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Fifth Circuit Court of Appeals

Republican bail reform bill passes House

Meh.

Rep. Andrew Murr

The Texas House on Tuesday passed a bill to alter the way criminal defendants can be released from jail before trial. The priority legislation would, in part, require judicial officers to use a risk assessment tool when making bail decisions and ban cashless release for those accused of some violent or sexual crimes.

House members approved House Bill 20 after significant changes — largely by the bill’s author — were made on the floor Monday.

“The goal today is to strike a balance in which we provide … credible information to our trained magistrates so that they can determine that those that are low risk have a chance to get out while those who are higher risk, with a violent offense or a violent criminal history, they don’t easily pay and immediately walk on the street the next day and do something else that harms us,” state Rep. Andrew Murr, the Junction Republican who authored the bill, said Monday.

Named the Damon Allen Act after a slain state trooper, HB 20 was deemed an emergency item by Gov. Greg Abbott at the beginning of the legislative session after similar legislation failed in 2019. The suspect in Allen’s shooting death during a 2017 traffic stop was out of jail on cash bail at the time.

After tentatively approving the bill Monday, the House finally passed HB 20 on a 98-to-46 vote Tuesday. It is now headed to the Senate — where its future is uncertain. Last month, the Senate passed a competing priority bail bill which varies significantly from the House’s measure. Senate Bill 21 since has stalled in the House Criminal Jurisprudence Committee.

When making bail decisions, courts decide what restrictions are needed to release from jail a defendant who is legally presumed innocent while ensuring the person comes back to court and does not present a threat to public safety. Most often in Texas, that decision is currently based on a dollar amount.

The cash-reliant system has long prompted criticisms from bail reform advocates who argue it unfairly keeps poor people locked up while similar defendants with cash walk free. And federal courts have found bail practices in Texas’ two most populous counties unconstitutional for discriminating against poor defendants.

See here for the background. As this Chron editorial notes, HB20 is better than SB21 but still falls short because of its prioritization of cash bail. A fair and just system does not determine who gets to go home and who gets to stay locked up for weeks or months before even going on trial based on ability to pay. As Grits noted a month ago, any bail-related bill that has Greg Abbott’s support is highly unlikely to be upheld by the federal courts going forward. As such, the best move is to vote against HB20 and SB21, and wait for further direction from the Fifth Circuit.

Dave Wilson censure lawsuit goes to SCOTUS

We live in strange times.

Dave Wilson

The U.S. Supreme Court agreed to hear a case involving former Houston Community College trustee Dave Wilson who alleges in a lawsuit that the school violated his constitutional rights.

Wilson, who served on HCC’s board as a District II trustee for several years, filed a lawsuit in 2018 claiming the college violated his 1st and 14th Amendment rights after his fellow board members voted to censure him.

Board members said Wilson publicly criticized his colleagues’ votes and showed a lack of respect in the board’s decision-making process.

[…]

A U.S District Court judge dismissed the case in March 2019. Wilson later appealed in the 5th Circuit Court, which reversed the court’s original judgment in July 2020.

The Houston Community College System then filed a petition in December 2020 seeking the Supreme Court’s review of the district court’s decision, “arguing that a censure is a traditional form of government speech, an important tool of self-governance, and that the First Amendment does not protect an elected official from criticism,” HCC Chancellor Cesar Maldonado said in a written statement. The high court granted the petition Monday .

“It is our hope the Supreme Court will preserve the long-standing tool of censure because of its national importance to government institutions,” Maldonado said.

[…]

Shaundra Kellam Lewis, a law professor at Texas Southern University, said the Supreme Court decision to review the circuit court’s ruling when it only takes on about 100 cases a year is interesting but not surprising considering the conflict among circuit courts regarding the claim.

While the 5th Circuit ruled Wilson has a viable 1st Amendment claim, arguing that the board’s censorship went beyond disapproval of his conduct, a 10th Circuit ruling would state that the board’s censuring of Wilson was not a violation, Lewis said.

“We’re coming out of the Trump administration, when there was rancor and vitriol in political speech and what the conservatives called ‘cancel culture,’ where people are penalized for unfavorable speech,” Lewis said.

Josh Blackman, constitutional law professor at the South Texas College of Law Houston, said the free speech case is unique in that it involves people who were elected by the community. While government employees, like public service officials, are somewhat restricted by the government on what they can say, elected employees, like HCC board members, “have more free speech rights, which are not subject to review by colleagues, but by the electorate — the people,” Blackman added.

Both Lewis and Blackman predicted, however, that HCC will likely win the case.

Blackman said history shows that the Supreme Court typically reverses the decision of the lower court in the case of a petition. And Lewis said the Supreme Court will side with a majority of the other circuit court decisions that have addressed similar free speech cases.

See here for the previous update. I was a little surprised when I first read this, as I had not been aware that the Fifth Circuit reinstated the lawsuit. You know how I feel about Dave Wilson, so you know what outcome I’m rooting for.

Deportation freeze still on hold

Grrrrrrrr.

Best mugshot ever

A federal judge in Texas has put an indefinite halt to President Joe Biden’s 100-day ban on deportations after issuing a preliminary injunction late Tuesday.

The ruling by Judge Drew Tipton comes after he had already temporarily paused the moratorium twice. The ban is nationwide and is in place as the case continues to play out in courts.

The ruling is a victory for Texas Attorney General Ken Paxton, who sued to block Biden’s order three days into the Biden administration. Paxton’s office argued the state would face financial harm if undocumented immigrants were released into the state because of costs associated with health care and education, and said the moratorium would also lure others to come to Texas.

Tipton, a Trump appointee to the federal bench, wrote in his order that Texas would also incur costs for detaining immigrants within its state. “Texas claimed injury from unanticipated detention costs is sufficiently concrete and imminent. The harm is concrete or de facto because Texas incurs real financial costs in detaining criminal aliens,” he wrote.

It’s unclear whether the Biden administration will appeal the ruling to the 5th Circuit Court of Appeals, which has jurisdiction over Texas’ federal benches.

See here, here, and here for the background. This continues to be a load of crap, though as noted before one that seems to have a fairly limited impact. I don’t know what the argument is for not appealing. You can find a copy of the order here.

Planned Parenthood not booted from Medicaid yet

A (likely very) temporary reprieve.

It’s constitutional – deal with it

Responding to an emergency lawsuit filed hours earlier, a Travis County judge issued an order Wednesday blocking Texas from removing Planned Parenthood as a Medicaid health care provider beginning Thursday.

The 14-day temporary restraining order, granted by state District Judge Maya Guerra Gamble after a brief hearing Wednesday afternoon, allows Planned Parenthood to continue providing health care to about 8,000 low-income Texans.

The judge also set a Feb. 17 hearing to determine whether a temporary injunction should be issued to keep Planned Parenthood in Medicaid.

In its lawsuit, Planned Parenthood argued that state officials did not follow the legally mandated process for kicking its health clinics out of Medicaid. Wednesday was supposed to be the final day Planned Parenthood clinics could receive Medicaid reimbursement for care that can include contraceptives, cancer screening and testing and treatment for sexually transmitted infections, but not abortions.

[…]

Planned Parenthood’s lawsuit argued that the termination letter did not comply with state law, including requirements that reasonable notice, and an opportunity for a hearing, be given.

The organization is seeking a court order blocking its removal until it exhausts all available administrative protests and appeals.

Texas officials, however, have argued that Planned Parenthood’s attack on the Jan. 4 notice of termination was misguided because a notice sent in January 2016 — kicking off years of litigation — complied with all necessary state laws and Medicaid regulations.

As the story notes, this has been going on since 2015. The state officially gave notice to Planned Parenthood patients that they needed to find a new doctor on January 5. I didn’t blog about it then because it was too depressing, and we know what else was going on at that time. It was a Fifth Circuit ruling that allowed the state to take the final steps in this process, so I don’t expect there to be much future to this litigation. Even the argument being made is just to buy time, as there are no questions of law remaining. You know my mantra: until we start electing different people to office, nothing is going to change. The Trib and the Chron have more.

District court judges to be removed from the felony bail lawsuit case

Hopefully, this brings us a step closer to settling the case.

Harris County’s 23 felony judges are no longer being sued over uneven bail practices that plaintiffs say discriminate against poor defendants. The civil rights lawsuit against the county and its reform-minded sheriff will move forward without them.

The federal judge presiding over Russell v. Harris County ruled Wednesday that once the bulk of the state district judges withdraw an appeal of one of her earlier rulings, they will be automatically removed as defendants in the case.

Lawyers for poor defendants say the mechanics of who is listed as a party will not prevent them from pursuing their goal of full adversarial bail hearings. The judges were not part of the original lawsuit, but were added at Chief U.S. District Judge Lee H. Rosenthal’s request. Their removal was precipitated by an appellate court ruling in a similar challenge to the bail system in Dallas County, in which the 5th U.S. Circuit found the judges were cloaked by immunity and should therefore be excluded from the Dallas lawsuit.

See here for the background. If as that previous story suggests Ken Paxton and the AG’s office are also removed from the case, that should further the likelihood of a settlement. It also may mean I don’t have to be mad at the district court judges who were being represented by Paxton, though that will depend on how things go from here. And for those of you who insist that changing the existing policies will lead to mayhem in the streets, I will remind you that many of the US Capitol insurrectionists, who actually caused mayhem in the streets and elsewhere, as well as three-time murderer Kyle Rittenhouse, are now out on bail. It’s not a question of “safety”, it’s a question of who has privilege and who does not.

Bail reform plaintiffs want Paxton booted from case

I for one am a fan of kicking out Ken Paxton in any context.

Best mugshot ever

In a strategic move that could speed up their case against Harris County, the plaintiffs challenging felony bail practices are hoping to kick two dozen players out of the game — 23 judges and Republican Attorney General Ken Paxton, who represents most of them in the landmark suit.

These judges who dole out bail rulings on a daily basis to people accused of crime would become third parties. They would no longer go toe-to-toe with indigent defendants who sued in a civil rights case saying courts offer a vastly different outcomes to people arrested depending on how much money they have in their pocket.

The motion filed Wednesday asks Lee H. Rosenthal, the chief judge of the Southern District of Texas, to dismiss the felony judges as parties from the 2019 lawsuit. Should the judge grant it, the remaining defendants in the case would be the county and its sheriff. The majority in county government are in sync with bail reform and the sheriff’s office is headed by Ed Gonzalez, who has said that setting arbitrarily high bail rates doesn’t protect the public.

Paxton has been an impediment to progress, said Neal Manne, a pro bono lawyer from Susman Godfrey LLP, who is among the lead counsel behind twin bail challenges, to misdemeanor and felony bail.

“The county and the sheriff are actually operating in good faith and would like to figure out a solution to a terrible problem. The attorney general is not acting in good faith, he just wants to find ways to disrupt and disrupt and prevent any reform from happening.”

[…]

The idea of removing the judges from the case stems from a ruling by the 5th U.S. Circuit Court of Appeals in a case that took on Dallas County’s bail system. The appellate court determined that sovereign immunity protected the Dallas judges from being sued over their bail practices. The 5th Circuit ruling said the sheriff is the key party to sue to obtain relief for people who are being detained unconstitutionally due to unaffordable bail.

See here for the previous update. The theory, as espoused by Judge Chuck Silverman, who is not represented by Paxton and agrees with the plaintiffs, is that this would thin the herd in the courtroom, which in turn might make it easier to come to a settlement agreement. It might also put some of the judges who are currently being represented by the AG’s office on the spot, and I’m fine with that.

SCOTUS rejects TDP petition on vote by mail

Back to the lower court, I think.

The U.S. Supreme Court turned away a Democratic bid to force universal vote-by-mail in Texas, leaving intact a state law that lets people cast no-excuse absentee ballots only if they are 65 or older.

The Texas Democratic Party and its allies argued unsuccessfully that the law violates the Constitution’s 26th Amendment, which says the right to vote “shall not be denied or abridged by the United States or by any state on account of age.”

Voting by mail became a sharply partisan issue amid President Donald Trump’s unsupported contentions that the practice led to widespread fraud in the November election. Texas’s Republican governor and attorney general urged the Supreme Court to reject the Democratic appeal.

A divided federal appeals court in September rejected the 26th Amendment claim, saying the Texas law didn’t make it more difficult for anyone to vote. The panel left open the possibility the law could be challenged as a violation of the Constitution’s equal protection clause.

The Supreme Court also rejected Texas Democrats in June, when the justices refused to reinstate a trial judge’s order that would have let any voter request an absentee ballot to avoid the risk of contracting Covid-19. That order, which was blocked by the appeals court, was designed to govern the 2020 election and might have boosted Democrats’ prospects.

See here for the last update, which was a petition for review of the Fifth Circuit ruling that kept intact the existing law on vote by mail in Texas as the original lawsuit that claimed the existing law violated the 26th Amendment is litigated. If I understand this correctly, the original case needs to be re-argued, with guidance from that Fifth Circuit ruling, and then once there is a ruling on the merits, we’ll go through the appeals process again. Or maybe not, if Congress and President Biden can pass a new Voting Rights Act that would allow for this nationally. I don’t see that particular provision in there now, but that doesn’t mean it isn’t or wouldn’t be there. Anyway, it’s kind of a non-starter now, since the effort was to make that happen in 2020, but it’s never too late to make it easier to vote. Just don’t expect anything to happen in the short term, outside of what Congress may do. Reuters has more.

TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

No Walmart liquor stores

Some non-election litigation news of interest.

Texans still won’t be able to purchase liquor at Walmart, after the U.S. Supreme Court rejected a bid by the retail giant that would have allowed the booze to be sold at stores in the state.

Texas is the only state in the nation that does not allow publicly traded companies, like Walmart Inc., to obtain liquor permits — but they are allowed to sell beer and wine.

Walmart claims the law is discriminatory and has argued that 98% of liquor stores in the state are owned by Texans.

Turned away by the nation’s highest court, Walmart will now have to prove intentional discrimination before a federal trial court.

Lawyers for the Texas Alcoholic Beverage Commission said the law is in place to make liquor less readily available and curb its consumption.

“The law precludes large corporations from using their economies of scale to lower liquor prices and increase the density of liquor outlets in the State. This approach has served Texas well — it has consistently ranked among the States with the lowest per capita liquor consumption,” lawyers for the commission stated.

Not sure I buy the cause-and-effect logic there, but whatever. Walmart, which at the time still had a hyphen in its name, originally sued in 2015 in federal court in Travis County. They got a favorable ruling in 2018, which was remanded back to the district court by the Fifth Circuit (opinion here). Walmart had appealed this ruling to SCOTUS, so the denial means they have to go back to the district court and try again under the tougher guidelines set out by the Fifth Circuit. We’ll see if they proceed, or if they decide it might be faster and cheaper to try to elect a bunch of legislators who will pass a bill to do what they want. I’m no fan of Walmart, but I really don’t see the point of this state regulation. Everything we do with alcohol in this state is weird and anachronistic.

Felony bail reform lawsuit moves forward

Pending the next appeal, anyway.

A federal judge ruled Tuesday that the case challenging Harris County’s felony bail system should proceed to trial. Nineteen felony judges represented by state Attorney General Ken Paxton immediately gave notice they planned to appeal to the 5th U.S. Circuit

[…]

The defendants include Sheriff Ed Gonzalez, who does not oppose the litigation, and 23 Harris County felony district judges, who have split into a larger group represented by Paxton, who opposes the lawsuit, and a smaller faction represented by attorney Allan Van Fleet, who represented the judges in the misdemeanor bail case.

In a 65-page opinion, Chief U.S. District Judge Lee H. Rosenthal denied the state and felony judges’ motions to dismiss the case, finding that the evidence involved “vigorously disputed factual allegations that must be developed further to resolve the legal issues the parties present.”

Lawyers for Abbott and 19 Democratic district judges argued in October the judges were protected by immunity, the federal courts do not have jurisdiction and the indigent arrestees do not have standing to sue.

Rosenthal found the court had standing and thousands of indigent arrestees, even though the individuals changed over time, had grounds, as a group, to sue.

See here, here, and here for the background. This was a motion to dismiss on largely procedural grounds, so there’s plenty of room for the Fifth Circuit to step in and throw this out without the merits of the case ever getting litigated. Obviously, I hope that does not happen.

This is the first I’d heard of the judicial plaintiffs being in two different groups; I need to understand what that means going forward. You know where I stand on this, and I plan to make a Big Deal out of which judges are on the right side of this issue, and which are actively obstructing it. So far, that standard hasn’t been met, but if the Fifth Circuit upholds this ruling then I will look very sideways at further appeals.

Hollins calls on Secretary of State to defend drive through voting

Good.

Harris County Clerk Chris Hollins is seeking assurance from Texas Secretary of State Ruth Hughs that her office is “committed to defending the votes” cast at the county’s drive-thru voting sites, the subject of two lawsuits currently before the state Supreme Court.

In a letter sent to Hughs Tuesday, Hollins cited prior support from state election officials, including Elections Director Keith Ingram, for the legality of drive-thru voting. He asked Hughs to confirm by noon Wednesday that the office stands by those statements.

By noon, Hollins had not received a response from Hughs, according to a spokeswoman for the clerk’s office.

A spokesman for Hughs said the office had received Hollins’ letter, but he declined to say whether Hughs or anyone from her office planned to respond. He also did not say whether Hollins had accurately characterized the position of state elections officials on drive-thru voting.

[…]

In his letter to Hughs, Hollins wrote, “Your office has repeatedly expressed that drive-thru voting fit the definitions and requirements for a polling place provided in the Texas Election Code for both Early Voting and Election Day.” During a court proceeding, Hollins wrote, Ingram called drive-thru voting “a creative approach that is probably okay legally.”

Last Friday, Texas Attorney General Ken Paxton issued a guidance letter in which he suggested Harris County’s use of curbside voting does not pass legal muster. He wrote that state law “makes no provision for polling places located outdoors, in parking lots, or in parking structures.” The state election code also does not allow “‘drive-thru’ voting centers at which any voter may cast a ballot from his or her vehicle regardless of physical condition,” Paxton wrote.

“Curbside voting is not, as some have asserted contrary to Texas law, an option for any and all voters who simply wish to vote from the comfort of their cars when they are physically able to enter the polling place,” Paxton wrote.

You can see a video call with Hollins about this here, his official statement here, and further coverage from Chron reporter Jasper Scherer here. The concern at this point is not just that the Supreme Court might put a halt to what Harris County has been doing, but that they might invalidate the 70K+ votes that have been cast by drive-through voting. The contempt for voters that this would display, at this super late hour, is breathtaking. I can’t even begin to wrap my head around that. I don’t know what else to say.

I don’t know when the Supreme Court might rule on this facially ridiculous challenge, but I will note that not only was it filed after early voting had begun, it’s now been a week since it was filed with SCOTX. They’re taking their sweet time about this. I hope that means that they’re not willing to stick a knife in this, but all I have is hope. Again, what this writ represents is plain and simple contempt for voters. There’s no other principle here.

On a side note, we also have this:

That is of course in reference to this turd of a Fifth Circuit ruling, and it’s exactly what we’d expect from the Clerk’s office. Every other election administrator in this state should follow their example.

More on the motion to dismiss the felony bail lawsuit

Should get a ruling soon.

The bulk of Harris County’s felony judges sought Monday to get the federal case against them dismissed, saying they should not be party to the challenge on how bail is determined for thousands of poor people accused of crime.

Lawyers for Gov. Greg Abbott, Attorney General Ken Paxton and 19 Democratic district judges argued at a packed online hearing that the judges are protected by immunity, the federal courts don’t have jurisdiction and the indigent arrestees behind the case no longer have standing to sue.

The 2019 civil rights case challenges the county’s policy of setting bond that results in the jailing of people who can’t afford cash bail. Nearly 80 percent of the current jail population are people awaiting trial, mostly on felonies.

Although the group of judges asked for the entire case to be dismissed, or alternatively, their removal as parties to the case, the bail challenge is likely proceed regardless of the court’s ruling, since the remaining defendants — the county, Sheriff Ed Gonzalez and four felony judges who hired their own lawyers — are not seeking dismissal.

[…]

The state Attorney General’s Office, arguing on behalf of the majority of the felony judges, said the bail process is constitutional because it adheres to ODonnell v. Harris County, the county’s landmark misdemeanor bond case that was resolved through a seven-year consent decree.

But the plaintiffs say the felony bail case, Russell v. Harris County, raises new constitutional issues that the court never had a chance to address in ODonnell.

See here and here for the most recent updates. I will reiterate what I said in that last link: I want this system to be reformed in a manner similar to the misdemeanor case, I want the Democratic judges to be part of the solution and not an obstacle to it, and I will remember who is who and who does what. We’ll see what happens next.

Abbott moves to stop mail ballot dropoff locations

I don’t know about you, but this reeks of fear to me.

Gov. Greg Abbott on Thursday declared that counties can designate only one location to collect completed mail ballots from voters, forcing Harris County to abandon 11 sites set up for that purpose.

Abbott’s proclamation said counties must also allow poll watchers to “observe any activity conducted at the early voting clerk’s office” related to the delivery of marked ballots. He said the measure was designed to improve ballot security.

“The state of Texas has a duty to voters to maintain the integrity of our election,” Abbott said in a statement. “These enhanced security protocols will ensure greater transparency and will help stop attempts at illegal voting.”

Abbott did not cite any examples of voter fraud, which election law experts say is exceedingly rare.

Harris County Clerk Christopher Hollins had set up 12 locations — 11 of them county clerk annex offices — throughout the 1,777-square-mile county to collet mail ballots. The county now will only be able to accept ballots only at its election headquarters at NRG Arena.

This new executive order is here. This is of a piece with the Hotze mandamus to limit mail ballot dropoffs to Election Day itself. It’s telling that Abbott is just now issuing orders about the use of multiple locations for mail ballot dropoffs, because County Clerk Chris Hollins announced his intention to use the 11 County Clerk Annex offices for this purpose in mid-July, which is to say two and a half months ago. And Abbott is just now taking action? I mean, come on.

It’s really hard to escape the conclusion that this is a desperation move by Abbott, in part to try to curb Democratic voting, and in part to quell the wingnut rebellion that’s been brewing against him. And let’s be clear, the Texas GOP as recently as the runup to the 2018 election would have laughed at the Dems’ efforts to get their voters out. “Oh, the Dems think they can boost their turnout and win some elections, aren’t they adorable.” They’re taking it all quite seriously now, that much is for sure.

It’s transparent and it’s ridiculous, and it makes no sense as anything but a pure partisan power move.

Now to be sure, people don’t have to use a dropoff location. They can just use the mail as always, and now there’s a nifty mail ballot tracker to ensure that your ballot gets received and processed. I feel reasonably confident saying that most people were planning to vote by mail as they had done before. But that’s not the point. The point is that this was a simple and innovative way to make voting easier for people, something Chris Hollins has excelled at in his brief time as County Clerk. Greg Abbott’s move is the exact opposite of that, and it serves no good purpose.

And I remind you, it was done at the last minute, after weeks and weeks of people being told they could use these annex locations. What have Texas Republicans had to say about last-minute changes to the voting process?

I hope they have a lawsuit filed before I get to publish this post. (Per the Trib, one may indeed be filed today, perhaps more than one.) And I can’t wait to see how the Fifth Circuit applies its own jurisprudence to this question.

(On a side note, I will note that while I have heaped all kinds of scorn and contempt on the multitudinous Hotze vote-suppression lawsuits, I have also repeatedly agreed that there is a serious debate to have about the extent of Abbott’s executive powers and the proper role of our extremely part-time Legislature in all this. Because Hotze and company are a bunch of rancid clowns, they are a terrible vehicle for posing those questions. Perhaps by opening this war on a second front, Abbott will finally have a worthy opponent putting them before a judge.)

For a bit of variety, and to provide a summary of all this, here’s a press release from All on the Line, a national campaign to restore fairness to our democracy and ensure every American has an equal say in our government.

“This last minute order is another link in a very long chain of voter suppression and intimidation in Texas,” said Genevieve Van Cleve, All On The Line state director. “Governor Greg Abbott is working to make it harder for grandparents to vote and allowing so-called poll watchers to glower at them while they do it.”

In preparation for the November general election, counties with large populations including Harris and Travis have designated and staffed satellite drop off locations to make it easier for those not comfortable sending their completed ballots through the mail.

Texas has 254 counties. Loving County has a population of 160 people. Harris County has a population of 4,713,000 people. Governor Abbott’s order allows each county, regardless of size, the same number of drop off locations for mail-in ballots: one. Further, he has sanctioned citizens to “observe” people delivering their ballots.

Gov. Abbott’s order is meant to suppress turnout and intimidate voters. Those most likely to be impacted are seniors and Texans living with disabilities who rely on mail-in-ballots. The very same people who are most vulnerable to the COVID-19 virus.

Further, the Fifth Circuit Court of Appeals ruled days before Gov. Abbott’s order that reinstating straight ticket voting was impossible due largely to the close proximity to the election. Yet, he’s changing the rules of the election with just days to go.

“These last minute changes to the rules will not deter Texas voters from casting their ballots, despite the Governor’s intentions. Texans are energized, well-informed, and will demand that their voices be heard and respected at the ballot box,” Van Cleve said.

Early Vote begins in Texas on October 13th. The last day to register to vote in Texas is October 5th. Mail-in Ballots that are not postmarked must be received by 7pm on Election Day; Mail-in Ballots postmarked by 7pm on Election Day must be received by 5pm the day after Election Day.

Next stop, the litigation. I’m sure I’ll have a post about it tomorrow. The Statesman, the Current, and Reform Austin have more.

And straight ticket voting is off again

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

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

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

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

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

[…]

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

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

Of course the Fifth Circuit paused the straight ticket voting ruling

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

Best mugshot ever

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

[…]

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

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

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

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

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

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

Paxton appeals stright ticket voting ruling

Letting no moss grow.

Best mugshot ever

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

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

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

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

[…]

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

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

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

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

Straight ticket voting reinstated (for now)

That was unexpected.

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

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

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

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

[…]

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

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

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

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

Lawsuit filed over gun sign law

This is interesting.

A church in Clear Lake and a coffeeshop in the Heights are challenging a Texas law that dictates how no-gun signs are displayed.

Bay Area Unitarian Universalist Church and Antidote Coffee allege the signs private properties need to display are meant to make it harder for them to keep out guns and to mark them as anti-gun establishments.

They are represented by gun safety group Everytown Law and Houston law firm Jones Day.

Alla Lefkowitz, director of affirmative litigation at Everytown Law, said property owners who don’t want handguns on their premises have to put up at least two different signs: one prohibiting concealed carry and one for openly carried guns.

And if they don’t want rifles to be carried, which is legal in Texas without a gun license, they need a sign for that too, the suit states.

Notices to exclude concealed carry must use the following language in both English and Spanish and with letters at least one inch in height: “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun.”

The size requirement makes it hard to impossible to print the signs at home and takes up space that could be used for other messages to patrons, the plaintiffs allege.

“Most states just have a simple requirement for a picture that is a simple pictogram and that says something along the lines of ‘no firearms’ or ‘no weapons,'” Lefkowitz said. “And there’s no evidence that that’s not understood.”

The plaintiffs want the court to declare the sign requirements unconstitutional and that property owners can decide how they want to indicate that they don’t allow guns and that they “need only follow the notice requirements under the General Trespass Law.”

[…]

Michael Cavanaugh, a criminal justice professor at the University of Houston-Downtown, said arguing the case as constitutional rights violations is a tough sell.

“If the court views the hanging of regulatory signs as a first amendment issue, then the coffee shop and church will win,” he said in an email. “However, I think they will see the issue as a simple regulation in which case Texas will win.”

Antidote is in my neighborhood, I may need to drop by and ask them about this. The story quotes one part of the law, for concealed carry, but there’s a separate law (Section 30.07) for open carry, and a separate sign is required to prohibit those as well. There’s no question that the law was designed to make it as hard as possible for entities to post the signs, and it will be interesting to see what the discovery process turns up, assuming this survives a motion to dismiss.

I support the goal here – it should not be this convoluted for a store owner to legally say “no guns in this establishment” – but I have my doubts that a lawsuit can succeed. I agree with Professor Cavanaugh, framing it as a First Amendment issue is probably the best strategy, I just don’t think the federal courts will accept it, not at the Fifth Circuit or at SCOTUS. The downside risk here is that a final ruling might wind up prohibiting a future Democratic Legislature from modifying this law to make it easier for guns to be forbidden by private property owners, decreeing that the gun owners’ rights supersede theirs. Of course, if such a future Democratic Lege passed a law broadening the ability of store owners and churches and what have you to forbid guns on their premises, I’m sure there would be a lawsuit filed against that, and we could wind up in the same place anyway. At some point, we need better courts, too. Until then, this is what we have. Everytown Law’s page about this suit is here, and Legal Newsline has more.

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

This is pretty much the end of the line, at least as far as the courts are concerned.

A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled Thursday that Texas can keep its strict eligibility rules for voting by mail.

Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age.

The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.

“In sum, the plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen’s right to vote on account of age,” the panel wrote. “This claim fails because adding a benefit to another class of voters does not deny or abridge the plaintiffs’ Twenty-Sixth Amendment right to vote.”

The federal panel vacated a lower court’s sweeping ruling that found Texas voters would face irreparable harm if existing age eligibility rules for voting by mail were in place for elections held while the new coronavirus remains in wide circulation. On Thursday, state Democrats indicated they would push forward with their challenge at the lower court, where the appellate court sent the case for further consideration of the party’s remaining arguments against the state’s restrictions.

[…]

“Rejecting the plaintiffs’ arguments, we hold that an election law abridges a person’s right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced,” the judges wrote.

The panel was made up by Judges Carolyn Dineen King, who was appointed to the bench by President Jimmy Carter; Carl Stewart, who was appointed by Bill Clinton; and Leslie H. Southwick, who was appointed by George W. Bush.

Dissenting in part to the majority opinion, Stewart wrote that the state’s eligibility rules fail to “treat members of the electorate equally with regard to mail-in voting.”

“This unequal treatment is discriminatory in normal times and dangerous in the time of a global pandemic,” Stewart wrote. “Though all individuals can seemingly vote in person, those without the opportunity to vote by mail have less opportunity to participate than others.”

See here for the background, and here for a copy of the opinion. Michael Hurta has a good brief analysis of it. As to what happens next, Rick Hasen thinks the original trial judge will find for the plaintiffs again, which will trigger another appeal. As such, this isn’t really the end of the line as I’ve suggested above, but it seems very unlikely to me that there will be a ruling that favors the plaintiffs any time before the November election. Whatever ultimately happens with this will not happen until at least 2021. I don’t care for this ruling, and this was about as friendly a three-judge panel as we were gonna get. It’s hard for me to see how the outcome changes.

Which means, as I have been saying over and over again, the ultimate fix rests within the legislative process. Just add this to the ever-increasing list of things that a Democratic Legislature, in conjunction with a Democratic Governor, will need to fix. The Republicans have made their position crystal clear. There’s no bipartisan solution. The only way out is through, and that means electing a better government. The Chron has more.

Fifth Circuit hears arguments on vote by mail case

One more try before it’s too late to make a difference for this year.

The Texas Democratic Party’s lawyer argued today before a federal appeals court that the state is unlawfully discriminating against the majority of the voting-age population by requiring only those under the age of 65 to have an excuse to receive a mail-in ballot.

It’s one of several last-minute battles playing out in the months leading up to the 2020 election, which is expected to yield historic turnout despite the coronavirus pandemic.

[…]

The Democrats’ federal case is expected to make its way to the U.S. Supreme Court, but the clock is ticking. The deadline to request a mail-in ballot in Texas is October 23, leaving just about seven weeks for the appellate court and high court to rule on it.

At Monday’s hearing, Chad Dunn, representing the Texas Democratic Party, told the court that the Texas mail-in voting law violates the 26th Amendment, which says the right to vote can’t be “denied or abridged” on account of age.

Dunn said previous elections have shown that voters will likely be waiting in long lines in November.

“We’re asking voters — certain ones of them get excused from that endurance test and others, based purely on their age, are to suffer through it,” Dunn said. “The fact of the matter is that when individuals’ characteristics are used by the government to divvy up who gets to vote, those are prohibited” by the Constitution.

The state, represented by Texas Solicitor General Kyle Hawkins, argued that Supreme Court precedent exists to show that the Texas law does not violate the 26th Amendment.

“It does not deny or abridge the right to vote to make voting more available to some groups as opposed to others,” Hawkins said. “To abridge the right to vote does not mean giving other groups more options; it means taking away something from a certain group.”

See here for the previous update. As noted, the other vote by mail-related lawsuit recently survived a motion to dismiss. We should get a ruling of some kind in this lawsuit before the deadline to mail out overseas ballots, which is September 18. I have no idea if there’s time for any action on the other one.

This Statesman story from earlier in the day on Monday has some more background info on the case.

Monday’s arguments will focus on the U.S. Constitution’s 26th Amendment, which was ratified in 1971 to lower the voting age to 18, saying the right to vote cannot be denied or restricted “by any State on account of age” for those 18 and older.

Just as other constitutional amendments ensure that voters cannot be treated differently based on race or gender, the 26th Amendment uses identical language to extend voting protections based on age, said Chad Dunn, who will argue Monday on behalf of Democrats before the 5th U.S. Circuit Court of Appeals.

“I am confident that we will ultimately ensure that everybody, regardless of age, has the right to vote by mail,” Dunn told the American-Statesman.

[…]

The age question has drawn the interest of at least one influential observer: Supreme Court Justice Sonia Sotomayor.

When Texas Democrats raised the issue at the high court this summer, the nine justices declined to accept the case. Sotomayor was the only one to discuss the reason.

The Democrats’ challenge, she wrote in late June, “raised weighty but seemingly novel questions regarding the 26th Amendment.”

However, justices balked at addressing those questions for the first time at the high court, and Sotomayor urged the 5th Circuit Court to make a speedy decision in the matter.

Many others hope for a quick resolution as well. In Texas, voting for the November election begins in less than seven weeks.

[…]

The case before the 5th Circuit Court will determine the fate of a May order by U.S. District Judge Fred Biery, an appointee of President Bill Clinton who required mail-in ballots to be sent to any registered Texas voter who requested one while “pandemic circumstances” continue.

“One’s right to vote should not be elusively based on the whims of nature. Citizens should have the option to choose voting by letter carrier versus voting with disease carriers,” Biery wrote.

Paxton appealed, and the 5th Circuit Court responded by blocking enforcement of Biery’s order until the appeal can be decided.

That ruling by a three-judge panel at the 5th Circuit was notable for its harsh criticism of Biery for wading into election decisions that belong to “politically accountable officials,” not judges.

“The spread of the virus has not given unelected federal judges a roving commission to rewrite state election codes,” wrote Judge Jerry Smith, who was appointed by President Ronald Reagan.

A different three-judge panel, however, will hear Monday’s oral arguments and decide whether the 26th Amendment bars Texas from denying mail-in voting to those under age 65. Two of the judges on the new panel were appointed by Democratic presidents — Carolyn Dineen King and Carl Stewart — while the panel’s third member, Leslie Southwick, was appointed by President George W. Bush.

A ruling won’t come Monday, but with the election looming, the appeals court has placed the matter on an expedited schedule.

The Texas Democratic Party’s challenge has drawn considerable interest, with additional legal briefs filed by liberal and conservative public interest groups, health professionals, advocates for the disabled, other states and local political parties.

Travis County Clerk Dana DeBeauvoir also submitted a brief with election officials from Harris, Cameron and Fort Bend counties that begged the 5th Circuit Court to accept the 26th Amendment arguments and expand mail-in voting.

“Unless access to vote by mail is increased significantly, providing a safe election will be impossible because of the expected high volume of in-person voters this presidential year,” their brief said.

On the one hand, almost 30 doctors and nurses, including epidemiologists and front-line health workers, told the court that it is essential to reduce the number of people gathering on Election Day to protect voters, poll workers and the community from COVID-19, while the Texas NAACP argued that the state’s Republican leaders adopted a needlessly restrictive interpretation of mail-in voting law to impose a severe and unacceptable burden on the right to vote.

On the other hand, a brief from conservative legal interest groups argued that Biery improperly interfered with the state’s authority to regulate the time, place and manner of elections in favor of widespread mail-in voting, which should be allowed in only limited circumstances because it is more vulnerable to fraud than traditional voting.

Originally, there were two lawsuits, one filed by the TDP that argued COVID vulnerability was sufficient to be considered a “disability” and allow anyone who claimed that to get a mail ballot, and one filed by other groups that argued the existing limit of vote by mail to those 65 and over (plus those who claim a disability, which as we know was not clearly defined and is being argued about in other venues) violates the 26th Amendment, which is the one that lowered the voting age to 18. Both were combined into this lawsuit, and as you can see the 26th Amendment claim is the main thrust from the plaintiffs. We’ll see what we get.

Plaintiffs prevail again in Motor Voter Lawsuit 2.0

Same result as before, this time without the technicality that got the first try thrown out on appeal.

Still the only voter ID anyone should need

A persistent Texas voter, twice thwarted when he tried registering to vote while renewing his driver’s license online, has for the second time convinced a federal judge that the state is violating federal law.

In a 68-page ruling Friday, U.S. District Judge Orlando Garcia of San Antonio found that Texas continues to violate the federal National Voter Registration Act by not allowing residents to register to vote when they update their driver’s license information online.

Garcia found that DPS is “legally obligated” to allow voters to simultaneously register to vote with every license renewal or change-of-address application, and ordered the state to set up a “fully operable” online system by Sept. 23. The Texas attorney general’s office did not immediately respond to a request for comment, but the state is likely to appeal the ruling.

It’s the second time Garcia has sided with the voter, former English professor Jarrod Stringer. Garcia’s first ruling was overturned on appeal on a technicality.

The National Voter Registration Act requires states to let residents complete their voter registration applications when they apply for or renew their driver’s licenses. But Texas officials have staunchly opposed any form of online registration.

The Texas Department of Public Safety follows federal law when residents visit a driver’s license office in person. But Texans who try to register while using the state’s online portal are instead directed to a blank registration form they must fill out, print and send to their county registrar.

“DPS encourages Texans to use its online services to renew their driver’s license and change their address because it is easier and more convenient,” Garcia wrote. “It cannot, at the same time, deny simultaneous voter registration applications when those online services are used.”

Garcia has said this before. In 2018, he ordered the state to implement what would be its first system for online voter registration. A federal appeals court overturned that order in late 2019 because Stringer and his two co-plaintiffs had ultimately reregistered to vote, and the court decided the case was moot because they were no longer being harmed.

[…]

On Friday, Garcia found that Texas had “offered no factual or legal argument that would justify denying the simultaneous voter registration to which Mr. Stringer is legally entitled.”

“As Defendants have admitted, there are no technological barriers to compliance and corrective measures would not be costly,” Garcia wrote. “Uncontested expert testimony shows that a compliant DPS system would very likely lead to great efficiency, less human error, a massive saving in costs, and increased voter registration.

See here, here, and here for the background. This is another Democracy Docket case, and you can see their case files here. This will of course be appealed, and it will be interesting to see if the Fifth Circuit finds another reason to overturn or not. This ruling has basically no effect on 2020, as no one other than the plaintiffs in this lawsuit are going to get registered because of it, but longer term it could be quite large, as this would represent an entry point for online voter registration in Texas. You know and I know that it is unbelievably ridiculous that in the year 2020, when literally everything is done online, that the state of Texas requires a piece of paper to register to vote, but here we are. Obviously, a full solution needs to come from the Legislature, but if one has not arrived by the time this case is fully resolved (assuming this ruling is upheld), the state is going to have to explain why this special case of online voter registration is acceptable while all others are not. Good luck with that. Anyway, it’s a small step forward, and a welcome one. The Chron has more.

Harris County to join TDP lawsuit over vote by mail

They do lots of stuff at Commissioners Court.

Harris County Commissioners Court voted on Tuesday to join a lawsuit by Texas Democrats suing Gov. Greg Abbott to expand vote-by-mail in Texas.

The Democratic-led commissioners court voted 3-2 to join the lawsuit. The litigation seeks to allow all Texas voters to cast a mail-in ballot during the pandemic, arguing that absentee ballot restrictions in Texas violate the Voting Rights Act of 1965 and the U.S. Constitution. Texas Democrats filed the suit against Abbott and the Texas Secretary of State in April.

[…]

Democrats attempted to leapfrog over the appeals court by asking the U.S. Supreme Court to intervene before the July primary runoff elections, but the justices declined to do so until a decision by the lower appeals court was reached. The Fifth Circuit Court of Appeals is expected to revisit the case sometime this month.

See here for the most recent update that I have, and here for a tweet from Chron reporter Jasper Scherer, which is the only other place I’ve seen this noted. It’s unclear to me what difference it makes from a practical perspective for Harris County to join in, but from a political and symbolic perspective it means a lot. Let’s do hope we hear something from the Fifth Circuit soon.

Felony judges move to dismiss bail lawsuit

Of interest.

A group of district judges in Houston on Thursday argued for dismissal of a lawsuit alleging their felony bail practices are unconstitutional because they discriminate against poor people, keeping them jailed when they can’t pay bail.

Among the defendants are the 23 criminal district judges of Harris County, who argue that the plaintiffs lack standing, and the judges have immunity to the claims. They say the plaintiffs were all released on bail and they don’t have an injury that qualifies them to sue.

[…]

“The felony bail system in Harris County raises the same legal issues as the misdemeanor system, has the same devastating consequences for impoverished arrestees, is similarly coercive of guilty pleas, and is even more costly to the system,” said the second amended complaint in Russell v. Harris County.

The lawsuit argued that Harris County for felony bail must stop using a secured bail schedule to make release decisions and better ensure that detained defendants receive constitutional protections that will protect against “erroneous deprivation of the right to bodily liberty.”

The plaintiffs are all detained in Harris County because they couldn’t afford to pay bail. Their lawsuit seeks an injunction against the county’s felony bail practices. They say the county can’t base release decisions on money alone. It must make factual findings that a person is able to afford the bail, or if they can’t pay, that pretrial detention is necessary because there’s a specific, compelling government interest and there’s no less-restrictive alternative.

The 23 judge-defendants’ motion to dismiss said the plaintiffs in the case were released on bail and they don’t have an injury that would grant them standing to sue the judges. The judges also argue they have immunity, and that an exception to immunity for constitutional violations does not apply, because the plaintiffs haven’t alleged a colorable constitutional claim.

“Plaintiffs’ claims all rest on an alleged fundamental right to pre-trial release, but the Fifth Circuit has already made clear that there is no such right. Consequently, there is no colorable constitutional claim in this suit,” the judges’ motion to dismiss said.

See here for the last update, which is when the judges were added to lawsuit. The story notes both the settlement in the misdemeanor bail lawsuit, which took a dramatic turn following the 2018 election when the Democratic slate won en masse and followed through on a promise to settle this, as well as the fact that two of the felony court judges, Chuck Silverman and Brian Warren, have filed motions in support of the plaintiffs. We’re still very much in the early stages of this litigation.

Because the felony (criminal district) courts are state offices, the felony judges are represented by the AG’s office; the misdemeanor court judges were represented by the County Attorney. It’s unclear to me how much influence Harris County government will have in this lawsuit. County Sheriff Ed Gonzalez, who favored the misdemeanor settlement, is a named plaintiff in both cases, so whatever influence there is will come via that. As far as I know, he has not yet spoken about this lawsuit.

I want this lawsuit to be settled as well, for the same reasons about equal justice for rich and poor, as well as serious concerns about jailing many non-violent offenders who have not been convicted of anything. It may be that the standing argument has merit – I’m not a lawyer, I don’t know – but that’s not really important to me. What I want is for the system to get a big dose of the reform it badly needs, and along the way I want these judges that I voted for to be part of the solution, not part of the problem like their now-former colleagues on the misdemeanor bench were. I’m willing to see how this plays out, but I need to see that we’re all moving towards a fairer and more equitable system. I’ll definitely be keeping this in mind the next time there are primaries.

Update on that other vote by mail lawsuit

From Daily Kos:

A federal judge has rejected Republican Secretary of State Ruth Hughs’ motion to dismiss a case brought by several Texas voters and civil rights organizations seeking to expand access to absentee voting for the November general election.

Plaintiffs are asking the court to order the state to prepay the cost of postage; require officials to count ballots postmarked by Election Day and received within a few days afterward (currently, they must be received by the day after the election); prevent the state from using arbitrary standards to reject absentee ballots for allegedly non-matching signatures without giving voters a chance to fix any problems; and allow third parties to collect and turn in completed absentee ballots.

Based on a schedule the judge previously set out, a ruling on plaintiffs’ requests is not likely until after Labor Day.

See here for the background. This lawsuit, unlike the TDP lawsuit that is awaiting action from the Fifth Circuit or the age discrimination lawsuit, which is also on hold pending action with the first lawsuit (info per the DKos Elections Litigation Tracker), is not about who is allowed to vote by mail. It is about the barriers that exist for those who are eligible to vote by mail. Here’s a summary of the plaintiffs’ claims, from the court ruling (the first link in my excerpt above):

First, Plaintiffs challenge Section 86.002 of the Texas Election Code’s failure to provide prepaid postage for mail-in voters. Id.; Tex. Elec. Code § 86.002 (“Postage Tax”). Second, Plaintiffs challenge the requirement mail-in ballots be postmarked by 7:00 p.m. on election day and then received by the county no later than 5:00 p.m. on the day after the election in order to be counted. See Tex. Elec. Code § 86.007 (“Ballot Receipt Deadline”). Third, Plaintiffs challenge the requirement that voters must submit two signature samples that “match,” according to local election officials, in order to have their early voting ballots counted. Id. § 87.027 (“Signature Match Requirement”). Fourth, Plaintiffs challenge the criminalization of a person assisting a voter in returning a marked mail ballot. Id. § 86.006 (“Voter Assistance Ban”).

The effect of this lawsuit, if the plaintiffs prevail, would be to make it easier for the people who can vote by mail to do so, and would likely reduce the number of ballots rejected for not having a legally accepted signature. That would be fairly small in the aggregate, but it would be quite meaningful for some number of people. The defense had also filed a motion opposing an expedited schedule, which the judge (Orlando Garcia, whom you may recall from previous redistricting cases) also rejected. The last filing in that schedule is for September 4, so perhaps we’ll get a ruling not too long after that. I have also read somewhere – it may have been on Daily Kos, I just don’t remember – that the Fifth Circuit is going to expedite the appeals hearing for the TDP vote by mail case, so who knows, maybe we will get some clarity before November. Doesn’t mean it will be good clarity, but it ought to be something.

2020 Primary Runoff Early Voting, Second Wednesday: This is all the vote by mail we’re going to get

I’m going to start this update off with a bummer of a legal analysis from Vox’s Ian Millhiser:

The Texas case, meanwhile, is Texas Democratic Party v. Abbott, and the stakes in that case are simply enormous.

Texas law permits voters over the age of 65 to request absentee ballots without difficulty. But most voters under the age of 65 are not allowed to vote absentee. During a pandemic election, that means that older voters — a demographic that has historically favored Republicans over Democrats — will have a fairly easy time participating in the November election. But younger voters will likely have to risk infection at an in-person polling site if they wish to cast a ballot.

This arrangement is difficult to square with the 26th Amendment, which provides that “the right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.”

The Court’s order in Texas Democratic Party is subtle, but it most likely means that Texas will be able to deny or abridge the right to vote on account of age, at least during the November election.

Last month, the conservative United States Court of Appeals for the Fifth Circuit blocked a trial judge’s order that would have allowed younger Texans to vote absentee. Although this Fifth Circuit order is not the appeals court’s last word on this case, it is quite unlikely that the plaintiffs in Texas Democratic Party will prevail before the Fifth Circuit, which is among the most conservative courts in the country.

So those plaintiffs asked the Supreme Court to hear their case on an expedited basis. On Friday, the Supreme Court denied that request. As a practical matter, writes SCOTUSBlog’s Amy Howe, this refusal to expedite the Texas Democratic Party case “all but eliminated the prospect that the justices will weigh in on the merits of that dispute before the 2020 election in November.”

Thus, even if the Supreme Court ultimately does decide that Texas’s age discrimination violates the 26th Amendment, that decision will almost certainly come too late to benefit anyone in November.

The Supreme Court’s orders in Merrill and Texas Democratic Party fit a pattern. Last April, in Republican National Committee v. Democratic National Committee, the Supreme Court granted a request from the Republican Party, and ordered all ballots mailed after a certain date in Wisconsin’s April elections to be tossed out — a decision that, in practice, likely forced thousands of voters to risk infection in order to cast an in-person ballot.

The Court’s decision in Republican National Committee was also 5-4, with all five Republican justices in the majority and all four Democrats in dissent.

In recent weeks, the Court has handed down a handful of left-leaning decisions — including a narrow decision temporarily preserving the Deferred Action for Childhood Arrivals (DACA) program and an even narrower decision striking down a Louisiana anti-abortion law.

But on the most important question in a democracy — whether citizens are empowered to choose their own leaders — this Supreme Court remains unsympathetic to parties seeking to protect the right to vote, despite the greatest public health crisis in more than a century.

Slate’s Mark Joseph Stern drew similar conclusions. None of this means that these cases won’t get heard on their merits – this one, the other one that directly challenged the 65-and-over provision on 26th amendment grounds, and the lawsuit alleging other obstacles to voting – will get their day in court, and the age discrimination claims will have a decent shot at prevailing. Just, not before this election. It’ll happen eventually, in the fullness of time, because obviously there was no pressing need to address this matter now. Who ever heard of such a thing?

Anyway. Here are the updated early vote totals:


Election     Mail    Early   Total   Mail %
===========================================
D primary  19,400   66,318  85,718    22.6%
R primary  20,393   55,489  75,882    26.9%

D runoff   38,066   40,301  78,367    48.6%
R runoff   23,589   11,795  35,384    66.7%

The Wednesday runoff EV file is here, and the final EV turnout report from March is here. Today happened to be a quiet day for mail ballots on the Dem side, but a new high for in person votes. It’s possible Dems will get to 100K by the end of the EV period. My guess is that a large majority of the vote will be cast early, but we’ll see.

No fast track on vote by mail lawsuit

I confess, I hadn’t been aware that this was in the hopper.

The U.S. Supreme Court won’t fast-track a bid by Texas Democrats to decide whether all Texas voters can vote by mail during the coronavirus pandemic, leaving in place the state’s current regulations for the upcoming July 14 primary runoff election.

But the case, which now returns to a lower court, could be back before the Supreme Court before the higher-stakes, larger-turnout general election in November. Current law allows voters to mail in their ballots only if they are 65 or older, confined in jail, will be out of the county during the election period or cite a disability or illness. But Texas Democrats have argued that voters who are susceptible to contracting the new coronavirus should be able to vote by mail as the pandemic continues to ravage the state.

Thursday’s one-line, unsigned order denying the Democrats’ effort to get a quick ruling comes a week after another minor loss for them at the high court. On June 26, the Supreme Court declined to reinstate a federal judge’s order that would immediately expand vote-by-mail to all Texas voters during the coronavirus pandemic.

A spokesperson for the Texas Democratic Party, which brought the case, said the party will “continue to fight tooth and nail for everybody’s right to vote.”

See here for the background, and Rick Hasen for a bit more explanation of what happened. As Michael Li notes, the case now goes back to the Fifth Circuit. I do think this will wind up before SCOTUS prior to November, and the question of the 26th Amendment will be decided, and that’s the more important matter. Given that we’re already voting in the primary runoff and the deadline for requesting a mail ballot has now passed, I don’t think there was much effect of this denial of certiori. If we don’t have an answer for November, that will be a problem.

No relief from SCOTUS on vote by mail

This is not really a surprise.

The U.S. Supreme Court has rejected an initial bid by state Democrats to expand voting by mail to all Texas voters during the coronavirus pandemic.

Justice Samuel Alito — whose oversight of federal courts includes cases coming through Texas — on Friday issued the court’s denial of the Texas Democratic Party’s request to let a federal district judge’s order to expand mail-in voting take effect while the case is on appeal. U.S. District Judge Fred Biery ruled in May that Texas must allow all voters fearful of becoming infected at polling places to vote by mail even if they wouldn’t ordinarily qualify for mail-in ballots under state election law. The 5th Circuit Court of Appeals stayed Biery’s order while Texas appeals his ruling.

The decision means the state’s strict rules to qualify for ballots that can be filled out at home will remain in place for the July 14 primary runoff election, for which early voting starts Monday. Under current law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.

Still left pending is the Democrats separate request for the justices to take up their case before the November general election. The party’s case focuses primarily on the claim that the state’s age restrictions for voting by mail violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

See here for the background. As noted in the story, Justice Sotomayor added a comment saying that she hoped the appeals court would take up the merits of the case in time for November. We’ll see if they’re listening. In the meantime, do what you were going to do for this runoff. Rick Hasen has more.

TDP appeals to SCOTUS on vote by mail

Here we go.

After a series of losses in state and federal courts, Texas Democrats are looking to the U.S. Supreme Court to expand voting by mail during the coronavirus pandemic.

The Texas Democratic Party on Tuesday asked the high court to immediately lift the U.S. 5th Circuit Court of Appeals’ block on a sweeping ruling that would allow all Texas voters who are seeking to avoid becoming infecting at in-person polling places to instead vote by mail. Early voting for the July 14 primary runoff election begins on June 29.

The fight to expand who can qualify for a ballot they can fill at home and mail in has been on a trajectory toward the Supreme Court since Texas Democrats, civil rights groups and individual voters first challenged the state’s rules months ago when the new coronavirus reached Texas. Under existing law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.

“Our constitution prevents our government from discriminating against voters due to age. Especially during this pandemic, why should we be penalized for being under age 65?” said Brenda Li Garcia, a registered nurse in San Antonio and plaintiff in the case, during a virtual press conference announcing the appeal to the Supreme Court. “To protect a certain group and to give only certain ages the right to vote by mail is arbitrary, discriminatory and unconstitutional.”

[…]

The effect of the Democrat’s request on the upcoming election is uncertain. In their appeal, the Democrats are asking Justice Samuel Alito — who oversees cases coming through the 5th Circuit — to undo the hold on Biery’s order while the runoffs move forward. Democrats are also asking the justices to take up the case on the claim that the state’s age restrictions for voting by mail violate the 26th Amendment’s protections against voting restrictions that discriminate based on age. If Alito does not immediately allow the lower court’s ruling to go into effect, the Democrats are asking the court for a full review of the case on an expedited timeline.

“Otherwise, millions of Texas voters will face the agonizing choice of either risking their health (and the health of others) to vote in person or relinquishing their right to cast a ballot in two critical elections,” the Democrats said in their filing.

The court is expected to soon go into recess until October.

In order for someone to vote by mail in the July 14 primary runoffs, counties must receive their application for a mail-in ballot by July 2. A favorable decision for Democrats by the Supreme Court by early October could still allow for a massive expansion in voting by mail during the November general election.

See here for the background. You know how I feel, about the merits of this case. The arguments for the state’s restrictions on voting by mail make no sense, not that that matters. I don’t know what effect, if any, this motion will have on the other lawsuits. I’m not going to make any predictions, or get my hopes up. Rick Hasen thinks this is a “risky” move that has the potential to make bad law. We’ll see what happens. The Chron has more.

Fifth Circuit extends block on vote by mail expansion

Not unexpected, unfortunately.

A three-judge panel of the U.S. 5th Circuit Court of Appeals extended its order Thursday blocking a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

With early voting for the primary runoff elections starting later this month — and the Texas Supreme Court also blocking expanded voting by mail in a separate case —Thursday’s ruling effectively eliminates the possibility that Texas voters will be able to legally request mail-in ballots solely because they fear a lack of immunity to the new coronavirus will put them at risk if they vote in person.

The issue is likely headed to the U.S. Supreme Court.

U.S. District Judge Fred Biery issued a preliminary injunction in late May expanding mail-in voting, but the appellate panel almost immediately put it on administrative hold while awaiting legal briefings from both sides. Thursday’s ruling keeps Biery’s ruling on ice while Texas appeals it.

[…]

Siding with Paxton, the 5th Circuit panel in part found that requiring Texas officials to institute voting by mail for all against their will would present “significant, irreparable harm” to the state. The panel pointed to the U.S. Supreme Court’s standing that lower federal courts should “ordinarily not alter the election rules on the eve of an election.”

See here and here for the background. As noted in the State Supreme Court ruling, there’s still nothing to prevent someone from requesting and receiving a mail ballot if they claim a disability. It’s just the risk they take if someone like Ken Paxton or a GOP activist charges that their claim is illegal because it’s based on coronavirus concerns. It’s hard to assess that risk, but so far at least nearly all of the people who have requested a mail ballot so far in Harris County are people 65 years old and older.

Rick Hasen breaks down the ruling.

Judge Smith’s opinion simply excoriates the sloppy and poorly written district court decision; it was the most unhelpful way for the district court to have written a decision to be reviewed by a much more conservative 5th circuit.

Judge Smith’s opinion helpfully rejects the argument, which was advanced by a federal district court in Georgia, that these cases raise nonjusticiable political questions. But on the merits, the opinion rejects a challenge to Texas’s absentee voting rules, which allow voters over 65 to vote by mail without an excuse but everyone else must present an excuse (and lack of immunity to Covid-19 does not count under Texas law) to do so. The court held the equal protection challenge was rejected by the Supreme Court in the McDonald case, which rejected a challenge to failing to give pre-trial detainees in Illinois the right to cast an absentee ballot. (I explain why I do not believe McDonald controls in the Covid situation in footnote 171 of this draft.) The court then takes McDonald and applies it directly to reject a 26th amendment age discrimination argument, despite the fact that the 26th amendment was not an issue in that case. The court drops a footnote recognizing that there is a large dispute over the full scope of the amendment.

Judge Ho joined the majority opinion, but spent some pages trying to explain the supposed great risk of voter fraud with mail-in ballots.

Judge Costa concurred only in the result, noting that the district court did not wait for the state courts to first interpret the meaning of Texas’s absentee ballot law. Judge Costa would have said the district court should have abstained, and he would have remanded the case back for reconsideration now that the Texas courts have interpreted the statute in light of Covid. He would not have reached the merits.

There are still the other two federal lawsuits in the works, one of which directly challenges the age restriction on 26th Amendment grounds. I don’t know where they are on the calendar and I’m not sure how to evaluate that bit in Judge Smith’s opinion that Hasen cites, but it’s probably irrelevant for these purposes anyway. We’re too close to the July election for the courts to allow a major change in procedure at this point. There may still be time for that for November, but every day that passes makes that schedule a little bit tighter. For now, proceed as you see fit. Mark Joseph Stern has more.

State ordered to pay plaintiffs’ fees in voter ID case

Pending appeal, of course.

Still the only voter ID anyone should need

Texas ultimately won the long-winding fight to keep its voter ID law on the books, but a federal judge has ruled the state is on the hook for nearly $6.8 million in legal fees and costs.

In a Wednesday order, federal District Judge Nelva Gonzales Ramos of Corpus Christi found the state must pay that sum to the collection of parties who sued over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls. A spokesperson for the Texas attorney general indicated the state will appeal the ruling.

The voter ID case ricocheted through the federal courts for nearly seven years and over several elections, with Ramos first ruling in 2014 that lawmakers discriminated against Hispanic and black voters when they crafted one of the nation’s strictest voter ID laws.

Lawmakers eventually revised the voter ID law in 2017 to match temporary rules Ramos had put in place for the 2016 election in an effort to ease the state’s requirements as the litigation moved forward. After the state faced multiple losses in the courts, the U.S. 5th Circuit Court of Appeals ultimately upheld Texas’ revised law.

But left intact were findings that the original law produced discriminatory results.

It is what it is, and the appeals process will take many more months. No one should be making detailed plans for the money, because even if it survives appeal it’s going to be awhile before any checks get cut. This is a consolation prize, and not that much of one, but it’s what we’ve got. Until we can take back the Lege and more and repeal this stupid law.

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

The Texas Supreme Court on Wednesday ruled that a lack of immunity to the new coronavirus does not qualify a voter to apply for a mail-in ballot.

In the latest twist in the legal fight over voting by mail during the coronavirus pandemic, the court agreed with Texas Attorney General Ken Paxton that the risk of contracting the virus alone does not meet the state’s qualifications for voting by mail.

“We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a ‘disability’ as defined by the Election Code,” the court wrote.

Texas voters can qualify for mail-in ballots only if they are 65 years or older, have a disability or illness, will be out of the county during the election period, or are confined in jail. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”

Though the court sided with Paxton’s interpretation of what constitutes a disability, it indicated it was up to voters to assess their own health and determine if they met the state’s definition.

“The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of ‘disability’,” the court said in its order.

The high court also rejected Paxton’s request to prevent local election officials from sending mail-in ballots to voters who were citing lack of immunity to the coronavirus as a disability. Those officials denied they were operating outside the law and argued they cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus.

When voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot. The state ultimately conceded that officials can’t reject those voters.

See here for the background, and here for a copy of the opinion. Let me quote the opening two paragraphs, because the main points of this ruling are right there.

Under the Texas Election Code, qualified voters are eligible to vote by mail only in five specific circumstances.1 One is if the voter has a “disability” as defined by statute.2 In this original proceeding, amidst the COVID-19 pandemic, and with elections upcoming in July and November, the parties ask us to determine whether a voter’s lack of immunity from the disease and concern about contracting it at a polling place is a “disability” within the meaning of the statute.3 Petitioner, the State of Texas, argues that the answer is no and seeks mandamus relief prohibiting respondents, five county clerks and election administrators (the Clerks),4 from misinforming the public to the contrary and improperly approving applications for mail-in ballots. The Clerks deny that they have misinterpreted or misapplied the law, either because the State’s position is incorrect or because they have taken no position to the contrary.

Limitations on voting by mail have long been a subject of intense political debate, in this State and throughout the country. We, of course, take no side in that debate, which we leave to legislators and others. The question before us is not whether voting by mail is better policy or worse, but what the Legislature has enacted. It is purely a question of law. Our authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent. We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

Emphasis mine, and I’ll get to that in a minute. There’s a discourse on the history of absentee voting in Texas, which was first allowed in 1917, and a summary of the arguments made by all the county clerks. There are three concurring opinions to the main opinion, which was written by Chief Justice Nathan Hecht. I refer you to this Twitter thread by Michael Li highlighting the key points of the majority opinion and noting the differences in the various concurrences.

So what is the practical effect of this decision? First, it basically ends the state lawsuit. While this was a writ of mandamus, and there was never a hearing on the merits of the original case, just a motion to allow voters to request mail ballots in the interim, by defining what is and isn’t a “disability”, the main legal questions have been answered. I expect the hearing in Travis County currently scheduled for after the July election will be cancelled. And of course, there are still the federal lawsuits, which are on a completely different track. This litigation was about the interpretation of state law, the federal lawsuits are about broader voting rights and age discrimination. Whatever happens there will be the ultimate answer for all this.

In the meantime, the Supreme Court’s answer more or less leaves the situation where it was before, with an important caveat. It’s still the case that a voter can request a mail ballot on the grounds of disability, and it’s still the case that their county election administrator has no means or obligation to question that. Look at that bolded sentence from the opinion. The decision to apply for a mail ballot is the voter’s. If you ask for a mail ballot and claim a disability, you will get the mail ballot. As far as that goes and as far as I as a non-lawyer can tell, nothing has changed.

Now for that caveat. The Supreme Court has made it clear what the law is, and what is – or, more to the point, is not – a disability. Your county clerk will send you a mail ballot if you ask for one, but Ken Paxton could have you arrested, or some wingnut activist like Alan Vara could file a complaint against you, if you request one because of COVID concerns. I think the risk of the former is small unless you make yourself a target, but the latter is non-trivial since who gets a mail ballot is a matter of public record. That doesn’t mean that your local DA will agree to press charges, or that they would be able to get a conviction, but who wants to deal with that? We know how vindictive the legal system can be to people charged with violations of the electoral code, especially to voters of color. I’m planning to vote in person regardless, but if I had been thinking about applying for a mail ballot, this would definitely make me reconsider. You have to decide for yourself what your risk of exposure is.

Rick Hasen, writing in Slate, summarizes the position potential absentee voters are in:

Again, this is a recipe for disaster. It will lead Paxton to publicize the argument that lack of immunity and fear of getting the disease is not a valid excuse to vote by mail, and that anyone who advises someone else to claim disability to vote by mail is engaged in a criminal conspiracy to commit voter fraud. Some voters may get in trouble because they could be accused of voting by mail while understanding that it is illegal. Only the ignorant can vote by mail without fear of prosecution, assuming they can later prove their ignorance. Meanwhile, if a voter has a serious underlying condition or comorbidity that increases the risk of serious complications—or death—from COVID-19, the ruling fails to give guidance on whether she is allowed to cite the condition in lawfully voting by-mail in order to avoid the risk of contracting the novel coronavirus. This would seem to leave open the possibility for Paxton to frighten possibly qualifying voters into not voting, or to go after those who do.

That said, and as Hasen notes, there is still the federal litigation, and I expect we’ll get some action on those cases soon. By this time next week the whole thing could be flipped on its head. And of course if you are 65 or over, there is nothing stopping you from applying for a mail ballot if you want one. My advice at this point is don’t panic, don’t freak out, and for sure don’t lose hope. This isn’t over, not by a long shot. The DMN has more.

UPDATE: The following is quoted with permission from a lawyer friend of mine, who sent me a copy of the opinion and answered my questions as I was prepping this:

It doesn’t automatically end the state litigation, but for all practical purposes it does. No litigant can argue now that a lack of immunity by itself is a disability after this decision. (Technically, there are different lawsuits on file and each of them may involve some motions and litigation on just what this means.) It’s clear than Nathan Hecht considered this an important legal question that needed to be answered, and this is his way of answering the question definitively. The Court did a pretty good job of splitting the baby with an analysis that reaches the conclusion sought by Paxton, ends the litigation, and provides deniability that their analysis is partisan.

I think the most pressing question is whether voters who consider themselves disabled will be the final judge of their own condition, or whether the State has the authority to prosecute individual voters. I’ve now skimmed the opinions and notice that Jeff Boyd’s concurring opinion says: “Voters who claim to have a disability under section 82.002(a) merely because they lack immunity to COVID-19 or have a fear or concern about contracting the virus would do so in violation of the statute.”

Now we wait for what I hope will be clarity and a better outcome from the federal cases.

UPDATE: Here’s the Chron story.

Fifth Circuit flips the switch

It’s what they do.

A federal appeals court has temporarily put on hold a lower court’s sweeping ruling that would have allowed all Texas voters to qualify to vote by mail during the coronavirus pandemic.

Siding with Texas Attorney General Ken Paxton, a three-judge panel of the U.S. 5th Circuit Court of Appeals on Wednesday blocked a preliminary injunction issued just a day before by U.S. District Judge Fred Biery. The move could prove to be a temporary win for the state. The appellate panel granted what’s known as an administrative stay, which only stops Biery’s ruling from taking effect while the court considers if it will issue an injunction nullifying it during the entire appeals process.

Also on Wednesday afternoon, Paxton’s office tried to convince the Texas Supreme Court to issue an order blocking local election officials in Texas from facilitating efforts by voters obtain absentee ballots if they fear getting sick from voting in person. The court did not issue a ruling, but it grappled with the question of who gets to decide if a voter has a disability under Texas election law.

[…]

In issuing the preliminary injunction, Biery cited the irreparable harm voters would face if existing age eligibility rules for voting by mail remained in place for elections held while the new coronavirus remains in wide circulation. In his request to the 5th Circuit, Paxton argued that Biery’s injunction threatened “irreparable injury” to the state “by injecting substantial confusion into the Texas voting process mere days before ballots are distributed and weeks before runoff elections.”

The appeals court ordered the Democrats to file a response to the state’s request to block the ruling by Thursday afternoon.

See here for the background. I mean, this was to be expected, so let’s move on to the other thing that happened yesterday, also from this story.

In a virtual hearing Wednesday, the justices’ interrogations of Paxton’s lawyer and those representing the counties returned frequently to a gaping hole in Paxton’s request — when voters cite disability to request an absentee ballot, they’re not required to say what the disability is. The voters simply check a box on the application form, and if their application is properly filled out, locals officials are supposed to send them a ballot.

Texas Solicitor General Kyle Hawkins conceded to the court that officials cannot deny ballots to voters who cite a disability — even if their reasoning is tied to susceptibility to the coronavirus. Hawkins said the state was only arguing for applications to be rejected if a voter wrote in extraneous information on their application that indicated they feared infection but were “otherwise healthy.”

Local election officials can reject an application if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disabilities. They argued as much in briefs filed to the court ahead of the hearing.

“These officials move the Court to mandamus local election officials to do something the Legislature has never required of them: police voter disability claims for mail in balloting,” El Paso County argued in its brief.

Conducting an inquiry into individual voters’ reasons for checking the disability box could violate both state and federal law, Cameron County officials argued in their brief. In its brief, Dallas County argued Paxton’s request would force election administrators to look “behind the claimed disability in each case” or require a voter to include information the nature of their disability in their applications — both of which would go beyond the Texas Election Code.

Still, the solicitor general asked the court to order election officials to abide by the state’s direction that fear of the virus or lack of immunity to the virus cannot constitute a disability under the election code, and they cannot encourage voters to request a mail-in ballot on that basis.

Barbara Nichols, an attorney representing Dallas County, argued it was unnecessary for the Supreme Court to order anything of the county’s election administrator because she had not indicated she would go beyond existing laws for voting by mail.

“As we sit here right now, your honor, the election administrator has not take any action whatsoever in which to justify the exercise of jurisdiction over her,” Nichols said. “And the state cannot point to any such evidence in the record.”

See here for the previous update. Harris County was also a respondent in this hearing – I have a copy of their brief here. I mean, the law here is pretty clear, so much so that even the Solicitor General had to admit it. The question is, what will the Supreme Court do about it? I will note that this is a writ of mandamus, not an appellate action, so they could just swat it away and let the lower courts do their thing before they weigh in. Remember, the state lawsuit hasn’t even been heard yet, we’ve just had a ruling on the motion to allow people to apply for mail ballots while the litigation is in progress. Just take a pass, that’s all I’m saying. We’ll see what they say. The Chron and the Signal have more.

Federal court issues order to allow voting by mail

Here we go again.

A federal judge opened a path for a massive expansion in absentee voting in Texas by ordering Tuesday that all state voters, regardless of age, qualify for mail-in ballots during the coronavirus pandemic.

Days after a two-hour preliminary injunction hearing in San Antonio, U.S. District Judge Fred Biery agreed with individual Texas voters and the Texas Democratic Party that voters would face irreparable harm if existing age eligibility rules for voting by mail remain in place for elections held while the coronavirus remains in wide circulation. Under his order, which the Texas attorney general said he would immediately appeal, voters under the age of 65 who would ordinarily not qualify for mail-in ballots would now be eligible.

Biery’s ruling covers Texas voters “who seek to vote by mail to avoid transmission of the virus.”

In a lengthy order, which he opened by quoting the preamble to the Declaration of Independence, Biery said he had concerns for the health and safety of voters and stated the right to vote “should not be elusively based on the whims of nature.”

“Two hundred forty-years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions,” Biery wrote.

“There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings, trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill,” he said.

[…]

The Democrats argued that the age limitation violates the U.S. Constitution because it would impose additional burdens on voters who are younger than 65 during the pandemic, and Biery agreed. Biery also found the plaintiffs were likely to succeed in proving the rules violate the 26th Amendment’s protections against voting restrictions that discriminate based on age.

In a statement, Texas Attorney General Ken Paxton said he would seek immediate review of the ruling by the U.S. 5th Circuit Court of Appeals.

“The district court’s opinion ignores the evidence and disregards well-established law,” Paxton said.

In ruling against the state, Biery cast aside arguments made by Paxton’s office that he should wait until a case in state district court is fully adjudicated. In that case, state District Judge Tim Sulak ruled that susceptibility to the coronavirus counts as a disability under the state election code. The Texas Supreme Court put that ruling on hold last week.

During a hearing last week in federal court, Biery scrutinized the state’s argument that it had a significant interest in enforcing existing absentee voting requirements to preserve “the integrity of its election” and to prevent voter fraud.

The attorney general’s office had submitted testimony from the long-winding litigation over the state’s voter ID law that touched on instances of fraud involving the mail ballots of voters who are 65 or older or voters in nursing homes.

“So what’s the rational basis between 65 and 1 day and one day less than 65?” Biery asked.

In his ruling, Biery said the state had cited “little or no evidence” of widespread fraud in states where voting by mail is more widely used.

“The Court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience,” Biery said. “Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person.”

See here, here, and here for the background. A copy of the order is here, and I recommend you read it, because the judge is clearly not having it with the state’s arguments. Let me just say, the hypocrisy of the state’s case, in particular their pathetic wails of “voter fraud!”, is truly rich. I for one am old enough to remember when Texas passed its heavily restrictive and burdensome voter ID law, in which voting by mail – which at the time was primarily the purview of Republicans – was specifically exempted, a fact noted by the various plaintiffs in the lengthy litigation against that odious law. The Republican argument at the time was that voter ID was needed to combat “voter fraud”, yet those same Republicans saw no need to include any similar requirement for those who voted by mail, presumably because they had no concerns about “fraud” from those voters. And now they want to claim voting by mail is a threat to election integrity? I’m sorry, but that’s all kinds of bullshit and it deserves to be labeled as such.

Now, none of this means that Paxton’s handmaidens at the Fifth Circuit will care about that. As nice as this ruling is, I figure we have a day, maybe two, before that cesspool rubber stamps an emergency petition from the AG to put this ruling on hold. I will of course be delighted to be proven wrong, but I know better than to invest any faith in the Fifth Circuit. So enjoy this for now, but don’t go counting any chickens just yet. The Chron has more.

UPDATE: Rick Hasen provides more objective reasons why the Fifth Circuit will likely put a hold on this order.

Abortion clinics say “ban’s over, we’re back”

I’m sure this will be left alone.

Right there with them

Texas clinics resumed offering abortions Wednesday after a strict bar on nonessential medical procedures was loosened at midnight.

The ban on nearly all abortions in Texas has been the subject of weeks of litigation — starting in late March when the governor postponed all surgeries not “immediately medically necessary” to preserve medical resources for coronavirus patients. Attorney General Ken Paxton said the ban extends to abortions, and the politically conservative 5th U.S. Circuit Court of Appeals has largely sided with state officials.

The legal fight is ongoing. Abortion providers have accused state officials of political opportunism, saying abortions rarely result in hospitalization and require little or no protective equipment.

A new order from Republican Gov. Greg Abbott that took effect Wednesday allows more procedures to resume in health care facilities that agree to reserve a certain number of beds for coronavirus patients and to refrain from seeking scarce protective equipment from public sources.

Abbott demurred when asked last week if abortions could proceed under his latest directive, saying it was a decision for the courts and “not part of this order.”

But abortion providers said Wednesday that they meet the criteria he laid out.

See here and here for the background. I assume this will wind up in court again, and the main question will be what ridiculous justifications the Fifth Circuit will come up with to agree with the state’s position. Until then, this is where we are today.

UPDATE: It appears that the state has agreed that the expiration of the order means that there is no further restriction on abortions. So that’s a relief.