unfair to the voters in the slacking counties, he could have used the same authority he exercised here to try to spur those other counties to action. The point is that Harris County stood for making it easier and more convenient to vote, and the state of Texas said no, you can’t do that. In response, the Fifth Circuit said “we don’t see the problem here”. That’s what we’re up against.

I should note that there is still that state lawsuit, which will have a hearing this week. I don’t expect much at this point, but duty compels me to point this out. I presume the other federal lawsuit – as I observed before, this was a combination of two federal lawsuits, but did not include the third – is now moot. As we have seen over and over again, the way forward is going to require winning more elections first.

State GOP files suit to stop curbside voting in Harris County

Honesty, it feels like they’re just trolling now.

Hours before early voting began, the Texas Republican Party filed a new lawsuit Monday night challenging Harris County’s efforts to provide more voting options during the coronavirus pandemic, this time asking a court to limit curbside voting and halt the county’s drive-thru voting programs.

State election law has long allowed voters with medical conditions to vote curbside. After they arrive at a polling location, a ballot is brought outside to them in their vehicle by an election worker. In addition to urging qualified voters to use the curbside option this year, Harris County also opened designated “drive-thru” polling locations for all voters, where poll workers hand people a voting machine through their car window after checking their photo identification.

The state GOP’s lawsuit, filed in a state appeals court in Houston, seeks to halt the drive-thru voting program and limit curbside voting to those who have submitted sworn applications saying they qualify for it. Glenn Smith, a senior strategist with Progress Texas, said Tuesday he could find nothing in the law requiring an application to vote curbside. Texas election law instructs election officers to deliver an on-site curbside ballot if a voter is “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.”

“Unless stopped, each of these instances of illegal voting will cast a cloud over the results of the General Election,” the lawsuit states.

Chris Hollins, the Harris County Clerk, said the latest lawsuit is in line with the Republican Party “feverishly” using resources to limit people’s right to vote.

“This lawsuit is not only frivolous, but it’s also a gross misrepresentation of the differences between curbside voting — for voters with disabilities, including illness — and drive-thru voting, which is available for all voters who want to vote from the safety and convenience of their vehicle,” he said in a statement Tuesday.

[…]

The Republicans argue that fear of contracting the coronavirus isn’t enough under state election law to qualify for curbside voting. Their point is bolstered by a May ruling from the all-Republican state Supreme Court which said a lack of immunity to the coronavirus is not a disability that qualifies Texans to vote by mail. But Texas law differentiates between mail-in ballots — which must be requested ahead of time through an application under strict qualifications, like a disability — and curbside voting, which is requested onsite.

The Texas secretary of state’s office has repeatedly said this year that those who have symptoms or signs of the new coronavirus should use curbside voting. The office has provided placards for county election officials to use at polling locations that urge curbside voting for sick people or those who can’t enter a polling place without the “likelihood of injuring your health.”

[…]

Voters must provide photo identification, then will be handed a portable voting machine in their car, according to the website. The clerk’s office notes drive-thru voting is open to all voters, as opposed to curbside voting which is applicable for those with a disability.

The lawsuit filed Monday says drive-thru voting is an expansion of curbside voting, and therefore can’t be available to all voters. The Republican Party also notes that election law states polling places must be located inside a building, and the county’s promotional video for drive-thru voting is in an outdoor parking lot.

I will admit that I have generally not distinguished between curbside and drive-through voting. I’d not given any thought to the difference, or even that there was a difference. I will point out here that this drive-through method was piloted for the primary runoffs, and formally announced as part of the county’s overall election plan in August. I will also note that Bexar County had announced their own plans for drive-though voting even earlier in August. This once again raises the question of “if you’re gonna sue about this, why is it taking you so long?”

The Chron has some more details.

In a petition filed late Monday in Texas’ 14th Court of Appeals, the Texas Republican Party contended the Texas Election Code limits curbside voting, including drive-thru voting, to voters who are sick or disabled, or if voting inside the polling location “would create a likelihood of injuring the voter’s health.” Those provisions do not apply to the coronavirus pandemic, the party argued in its filing.

“Chris Hollins is telling all Harris County residents that they are eligible for curbside voting when he knows that is not the case,” the party said in a statement. “Any voter that does not qualify to vote curbside under narrow statutory language would be voting illegally if allowed to vote drive-through.”

[…]

Assistant County Attorney Douglas Ray said county officials are comfortable with the legality of drive-thru voting because they do not consider it to be a form of curbside voting. The drive-thru locations, he noted, are all inside buildings, such as garages and temporary structures, which he said prevents them from being curbside under Texas law.

“We looked at this carefully before we decided to do it and feel that it’s within the boundaries of the law,” Ray said. “It’s disingenuous on their part to try to classify drive-thru as curbside, because that is not what we’re doing.”

This was filed with the 14th Court of Appeals, so I presume it’s a writ of mandamus. (I couldn’t find any filings when I searched the 14th Court website, but maybe I was just searching wrong.) I presume also that the 14th Court is under no obligation to issue a ruling in a timely manner – I’d say sitting on this one, then dismissing it as moot is the fate it deserves, but then I’m both petty and Not A Lawyer, so don’t pay too much attention to that. We all understand what this is about, and we all understand the motivation for it. The courts are gonna do what they’re gonna do, and we’ll go from there. Let’s not give this any more thought than that.

Here comes another rideshare company

Seems like a less than optimal time to be expanding, but here we are.

Alto, a new rideshare company based in Dallas, will roll into view in Houston as it looks to expand its reach and compete with Uber and Lyft.

The app-based service, which [arrived] in Houston Thursday, looks to distinguish itself in the market by offering what it calls a consistent experience by managing its own fleet of 200 luxury Buick sports utility vehicles and hiring employees to drive them rather than relying on independent contractors, as competittors such as Uber and Lyft do.

[…]

Alto’s expansion comes as a debate rages in California over how companies such as Uber and Lyft should treat its drivers. There, a new state employment law requires the gig economy companies to classify drivers as employees, but voters could exempt the companies via a ballot measure in November.

Alto also is expanding as the coronovirus pandemic batters the ride-hailing industry. Uber, the market leader, reported a 75 percent decline in ridership during the quarter ended June 30, as people grew wary of leaving the house and entering enclosed spaces.

Alto’s business has shrunk, too. Business is still down about 30 percent from pre-pandemic levels, [Alto CEO Will] Coleman said. “There’s some people in Dallas that are going to continue to not get into cars,” he said, “so our total customer base is smaller.”

That makes expanding into new territories more important to the company’s growth, Coleman said. Houston seemed like a natural next step, he said, given its proximity and size — it’s the nation’s fourth largest city. It also appealed because the company caters to the business community, which in Houston is large and international.

Business travel from the airport was a big sales driver before the pandemic, he said, and is beginning to pick back up. “People are looking for safe ways to move again,” Coleman said.

Not surprisingly, Alto costs more than Uber; the story does not do a comparison to a taxi fare, which would have been interesting. As someone who thinks Uber and Lyft treat their drivers like trash, I like Alto’s model, I just don’t know what their prospects are, even without factoring the pandemic into the equation. But if you’re the type of person who uses this type of service, and you’ve been wishing there was an alternative to Uber and Lyft, here you go.

(Also, can we please come up with an alternative term for “rideshare”? That doesn’t fit all that well any more for Uber and Lyft, and it makes even less sense for Alto, which actually owns the vehicles and employs the drivers. They’re basically a livery service, but that word makes me think of horse-drawn carriages with footmen. I am open to suggestion here.)

We need a better word than “controversial”

From the Chron: Meet Al Hartman, the controversial Houston CEO who is suing Hidalgo, Abbott over COVID orders.

Al Hartman is not shy about his beliefs.

As a guest on a Christian radio show, he spoke about a faith so strong that he heads to a mall after Sunday services to proselytize among the shoppers. He once handed out “Make America Great Again” hats to employees during an outing sponsored by his commercial real estate company. He is an active member and generous contributor to conservative groups, candidates and causes.

The latest cause for Hartman, the founder and CEO of Houston-based Hartman Income REIT Management, is masks, recently joining a suit against Harris County’s top elected executive, Lina Hidalgo, for ordering businesses to require employees and visitors to wear masks. This was two months after joining a suit brought by conservative activists against Gov. Greg Abbott over shutdown orders.

In August, he was further thrust into the public eye when the website Buzzfeed reported — and the company confirmed — that an employee was asked to leave a meeting by Hartman for refusing to take off his mask. The meeting, according to Mark Torok, Hartman’s general counsel, took place before the government recommended that everyone wear masks.

Hartman and his company, which owns directly or through affiliates some 60 buildings across Texas, present another example of how politics and ideology are shaping the response to the coronavirus pandemic, which has killed more than 200,000 people in the United States and at least 16,000 in Texas. Hartman’s company has not required employees to wear masks, and, until a few weeks ago, signs posted throughout the company’s buildings stated tenants and visitors were not required to wear them, either.

Hartman declined to be interviewed. But by the end of the summer, his workers were falling ill from COVID-19, as first reported by Buzzfeed. Torok confirmed that at least two employees who work in the 43-person corporate office at 2909 Hillcroft Ave. tested positive for the novel coronavirus.

Employees practice social distancing and handwashing, Torok added. Many do wear masks.

I’m going to be concise here.

1. If your “freedom” or your “beliefs” rest on the need for other people to be harmed, then your freedom is a sham and your beliefs are bad, and neither the legal nor political system should accommodate you.

2. Along those lines, and as someone who was raised in a Christian faith, I do not understand this version of “Christianity” that regularly advocates for the harm of other people. I’m pretty sure that’s not what Jesus was teaching.

3. As noted in the title of this post, we need a better word for our newspaper headlines than “controversial” to describe people like Al Hartman. “Nihilistic” would seem to me to be a better fit, but I’m open to other ideas.

2020 early voting starts today

From the inbox:

The Early Voting period for the November 2020 General Election begins tomorrow, Tuesday, October 13th, and continues through Friday, October 30th. This is the longest Early Voting period in Texas history, and voters who are not eligible to vote by mail are encouraged to vote early to avoid long lines and crowds on Election Day. The Harris County Clerk’s Office has provided more voter access than ever before, tripling the number of Early Voting Centers from just over 40 in 2016 to 122 this November. Visit http://www.HarrisVotes.com/Locations to find your nearest voting center, along with approximate wait times at voting centers across Harris County.

“My number one priority is keep voters and election workers safe this November,” said Harris County Clerk Chris Hollins. “We know that voting by mail is the safest and most convenient way to vote, but for the thousands of Harris County residents that are not eligible, we’ve provided more opportunities to vote and stay safe than ever before in Texas history. We’ve worked hard to provide a safe in-person voting experience and give voters more choices in how they cast their ballot — from larger, safer locations to voting from the comfort and safety of your vehicle. I encourage everyone to make your plan to vote and to take advantage of the Early Voting period to cast your ballot safely this fall.”

VOTING METHODS

KEY DATES

  • Tuesday, October 13: First day of Early Voting
  • Friday, October 23: Last day to apply to vote by mail
  • Tuesday, October 27 – Thursday, October 29: Extended Early voting hours to 10 pm
  • Thursday, October 29: 24 hour voting at eight (8) locations
  • Friday, October 30: Last day of Early Voting
  • Tuesday, November 3: Election Day

For more information, please visit HarrisVotes.com and follow @HarrisVotes on Twitter, Facebook, and Instagram.

As a matter of historical pattern, today is likely to be very heavy, and the two or three days before the end of early voting are also very heavy, with the last day usually swamping the rest. Keep that in mind if you want to vote in person and minimize your exposure to crowds. If you have a flexible schedule, vote in the later morning – say, between 9 and 11 – or mid-afternoon – say, between 2 and 4 – to avoid the rush hour and lunchtime folks. Look to see how busy your location is, and choose another if it looks less crowded. We can all do a little something to avoid and minimize risk.

And while the courts will likely not do anything to stop Greg Abbott’s vote-suppresing order to close mail ballot dropoff locations, you can still drop yours off at Reliant Arena, or just put it in the mail as people have always done. Just do it quickly, don’t wait on it, and track its progress. If you have requested a mail ballot and for some reason have not received it, and you cannot vote in person (I have a friend who asked about this for her son at college), by all means call the County Clerk’s office and have them check it out. They should be able to send you another one ASAP if the first one didn’t get sent or got lost.

At this point I would say if you’ve been going to the grocery store or getting takeout, you can and probably should vote in person, picking a good place and time as noted above. But do make a plan, because turnout is gonna be lit.

Harris County election officials are preparing for a record number of voters to cast their ballots before Election Day, a process that will ramp up across Texas on Tuesday as early voting begins for the November general election.

County Clerk Chris Hollins, the elections administrator for the state’s largest county, said he expects as many as 1.7 million Harris County voters to turn out, a total that would shatter the record 1.3 million votes from 2016. Political analysts and elections officials are projecting an unusually large share of the votes will come during the early voting period, which Gov. Greg Abbott extended by six days, and through the mail as voters look to avoid contracting COVID-19 at crowded Election Day polling sites.

“It’s very likely that you’re looking at close to about three-quarters of all the vote being in before Election Day, which is a dramatic turnaround from what we’ve had just a few years ago,” said Jay Aiyer, an assistant county attorney working on elections at the Harris County Attorney’s Office. “It’s better to think of the election process as less about Election Day and Nov. 3 and really more about ‘election weeks.’”

I should note that 74% of the vote in 2016 was early or by mail, and 71% was early or by mail in 2018. So this is in line with recent elections, though with likely much higher numbers this time around.

Hollins had mailed out 235,000 ballots by this past weekend, his office announced, more than doubling the total from 2016. He had anticipated sending out roughly 10 times that amount to all 2.4 million registered voters in Harris County, but Texas Attorney General Ken Paxton stopped the effort through a legal challenge.

The clerk’s office had received 22,000 completed mail ballots by the weekend, while another 13,250 voters had dropped off their ballots in person at NRG Arena through Friday.

Driving part of the expected turnout increase is the steady growth of Harris County’s voter rolls. The county has added nearly 234,000 registered voters since 2016, far more than the 143,000 new residents added during the same span.

I’ll be tracking everything as usual. Now get out there and vote!

Judge briefly halts Abbott’s order limiting mail ballot dropoff locations

Late Friday breaking news, which lasted until the early afternoon on Saturday.

A federal judge ruled Friday that Texas counties can have multiple drop-off locations for absentee ballots heading into the Nov. 3 general election, blocking the enforcement of Texas Gov. Greg Abbott’s recent order that sought to limit counties to just one such location.

Saying Abbott’s order confused voters and restricted voter access, U.S. District Judge Robert Pitman granted an injunction late Friday barring its enforcement. With an unprecedented number of Texas voters requesting mail-in ballots during the coronavirus pandemic, and concerns about the reliability of the U.S. Postal Service, some large, Democratic counties had set up numerous locations to accept the ballots before Abbott’s order.

“By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.”

[…]

The Texas Democratic Party called Friday’s ruling a “common sense order [that] followed well-established law and stopped the governor from making up election rules after the election started.”

Before Friday’s ruling, Democrats had denounced Abbott’s order, labeling it voter suppression in a state that has repeatedly been knocked in federal court for intentionally discriminating against voters of color. Voting rights advocates and civic groups quickly sued Abbott in federal court, arguing the order was based on invalid security concerns and places an unconstitutional and unequal burden on the right to vote.

The Texas and national League of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters filed suit the night of Abbott’s order, and another lawsuit was filed the next day by the Texas Alliance for Retired Americans, the get-out-the-vote group Bigtent Creative and a 65-year-old voter.

“Cutting these mail-in voting locations was wrong and done solely to attempt to steal the election from the rising Texas electorate,” said Gilberto Hinojosa, chair of the Texas Democratic Party. “A county, like Harris County, with more than 4.7 million Texans should have more than one hand delivery location. Limiting counties like Harris is a desperate Republican attempt to hold onto power.”

See here for the previous update, and here for a copy of the ruling. Looking at the plaintiffs, it appears that the first lawsuit and the second lawsuit were combined. That leaves one other federal lawsuit, plus the one state lawsuit for which there is a hearing next week.

One presumes this will be appealed, and as we all know the Fifth Circuit is where all good things go to die. I think there’s a strong argument to be made that allowing Abbott’s order, which was made more than two months after counties had begun making plans to have multiple dropoff locations and after the state Solicitor General filed a brief saying that state law allowed for this, is the thing that would improperly disrupt the election at this late date. I also think the Fifth Circuit can rise to the occasion of brushing such an objection aside. Travis County, one of the places that had multiple dropoff locations in place prior to the order, has said it will wait to see what the Fifth Circuit does before reopening them. It’s hard to fault them for that. The Chron and the Statesman have more.

UPDATE: As expected, Paxton has filed an emergency motion for a stay of the judge’s ruling. You can read that here. The smart money always says that he gets what he asks for from this court, so it’s a matter of how quickly they have a hearing and issue a ruling.

UPDATE: Faster than you can say “Anything you want, Kenny”, the Fifth Circuit grants Paxton’s motion. Now we wait for a hearing. See why Travis County decided to wait before reopening any of those dropoff locations? Here’s the Chron story about the granting of the stay.

Abbott to allow bars to reopen

Sort of. It’s kind of the most Abbott thing ever.

Gov. Greg Abbott announced Wednesday that bars in Texas can reopen for in-person service next week — as long as their county governments choose to allow it.

Effective Oct. 14, bars in counties that opt in will be able to resume in-person service at 50% capacity, though all customers must be seated while eating or drinking. The governor will impose no outdoors capacity limits on bars or similar establishments.

“It is time to open them up,” Abbott said in a Facebook video. “If we continue to contain COVID, then these openings, just like other businesses, should be able to expand in the near future.”

But soon after Abbott’s announcement, the state’s two most populous counties indicated they would not go along with the reopening plan. Dallas County Judge Clay Jenkins said on Twitter that he “will not file to open them at this time,” noting that “our numbers are increasing.” Harris County Judge Lina Hidalgo said in a statement that “indoor, maskless gatherings should not be taking place right now, and this applies to bars, as well.”

In addition to bars being allowed to reopen, businesses currently limited to 50% capacity may now expand to 75% capacity — including establishments like movie theaters, bowling alleys, bingo halls and amusement parks.

But Abbott said in his order that bars in regions of the state with high hospitalizations for coronavirus won’t be able to reopen. He defined those regions as areas where coronavirus patients make up more than 15% of hospital capacity.

“It is time to open up more, provided that safe protocols continue to be followed,” Abbott said. “If everyone continues the safe practices, Texas will be able to contain COVID and we will be able to reopen 100%.”

The announcement drew mixed reviews from bar owners. Some applauded the step, while others complained that Abbott left the power in the hands of counties.

“The truth is we remain closed until someone else makes the decision to open us up based on whatever parameters they deem appropriate — data, politics, personal animus, you name it,” said Michael Klein, president of the Texas Bar and Nightclub Alliance. “Abbott has forced 254 other people to make this decision for him with no guideposts as to how to make that decision. He’s officially passed the buck.”

Klein predicted that most urban counties, where the majority of his organization’s members are located, will not reopen.

You can add Bexar County to that “no bars yet” list as well. There’s a very good reason why most counties will likely decline this invitation from Abbott:

You have to admire Abbott’s consistent strategy of making local officials be the ones who have to make the tough decisions – when he lets them – and otherwise grabbing the power and glory for himself. Naturally, Republican-led counties are all over this, so be sure to keep an eye on the infection rates in places like Montgomery over the next month. To be sure, many bars have been able to operate with various workarounds as restaurants. And for things like outdoor service and to-go service, I support all that. It’s not enough for most bars, and the best thing we could have done about that is allocate a bunch of federal money to help them all – bars, breweries, wineries, distilleries, restaurants, music clubs, hotels, you name it – get through this, to the point where the disease is under control and it is safe for everyone to gather again. Abbott and his buddies were never really interested in any of that, though, so here we are. I feel like I’ve said this before, but I sure hope this works out. I don’t expect that it will, but I hope so anyway.

UPDATE: At least initially, only Denton County among the ten most populous counties will go forward with bar reopenings.

On executive power and the role of the Legislature

Just a few thoughts from recent events relating to Greg Abbott, COVID-19, vote access and suppression, local control, all those Hotze lawsuits, and so forth.

1. I think most of us would agree that however we assess Greg Abbott’s performance in response to the COVID pandemic, we need to have a conversation about the extent of the Governor’s executive powers and the role that the Legislature should have when laws are being amended or suspended on the fly in response to crisis situations. The lack of any input from the Legislature in all these COVID actions, from mask and shutdown orders and the subsequent reopening orders to expanding and contracting early voting and voting by mail, is a direct result of the system we have where the Legislature only meets once every other year, unless called into session by the Governor. All Abbott needs to do to keep the Lege at arm’s length is to not call a special session, which has been his response numerous times going back to the Hurricane Harvey aftermath. It may be time to admit that our quaint little system of “citizen legislators” who leave the farm every other year to handle The People’s Business in Austin just doesn’t work in the 21st century. If we don’t want Greg Abbott or any other Governor to be the sole authority on these matters, then we need to have a Lege that meets more often, and to have a Lege that meets more often means we need to accept the idea of legislating as a profession and adjust the compensation accordingly. I recognize that this is a thing that will almost certainly never happen, but I’m putting it on the table because we’re kidding ourselves otherwise.

2. A somewhat less foundation-shifting response would be to pass laws that mandate an expiration date on all emergency-response executive orders, which can only be renewed with the approval of the legislature. Put in a provision that allows the Lege to convene and vote on such things remotely, which bypasses the need for a special session and also allows for the Lege to operate in the context of a pandemic or other condition that would prevent them from meeting in person at the Capitol. Another possibility, which need not be mutually exclusive, is to mandate some conditions under which a special session must be called, say after an emergency declaration that has lasted for a certain duration or has resulted in some set of actions on the Governor’s part. It is within the Lege’s power to force itself into this conversation.

3. I would argue that when the Lege takes up the Disaster Act, or whatever other response it makes to review and revise executive authority in the wake of a declared disaster, it should clarify what kind of actions the Governor can take. Specifically, any action by the Governor must be taken in the service of containing, mitigating, or recovering from the disaster in question. As I said before, in the context of early voting and voting by mail, extending early voting and expanding vote by mail and allowing for mail ballots to be dropped off during early voting all served the purpose of mitigating the spread of coronavirus, but limiting the number of mail ballot dropoff locations did not, in the same way that limiting the number of food distribution locations following a hurricane would not count as hurricane/flood relief. I say that should make Abbott’s order illegal under the Disaster Act, and whatever the courts ultimately rule about that, the law should be changed to reflect that viewpoint.

4. The law could also be amended to limit litigation that would contravene this goal of mitigating the declared disaster. What is the law here for, and why should we let some cranks make technical (and let’s face it, mostly ridiculous) arguments that would worsen the disaster for some number of people?

5. If the Republican Party still had some affinity for local control, instead of putting all its chips on limiting what local officials they don’t like are allowed to do, then codifying the powers of county officials in response to a disaster might be worthwhile. I have some sympathy for Abbott’s stated impulse to not put a burden on smaller rural counties when it’s the more heavily populated ones that needed shutdown orders, but that sympathy only extends to the limit of what Abbott was willing to let the county judges of those more populated places do. I want to be careful here because a wacko county judge like the guy in Montgomery could easily have a negative effect on his neighbors like Harris if granted too much discretion, but I think if we stick to the mantra of everything needing to be in the service of mitigating and recovering from the disaster in order to be legal and valid, we can work this out.

6. Some of what I’m talking about here will split along partisan lines, but not all of it will. Clearly, there is some appetite among Republicans to limit executive power, though not in a way that I would endorse, but that is not universal. It’s clear from the Paxton brief in response to the latest Hotze mandamus that our AG at least believes in a strong executive, and I believe that feeling extends to other Republicans. Democrats can likely drive some of this discussion, especially if they are a majority in the House, but they will want to be careful as well, lest they wind up clipping the wings of (say) Governor Julian Castro in 2023. This is a multi-dimensional problem, that’s all I’m saying.

(Oh, and any Republican coalition in favor of a strong executive will of course evaporate the minute there is a Democratic Governor. I mean, obviously.)

I’m sure there are other aspects to this that I am not thinking of. My point is that this is a topic the Lege can and should take up, even if any bill they pass is likely to run into a veto. I just wanted to lay out what I think the parameters of the discussion are, or at least what I’d like them to be. Who knows what actually will happen – the election will shape it in some ways – but I hope this serves as a starting point for us to think about.

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

Lawyers for voters and voting rights groups asked a federal judge Thursday to block Gov. Greg Abbott’s recent order limiting counties to one location where voters can hand-deliver mail-in ballots.

Abbott waited too long to issue his order on Oct. 1, they argued, not only because it came the same day Travis County opened four drop-off locations after a monthlong public information campaign, but also because voting had already begun in the Nov. 3 general election.

“It is too late and too dangerously burdensome to change election rules midstream,” lawyer Chad Dunn told U.S. District Judge Robert Pitman in a hearing that was held via Zoom as a pandemic precaution.

Other lawyers argued that Abbott’s order placed a disproportionate burden on Texans who are most likely to vote by mail — those who are 65 and older or have a disability — by forcing many to endure longer and more difficult travel to ensure that their votes are submitted in a time of decreasing confidence in the U.S. Postal Service.

“It’s ironic and sad,” lawyer John Devaney said. “Now, after voting has started, the plug has been pulled.”

Lawyers for Abbott disputed claims that his order limited voting rights, saying the governor acted to expand opportunities and options for voters during the pandemic.

Abbott’s first election-related order, issued July 27, added six days of early voting and suspended a state law that allows voters to hand-deliver mail-in ballots only on Election Day, lawyer Eric Hudson told the judge.

In effect, Abbott gave voters almost 40 extra days to hand-deliver their ballots, Hudson argued.

“That’s not provided for in Texas law, and without Gov. Abbott’s proclamation, that right … would not be possible,” he said.

Pitman broke in to ask: “Is it the governor’s position that we’ve given you so much it’s OK to take back a little?”

“I don’t think we’ve taken anything back, your honor,” Hudson replied.

This hearing was for the first lawsuit, filed by LULAC and the League of Women Voters. Earlier in the day, the ACLU and the Lincoln Project announced they had filed amicus briefs in support of the plaintiffs. Courthouse News has some further details.

Representing LULAC, San Antonio attorney Luis Vera said the fears of election fraud have already been discredited and voters had already turned in their ballots for four days until Abbott’s order.

“The state of Texas wants one set of rules for [the] one party they represent and one set of rules for the others,” he said.

Attorney Chad Dunn, with Brazil & Dunn in Houston, asked the judge to issue a preliminary injunction to “preserve the status quo.” He cited federal courts’ reluctance to change the terms of an election so close to Election Day.

“This case is about more than drop-box locations in a county. It is about whether the public believes the results of the election will be honored,” he said.

Attorney John Devaney, with Perkins Coie in Washington, told Pitman the individual voter plaintiffs have standing in the case because of the risk they face voting at the polls and contracting Covid-19, and because they will have to travel further to reach their county’s one absentee drop-off location.

He argued that LULAC and the League of Women Voters have standing as organizations due to the burden of having to reallocate their resources at the last-minute to account for Abbott’s order.

“They will need to change their website, their educational materials and contact their new members” with the new information, Devaney said.

In response to the judge asking if the state also faces a burden if he decides to block Abbott’s order, Devaney responded the state’s burden to maintain the status quo would be smaller than that of the plaintiffs.

“Voters tend to wait until the end of an election to request a ballot. It’s not just procrastination,” Devaney said. “In an election this heated, voters want to wait. There’s going to be a surge of absentee votes … given the two-week period for the USPS, people are going to have to turn in their ballots because they don’t trust the Postal Service.”

Judge Pitman asked the plaintiffs if there was any difference between the drop-off locations closed by Abbott’s order and the still-operation sites in terms of election security.

Attorney Susan Hays, representing Harris County Clerk Chris Hollins, responded the county’s shuttered annex locations are “typical business offices” that are more secure than other public places due to employees receiving election security training. She said they are “much more secure because they must show ID before handing over the ballot.”

Pitman said he would issue his ruling “as soon as possible” given the close proximity to Election Day. Early voting locations are scheduled to open on Oct. 13.

It wouldn’t shock me if we get a ruling by Monday, but we’ll see. This is now the fourth lawsuit filed against the Abbott order, with three of them in federal court. According to the Statesman story, there’s a hearing scheduled for the state lawsuit next week.

UPDATE: Here’s the Chron story:

During a hearing Thursday, U.S. District Judge Robert Pitman appeared unconvinced by the idea that eliminating the additional locations would have no impact on voting accessibility.

The suit before Pitman is one of several challenging Texas election laws and Abbott’s pandemic executive orders amending them that are still swirling, even as the start of early voting approaches.

[…]

The pool of voters using this method appears to be relatively small so far, though mail-in voting is up across Texas, so demand could rise.

In Harris County, for example, just 0.2 percent of 85,922 absentee voters hand-delivered their ballots during the low-turnout July primary runoff; 39 of the 404 ballots for the Nov. 3 election that have been returned through Thursday were dropped off by voters. Those dropoffs ceased when Abbott’s order went into effect with less than 24 hours notice.

It should be noted that dropoff boxes were basically never mentioned as an option for the July primary runoffs, so the fact that almost no one used them is no surprise. And since 39 out of 404 is almost ten percent, it sure looks like we were on our way to a significant increase in the use of this method. I point these numbers out because one can make an argument about how much of a burden Abbott’s order is based on them.

Fourth lawsuit filed over Abbott’s order limiting mail ballot dropoff locations

The Lawyers’ Committee for Civil Rights is heard from:

A copy of the complaint is here – this is a federal suit, filed in the Western District of Texas, in Austin. It joins two other federal suits and one state lawsuit. I have no idea if the sheer number of complaints has any effect on the outcome, but whatever the case, this action on Abbott’s part sure did draw a lot of response.

I don’t really have anything else to add, but I thought you might like this:

People sure are determined to vote. I am cheered by their determination to not get deterred by all of the obstacles in their path, and angry that those obstacles exist in the first place. There are so many things our future Democratic Legislature is going to have to do to fix this crap.

Win one, lose one at SCOTX

The win:

Early voting in Texas can begin Oct. 13, following the timeline the governor laid out months ago, the Texas Supreme Court ruled Wednesday, rejecting a request from several top Texas Republicans to limit the timeframe for voters to cast their ballots.

In July, Gov. Greg Abbott ordered that early voting for the general election in Texas begin nearly a week earlier than usual, a response to the coronavirus pandemic. But a number of prominent Republicans, including state party Chair Allen West, Agriculture Commissioner Sid Miller and several members of the Texas Legislature, challenged that timeframe in September, arguing that Abbott defied state election law, which dictates that early voting typically begins on the 17th day before an election — this year, Oct. 19.

Abbott added six days to the early voting period through an executive order, an exercise of the emergency powers he has leaned into during the virus crisis. The Republicans who sued him argued this was an overreach.

The state’s highest civil court, which is entirely held by Republicans, ruled that the GOP officials who sued challenging Abbott’s extension waited until the last minute to do so, when he had already extended early voting in the primary election and announced he would do the same for the general months ago. Chief Justice Nathan Hecht noted also that the election is already underway.

“To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion,” he wrote in the opinion.

See here and here for some background, and here for the opinion. After noting that Abbott has “issued a long series of proclamations invoking the Act as authority to address the impact of the COVID-19 pandemic on a wide range of activities in the State” since his disaster declaration in March, the Court notes that the relators (the fancy legal name for “plaintiffs” in this kind of case) took their sweet time complaining about it:

Relators delayed in challenging the Governor’s July 27 proclamation for more than ten weeks after it was issued. They have not sought relief first in the lower courts that would have allowed a careful, thorough consideration of their arguments regarding the Act’s scope and constitutionality. Those arguments affect not only the impending election process but also implicate the Governor’s authority under the Act for the many other actions he has taken over the past six months. Relators’ delay precludes the consideration their claims require.

The dissent argues that relators acted diligently because they filed their petition in this Court four days after they received an email confirming that the Harris County Clerk intended to comply with the Governor’s July 27 proclamation. But relators’ challenge is to the validity of the proclamation, not the Clerk’s compliance.16 Relators could have asserted their challenge at any time in the past ten weeks. The dissent also argues that the Court has granted relief after similar delays. But none of the cases the dissent cites bears out its argument.17

Moreover, the election is already underway. The Harris County Clerk has represented to the Court that his office would accept mailed-in ballots beginning September 24. To disrupt the long-planned election procedures as relators would have us do would threaten voter confusion.

[…]

Mandamus is an “extraordinary” remedy that is “available only in limited circumstances.”20 When the record fails to show that petitioners have acted diligently to protect their rights, relief by mandamus is not available.21 The record here reflects no justification for relators’ lengthy delay.

The “dissent” refers to the dissenting opinion written by Justice John Devine, who was all along the biggest cheerleader for the vote suppressors. I have no particular quibble with this opinion, which seems correct and appropriate to me, but the grounds on which the mandamus is denied are awfully narrow, which gives me some concern. The Court may merely be recognizing the fact that there are several outstanding challenges to Abbott’s authority to use his executive powers in this fashion, relating to mask and shutdown orders as well as election issues, and they may simply want to leave that all undisturbed until the lower courts start to make their rulings. That too is fine and appropriate, but I can’t help but feel a little disquieted at the thought that maybe these guys could have succeeded if the timing (and their lawyering) had been better.

That ruling also settled the question of counties being able to accept mail ballots at dropoff locations during the early voting process – the relators had demanded that mail ballot dropoff be limited to Election Day only. None of this is related to the issue of how many dropoff locations there may be, which is being litigated in multiple other lawsuits, four now as of last report. We are still waiting on action from those cases.

On the negative side, SCOTX put the kibosh on County Clerk Chris Hollins’ plan to send out mail ballot applications to all registered voters in Harris County.

The state’s highest civil court ruled Wednesday that Hollins may not put the applications in the mail. The documents can be accessed online, and are often distributed by political campaigns, parties and other private organizations. But for a government official to proactively send them oversteps his authority, the court ruled.

“We conclude that the Election Code does not authorize the mailing proposed by the Harris County Clerk,” the court wrote in an unsigned per curiam opinion.

The Republican justices sent the case back to a lower court in Harris County to issue an injunction blocking Hollins from sending the mailers.

The county has already distributed the applications to voters who are at least 65, who automatically qualify for absentee ballots, and has also begun sending out the applications to other voters who requested them. An attorney for Hollins estimated last week that the county would send out about 1.7 million more applications if the court allowed.

See here and here for some background, here for a statement from Hollins, and here for the unanimous opinion, which is longer than the one in the first case. The Court goes into the many ways in which the Legislature has expressed its intent that most people should vote in person, and then sums up its view Clerks getting creative:

Hollins’ mass mailing of ballot applications would undercut the Secretary’s statutory duty to “maintain uniformity” in Texas’ elections, the Legislature’s “very deliberate[]” decision to authorize only discrete categories of Texans to vote by mail, and its intent that submission of an application be an action with legal gravity.43

Authority for Hollins’ proposed mass mailing can be implied from the Election Code only if it is necessarily part of an express grant—not simply convenient, but indispensable. Any reasonable doubt must be resolved against an implied grant of authority. Mass-mailing unsolicited ballot applications to voters ineligible to vote by mail cannot be said to be necessary or indispensable to the conduct of early voting. Even if it could be, doubt on the matter is certainly reasonable and must be resolved against recognizing implied authority. We hold that an early voting clerk lacks authority under the Election Code to mass-mail applications to vote by mail. The State has demonstrated success on the merits of its ultra vires claim.

I’ve discussed my views on this before, when the appeals court upheld the original order, and I don’t have anything to add to that. I agree with Michael Hurta that this case will be cited in future litigation that aims to limit what Texas localities can do to innovate, which is what Hollins was doing here. It’s basically another attack on local control, and as I replied to that tweet, it’s another item to the Democrats’ to do list when they are in a position to pass some laws.

I hate this ruling for a lot of reasons, but that right there is at the top of the list. The Court based its ruling in part on the fact that Hollins was doing something no one else had thought to try – “all election officials other than Hollins are discharging this duty in the way that they always have”, they say as part of their reasoning to slap Hollins down” – and while I can see the logic and reason in that, we’re in the middle of a fucking pandemic, and sometimes you have to step outside the box a bit to get things done in a manner that is safe and effective. I get where the Court is coming from, and I admit that allowing County Clerks to experiment and freelance has the potential to cause problems, but it sure would have been nice for the Court to at least recognize that Hollins’ actions, however unorthodox they may have been, did not come out of a vacuum. Clearly, the fact that the arguments in this case were heard via Zoom didn’t sink in with anyone.

On a practical level, I don’t know how many people would have voted via absentee ballot who would not have otherwise participated. Some number, to be sure, but I really don’t think it’s all that much. It’s the principle here, one part making it harder to vote and one part keeping the locals in line, that bothers me. As has been the case so many times, we’re going to have to win more elections and then change the laws if we want some progress. You know what to do. The Chron has more.

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.

When Republicans fight

Such a sight to see.

Gov. Greg Abbott’s most exasperating allies sure chose an awkward time to act up.

In the face of a momentous election, with an array of issues that includes the pandemic, the recession, climate change, racial justice, law enforcement and the next appointment to the U.S. Supreme Court, the chairman of the Texas GOP and a gang of lawmakers and activists have instead picked a fight with Abbott, who isn’t even on the ballot, over his response to the pandemic.

On the surface, they’re asking the courts to tell the governor that adding six more days of early voting to the calendar was outside of his powers. Abbott made the move under emergency powers he has claimed during the pandemic — the same powers he has used at various times to shut down schools, limit crowd sizes and limit how many customers businesses can serve at a time, or in some cases, to close businesses altogether.

The timing is connected to the Nov. 3 general election; even with the arguments over emergency powers, opponents of the governor’s action would be expected to grab for a remedy before early voting starts on Oct. 13. One might say the same about other lawsuits challenging the governor’s orders — that they’re tied not to politics, but to current events. Bar owners want to open their bars, for instance, and are not in the financial condition or the mood to stay closed until after the elections just to make the current set of incumbents look good.

What’s unusual is to see so many prominent Republican names on the top of a lawsuit against the Republican governor of Texas this close to an election.

In a gentler time, that might be called unseemly or distracting. Speaking ill of another Republican was considered out of bounds for a while there. Those days are over. What’s happening in Texas illustrates how the pandemic, the economy and other issues have shaken political norms.

As the story notes, this is also playing out in the SD30 special election, where Shelley Luther – supported by a million dollars from one of the Empower Texans moneybags – is busy calling Abbott a “tyrant”. There’s talk of various potential primary challengers to Abbott in 2022 – see the comments to this post for a couple of names – but I don’t see any serious threat to him as yet. If Dan Patrick decides he wants a promotion, then we’ve got something. Until then, it’s all talk.

But let me float an alternate scenario by you. What if the nihilist billionaires behind Empower Texans decide that Abbott and the Republican Party have totally sold out on them, and instead of finding someone to take Abbott out in a primary, they bankroll a petition drive to put some pet wingnut on the November ballot, as an independent or the nominee of some new party they just invented? It’s crazy and almost certain to hand the Governor’s mansion over to the Democratic nominee, but no one ever said these guys were strategic geniuses. It’s been said that there are three real political parties in Texas – the Democrats, the establishment Republicans, and the far right whackadoo Republicans. This would arguably be an outgrowth of that, and in what we all hope is a post-Trump world, there may be similar splits happening elsewhere.

How likely is this? As I said, it makes no sense in the abstract. It’s nearly impossible to see a path to victory for either Abbott or the appointed anti-Abbott. It’s instructive to compare to 2006, where Carole Keeton Strayhorn and Kinky Friedman were taking votes away from both Rick Perry and Chris Bell. Nobody who considers themselves remotely a Democrat is going to be wooed by whoever Empower Texans could vomit onto the ballot. Maybe they would consider a victory by Julian Castro or whichever Dem to be preferable to another Abbott term, in their own version of “the two parties are the same, we must burn down the duopoly to get everything we want”. Just because it makes no sense doesn’t mean it can’t happen. For now, if I had to bet, my money would be on some token but not completely obscure challenger to Abbott in the primary – think Steve Stockman against John Cornyn in 2014, something like that. But a lot can happen in a year, and if the Dems do well this November, that could add to the pressure against Abbott. Who knows? Just another bubbling plot line to keep an eye on.

Lots of HISD students will stay remote for now

The people have spoken.

If the state’s largest district follows through with reopening campuses to students on Oct. 19 — the tentative plan, still based on public health conditions — more than half of the district’s nearly 200,000 could remain at home for at least one grading period, HISD officials said this week.

Newly released data shows that 80 percent of the district’s families committed in recent days to a back-to-school option. Of those, about 40 percent chose in-person instruction and 60 percent opted to stay in virtual classes. HISD officials are unsure whether the remaining 20 percent of families will send their children back to classrooms, but district staff are planning as if they will show up on campus.

With those totals in hand, HISD officials are using the next few days to finalize arrangements for Oct. 19, which marks the start of the district’s second grading period. Key decisions are expected to land next week, including whether to limit attendance at some high school campuses and shuffle students’ already-assigned teachers.

“Based on the enrollment data breakdown, campus principals will create schedules to accommodate students returning for face-to-face instruction and those continuing remotely,” HISD’s administration said in a statement.

[…]

Nearly all of the Houston area’s largest districts resumed in-person classes for families that want it in recent weeks, though a few remain in the early stages of reopening, including Alief and Fort Bend ISDs.

To date, only Crosby ISD has reported more than 10 active cases of COVID-19 at a single campus. The district temporarily closed Crosby High School this week and Crosby Middle School last week for cleaning.

HISD will be the region’s last district to offer face-to-face instruction, though the district has operated learning centers at 36 campuses and churches for students without at-home technology access since the 2020-21 school year started virtually in early September.

If HISD reopens classrooms in mid-October, the district likely will bring back thousands of employees who remain fearful of returning to work.

A survey of roughly 7,400 teachers conducted between mid-June and early July found that 35 percent were more comfortable staying in online-only classes, while 14 percent were ready to return to the classroom. About half of respondents said they were open to a hybrid model, in which students wanting in-person instruction spent part of their week on campus and part in at-home classes.

“There have been numerous concerns about the size of the classrooms,” said Scott Parker, a science teacher at Navarro Middle School. “You have literally thousands of students coming back, and they’re all within a closed, confined area.”

Nearly all of the district’s 280 campuses are expected to host all students wanting in-person instruction for five days each week. HISD officials did not release a campus-by-campus breakdown of expected in-person attendance rates Friday.

Our girls will be among those who continue to do remote learning for the next six weeks. Both their schools will have the teachers do in-person and remote instruction simultaneously, which means they will stay with the same teachers and on the same schedule. We’ll figure it out for the next six weeks after that. I am hoping that the initial return to campus will be safe and successful, because I know we need to get students back into their schools. We’re getting by and making do for now, but this is not ideal, and there will be long-term negative effects for many students. As to what happens if the return of students (and teachers, and support staff, and whoever else) to campuses is not successful, I have no idea. I just hope HISD and the TEA do. If you have kids in HISD or other district’s schools, what decision have you made about in-person versus remote learning?

Second lawsuit filed against Abbott’s mail ballot dropoff order

From Chuck Lindell on Twitter, on Saturday afternoon:

See here for the background, and here for more on the first lawsuit. This one is a Democracy Docket suit, and you can read the complaint here. As of when I drafted this on Saturday afternoon, there wasn’t any news coverage that I could find – this CNN story mentions the second lawsuit, but it’s primarily about the first one, and doesn’t tell me anything I didn’t already know. Marc Elias of Democracy Docket summarizes what the complaint is about:

Monday ought to be a busy day at the federal courthouse. I feel like there may be cause to file a complaint in state court as well, on the grounds that Abbott’s action violates the Disaster Act since it does not conform with the goal of mitigating the disaster and thus isn’t an appropriate use of his emergency powers, but I Am Not A Lawyer so I probably don’t know what I’m talking about. I’ll update this when I see a link to news story about this second lawsuit.

We really can track COVID-19 through wastewater

This is terrific news.

Researchers with the city, Rice University and Baylor College of Medicine were able to sniff out a potential second outbreak of COVID-19 at a homeless shelter in downtown Houston earlier this year by looking down its drains instead of in people’s noses, health officials said Thursday.

Quashing the resurgence at the Star of Hope Men’s Shelter earlier this year was one of the first successes of an effort to track the novel coronavirus through wastewater, city officials said Thursday. The initiative, one of several occurring around the country, attempts to spot outbreaks by sampling water at city treatment facilities, which could help officials tailor their testing and prevention efforts to specific neighborhoods.

To date, the results from testing wastewater largely have aligned with those from nasal swab testing, said Dr. Loren Hopkins, the city’s chief environmental science officer. That has increased the confidence that the wastewater sampling is accurate. The benefit, she said, is that wastewater tests produce quicker results.

“Ultimately, the goal is to develop an early warning system allowing the health department to identify the city’s COVID-19 hot spots sooner and put measures in place to the slow the spread of this virus,” Mayor Sylvester Turner said.

People shed the virus through feces, regardless of whether they experience symptoms. The city was able to detect the virus in the shelter by placing a sampler on the manhole outside the facility after its initial outbreak of COVID-19, the illness caused by the coronavirus.

The ability to home in on a single building still is limited, Hopkins said. City officials have deployed that strategy for the shelter and the Harris County Jail, and they are trying to acquire more equipment to expand the effort in the fall. The health department plans to begin testing long-term care facilities, for example.

[…]

So far, there has been a strong correlation between the viral load in the wastewater and the positivity rates by nasal tests, so the method has not unearthed large swaths of the virus that have gone undetected by tests. Still, that correlation has increased confidence that the wastewater analysis is accurate and can be used as a bellwether for future outbreaks.

From Sept. 7 to Sept. 14, for example, scientists found the virus was increasing in a statistically significant way in the communities served by the Tidwell Timber, Upper Brays and Forest Cove treatment plants, among others, while decreasing in District 23, White Oak and Homestead.

That information, coupled with the local positivity rate and other factors, helped the health department decide where to send strike teams to test people, conduct outreach and provide education about the virus. The city said the wastewater study has resulted in more testing at several congregant living centers.

See here and here for the background. This method is extra useful because it provides a more focused view of where the cases are clustering, and the testing is faster, so the response to the test results is also faster. If we are ever going to get a handle on this disease, especially before there’s a vaccine but also after one is available, it’s going to come from technology like this that gives a real-time and location-specific view of where the virus is happening. We should be rooting for this to ramp up as much and as quickly as possible. Kudos to all for making this happen. The Press has more.

Lawsuit filed over Abbott’s order to limit mail ballot dropoff locations

As expected.

Voting rights advocates and civic groups have rushed to the courthouse in a bid to block Republican Gov. Greg Abbott’s Oct. 1 order allowing Texas counties no more than one drop-off location for voters casting absentee ballots, calling the directive an unconstitutional burden on the right to vote that will disproportionately impact voters of color in the state’s biggest cities.

The Texas and National Leagues of United Latin American Citizens, the League of Women Voters of Texas and two Texas voters asked a federal judge in Austin in a lawsuit filed late Thursday to overturn the governor’s order, which forced Travis and Harris counties — two of the state’s most important Democratic strongholds — to shutter a number of drop-off sites they had already opened this week.

“The impact of this eleventh-hour decisions is momentous, targets Texas’ most vulnerable voters—older voters, and voters with disabilities—and results in wild variations in access to absentee voting drop-off locations depending on the county a voter resides in,” attorneys for the groups argued. “It also results in predictable disproportionate impacts on minority communities that already hit hardest by the COVID-19 crisis.”

Attorneys also pointed out that Abbott was making a major change to election procedures just weeks away from an election — an action the state and its attorneys argued was improper in a separate federal lawsuit over straight-ticket voting.

[…]

The lawsuit will have to move quickly, with early voting set to begin in less than two weeks on Oct. 13.

Harris and Travis counties had each set up multiple locations for accepting absentee ballots and had already begun accepting them before Abbott issued his order shutting down the satellite locations. Voting rights experts say access to these locations is especially important given concerns over U.S. Postal Service delays and that closing them will disproportionately impact voters with disabilities or without access to reliable transportation. Harris County is home to 2.4 million registered voters and stretches across some 1,700 square miles, more than the entire state of Rhode Island.

Ralph Edelbach of Cypress, an 82-year-old voter among those suing Abbott, had planned to drop his ballot off at a Harris County location that was 16 miles from his home — but now will have to travel 36 miles, nearly 90 minutes round trip, to reach the only location Abbott has allowed to stay open, according to court documents.

At a press conference Friday morning, Harris County Clerk Chris Hollins said he could reopen the shuttered locations “at the drop of a dime.”

“Ultimately, anything that’s done to decrease voter convenience, to put obstacles in the way of the voter, is voter suppression, and will lead to disenfranchisement,” he said.

Abbott’s order, which came a day after the Texas solicitor general approved Harris County’s plan for multiple locations under earlier guidance from the governor, also said counties must allow poll watchers to observe goings-on at ballot drop-off sites. Voting rights advocates fear that poll watchers, who are selected by candidates or political parties, will seek to intimidate voters, as has been documented in the past.

Abbott claimed the limits on drop-off locations were necessary to ensure election integrity. But he provided no evidence that the drop-off sites enable voter fraud, which experts say is rare.

And the procedures for delivering an absentee ballot are strict. Voters must present an approved form of identification, show up during specified hours and can only deliver their own ballots.

See here for the background and here for a copy of the complaint. The “approval” from the Solicitor General’s office to the Hollins plan is in reference to the brief filed by Paxton’s office in response to the Hotze mandamus that had already challenged what Harris County was doing. Have fun squaring that circle, y’all.

The Chron adds some details.

The suit, filed in federal court in Austin, alleges that the order violates the Voting Rights Act and First and Fourteenth Amendments, which guarantee equal protection of the right to vote, and will disproportionately affect minorities and older citizens who are at higher risk of serious complications from COVID-19.

[…]

Thursday’s move by Abbott was made in stark contrast to a legal argument that Texas Solicitor General Kyle Hawkins had made in response to a lawsuit the day prior. Then, Hawkins argued in a brief to the Texas Supreme Court that nothing in previous orders disallowed the interpretation of the clerks’ “office” to include annex offices, and the Secretary of State had told local officials that any clerk’s office sufficed for dropoff.

It marked the latest instance of Abbott reversing course under political pressure over his response to the pandemic.

Abbott had spent months holding off on a statewide mask mandate, but later enacted one in line with other states. He similarly resisted a statewide stay-at-home order until cases began to surge.

Following an uproar from conservatives over a Dallas salon owner who faced jail time as indirect result of her keeping her business open in violation of Abbott’s stay-at-home order, he limited punishment to fines.

[…]

“As many states are expanding ballot drop off options to ensure voter confidence this year, it is vile to see Texas’s attempts to do the opposite,” said Celina Stewart, senior director of advocacy and litigation for the League of Women Voters.

The Texas director of AARP, which represents more than 2.3 million seniors in the state, said Friday that she was “deeply concerned” about the new restrictions on ballot dropoff.

“During a pandemic, now more than ever, older voters need confidence that they can vote safely,” Tina Tran said. “Texas voters, especially those 50-plus, do not need another impediment to voting.”

Despite Texas having some of the most restrictive voting and vote-by-mail laws in the country — it’s one of just five states where voters have to provide an excuse other than COVID-19 to request a mail ballot — counties have reported higher-than-normal levels of interest in the practice.

To manage the influx, Harris County had planned on having locations at the main county clerk office and 11 annex offices throughout the 1,777-square-mile county to collect mail ballots. Neighboring Fort Bend County had planned to open five locations, and Travis County had planned on having three in addition to its main office.

Dallas County told CBS 11 News that it had planned to open multiple locations but is now prohibited.

County officials said they were given no notice of the order, which took effect within 24 hours.

This will have to be litigated quickly for obvious reasons. I will say, even with all of his often-craven flip flops, Abbott has generally used his executive powers under the Disaster Act to mitigate or halt the spread of the coronavirus. Extending early voting to a third week was one such example of that. There’s nothing in this order that conforms to that goal – limiting mail ballot dropoff locations will force more people to one location and may wind up making more people vote in person – and so on that principle it would seem to me that Abbott’s underlying rationale is legally suspect. I don’t know that that’s an issue here – that would seem to be more of a claim for state court. Who knows, maybe there will be another lawsuit that does go that route. In the meantime, this is what we have. Reform Austin has more.

SCOTX hears mail ballot case arguments

Here we are.

Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county far exceeds what the state Election Code allows, the attorney general’s office argued before the Texas Supreme Court Wednesday.

In oral arguments before the high court, Texas Solicitor General Kyle Hawkins said the part of the Election Code requiring clerks to send applications to any registered voters who request them means the distribution of applications is limited to those voters. Harris County Clerk Christopher Hollins, he warned, cannot claim powers the Election Code has not expressly granted him.

“If Hollins’s actions are allowed to proceed, it will fundamentally upset the balance of power between states and counties,” Hawkins said. “That conception of power has existed for a century.”

[…]

Susan Hays, a private attorney representing Harris County, said the purpose of the Election Code is to make voting safe and accessible to all registered Texans. Requiring applications to be sent to voters who request them is a minimum requirement, she argued, not a limit.

“A statute that says we have to give an application to someone if they ask doesn’t prohibit implicitly giving it to people because we think it’s a good management practice and we think it will make this election safe,” Hays said.

The eight justices in attendance peppered both attorneys with questions during their 20-minute arguments.

Responding to a question about whether the county’s plan would be out of step with how other parts of the state are handling mail ballots, Hays said all 254 counties should send mail ballot applications to registered voters. In an amicus brief, the Dallas County clerk argued the same.

Justice Eva Guzman asked Hays if Harris County’s plan would create more opportunities for voter fraud. Hays said it would not, noting that each ballot is reviewed by a bipartisan committee to ensure the signatures on the ballot and application match.

Justice Brett Busby asked Hawkins if the state’s position that clerks only have power explicitly granted by state law would bar them from developing new, innovative ways of providing services to customers.

“This is going to have ramifcations outside this case,” Busby said. “How do we tread that line to ensure clerks can continue to do, as they see it, good customer service?”

Hawkins said clerks would be fine so long as they are able to connect every action to a “specific grant of power” from the Legislature.

See here for the previous update. I don’t have any new insights, I still think the state’s arguments are crap, but it’s not up to me. All I ask at this point is a quick decision.

And straight ticket voting is off again

No surprise, but boy are we all getting whiplash over here.

Texas voters will not be able to select every candidate of a major political party with one punch, a federal appeals court ruled Wednesday, upholding a 2017 state law that ends the popular practice of straight-ticket voting for this year’s general election.

The Texas Legislature years ago acted to end straight-ticket voting in time for the 2020 presidential contest, but a federal judge earlier this month reinstated the practice, citing complications to the voting process caused by the pandemic.

A three-judge panel on the 5th U.S. Circuit Court of Appeals overturned that decision on Wednesday, ruling that the law ending the one-punch option should go into effect even as voters and election administrators contend with the coronavirus pandemic, citing the U.S. Supreme Court’s “emphasis that courts should not alter election rules on the eve of an election.”

“The Texas Legislature passed HB 25 in 2017, and state election officials have planned for this election accordingly. The state election machinery is already well in motion,” the judges wrote. Upholding the law and eliminating straight ticket voting, they wrote, “will minimize confusion among both voters and trained election officials.”

[…]

The opinion, which was not signed, came from a panel of three appointees of George W. Bush: U.S. Circuit Judges Edith Clement, Catharina Haynes and Jennifer Walker Elrod. The court had already paused the lower court’s ruling with a brief administrative stay, but Wednesday’s eight-page decision is a firmer word on the matter.

See here and here for the background. I don’t agree that this ruling would have been disruptive of confusing to voters, who had been used to being able to vote straight ticket, but I thought the original ruling against the plaintiffs was correct, so I’m not going to get too exercised over this. I will say, now that SCOTUS is again on everyone’s mind, that this case is a reminder that many cases get resolved well before they get to SCOTUS, or to SCOTX if we’re talking about state litigation. It’s clear that the courts we have are not going to save us. The route we need to take to fix our ridiculous voting laws is winning enough state elections to pass new and better voting laws. Whatever happens with SCOTUS, we should be plenty of motivated to do that.

Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

In a brief filed with the Texas Supreme Court, Texas Attorney General Ken Paxton argues that the GOP group suing Gov. Greg Abbott to prevent him from extending early voting for the November election has no standing and has failed to prove any harm.

Conservative activist Steve Hotze and a long list of high-profile Texas Republicans claim Abbott is violating Texas election law and overstepping his authority without first consulting with the Texas Legislature.

Paxton counters that delegation of powers is both necessary and proper in certain circumstances.

“The Legislature properly exercised its delegation power when it enacted the Disaster Act because it contains adequate standards to guide its exercise,” Paxton’s brief reads. “It sets parameters for what constitutes a disaster, provides a standard for how the governor is to declare one, places limits on his emergency powers, and specifies when the disaster ends.”

See here for the background. A copy of the Paxton brief is here. The introduction is worth a read:

To the Honorable Supreme Court of Texas:

Relators direct their petition at the Secretary of State, even though they do not allege that she has undertaken or threatened to undertake any unlawful action. Neither the Governor’s July 27 proclamation (“the Proclamation”) nor the Election Code imposes any ministerial duty on the Secretary. And the provisions of the Election Code concerning early voting are administered by county election officials, not the Secretary of State. Although the Election Code designates the Secretary as Texas’s “chief election officer,” this Court has long held that does not give her generalized enforcement power over every provision of the Election Code. Moreover, the Proclamation independently binds each county’s early-voting clerk, so any mandamus issued against the Secretary would not remedy Relators’ grievances. Indeed, granting the relief Relators seek would have no impact at all—which makes this petition nothing more than a request for an advisory opinion.

Relators’ merits arguments are similarly misguided. They raise multiple constitutional challenges to the Disaster Act, but none is properly before this Court because the Disaster Act delegates no power to the Secretary. And in any event, the Governor’s discretion and authority under the Disaster Act are cabined by reasonable standards, so it is a lawful delegation of legislative power, and the July 27 Proclamation is a proper exercise of that delegated power.

Relators waited two months to file this mandamus petition, yet they ask this Court to “alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020). They are not entitled to relief.

Well, now we know where Ken Paxton’s line in the sand is: He’ll value the Governor’s executive power over a challenge to voting rights. Well, he’ll value this Governor’s executive power over a challenge to this Governor’s use of that executive power to enhance voting rights. Good enough for these purposes, I suppose.

Other court documents related to this writ are here. There are now documents available relating to the latest Harris County writ as well, which you can find here. Responses to that are due today at 4 PM. Have I mentioned lately that I will be happy to ease up on all the legal blogging? Please get me past this election, that’s all I ask.

Of course the Fifth Circuit paused the straight ticket voting ruling

Water is wet, the sky is blue, the Fifth Circuit gives Ken Paxton whatever he asks.

Best mugshot ever

A federal appeals court on Monday put a temporary hold on a lower court’s ruling last week that reinstated the practice of straight-ticket voting, again casting into uncertainty whether Texas voters will have the option in the Nov. 3 election to vote for every candidate of a political party with one punch. A final ruling is expected after the court weighs the arguments more thoroughly.

[…]

Early voting is set to start Oct. 13, leaving election administrators little time to make major changes to voting procedures.

U.S. District Judge Marina Garcia Marmolejo wrote that ending straight-ticket voting would “cause important delays at polling places, place Texan voters at increased risk of catching a deadly virus, and discourage voters, particularly those most vulnerable to the disease or under significant economic pressure, from exercising their rights on election day.”

The three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals put a momentary pause on that decision Monday while it considers the case. It set quick deadlines for both sides to submit their arguments.

The case was brought by the Texas Alliance for Retired Americans and Democratic groups.

No matter the end result, the litigation has meant hours of chaos for scores of election administrators scrambling to ready their polling places for a Texas election unlike any other.

See here and here for the background. This is what I expected, so I’m not surprised, just appropriately cynical. The court has ordered a briefing to be held on Wednesday, so at least this should be resolved quickly one way or the other. You can see why I suggested we be deliberate about discussing this. Until we get a final ruling for this election, please pour one out for the state’s elections administrators, as they chug Maalox and chain smoke while the courts meddle with their perfectly nice election. The Chron and the Statesman have more.

Paxton appeals stright ticket voting ruling

Letting no moss grow.

Best mugshot ever

The Texas Attorney General’s office filed an appeal and motion to stay Saturday following a federal judge’s order to reinstate straight ticket voting ahead of the November general election.

Lawyers representing the Texas Secretary of State argued that U.S. District Judge Marina Garcia Marmolejo erred when she ruled Friday that the elimination of straight ticket voting this year would illegally impede the ability of Texas residents to vote by causing long lines at the polls amid the COVID-19 pandemic.

The Attorney General’s office also argued the ruling came too late for elections officials to properly alter ballots.

“Eighteen days before in-person voting begins is insufficient time for election administrators in 254 counties and their vendors to meticulously re-program, re-proof, and re-test thousands of different ballot styles,” state officials wrote in their motion to stay.

[…]

Some county elections officials have issued warnings that Marmolejo’s ruling came too late in the planning process. Marmolejo found that only in-person ballots must have a straight-ticket voting option.

It is not immediately clear how quickly the U.S. Fifth Circuit Court of Appeals will act or when Marmolejo might rule on the motion to stay.

See here for the background. This was of course completely expected, and if the Fifth Circuit doesn’t break records issuing a stay of Judge Marmolejo’s order I’ll be shocked, but here we are for now. Gotta admit, Paxton complaining about the timing after his official support of reinstating Green Party candidates within a week of the supposed deadline for printing absentee ballots is a nice touch. You have to respect the dedication to his craft.

I have to admit, I’m a bit hesitant to even talk about this litigation. I don’t want to start telling people “Hey, it turns out you can vote a straight party ticket like you did before”, only to have to retract that following the inevitable Fifth Circuit action and tell people again that they need to vote in each race. I’d just like to know what the rules are so we can prepare for them. Allowing straight ticket voting again, even at this late hour, isn’t confusing, it’s what people are used to. Not having it isn’t great, but we have a message for that. Taking it away, then giving it back, then taking it away again, that’s what would suck. So for now, don’t go sharing this stuff all over social media. Wait till we know what’s for real first.

The people responded to the call for poll workers

In Harris County, bigtime.

Muhammed Nasrullah was ready to call it quits. After working as an election judge in every Harris County contest since 2004, the COVID-19 pandemic discouraged the 67-year-old retired mechanical engineer from signing up again.

He is in a high-risk age group, and he knew friends who had contracted the virus. Then he began to read news stories about a nationwide shortage of poll workers during the pandemic. And he was worried that delays in the U.S. Postal Service have undermined the public’s trust in mail ballots.

In such a consequential election Nov. 3, with record turnout expected in Harris County, Nasrullah decided he would serve again.

“I convinced myself that the election is so important that I’m willing to take the risk,” he said. “I feel like I’m doing my civic duty, and it’s a good feeling.”

He is one of 11,000 poll workers Harris County Clerk Christopher Hollins hopes to recruit this year, twice as many as in 2016. Hollins’ ambitious $27.2 million election plan includes nearly tripling the number of early voting sites and an 8 percent increase in poll locations on Election Day. He needs an army of poll workers to staff them.

The clerk’s office in August launched an aggressive social media campaign to recruit workers, and Hollins recorded a commercial.

By this week, 29,000 applications had arrived.

Rachelle Obakozuwa, polling locations and recruitment manager for the clerk’s office, attributed part of the increased interest to many residents believing the November presidential election is especially important.

“And for another, people really need work because of COVID and a lot of layoffs,” Obakozuwa said. “We’re seeing both equally.”

Pay was also a factor – poll workers are receiving $17 per hour for their work, nearly double the $9 per hour they got in 2016. Decent pay for meaningful work, who knew that would be attractive to so many? They – and we – can thank Diane Trautman for upping their pay.

Fuentes is one of more than 100 student clerks Harris County recruited from Houston-area schools. As they often are more tech-savvy than older workers, Obakozuwa said one of the students’ tasks will be to update the clerk’s wait time app for polling places.

That task will be crucial to ensuring a smooth experience for residents, as the clerk’s office estimates each voter will spend far longer in the booth this year because of the elimination of straight-ticket voting. The hours-long lines to vote at some locations in the March primary election were partly blamed on a failure of poll workers to update the app, leading voters to visit sites that already were crowded.

Under the Texas Election Code, counties do not hire most poll workers directly. Rather, county clerks recruit and train poll workers, who are selected by the Democratic and Republican election judges at each polling site.

The loss of straight ticket voting may turn out not to be a concern, but until the Fifth Circuit speaks, it’s too soon to say. Be that as it may, my first thought when I saw this story was “Gosh, I sure hope other counties are this successful at getting poll workers”. But other counties may not be paying as well, or may not be able to pay as well. That’s an inequity situation if so, because it shouldn’t be the case that voting is easier and more accessible in one place due to financial constraints. This is another thing that could be addressed by the Legislature, by mandating a minimum level of pay and a minimum number of poll workers per location and locations per county, and allocating the money to cover costs above a certain level for each county so they can comply. I’m being overly simplistic here, but the point I’m making is that the state could be doing what Harris County has done this year, which is spend the money necessary to improve access to voting. I think we all know what will be required for that to happen. I’m just saying it’s something we can work to make happen.

October Census deadline restored

Good news, though as with everything we can’t be sure just yet that it’s for real.

A federal judge in California late Thursday blocked the Trump administration from stopping the 2020 Census count next week, saying it should continue until Oct. 31, the date the Census Bureau had planned on before the administration abruptly shortened the count.

U.S. District Judge Lucy Koh in the Northern District of California granted a preliminary injunction in the case brought by the National Urban League — a group of counties, cities, advocacy groups and individuals — and other groups. Koh had, earlier this month, issued a temporary restraining order to keep the count underway. The case is likely to be appealed to the U.S. Supreme Court.

In a hearing Tuesday, Koh had expressed irritation with Justice Department lawyers for missing a deadline she had set for them to produce internal documents connected to the case.

She referred repeatedly to documents finally released over the weekend and Monday in which career bureau officials said the data could not be properly collected and delivered to the president on the government’s new timeline.

See here and here for the background. The Chron lays out what’s at stake locally.

Natalia Cornelio, legal affairs director for [County Commissioner Rodney] Ellis, said at the point Trump yanked back the deadline in early August, only 63 percent of households nationwide and 54 percent in Houston had responded to the census.

Despite those numbers, on Aug. 3, the census director abruptly announced what the court is calling the “re-plan,” which shortened the timeline for households to respond by Sept. 30.

Cornelio said the accuracy of the census count is critical to Harris County’s future.

“Its outcome determines political representation and billions of dollars of funding for healthcare, education, disaster relief, and housing,” she said.

Right now, Harris County is looking at an estimated undercount of 600,000 households, based on data from Civis Analytics, the company the county has partnered with to track its census outreach, she said.

One area likely to suffer from an undercount is the southern portion of the county, a pie-slice-shaped region extending from downtown Houston to Bellaire to League City, according to Steven Romalewski, who maps census data for the Center for Urban Research at CUNY. In that area, 11 percent of the door-knocking has yet to be completed, a feat that would likely would have been impossible with less than a week to spare to the Sept. 30 deadline, he said.

In parts of Fort Bend and Galveston counties, nearly 18 percent of the door-knocking needs to be finished. And in Montgomery County 12 percent of homes have yet to be documented.

Romalewski said the ruling could have a major impact on areas with a relatively low “completion” rate for the door-knocking operation that’s meant to visit every household that has not responded. With more time to complete the process, census enumerators can attempt to visit households more than once and will be likelier to talk with someone in-person or determine that a unit is vacant. The fallback, which census officials consider less accurate, is to to count residents through administrative records.

I have a hard time understanding why any decent person would think this was a good state of affairs. At least we have a chance now to try and get this close to correct. That’s pending the likely appeal to SCOTUS, and who knows what they may do at this point. But at least for now, there’s a chance.

Straight ticket voting reinstated (for now)

That was unexpected.

Less than three weeks before early voting begins in Texas, a U.S. district judge has blocked the state from eliminating straight-ticket voting as an option for people who go to the polls this November.

In a ruling issued late Friday, U.S. District Judge Marina Garcia Marmolejo cited the coronavirus pandemic, saying the elimination of the voting practice would “cause irreparable injury” to voters “by creating mass lines at the polls and increasing the amount of time voters are exposed to COVID-19.”

Marmolejo also found that the GOP-backed law would “impose a discriminatory burden” on black and Hispanic voters and “create comparatively less opportunities for these voters to participate in the political process.”

She acknowledged the burden the decision could put on local and state election officials, who will have to recalibrate voting machines or reprint ballots. But she reasoned that the potential harm for those suing, including the Texas Association for Retired Americans, was “outweighed by the inconveniences resulting.”

[…]

The Texas Democratic Party joined other Democratic groups and candidates in suing the state in March to overturn the law, but Marmolejo dismissed the case. Another suit was then filed, but with the Texas Association for Retired Americans added as plaintiffs and the state party removed. Nonetheless, Democrats celebrated the judge’s order Friday.

“Time and time again Republican leadership has tried to make it harder to vote and time and time again federal courts strike it down,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement after the ruling. “Texas Democrats will have to continue to win at the ballot box to protect the right vote. Until the new Texas majority wipes out these out-of-touch Republicans, Texas Democrats will never stop fighting for Texans in court.”

See here and here for the background. This was a Democracy Docket case, and so they have a copy of the original complaint and the judge’s order. The complaint wasn’t any different the second time around, but the set of plaintiffs was. Beyond that, the main difference was the extent of the pandemic since the original case was dismissed in late June. The judge cites how much worse the spread of the virus has gotten, as well as the difficulties counties had running the primary runoffs in July – fewer voting locations, harder time getting poll workers – as justification for reversing her original dismissal. She also noted the extra time it takes to vote Texas’ long ballots; I’m guessing this opinion was written a few days ago, because that recent Harris County study was not cited.

I presume this will be appealed to the Fifth Circuit before the weekend is out, and I expect they will put a stay on the order pending whatever review they’re going to do. Or maybe not, I don’t know, we’re getting awfully close to “we really need to finalize the ballot and configure the voting machines” time. The judge also noted in the ruling that it would be less confusing to the voters to restore straight ticket voting at this late time than to not have it, since we have not had such an election yet. I think the real danger of confusion is having everyone talk about this ruling for a few days and then have it blocked by the appeals court, but that’s just me. For now, we’ll be voting like it’s 2018 again. For now. The Chron has more.

Trib overview of the Senate race

It really comes down to the top of the ticket. There’s no getting around it.

MJ Hegar

Even before a pandemic struck, protests over racial justice took to the streets and a vacancy opened on the U.S. Supreme Court, this year’s U.S. Senate race was poised to be different from the last one in Texas.

John Cornyn is not as polarizing as Ted Cruz, the thinking went, and MJ Hegar is no Beto O’Rourke.

Add in a wave of news and other high-profile 2020 contests, and Texas voters are getting a much lower-octane race, a far cry from Cruz’s battle royale against O’Rourke and all its theatrics.

But that does not mean this year’s race is lacking in contrast.

As he embarks on the final several weeks of his quest for a fourth term, Cornyn is pitching himself as a “steady hand on the wheel” who has the stature to guide Texas through a turbulent time. Hegar, meanwhile, is happily running to the contrary — as a disruptive change agent who can usher in a new era of federal representation for a changing Texas.

While Hegar’s pitch is broadly similar to what O’Rourke’s was, Cornyn is taking a notably different path than Cruz, a student of base-first politics who believed what he needed most in 2018 was maximum conservative turnout. Instead, Cornyn is running for reelection with more appeals to the political center, often inviting questions — most vocally from Hegar — about whether his rhetoric matches his record.

But in any case, it is a dynamic destined to shape the final several weeks of the top statewide race after the presidential contest.

[…]

At the end of the day, Cornyn’s fate may be tied to Trump more than anyone else come November. Asked about his biggest challenge this November, Cornyn brought up the massive turnout that is expected, largely driven by the polarizing president, and how different it will be from when he was last on the ballot. A total of 4.6 million people participated in the 2014 Senate election, and Cornyn said he likely will have to garner more votes than that alone this fall to win a fourth term.

With Trump dominating the political landscape across the country, Cornyn said he does not “just want to kind of surf the waves of national news cycles” and wants to make a case for himself independent of Trump. The president gave Cornyn an early reelection endorsement, helping to ensure a noncompetitive primary.

Cornyn occasionally offers gentle dissent with the president but has not emphatically broken with him on any major issue in recent memory. When it comes to the November election, he said he would like Trump to talk more about his accomplishments, namely on the economy — and that he has expressed as much to the president.

“To me the real question in this election is: Who do you think is best suited to help rebuild our economy in the wake of the pandemic?” Cornyn said. “Is it Joe Biden and Kamala Harris? Or is it Donald Trump and Mike Pence? And for me, it’s not even close.”

Beyond policy, though, Hegar has sought to make the race almost as much about character, pitching herself as a stronger avatar of Texas toughness.

In ads, Hegar talks up her military heroism and rides her motorcycle, and on the stump, she has denounced Cornyn as a “spineless, pantywaist, bootlicking ass-kisser.” She defended the approach in the interview, saying it is “important people understand his level of cowardice because I’ve been to D.C.” — to lobby for women in combat — and she has seen firsthand what it takes to overcome adversity there.

I agree with John Cornyn, it will take more than 4.6 million votes to win in November. That’s actually not saying much – even Wayne Christian topped 4.6 million in 2016, with the statewide judicial candidates all exceeding 4.7 million and in some cases 4.8 million. Five million seems like the bare minimum to win, and let’s be honest, that is a bigger leap for Dems to make, since Beto was the first Dem ever to top four million. To that extent, the Presidential race almost certainly helps Dems like Hegar more than it does Republicans like Cornyn. It’s still a big gap to close. The capacity is there, and Dems took a huge leap forward in 2018, but let’s keep the magnitude of the task in mind.

How much this race will be distinguished from the Presidential race is unclear. This is literally the first race on the ballot after the Presidential race, so any concerns about the lack of straight ticket voting should be minimal. I’ve seen maybe one ad for each candidate so far – Lacey Hull and Lizzie Fletcher, neither of whom are on my ballot, have been a much more frequent presence on my teevee. The Beto/Cruz race in 2018 was the top of that ticket, both literally and practically, since the Governor’s race was a much quieter affair. Some people may decide to vote in this race, in particular to split a ticket in this race, based on the campaigns, but my guess is that will be minimal. If Joe Biden wins Texas, MJ Hegar has an excellent chance of beating John Cornyn; if Donald Trump wins Texas, Cornyn will almost certainly get re-elected. I think a Biden/Cornyn combination is slightly more likely than a Trump/Hegar parlay, but how probable either scenario is I have no idea. The main message here is what it’s always been: Vote. Make sure everyone you know votes. It’s as simple as that.