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emergency powers

House passes its bill to limit Governor’s emergency powers

Not sure if this is going to make it through the Senate.

The Texas House on Monday gave preliminary approval to a sweeping bill that would reform the governor’s emergency powers during a pandemic and involve the Legislature during such instances.

House members voted 92-45 for House Bill 3, which will need another vote in the lower chamber before it heads over to the Senate for consideration.

“We must now take what we have learned in dealing with the pandemic and set a different framework for future pandemics,” state Rep. Dustin Burrows, a Lubbock Republican and author of the proposal, told House members as he laid out the legislation. “As a baseline, you will not government your way out of it.”

HB 3 as advanced Monday would give lawmakers more oversight of the governor’s emergency powers during a pandemic and specifically carves out future pandemics from how the state responds to other disasters, such as hurricanes. One amendment added Monday, for example, would require the Legislature to convene for a special session if a disaster declaration lasts longer than 120 days.

The wide-ranging legislation would affirm the governor’s ability to suspend state laws during a pandemic and allow for overriding local orders issued by county judges or mayors if they’re inconsistent with state orders.

Members drastically changed the legislation Monday with a number of amendments during the floor debate, including one that would create the Texas Epidemic Public Health Institute at the University of Texas Health Science Center at Houston. That entity would make recommendations to a 12-member legislative oversight committee that also would be created if HB 3 became law. The committee, which would consist of the lieutenant governor and speaker — who would serve as joint chairs — and a number of committee chairs from both chambers, could in certain cases terminate pandemic disaster declarations, orders or other rules issued by the governor or local governments. It would only be able to act though when the Legislature is not convened for a regular or special session.

Ahead of Monday’s debate, the legislation was tweaked by Burrows to allow the Legislature to intervene on certain executive orders or proclamations issued by the governor. The governor would need permission from the Legislature to extend beyond 30 days an order or proclamation related to requiring face masks, limiting certain medical procedures or closing or capping business operating capacity. If the Legislature wasn’t already in session, the governor would be required to convene a special legislative session for lawmakers to consider modifying or terminating that order. If the Legislature was already in session, the governor would still need to ask state lawmakers for input to modify or terminate an order.

See here, here, and here for some background. You know how I feel about this – I generally agree with giving the Legislature a broader say in these matters, but I recognize that there can be logistical challenges with that, not to mention concern about speed of response. I also have serious concerns with the philosophy embedded in this bill – to say “you’re not going to government your way out” of a pandemic is, to put it mildly, wildly misinformed. I also have great concerns about the neutering of local officials, which the Chron story goes into.

The bill prohibits local governments from closing businesses or limiting their maximum occupancy, plus any local government deemed by the governor to have required a business to close would be prohibited from levying certain tax increases.

The bill also includes protections for most businesses from civil suits related to the pandemic.

Some of the more recent additions to the bill have helped it win the favor of conservative legislators who were skeptical, such as Rep. Tony Tinderholt, R-Arlington, who commended the bill’s author, Rep. Dustin Burrows, R-Lubbock, for addressing his concerns.

Texas House Democratic Party Chair Chris Turner, D-Grand Prairie, said the deal breaker for many members of his party came down to limits on local control.

“There were some positive things in the bill, but a lot of us were not comfortable with restrictions on local officials,” Turner said. “Local officials led our state through the pandemic and the Legislature should not limit their ability to do so in the future.”

I will admit to mixed feelings on this as well. We saw last year that the response to the pandemic varied greatly between urban counties and their neighbors. Harris County was serious about masking and social distancing and limiting gatherings, which meant putting more restrictions on businesses, while Montgomery County was the exact opposite. Which is all well and good until you remember that viruses don’t respect borders, and Montgomery’s laxness had a negative effect on Harris. That’s the argument for limiting what local officials can do, which sounds great until those limits are on actions you approve of. This bill ratchets that debate in the Republican direction, which at least clarifies the ambivalence I feel. The Senate bill is more limited in its approach. I have no idea which bill will win out. There’s only so much time left for a compromise. Reform Austin has more.

First attempt to redefine the governor’s powers in an emergency

I’m still conflicted about this.

The Texas Senate backed a potential constitutional amendment Tuesday that would substantially rein in the power of the governor during emergencies like this past year’s coronavirus pandemic.

Texas voters would have to approve the amendment Nov. 2 for it to take effect. And before it could get on a ballot, the Senate action must still be approved by the House.

The amendment would require the governor to call a special session in order to declare a state emergency that lasts more than 30 days. The special session would give lawmakers the chance to terminate or adjust executive actions taken by the governor, or pass new laws related to the disaster or emergency.

The Legislature did not meet last year as the pandemic swept the state, so Gov. Greg Abbott addressed the largely unprecedented situation with executive orders and declarations spanning several months, citing the Texas Disaster Act of 1975.

Abbott issued what essentially amounted to a statewide shutdown order last year, and he kept in place some level of capacity limitations for businesses until early March of this year. In July, he mandated that Texans wear masks in public. He also used executive authority to lift other state regulations to help businesses struggling during the pandemic, such as allowing restaurants to sell groceries and mixed drinks to go.

But many state lawmakers say the Legislature should be the government body to make decisions that affect businesses and livelihood of Texans.

“Early on, people understood [business closures] because they’re like, ‘we don’t know what this is,’” Sen. Brian Birdwell, R-Granbury, said on the Senate floor. But as the pandemic and business closures wore on, Birdwell said the anger grew as the mandates continued.

Birdwell said if the governor believes the situation is dire enough that businesses need to close, then he needs to get the Legislature involved.

[…]

“I don’t see this Legislature being able to convene fast enough to answer … in the kind of disasters I have seen and expect the state to see in the future,” said Sen. Sarah Eckhardt, D-Austin, who used to serve as Travis County judge.

Meanwhile, a priority bill filed in the House would carve out future pandemics from how the state responds to other disasters.

That bill, HB 3, has not yet made it out of committee, but would allow the governor to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic.

Rep. Dustin Burrows, R-Lubbock, previously told the Texas Tribune that the proposal was meant as a starting point to map out responses in the event of another pandemic.

“HB 3 was trying to set structures, predicting the disaster or the emergency,” Birdwell said. “What I did was set a baseline…It is impossible to predict the disaster.”

As I’ve said before, I think the Legislature should have a say in these matters, and that calling a special session last year would have cleared some things up and maybe prevented a lawsuit or two. I think Sen. Birdwell’s proposed resolution is more or less okay, though I don’t trust his motives and I agree with Sen. Eckhardt about the Lege’s lack of ability to move quickly in times of crisis. Hell, unless we’re willing to allow a Zoom legislative session, having that special session I mentioned could have been a superspreader event. HB3 is completely off the rails – again with the fixation on preventing counties from making it easier to vote – so if I had to choose between the two I’d take the Senate’s version, but I’m a very qualified and uncertain supporter. The system we had now wasn’t great. My fear is that we’ll make it worse.

Austin mask mandate somehow still in effect

I admit, I did not expect this.

Best mugshot ever

Austin and Travis County can keep requiring masks for at least a bit longer after a district judge denied Texas Attorney General Ken Paxton’s request for a temporary block of the local mandate.

Paxton sued the local officials for refusing to end the mandate after Gov. Greg Abbott lifted state restrictions earlier this month. Paxton will likely appeal the decision.

District Judge Lora Livingston has yet to issue a final ruling on the merits of the case, meaning Austin and Travis officials may later be told to comply with state officials.

But in the meantime, County Judge Andy Brown said Friday’s ruling at least prolongs the amount of time masks are required in their communities — which gives them more time to vaccinate their residents.

“I’ve been doing everything that I can to protect the health and safety of people in Travis County,” Brown said in an interview. “And Judge Livingston’s ruling today allows us to keep doing that.”

[…]

The final outcome of the case could have implications for other Texas cities and counties on how local governments can enforce their own public health mandates, even after the state ordered them to end.

During Friday’s hearing, discussion broadly centered around the question: What powers do local public health departments have, and how do the governor’s emergency powers affect them?

Austin and Travis attorneys said public health officials have the authority to implement health measures — like mask mandates — outside of the context of the pandemic, and therefore should not be affected by Texas’ latest order.

State attorneys argued that Abbott’s emergency powers because of the pandemic trump any local orders.

Livingston pushed back on some of the state attorney’s arguments that not requiring masks allows for individual freedom.

“I’m trying to understand why the person with the deadly virus should have more power than the person trying to stay alive and not catch the deadly virus,” Livingston said.

See here and here for the background. Note that the judge still has not issued a ruling, she just hasn’t granted the state’s motion for an injunction while she makes her decision. The usual trajectory in this sort of thing has been for the good guys (i.e., whoever is on the opposite side of Ken Paxton, whether as plaintiff or defendant) to win in round one and sometimes in round two, but to ultimately lose. Since the legal question at hand in these matters is the imposition of a restraining order or injunction, and since Paxton loves filing emergency appeals, the outcome that matters in the short term – that is, whether or not the good guys get to do what they want to do or force their opponents to do or not do something – is decided quickly, and often renders the actual litigation moot. In this case, the judge has taken her sweet time issuing a decision, so there’s been nothing for Paxton to appeal. Plus, even if all they get out of it is a couple of weeks’ extra time, that extra time is consequential in terms of slowing the spread of COVID. I just did not see it playing out this way. So, whatever happens in the end, good for Austin and Travis County for finding a way to do something in the short term. I don’t know how replicable this is, but it worked this time and that did matter.

Austin mask mandate enforcement still in place for now

No ruling, just a delay for a fuller hearing.

Best mugshot ever

Austin and Travis County officials can continue enforcing their mask mandates after a district judge delayed action on the Texas attorney general’s request to immediately stop the mandates.

That means city and county officials can continue to require masks until at least March 26, when District Judge Lora Livingston will hold a trial.

“People have been wearing masks for a year. I don’t know that two more weeks is going to matter one way or the other,” Livingston said during a Friday hearing, according to the Austin-American Statesman, which first reported the news.

[…]

Paxton’s lawyers pushed for an injunction hearing Friday, but Livingston said it wouldn’t be fair to give the defendants only a day to prepare, the Statesman reported. Livingston said after she hears arguments March 26, she’ll rule the same day.

Travis County Judge Andy Brown counts the two-week delay as a win. It buys the area some time to keep requiring masks while residents get vaccinated. It will also keep the mandate through most schools’ spring break holidays.

Abbott’s latest order states “no jurisdiction” can implement local restrictions, except a county judge and only when hospitalizations in a region exceed 15%.

“This case raises a pressing question: who is ultimately responsible for responding to the COVID-19 pandemic and other emergencies?” Paxton’s attorneys wrote in the lawsuit. “The Texas Disaster Act charges the Governor—not an assortment of thousands of county judges, city mayors, and local health officials—with leading the State’s response to a statewide emergency.”

But Brown and Adler argue that local public health officials maintain the authority to create orders on the local level to protect their community from pandemics. It’s different, they argued, from using emergency powers.

Brown said if the judge rules differently, it will have “huge ramifications” on local government moving forward.

Local government needs to be able to move quickly on issues of public health, he said, emphasizing that it’s “the whole point of the way our state government is set up.”

See here for the background. I certainly agree with Andy Brown about the ramifications for local governments, but it’s not like this is a surprise. Our Republican-dominated state government has been very clear about its priorities with respect to cities and (Democratic) counties. This is and will be just another example of that.

In the comments to the earlier post I was asked what would I have Austin and Travis County do about this. My deeply unsatisfying answer is that there isn’t anything they could do right now. The law and the courts are against them, and there isn’t even a symbolic win available. Paxton will prevail in court, very likely in swift fashion, and he’ll gloat about it. The only thing that can be done is to work extra hard to elect a better state government in 2022. Nothing will change until that happens. Believe me, I wish there were a better answer.

Paxton sues Austin and Travis County over its mask mandate

Completely expected.

Best mugshot ever

Texas Attorney General Ken Paxton is suing Travis County and Austin officials in an effort to force them to rescind their local mask orders, he announced Thursday.

“I told Travis County & The City of Austin to comply with state mask law,” Paxton tweeted. “They blew me off. So, once again, I’m dragging them to court.”

Texas on Wednesday lifted nearly all coronavirus restrictions, including Gov. Greg Abbott’s statewide mask mandate and occupancy restrictions. Abbott’s order said that “no jurisdiction” can require a person to wear a mask in public if the area doesn’t meet a certain number hospitalizations for the coronavirus. But Austin and Travis County health officials have said they will continue to enforce the safety protocols, setting the stage for yet another fight over pandemic response between state and local officials.

“[Travis County] Judge Brown and I will fight to defend and enforce our local health officials’ rules for as long as possible using all the power and tools available to us,” Austin Mayor Steve Adler said Thursday in a statement. “We promised to be guided by the doctors, science and data as concerns the pandemic and we do everything we can to keep that promise.”

[…]

Travis County Judge Andy Brown, who presides over the county government, said the authority to impose the local mask mandate comes from the county health authority, not from Brown’s emergency powers. Brown told The Texas Tribune on Wednesday that means the order should hold up in court.

“I listen to doctors, not to politicians like our attorney general,” Brown said.

As noted, Travis County and Austin extended their mandates on Wednesday, then Paxton sent them a letter saying basically “take that back or I’ll sue”. When they didn’t, he did. And look, no one holds Ken Paxton in greater contempt than I do, but he’s going to win this case. He may have to appeal it up a level or two to get there, but there’s just no way this story ends with the locals winning. I get the urge to defy the dumb order from Greg Abbott and to take a stand, but you gotta have a strategy and some reasonable expectation of achieving the outcome you want. This is not going to help.

Again with defining the Governor’s powers in an emergency

The legislative process has begun, and I feel like we’ve already lost the plot.

For roughly the past year, Republicans and Democrats have picked apart the state’s response to the coronavirus pandemic — and particularly how Gov. Greg Abbott has wielded his power along the way.

Now, with less than 90 days left in the 2021 regular legislative session and as Abbott has moved to lift most of the restrictions he imposed, the Texas Legislature is setting its sights on addressing the governor’s emergency powers during a pandemic. And while many differences remain on the approach, members of both parties and both chambers of the Legislature appear intent on doing something.

In the House, a top lieutenant of GOP Speaker Dade Phelan has filed a wide-ranging bill that would affirm the governor’s ability to suspend state laws and require local jurisdictions to get approval from the secretary of state before altering voting procedures during a pandemic, among other things. The measure has been designated House Bill 3, indicating it’s a top priority for the new speaker, behind the lower chamber’s proposed state and supplemental budgets in House Bills 1 and 2, respectively.

The author of House Bill 3, Rep. Dustin Burrows, R-Lubbock, has said the proposal can serve as a starting point for lawmakers to begin to map out what the state’s response should look like in the event of another pandemic.

“After going through the last year of a pandemic and the government reaction to it, we owe Texans a healthy and robust debate about what we agree and disagree with,” Burrows said in a statement to The Texas Tribune for this story. “I filed HB3 so we could have a holistic review of state governance and to make sure we protect our liberties during a state emergency.”

The Senate, meanwhile, is appearing to take a more piecemeal approach. Lt. Gov. Dan Patrick has included several pandemic-related proposals as part of his 31 legislative priorities for the session, including a “First Responders Pandemic Care Act” and a “Family Nursing Home Visitation Rights” bill. Patrick’s office has remained tight-lipped so far about the substance of those proposals — many of which have not yet been filed — or his chamber’s contrasting approach. A Patrick spokesperson declined to comment on the record.

“Things are off to a slow start, and I think we’re probably in wait-and-see mode” when it comes to reforming emergency powers, said Sen. Carol Alvarado, D-Houston, chair of the Senate Democratic Caucus. “There seems to be more going on on the Republican side of that, but as far as doing something like an HB 3 goes, I’m not sure.”

There are broad areas of agreement between the two chambers on issues like protecting businesses from certain lawsuits related to COVID-19, which is among Patrick’s and Abbott’s priorities and is included in the House’s omnibus proposal. But the more tricky territory could be reforming the parameters of a state pandemic response.

[…]

As filed, House Bill 3 would carve out future pandemics from how the state responds to other disasters, such as hurricanes. For roughly the past year throughout the pandemic, the state has been operating under the Texas Disaster Act of 1975, which Abbott has used to issue statewide guidelines. Some have argued that the disaster statute did not fit the circumstances brought on by the unprecedented pandemic and that tweaks would be needed should a similar crisis happen in the future.

The bill would also require local jurisdictions to receive approval from the secretary of state before altering voting procedures during a pandemic — an attempt to avoid the headlines and confusion that defined much of the 2020 general election, such as court battles over mail-in ballot applications and drive-thru voting.

“All of these jurisdictions, especially in [Harris and Dallas counties], the more blue areas, we’re not going to let them use a pandemic excuse to change the rules of the game to try to get more Democrats out to vote,” Burrows said last week on the Lubbock-based Chad Hasty radio show, noting that the Republican Party of Texas has named “election integrity” a top priority this legislative session.

Among its other provisions, the bill would affirm existing protections for places of worship remaining open during a pandemic, and for the sale or transportation of firearms and ammunition.

See here for the background. Keeping churches and gun stores open, while making it harder to vote – you have to hand it to these guys, they never miss an opportunity to follow their zealous little hearts. Kind of quaint to think that the heart of the matter would be about the relative roles of the Governor and the Legislature, or that a lightweight like Steve Toth would have the more serious and constructive proposal, but here we are. Speaking of which, the Chron adds a few details.

Steve Toth, R-The Woodlands, filed a bill that would give the Legislature the power to intervene midpandemic if voters approved a constitutional amendment. Toth’s bill, House Joint Resolution 42, was one of at least eight that have been filed by lawmakers on both sides of the aisle on the subject.

Last year, Toth and other conservative lawmakers were also party to lawsuits against the governor claiming Abbott abused his emergency powers when he extended the early voting period and when he signed off on a deal with a contact tracing company.

But Toth said Wednesday that he felt confident that Phelan and Burrows are listening to feedback and willing to make changes that other members deem necessary to strengthen the bill. Whether that will include a requirement for a special session, however, remains to be seen.

“I’d be seriously disappointed if they weren’t welcoming input,” Toth said. “I’d be disappointed if they weren’t saying how can we change to make it better, but they are, enthusiastically.”

Phelan, for his part, has supported Abbott taking charge during disasters, something he’s said helped his community of Beaumont during Hurricane Harvey. In a statement Thursday, Phelan called HB 3 “the House’s initial blueprint for our pandemic response.”

“Our chamber welcomes healthy debate over the best way to defend our liberties, create predictability in times of crisis and safeguard our economy,” he said.

Rep. Chris Turner, House Democratic Caucus chair, said in a statement that while the bill will likely go through many changes as the session goes on, “there is broad interest in addressing how future governors respond to future emergencies, given Gov. Abbott’s confusing, slow and often inadequate response to the COVID-19 pandemic — not to mention last month’s winter storm.”

He added that he hopes the legislation will give local leaders the chance to make rules for their own communities without being preempted by the governor. As of now, the law does the opposite, affirming a clause that most of Abbott’s orders have included stating that a governor’s emergency orders supersede local ones.

“Beyond that, we need to prioritize fixing our broken data reporting systems so we can make decisions based on science rather than politics,” said Turner, D-Grand Prairie.

I mean, I don’t really want Steve Toth to be happy, but he did have one halfway decent idea, and I do like to encourage that sort of thing. The Senate still has to weigh in, not that they’re likely to do anything to improve matters. As the Chron story notes, limiting the Governor’s powers was not something Dan Patrick considered to be a priority. He has more important things on his mind.

How Greg Abbott wants to restrict voting

More from that Trib story following the State of the State address.

As part of his State of the State speech, Abbott designated five emergency items, or items that lawmakers can vote on within the first 60 days of session. One of them is “election integrity,” though Abbott did not provide any details in his address. He elaborated in the interview, saying a “starting point” would be wide-ranging legislation from last session that would have made over two dozen changes to election practices, including making it a felony for Texans to vote when they’re ineligible or provide false information on a voter application, even if they do those things unknowingly.

Senate Bill 9, which passed the Senate but never made it to Abbott’s desk in 2019, faced stiff opposition from voting rights groups and some county elections officials, who called it voter suppression masked as a security measure and worried that it would carry stiff criminal penalties for common, innocent mistakes.

When it came to elections, Abbott also said there is a “keen focus on mail-in ballots” and how elections were conducted last year in Harris County. Ahead of the November election, Abbott and other state GOP leaders clashed with the county’s clerk at the time, Chris Hollins, over his plan to send a mail-in ballot application to every registered voters in the county, among other proposals.

In recent months, many Republicans have called for “election integrity” measures after former President Donald Trump and many of his allies falsely alleged that the 2020 election was stolen from him and that widespread fraud occurred, culminating with Trump supporters storming the U.S. Capitol on Jan. 6 to stop the certification of the election’s results. There is no credible evidence of fraud on a level that would have affected the presidential election results.

Election security is the No. 1 legislative priority of the Republican Party of Texas, whose chairman, Allen West, plans to be an aggressive voice at the Capitol this session when it comes to the party’s eight priorities. He has also been a critic of some of Abbott’s pandemic decisions, fueling speculation that he could challenge the governor in the 2022 primary.

See here for the discussion of emergency powers. I just want to remind everybody that back in 2011 when the Republicans passed the existing voter ID bill, which remains one of the strictest voter ID laws in the country, they specifically exempted absentee ballots from voter ID requirements. Why did they do that? The simple answer to that question is that voting by mail used to be an area of Republican dominance, and the Republican legislators did not want to make it any harder for their preferred voters to cast a ballot. But now that Democrats have started voting by mail in larger numbers, all bets are off. That is the reason they’re doing this, all claims of “election integrity” aside, and it annoys me that I never see any mention of that in news stories about this. Voting by mail used to advantage Republicans. Now it doesn’t, and so Republicans want to make it harder. It’s as simple as that, and the same crap is happening all across the country. All of us, the media very much included, need to be clear-eyed about that.

In case that doesn’t set your teeth on edge enough, there’s this.

With Texas’ Republican leadership cataloguing “election integrity” as a top priority this legislative session, House Speaker Dade Phelan on Thursday named state Rep. Briscoe Cain, R-Deer Park, as the chair of the House Elections Committee. The panel, which has a Republican majority, typically considers legislation related to voting rules and election law.

Cain, who previously served on the committee, traveled to Pennsylvania in the days after Election Day to work with the Trump campaign. The campaign eventually filed a lawsuit alleging widespread issues with mail-in ballots in the state; a federal judge threw out the lawsuit, finding the president’s team provided “strained legal arguments without merit and speculative accusations” that were not supported by evidence.

Republican claims of election fraud in swing states have been discredited by the federal courts, and election officials and former U.S. Attorney General Bill Barr have said there was no evidence of widespread fraud that could have swayed the results of the presidential election.

[…]

“I’m looking forward to getting input from Texans, members, and policy experts in order to better gauge what needs to be done,” Cain said on Thursday when asked about his priorities for the committee. “I believe SB 9 is great starting point though and I’m glad the Governor made election integrity an emergency item.”

Voting rights advocates on Thursday decried Cain’s appointment given his involvement with the Trump campaign’s efforts to overturn the election and the role it played in fueling the Jan. 6 deadly insurrection at the U.S. Capitol.

“Cain was so invested in undermining our free and fair elections that he took his conspiracy theories on the road to fight against the will of Pennsylvania voters,” said H. Drew Galloway, the executive director of the MOVE Texas Action Fund, a nonprofit organization that advocates for young voters. “This appointment is a slap in the face to every Texas voter who braved a pandemic to make their voices heard last November and the generations of Black and Brown activists who have fought for the right to vote.”

Democrats are not going to be able to stop any of this on their own, and the courts are hardly allies in this fight. Either Congress acts to pass that massive voting rights bill and we get some relief, or we better get used to ever-ratcheting restrictions on who can vote and how. There’s no time to waste. The DMN has more.

What should the Governor’s powers be in a future emergency?

He admits there could maybe be some limits, but as is often the case has no great idea what they might be.

Gov. Greg Abbott said Tuesday he is open to reconsidering his executive powers during state emergencies, a point of contention among some fellow Republicans during the coronavirus pandemic, and that his office is “offering up some legislation ourselves on ways to address this going forward.”

“What we are working on — and we’ve already begun working with legislators — is approaches to make sure we can pre-plan how a response would be done, but it has to be done in a way that leaves flexibility to move swiftly,” Abbott said in an interview with The Texas Tribune.

Abbott spoke with The Tribune the day after his State of the State speech in which he laid out his agenda for the 2021 legislative session, which started last month. As the pandemic has dragged on, some GOP lawmakers have grown uneasy with how aggressively Abbott has used his executive authority, particularly when it comes to business shutdowns and mask mandates. In the speech, Abbott promised to “continue working with the Legislature to find ways to navigate a pandemic while also allowing businesses to remain open.”

Abbott said in the interview that he still wants the governor to have the ability to do things like cut regulations in the time of a disaster, saying there is an “absolute need for speed” in such instances that the legislative process cannot provide. That is especially true, he added, “during a pandemic, when sometimes it’s hours that matters, especially sometimes in responding to demands that are coming from the White House where you basically have a 24-hour time period to respond to it.”

“We need to create a structure that will work that accommodates the need for a 24-hour turnaround,” Abbott said.

Abbott issued a monthlong shutdown of nonessential businesses last spring as the virus was bearing down on Texas. He has since relaxed restrictions and now business operations are based on the proportion of a region’s hospital patients being treated for COVID-19. Along the way, some in his party have argued the Legislature should have had more of a say in decisions that affect so many Texans. Some Republicans blasted him for going too far with his executive orders, while many Democrats and local officials criticized him for not going far enough to curb infections.

I brought this subject up a bunch of times in the earlier days of the pandemic, when Abbott showed some actual interest in doing something about it. A lot of the pushback came in the form of clownish lawsuits from Steven Hotze and Jared Woodfill, which was absolutely the worst way to have this discussion. Woodfill is quoted in this Chron story that includes some input from legislators, but screw him, he’s a waste of space. Let’s see what members of the House think.

Lawmakers in the state House, which is controlled by Republicans, have yet to coalesce around any specific bills. Some members have called for requiring the governor to get legislative approval before renewing emergency orders.

“When you have to make split-second decisions on how to operate under a pandemic, it’s very difficult,” House Speaker Dade Phelan, R-Beaumont, said in an interview last month with the Tribune’s Evan Smith. “It’s a lose-lose situation. I thought he did as best he could.”

A spokesman for the speaker added in an email Wednesday that Phelan, whose district has received help from the governor’s office during hurricanes, “believes the Texas Legislature should have a seat at the table when developing a framework for how Texas addresses future public health emergencies.”

The Woodlands Republican Rep. Steve Toth, who was involved in and supported multiple suits against the governor over pandemic-related executive orders and has filed a bill to limit those powers, said Abbott’s comments were “very welcome.”

“I have to agree with him 100 percent: The ability to adjust regulations and ease regulations was critical in the face of this shutdown to give retailers and small business owners the ability to survive,” Toth said. “The big question is when it’s something this big, a shutdown statewide for multiple months … I just think it’s imperative that a decision of that magnitude that we bear that burden together, that it falls on all our shoulders to come up with a solution.”

Toth’s bill, HJR 42, would give voters in November the choice to decide whether to require the governor to call a special session of the Texas Legislature if he wishes to extend a state of emergency past 30 days.

Democrat Trey Martinez Fischer of San Antonio on Wednesday filed a similar bill, HB 1557, that would amend the law immediately without a need for an election. Martinez Fischer called it “the most seamless proposal that’s been offered.”

“In times of pandemic, we need a quarterback,” Martinez Fischer said. “But that quarterback also needs a team. And the Legislature’s the team. (The bill) gives the governor the ability to be that decision-maker, if you will, but then bring us in session so that we can provide our expertise and be part of the solution.”

Steve Toth is generally a lousy member of the House, but in this case I agree with what he’s suggesting, though I prefer Rep. Martinez Fischer’s approach of making any changes statutory rather than constitutional. For one thing, that will be easier to do, and for another it will be easier to modify or undo if those changes are more obstructive than constructive. I like the basic idea that the Governor can impose emergency orders, but beyond a certain point the Legislature needs to be brought in to extend them. I think that’s a decent balance, though of course it could fall prey to politics, especially if we ever get to a situation of divided partisan rule. I very much want to avoid the ridiculous shenanigans that Republican legislatures in states like Wisconsin and Michigan and Pennsylvania and North Carolina have done to overrule and neuter their Democratic governors, often in ways that were harmful and politically motivated. I think the Republican legislature here is unlikely to over-correct on a Republican governor, though there will be a wingnut faction that will want to do that. For now at least, I’m cautiously optimistic that something reasonable can be put forward. We’ll see how that goes.

On a completely tangential note: Remember the days when people could assert with a straight face that the Governor of Texas was maybe the fifth or sixth most powerful office in the state? It’s been a long time since I’ve heard that old chestnut, and the last time I did a few years ago I snorted out loud. I don’t know exactly when that stopped being true, but it sure hasn’t been in awhile. Just thought I’d make note of it here.

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.

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.

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.

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.

Hotze and crew appeal to SCOTX to stop the extra week of early voting

Here we go again.

Republican Gov. Greg Abbott is facing a lawsuit over his extension of early voting for the November election from prominent members of his own party — including state party Chairman Allen West, Agriculture Commissioner Sid Miller and members of the Texas Legislature.

In July, Abbott added six days to the early voting period, moving the start date up to Oct. 13 from Oct. 19, citing the coronavirus pandemic. In the lawsuit, filed Wednesday with the state Supreme Court, Abbott’s intra-party critics say the move defied election law that requires early voting to start on the 17th day before the election.

It is the latest legal challenge to Abbott’s emergency powers, which he has wielded aggressively in dealing with the pandemic.

“Governor Abbott seems to have forgotten that the Texas Constitution is not a document that he consults at his convenience,” Jared Woodfill, a lawyer for the plaintiffs, said in a statement. “It is an uninterrupted charter of governmental structure that limits the Governor Abbott’s ability to act as a king.”

The plaintiffs argue Abbott needs to consult the Legislature before making such decisions and that “if ever a special session was justified, now is the time.”

One of the plaintiffs is Steve Hotze, the Houston conservative activist who has launched several lawsuits against Abbott’s coronavirus response that has seen minimal success so far. But in the latest lawsuit, he is joined by not only West and Miller, but also three state senators and four state representatives, as well as the chairman of the Harris County party, Keith Nielsen, and the Republican National Committeeman from Texas, Robin Armstrong.

West, who took over the state party this summer, has openly expressed disagreement with aspects of Abbott’s coronavirus handling, including his statewide mask mandate and the early voting extension. West seemed to telegraph the lawsuit Tuesday, saying in a statement that he would be partnering with Hotze to make election integrity a “top priority.” West said in the same statement that he opposes the “extension of early voting through the decree of a single executive instead of through the legislative process.”

[…]

In addition to making the early voting period longer for the November election, Abbott gave voters more time to turn in their mail-in ballots in person if they choose to do so. Usually those voters are permitted to submit their ballots to the early voting clerk’s office in person instead of mailing them in — but only while polls are open on Election Day. Abbott’s expanded that option to the entire early voting period.

The lawsuit filed Wednesday additionally seeks to stop the extended period for submitting mail ballots in person, also calling the move inconsistent with the election code.

Before we go on, I should note that what was filed was not a lawsuit but a writ of mandamus. Hotze and a smaller crew of jackals had already filed a lawsuit in Travis County district court about a month ago. I presume this writ was filed because they weren’t going to get a ruling in time, and everything is an emergency as far as Hotze is concerned.

The Chron adds some detail.

In the 40-page petition filed Wednesday, the Republicans wrote that the extension was unlawful because the Texas Election Code defines the early voting periods as “the 17th day before election day … through the fourth day before election day,” and the time for in-person submission of mail-in ballots as “only while the polls are open on election day.” The petition seeks to force Secretary of State Ruth Hughs to stick to the timelines in the law.

Hotze has filed a number of lawsuits aimed at Abbott’s COVID-19 emergency orders; in the early voting suit, he again alleges that Abbott does not have the authority, even during a disaster, to suspend laws through executive order. Instead, he says, Abbott should have convened the Legislature.

“If ever a special session was justified, now is the time,” the petition states. “Abbott’s Executive Orders are unprecedented and have had life and death implications, destroyed small businesses and family’s livelihoods, have had a crippling effect on every single community, and now have the ability to impact local, state and national elections. As long as this Court allows it to occur, one person will continue to unilaterally make these decisions under the guise of an unconstitutional statute.”

The lawmakers involved in the suit are state Sens. Charles Perry, Donna Campbell and Pat Fallon and state Reps. Bill Zedler, Cecil Bell, Jr., Steve Toth and Dan Flynn. Additional relators include former state Reps. Matt Rinaldi, Rick Green and Molly White; Harris County Republican Party Chair Keith Nielson; and several other candidates and Republican group leaders.

This story notes the earlier lawsuit. Of interest is the larger group of legislators that have joined in, which distinguishes this action from earlier Hotze/Woodfill joints. Perhaps the election of Allen West, who is as bananas as Hotze, has lent an imprimatur of establishment approval to this kind of rogue action. That said, this is the Hotze clown car we’re talking about, so of course there’s some unintentional comedy involved:

Never stop never stopping, Stevie.

Anyway. You know my opinion on all this – there are some legitimate questions buried under the mountains of palaver, but they are being asked by the worst possible people. I think there’s a strong case to be made that the very nature of our biennial legislature, which is not paid as an occupation but as a temp gig, makes this claim about calling special sessions impossible. It’s just not something that the system is designed to accommodate. My guess is that SCOTX will give this the same reception as they’ve given all of Hotze’s other writs and motions during the COVID times, but you just never know. And I can’t wait to see how Ken Paxton responds to this.

On a side note, this comes as Steve Toth, yet another froth-at-the-mouth type, officially announced that he is unfriending Abbott, which by itself isn’t that interesting but lends some fuel to the speculation that Abbott is going to get a challenger from the far wingnut right in 2022. All I can say to that is that we damn well better have a good candidate ready and waiting for whoever survives that mud fight.

Weekend voting litigation news

I have two news items about voting-related lawsuits. Both of these come via the Daily Kos Voting Rights Roundup, which has been increasingly valuable to me lately, given the sheer number of such lawsuits and the fact that some news about them either never makes the news or does so in a limited way that’s easy to miss. For the first one, which I have been unable to find elsewhere, let me quote directly from the DKos post:

A federal court has rejected the GOP’s motion to dismiss a pair of Democratic-backed lawsuits challenging a 2019 law Republicans enacted to ban mobile voting locations that operate in a given location for only part of the early voting period. The law in question requires that all polling places be open for the entire early voting period, but because this puts additional burdens on county election officials’ resources, many localities have opted not to operate so-called “mobile” polling places altogether.

Democrats argue that the law discriminates against seniors, young voters, voters with disabilities, and those who lack transportation access in violation of the First, 14th, and 26th Amendments.

This was originally two lawsuits, one filed in October by the Texas Democratic Party, the DSCC, and the DCCC, and one filed in November by former Austin Assistant City Manager Terrell Blodgett, the Texas Young Democrats (TYD) and Emily Gilby, a registered voter in Williamson County, Texas, and student at Southwestern University serving as President of the Southwestern University College Democrats (the original story listed this plaintiff as Texas College Democrats, but they are not mentioned in the ruling). These two lawsuits were combined, and the ruling denying the motion to dismiss means that this combined lawsuit will proceed to a hearing. Now, I have no idea how long it will take from here to get to a hearing on the merits, let alone a ruling, and as far as I know there’s no prospect of an injunction preventing the law in question (HB1888 from 2019), so this is more of a long-term impact than a 2020 thing, but it’s still good news. I should note that there was a third lawsuit filed over this same law, filed in July by Mi Familia Vota, the Texas NAACP and two Texas voters. That one was filed in San Antonio federal court, while this one was in Austin. I do not know anything about that lawsuit other than the fact that it exists. Like I said, this stuff is hard to keep up with.

The ruling is here, and it’s not long if you want to peruse it. The motion to dismiss argued that the Secretary of State could not be sued because it didn’t enforce voting laws, that the plaintiffs did not have standing because the injuries they claimed under HB1888 were speculative, and that HB1888 was constitutional. The judge rejected the first two claims, and said that once standing and the right to sue were established, the constitutionality question could not be answered in a motion to dismiss because the state had a burden to meet for the law to be constitutional, even if that burden is slight. So it’s on to the merits we go. Now you know what I know about this particular offensive against one of Texas’ more recent attempts to limit voting.

Later in the Kos roundup, we learned about a brand new lawsuit, filed by the Hozte clown car crowd, which is suing to overturn Greg Abbott’s executive order that extended early voting by an additional six days.

Conservative leaders and two Republican candidates have filed suit to block Gov. Greg Abbott’s order that added six days of early voting for the November election as a pandemic-inspired safety measure.

The extension, they argued, must be struck down as a violation of the Texas Constitution and state law.

“This draconian order is contrary to the Texas spirit and invades the liberties the people of Texas protected in the constitution,” the lawsuit argued. “If the courts allow this invasion of liberty, today’s circumstances will set a precedent for the future, forever weakening the protections Texans sacrificed to protect.”

The lawsuit was the latest attempt by prominent conservative activist Steven Hotze to overturn Abbott’s executive orders and proclamations in response to the coronavirus.

None of Hotze’s suits to date has succeeded, but the barrage of legal challenges highlights the difficulty Abbott is having with his party’s right wing, which questions the severity of the pandemic and opposes limits on businesses and personal decisions.

The latest lawsuit, filed late Thursday in Travis County state District Court, was joined by Republican candidates Bryan Slaton, running for the Texas House after ousting Rep. Dan Flynn, R-Canton, in the GOP primary runoff, and Sharon Hemphill, a candidate for district judge in Harris County.

Other plaintiffs include Rick Green, a former Texas House member from Hays County, and Cathie Adams, former chair of the Republican Party of Texas and a member of Eagle Forum’s national board.

In late July, when Abbott extended the early voting period for the Nov. 3 election, he said he wanted to give Texas voters greater flexibility to cast ballots and protect themselves and others from COVID-19.

Beginning early voting on Oct. 13, instead of Oct. 19, was necessary to reduce crowding at polls and help election officials implement safe social distancing and hygiene practices, Abbott’s proclamation said. To make the change, Abbott suspended the election law that sets early voting to begin 17 days before Election Day.

At the same time, Abbott also loosened vote by mail rules allowing voters to deliver completed ballots to a county voting clerk “prior to and including on election day.”

The Hotze lawsuit, which sought to overturn that change as well, argued that Abbott’s emergency powers do not extend to suspending Election Code provisions and that the early voting proclamation violates the Texas Constitution’s separation of powers doctrine because only the Legislature can suspend laws.

The lawsuit seeks a temporary restraining order barring the Texas secretary of state from enforcing Abbott’s proclamation and a court order declaring it unconstitutional.

See here for a copy of the lawsuit. Abbott did extend early voting, though whether it was in response to Harris County Clerk Chris Hollins’ request or if it was something he was always planning to do – remember, he did do the same for the primary runoff election – is not known. What is known is that the State Supreme Court has shown little patience for Hotze and his shenanigans lately. The quote in the story from the lawsuit may be one reason why – there’s a lot more heat than facts being alleged, and even a partisan institution like SCOTX likes to have some basis in the law for what it does. The fact that the extension of early voting for the July runoffs went unchallenged would seem to me to be relevant here – if this is such a grave assault on the state Constitution, why was it allowed to proceed last month? The obvious answer to that question is that there’s a partisan advantage to (potentially) be gained by stopping it now, whereas that wasn’t the case in July. My guess is that this goes nowhere, but as always we’ll keep an eye on it. Reform Austin has more.

Finally, I also have some bonus content relating to the Green Party candidate rejections, via Democracy Docket, the same site where I got the news about the mobile voting case. Here’s the temporary restraining order from the Travis County case that booted David Collins from the Senate race and Tom Wakely from CD21; it was linked in the Statesman story that I included as an update to my post about the mandamus request to SCOTX concerning Wakely and RRC candidate Katija Gruene, but I had not read it. It’s four pages long and very straightforward, and there will be another hearing on the 26th to determine whether the Texas Green Party has complied with the order to remove Collins and Wakely or if there still needs to be a TRO. Here also is the Third Court of Appeals opinion that granted mandamus relief to the Democratic plaintiffs regarding all three candidates:

Molison and Palmer are hereby directed to (1) declare Wakely, Gruene, and Collins ineligible to appear as the Green Party nominees on the November 2020 general statewide ballot and (2) take all steps within their authority that are necessary to ensure that Wakely’s, Gruene’s, and Collins’s names do not appear on the ballot. See In re Phillips, 96 S.W.3d at 419; see also Tex. Elec. Code § 145.003(i) (requiring prompt written notice to candidate when authority declares candidate’s ineligibility). The writ will issue unless Molison and Palmer notify the Clerk of this Court, in writing by noon on Thursday, August 20, 2020, that they have complied with this opinion.

“Molison” is Alfred Molison and “Palmer” is Laura Palmer, the co-chairs of the Texas Green Party. Since the question of the state lawsuit filed by the Libertarian Party over the filing fee mandate came up in the comments on Friday, here’s what this opinion says about that, in a footnote:

We note that although the Green Party and other minor parties and candidates have attempted to challenge the constitutionality of the filing-fee or petition requirement in federal and state court, the statute is currently in effect and enforceable. The federal court denied the parties’ and candidates’ motion for preliminary injunction on November 25, 2019. See Miller v. Doe, No. 1:19-CV-00700-RP, (W.D. Tex., Nov. 25, 2019, order). Although the state district court granted a temporary injunction on December 2, 2019, temporarily enjoining the Secretary of State from refusing to certify third-party nominees from the general election ballot on the grounds that the nominee did not pay a filing fee or submit a petition, the State superseded the temporary injunction, and an interlocutory appeal is pending before the Fourteenth Court of Appeals. See Hughs v. Dikeman, No. 14-19-00969-CV, (Tex. App.—Houston [14th Dist.], interlocutory appeal pending).

Emphasis mine. So there you have it.

No eviction moratoriums

So opines Ken Paxton, and we all know what an unimpeachable source he is.

Best mugshot ever

Texas Attorney General Ken Paxton advised Friday that local Texas governments’ attempts to delay evictions for renters grappling with the COVID-19 recession amounted to rewriting state law — something they can’t do, he said in nonbinding legal guidance.

“While local officials do possess certain emergency powers … statewide eviction procedures far exceed the requirement that those powers be exercised ‘on an appropriate local scale,’” Paxton said in a letter. “Government Code does not authorize local governmental entities operating under a declared disaster to independently rewrite state law as it applies to their jurisdiction to prohibit, delay, or restrict the issuance of a notice to vacate.”

Paxton’s letter, issued in response to a question from Republican state Sen. Brandon Creighton of Conroe, seems to chide local officials like Austin Mayor Steve Adler, who last month extended the eviction moratorium in the city until Sept. 30. Travis County Judge Sam Biscoe extended his ban until the same date. In other counties, like Harris and Dallas, some justices of the peace have decided to not hear evictions. It is unclear if Paxton’s opinion will influence those judges.

Adler said in a statement that his orders were lawful and “do not amend statewide eviction procedures,” but rather aim to “reduce person-to-person contact to slow the spread of COVID-19.”

Hector Nieto, a spokesperson for Travis County, said officials there are reviewing the opinion.

Paxton’s opinion could have weight if someone were to sue a local government over its eviction moratorium.

“I can’t say I’m shocked that the state attorney general would side with landlords. Nothing he has done to date shows us that we could expect something different,” said Sandy Rollins, executive director of the housing advocacy group Texas Tenants Union. “A lot of tenants are facing eviction in Texas by zero fault of their own, and putting protections that are normal in almost every other state should be allowed in this pandemic.”

As we know, AG opinions don’t carry the force of law, but they are an obstacle. As with other contentious matters on which Paxton has opined, someone will have to take this to court to force the issue. Of course, this is also something the Legislature can review and revise, and I’d say it needs to be on the ever-increasing list of things the Lege very much needs to do at its first opportunity. On a side note, this adds some context to the city of Houston’s rental assistance program, which has been offered instead of an eviction moratorium order, which a number of people advocated for. A moratorium would certainly have been a more comprehensive tool to keep people who have been affected by the pandemic and the economic devastation that resulted from it in their homes, but not if it could not be enforced. Whatever you think of Mayor Turner’s approach, it was not affected by this action.

Another lawsuit against Abbott over emergency orders

This one is a bit more serious due to the lack of Hotze and Woodfill, but it’s still not a great way to have the debate about this issue.

Five Republican Texas lawmakers are suing Gov. Greg Abbott over the state’s $295 million COVID-19 contact tracing contract to a small, little-known company, alleging the agreement is unconstitutional because it wasn’t competitively bid and because the funds should have been appropriated by the Legislature in a special session.

In the Travis Country district court suit filed Monday, State Reps. Mike Lang, Kyle Biederman, William Zedler, Steve Toth and state Sen. Bob Hall named as defendants Abbott, the Texas Department of State Health Services and the company awarded the contract, the Frisco-based MTX Group.

Abbott and Attorney General Ken Paxton have defended the contract. Abbott did not immediately respond to a request for comment.

The lawmakers are seeking a court order voiding the contract for lack of statutory authorization and deeming unconstitutional the governor’s application of the Texas Disaster Act of 1975, which gives him broad powers in the case of an emergency, in granting the contract.

“The Texas Constitution requires a separation of powers, and that separation leaves policy-making decisions with the Texas Legislature,” the lawsuit states. “These decisions are not changed by pandemics.”

Abbott has declined to convene a special session since March when the coronavirus pandemic began, instead leaning on his emergency powers to issue a series of sweeping executive orders governing what businesses can open, where people can gather in public, and mandating safety measures including wearing face coverings in public.

While the law has been used by governors for years, the time span of the coronavirus-related orders is unprecedented and raises questions about the durability of that legal justification.

As the story notes, the Supreme Court just rejected several Hotze lawsuits relating to executive emergency powers, saying he lacked standing. I don’t know if that is likely to be an issue in this case or not. I still agree with the basic premise that we need to have a robust debate about the parameters of the Texas Disaster Act, including when the Governor should be compelled to call a special session so that the Lege can be involved in the decision-making process. I also still think that this is a lousy way to have that debate, and while these five legislators have more gravitas than Hotze, that’s a low bar to clear. To put it another way, the anti-face mask and quarantine lobby still isn’t sending their best.

There’s no doubt that the contact tracng deal was a boondoggle, and I welcome all scrutiny on it. And I have to admit, as queasy as I am with settling these big questions about emergency powers by litigation, there isn’t much legislators can do on their own, given that they’re not in session and can’t be in session before January unless Abbott calls them into a session. I’m not sure what the right process for this should have been, given the speed and urgency of the crisis. The Lege very much needs to address these matters in the spring, but I’m leery of making any drastic changes to the status quo before then. In some ways, this is the best argument I’ve seen against our tradition of having a Legislature that only meets every two years. Some things just can’t wait, and we shouldn’t have to depend on the judgment of the Governor to fill in the gaps. I hope some of the brighter lights in our Legislature are thinking about all this. The Trib has more.

So how’s Greg Abbott doing post-mask order?

Greg Abbott consistently polls as the politician with the highest approval rating in the state. He was basking in adulation a few weeks ago when things were reopening and the coronavirus numbers still looked good. How are things going for him now that he’s had to shut down the bars and require masks and we’re all worried about the hospitals overflowing? Well, there’s this:

The Montgomery County Sheriff’s Office says it will not enforce Gov. Greg Abbott’s order requiring most Texans to wear masks when they’re in public.

In a statement, the agency said it “will take NO actions to enforce” the order, arguing that it is unenforceable because it doesn’t allow law enforcement to detain, arrest or jail violators.

“This language strips law enforcement of the necessary tools to enforce compliance with the law,” the agency said.

[…]

The sheriff’s office argued the order could subject it to civil liability if deputies stop someone for failing to wear a mask and it is misconstrued as a detention. The agency said “holding someone for the purpose of issuing a citation related to a fine is a legally defined detention under current Texas law.”

“We are in a public health crisis and we will use this opportunity to educate our community while still respecting individual liberties,” the sheriff’s office said.

They did say they would respond to a call from a business who had a customer who refused to wear a mask upon entering. Sheriffs from a couple of other Republican counties have made similar statements as well. I mean, I can kind of see their point here, and as we know Greg Abbott basically destroyed the legitimacy of any kind of enforcement mechanism for mask and stay-at-home orders in the Shelley Luther debacle. It’s still a bit stunning to see a Republican sheriff say publicly that they won’t do what Abbott wants them to do. They appear to have no fear of political blowback.

Which leads us to this:

The Ector County Republican Party voted Saturday to censure Gov. Greg Abbott, accusing him of overstepping his authority in responding to the coronavirus pandemic, while state Sen. Charles Perry, R-Lubbock, called for a special session so lawmakers could have a say in how Texas proceeds amid soaring caseloads.

The party executive committee in Ector County, home to Odessa, passed the censure resolution 10-1, with one abstention and three voting members who were not present, according to the chairperson, Tisha Crow. She said she was among those who supported the resolution, which accuses Abbott of violating five party principles related to his exercise of executive power during the pandemic.

While the resolution asks that delegates to the state convention later this month consider — and affirm — Ector County’s action, Crow said consideration is “not guaranteed,” and one precinct chair, Aubrey Mayberry, said the resolution “doesn’t have any teeth” for now — but that it was important to send a message about what they consider Abbott’s overreach.

Mayberry, who voted for the resolution, said he was working with precinct chairs in other Texas counties to get similar resolutions passed ahead of the convention.

That’s a pretty direct slap in the face, and with the state GOP convention almost upon us, the potential for this to become A Thing is substantial. Will that represent some steam that has been blown off, or will it be the first step towards a serious rebellion? That’s an excellent question.

[State Sen. Charles] Perry wrote Saturday on Facebook that he is “deeply concerned about the unilateral power being used with no end in sight.”

“This is why I urge Governor Abbott to convene a special session to allow the legislature to pass legislation and hold hearings regarding the COVID-19 response,” Perry said. “It should not be the sole responsibility of one person to manage all of the issues related to a disaster that has no end in sight.”

In the upper chamber, state Sen. Bob Hall, R-Edgewood, has also called for a special session, as have several House Republicans.

State Rep. Trey Martinez Fischer had previously called on Abbott to work with the Legislature on COVID response instead of acting so unilaterally, though he’s a Democrat and I didn’t see the words “special session” in that article. As I have said repeatedly, the extent of the Governor’s emergency powers is a subject that really demands further discussion, and so far all we’ve gotten is a bunch of Hotze/Woodfill lawsuits, which is the worst possible way to come to a decision about what Abbott and whoever succeeds him can and cannot do. Among other things, I think this is exposing a real weakness in our 20-weeks-every-other-year legislative calendar, precisely because there’s a lot of things that the Lege can and should be doing right now, but is unable to because they’re not in session. The same was true in 2017 following Hurricane Harvey, though at least there everyone understood what the emergency actions were for and there was a clearer metric for when they would be lifted.

I would argue that legislators need to think about proposing some constitutional amendments to 1) more clearly define the parameters of the Governor’s executive power, and 2) maybe automatically trigger a special session under certain crisis conditions. I obviously haven’t thought this all through, and I don’t want to see legislators rushing forth with half-baked ideas, but I am serious that we need to take a look at this. The current model of “Governor hands down orders from on high that no one knew were coming and then gets sued by a couple of crackpots from Houston so that the courts can eventually sort it all out” doesn’t seem like it’s sustainable.

Second lawsuit filed by bars against Abbott

This one was expected.

Several Texas bar owners filed a $10 million federal lawsuit Tuesday afternoon against Gov. Greg Abbott, in an attempt to void his executive order shutting down bars for a second time since the beginning of the coronavirus pandemic.

All of the plaintiffs are members of the Texas Bar and Nightclub Alliance. This is the second lawsuit filed against Abbott this week after more than 30 Texas bars filed a lawsuit in Travis County over his recent shutdown order on Monday.

In addition to the damages, the lawsuit asks the court to stop Abbott from enforcing his executive order which closes bars and to prevent him from issuing similar orders in the future without proper notice. The suit said Abbott should give businesses more than 24 hours notice before shutting them down, “unless in the case of imminent threat of harm.” The lawsuit also asks that future shutdown orders have a clear end date and lay out conditions that would have to be met for the order be extended.

[…]

The lawsuit noted that the Texas Alcoholic Beverage Commission recently posted a notice on its website saying it observed a “high level of compliance” by permit holders. The lawsuit claims that Abbott is abusing his emergency powers “without proper legal notice.”

“With the erratic legal situation fueled (if not created) by the Governor and given that Plaintiffs have largely complied with the spirit & letter of the Governor’s voluntary guidelines, it came as an unfortunate surprise,” the lawsuit states.

The bar owners say in the suit that Abbott’s order violates their constitutional rights for due process, equal protection, and their patrons right to assembly, and “may very well leave long-term scarring on the republican form of government if left unchecked.”

“It wasn’t like he even reduced the bars and nightclubs to 25% — we’re closed to 100%,” said Michael Klein, one of the plaintiffs and Texas Bar and Nightclub Alliance president, drawing a distinction between bars and other businesses which are allowed to operate at limited occupancies. “You better have some pretty good scientific evidence if you’re going to take one group of alcoholic beverage licenses over another, or one group of businesses.”

See here and here for the background. The Woodfill lawsuit was filed in state court and this one is in federal court, and someone who is much better versed in legal matters than I am will need to explain the reasons for that. I actually think these guys have some reasonable claims – sufficient notice, a deadline and criteria for the order, etc – though whether those claims are justiciable in federal court is a question I can’t answer. I figure both sets of plaintiffs are going to ask for an order suspending this action on Abbott’s part, and if so we’ll get some kind of rulings quickly. I have no idea what to expect, but can’t wait to see what happens.

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

Houston GOP activist Steve Hotze and a coalition of business owners and conservatives have launched a legal challenge claiming Gov. Greg Abbott’s emergency orders related to the coronavirus violate the Texas Constitution.

In a 34-page emergency pleading filed Friday, lawyers for Hotze as well as three pastors, state Rep. Bill Zedler and five business owners ask the Texas Supreme Court to strike down the orders.

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

Attorney Jared Woodfill argued in the petition that the governor does not have the power to issue mandates that suspend state laws and that he should have convened the Legislature instead.

“Our senators and state representatives have been muted because Gov. Abbott has chosen to act as a king, and that is fundamentally unconstitutional and fundamentally wrong,” Woodfill said.

Even if the law that gave Abbott his emergency powers is constitutional, Woodfill wrote, the orders are still unconstitutional because they deny due process by assuming every Texan and business is a threat to public health without allowing them the chance to defend themselves; violate equal protection by allowing some businesses to stay open and others not; and are otherwise “arbitrary” and “capricious.”

[…]

Woodfill said the petitioners’ goal is to set the precedent for governors’ authority during future emergencies.

“What’s going to happen if we have a COVID-20?” Woodfill said. “Are we going to again surrender all our constitutional rights?”

It’s hard to keep track of all the lawsuits and petitions coming from the Hotze machine, but I’m going to try. He and this same cohort (more or less) had previously filed a lawsuit in Travis County against Abbott and Paxton over the statewide stay at home orders. This had followed a lawsuit filed in March against the Harris County stay at home order, which he then tried to get fast-tracked to the Supreme Court but was denied. He then filed another lawsuit against Harris County over the face mask order and sought an emergency ruling from the Supreme Court on it, but by that time Abbott had issued an order overriding local orders and forbidding the requirement that face masks be worn. It’s not clear to me if this pleading is related to the Travis County lawsuit against Abbott and Paxton or if it is a second front in their war on anyone who dares to try to tell them what to do under any circumstance. I’m also not sure if that Harris County lawsuit is still in effect or if it has been mooted by subsequent state actions.

All right, so that’s where I think we are now. I’ll say again, I think there are very valid questions to be asked about what powers the Governor does and does not have in emergencies. When must the Legislature be involved? What if any laws can be superseded or suspended by executive order, and under what circumstance? What power does the Governor have to unilaterally overrule cities and counties, whose executives have their own emergency powers? There’s plenty of room for robust debate on these topics, and I hope the Lege addresses some of them in the spring. It’s clear that the Governor – and Mayors, and County Judges – need to have some latitude to take quick action in times of crisis, but it’s equally clear there needs to be some limits on that, in terms of scope and duration and jurisdiction. I don’t want any Governor to have unchecked power, least of all Greg Abbott. I also don’t want a bunch of nihilistic cranks to have the power to disregard public health and safety with impunity. I don’t want the worst people in the world to be the ones asking the questions that will affect all of us going forward. I hope the Supreme Court is up to the task of responding to this.

Early voting gets an early start

This is a remarkably sensible thing to do.

Ahead of the first statewide election during the coronavirus pandemic, Gov. Greg Abbott has doubled the length of the early voting period for the upcoming July primary runoff elections.

In a proclamation issued Monday, Abbott ordered early voting for the July 14 runoffs to begin June 29 instead of on July 6. He noted that sticking with the truncated early voting window that’s typical for runoff elections “would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster.”

Abbott previously used his emergency powers under his statewide disaster declaration to delay the primary runoffs, which were originally slated for May, and a special election for the Austin area’s Texas Senate District 14.

[…]

“In order to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day,” Abbott wrote in the proclamation, “it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices.”

See here for the background. Bear in mind, it is this election for which the expanded vote by mail order applies, pending the outcome of appeals. Both increasing vote by mail and extending the early voting period serves the purpose of reducing the risk of in person voting. It could be that this decision was a strategic one, designed to undercut the Democratic argument that fear of contracting coronavirus is a legitimate disability per Texas law that must be mitigated by mail ballots. The idea here would be that having a longer early voting period for this election means that the risk of being in a crowd or waiting on line to vote is sufficiently lower that no further mitigation is needed. It may also be that Abbott is responding to the wishes of Republican voters, who have so far expressed greater interest in voting in person. Or maybe, just maybe, Abbott did this because it was a smart and beneficial thing to do. Crazier things have happened. If that’s the case, maybe he’ll be amenable to allowing a longer early voting period for November as well. Be that as it may, you now have two weeks to vote early in person for the primary runoffs. It’s a good thing however it came to be.

The real problem is those uppity local officials

My God, the Republican playbook is so predictable these days.

Judge Lina Hidalgo

Local governments have gone too far in issuing emergency orders during the coronavirus pandemic and can expect to have those powers whittled down when the Texas Legislature meets again, key state lawmakers say.

State laws give local leaders broad power during emergencies, but state Sen. Paul Bettencourt of Houston, a leading Republican in the Texas Senate, said too many local officials have taken it too far.

“We are going to have to look at all these emergency powers and see if they have to be scrubbed down,” Bettencourt said.

In Chambers County outside of Houston, for example, 10 p.m. curfews have been imposed on adults. In other counties, it’s prohibited to have more than two people in a car. In Laredo, people were allowed to exercise, but bicycle riding was barred.

Local governments are accustomed to playing defense against the Legislature. During each of the last two legislative sessions, state lawmakers have tried to curb local authority on myriad issues including tree ordinances, annexations and property tax collections.

Democrats say they’re getting used to this drumbeat of Republicans trying to take authority away from cities and suburbs as they have become more Democratic. They say the cities and counties needed to move quickly because Republican Gov. Greg Abbott waited to issue a statewide stay-home order until 30 other states had done so.

Democratic Harris County Judge Lina Hidalgo has been a consistent target for frustrated Republicans.

[…]

State Rep. Gene Wu, D-Houston, said the Republicans should be thanking local leaders such as Hidalgo and Mayor Sylvester Turner. While Abbott waited to issue statewide orders closing restaurants or requiring residents to stay home, Turner and Hidalgo were moving far faster and helping keep down the spread of the virus, Wu said.

“It’s our local governments that have had to step up and done an outstanding job,” Wu said. “The reason our numbers are so low is because they took decisive action early.”

Hey, remember when Greg Abbott was only too happy to let local leaders do the leading, because “What is best in Dallas may not be best for Amarillo or Abilene”? Good times. Have I mentioned that it’s really important that Democrats win the State House this election? Now you have another reason why.

Emergency orders extended

In Houston.

City council on Tuesday extended Houston’s emergency health declaration, reflecting a warning by Mayor Sylvester Turner that the public health crisis fueled by the spread of COVID-19 will not go away anytime soon.

“This is a crisis. I hope there’s no one around this table that’s questioning that,” Turner told his colleagues during a spirited special meeting Tuesday. “And it’s a crisis that’s going to be with us for several weeks if not several months. And I hope no one is questioning that.”

The measure gives the mayor power to suspend rules and regulations and to “undergo additional health measures that prevent or control the spread of disease,” such as quarantine or setting up emergency shelters. Similar orders have been issued after hurricanes.

Turner declared the emergency last week, after the region’s first confirmed COVID-19 case of community spread, in which the virus was contracted locally rather than travel. The order was used to cancel the Houston Livestock Show & Rodeo.

Here’s the Mayor’s press release, which notes that among other things, all city-produced, sponsored and permitted events are canceled through the end of April, and the city expects to begin COVID-19 testing this week, with an announcement to come.

Harris County took similar action.

Commissioners Court on Tuesday extended Harris County’s public health disaster declaration in response to the coronavirus, but only for eight days.

The agenda for Tuesday’s emergency session called for a 30-day extension. However, Precinct 4 Commissioner Jack Cagle asked for a shorter extension so other elected officials and the public can give input.

The other four members agreed and unanimously extended the declaration, which allows the county to more quickly purchase necessary supplies and services, though March 25. County Judge Lina Hidalgo said she hoped Cagle was acting in good faith and not trying to build discord around the declaration.

“There is lives on the line in this thing,” Hidalgo said. “We’ve got to stick together, and this is not the time to be whipping up political opposition.”

[…]

Precinct 2 Commissioner Adrian Garcia asked Hidalgo to do all her office can to halt evictions. Garcia said many residents are losing income because schools and businesses have closed, and should be given a break.

Cagle said Commissioners Court should not take any action seen as swaying eviction proceedings in favor of defendants or ordering judges how to perform their duties. Garcia said he simply is seeking a delay in evictions so vulnerable residents have a chance to catch up on rent.

“I’m not asking for judges for any ruling,” Garcia said. “I’m just asking for the judge to halt the process until we can see some light at the end of this tunnel.”

The county judge does not oversee independently elected constables and justices of the peace who administer evictions. Assistant County Attorney Barbara Armstrong said emergency powers allow the county judge to close public buildings and allocate resources, which Hidalgo could exercise to prevent hearings from taking place. Armstrong said cases would resume when the crisis subsides.

Hidalgo said she has spoken with several of the county’s 16 justices of the peace, who have indicated they intend to temporarily stay eviction proceedings.

Other counties are taking similar action on halting evictions, and also making fewer arrests for low-level crimes, as is Harris. These are among the things that maybe we ought to continue after the crisis subsides. Just a thought.