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Greg Abbott

Fifth Circuit upholds Abbott’s mail ballot dropoff limits

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

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

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

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

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

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

[…]

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

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

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

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

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

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

We need a better word than “controversial”

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

Al Hartman is not shy about his beliefs.

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

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

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

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

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

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

I’m going to be concise here.

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

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

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

2020 early voting starts today

From the inbox:

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

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

VOTING METHODS

KEY DATES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

Abbott to allow bars to reopen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On executive power and the role of the Legislature

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

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

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

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

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

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

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

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

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

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: Here’s the Chron story:

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

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

[…]

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

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

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

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

The Lawyers’ Committee for Civil Rights is heard from:

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

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

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

Win one, lose one at SCOTX

The win:

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This one’s in state court.

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

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

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

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

[…]

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

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

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

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

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

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

Chip Roy calls on Paxton to resign

Interesting.

Best mugshot ever

U.S. Rep. Chip Roy, a former top aide to Texas Attorney General Ken Paxton, called on his former boss to resign from his post after top members of Paxton’s staff said the attorney general should be investigated for multiple crimes, including bribery.

“For the good of the people of Texas and the extraordinary public servants who serve at the Office of the Attorney General, Attorney General Ken Paxton must resign,” he said in a statement. “The allegations of bribery, abuse of office, and other charges levied against him by at least 7 senior leaders of the Office of the Attorney General are more than troubling on the merits.”

“But, any grace for him to resolve differences and demonstrate if the allegations are false was eliminated by his choice instead to attack the very people entrusted, by him, to lead the office – some of whom I know well and whose character are beyond reproach.”

Roy called the office of the attorney general “too critical to the state and her people to leave in chaos.”

“The Attorney General deserves his days in court, but the people of Texas deserve a fully functioning AG’s office,” he added.

Roy served as Paxton’s initial first assistant attorney general during Paxton’s first term, but resigned upon Paxton’s request in a major shake-up of senior staff in 2015. He was elected to Congress as a Republican in 2018.

See here and here for the background. I have some speculation about this, but before I get to that let me answer a question here that was raised in the comments to the previous post. If Paxton does resign, Greg Abbott will appoint a new AG. That person will serve until the next election, which in this case is the 2022 election, when Paxton’s term would be up. Had this all happened earlier – if, say, Paxton had stepped down in January, for example – then Abbott’s appointed AG would have been on the ballot this November as well, in the same way that there’s an election for Harris County Clerk to replace Diane Trautman. Because of the timing here, if Paxton does resign then whoever is appointed in his place will serve out the rest of his term.

Now then. Chip Roy, a former top lieutenant to Paxton, is the first prominent Republican to call for him to resign; as noted before, Abbott and Dan Patrick both issued very milquetoast “wait and see” statements in that Chron story. What might be the reason for this? Three possibilities I can think of:

1. It’s a principled move by someone who has seen enough evidence of wrongdoing and believes in the office enough to want to protect it. Yes, I know, my eyes are rolling as well, but we wouldn’t be in this position if it hadn’t been for the principled action of multiple people who are – or were, anyway – closely aligned with Paxton. I think very little of Chip Roy, but he didn’t have to put out a statement at all, or if he did he could have followed in Abbott and Partick’s extremely timid footsteps. I’m about to give two much more cynical reasons for this, but even if one or both of these other reasons are true, the fact remains that Chip Roy didn’t have to do this, and will almost certainly suffer some blowback for it. Give credit where credit is due.

2. Locked in a tight race for his Congressional seat, in a year where Donald Trump is doing his best to wreck Republican political careers around the country, the last thing Chip Roy needs is for people to think of him as a onetime head honcho for the consistently corrupt Ken Paxton. Getting out ahead of that mushroom cloud of scandal and putting as much distance between himself and Paxton is just Survival 101.

3. Did I mention that part about Greg Abbott appointing a replacement AG if Paxton does step down? And that part about Chip Roy maybe losing his re-election? Now who would be a better and more obvious choice to step in for Ken Paxton than a former Top Man in the office who was the first Republican to call on him to resign, thus giving him the cred he’ll need to clean up after Paxton’s mess and restore some faith in the Attorney General? Don’t tell me Chip Roy isn’t keeping his options open.

By the way, Ken Paxton says he ain’t resigning, but that’s what you’d expect him to say, and it’s what he says now, when we have very little information about these allegations. Let’s see what happens when we all learn more.

Anyway. Speaking of appointments, Paxton has named a replacement for his departed First Assistant AG, Jeff Mateer. Good luck with that, dude. I may need to seriously rewrite this entry if more Paxton news breaks this afternoon, but in the meantime you can read this Texas Signal story that recaps what we know so far. Catch up if you need to, I have a feeling there’s a lot more to come. The Chron, Texas Monthly, and Reform Austin have more.

UPDATE: The Chron editorial board joins the “Paxton should resign” bandwagon.

When Republicans fight

Such a sight to see.

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

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

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

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

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

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

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

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

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

More details emerge about the latest Paxton allegations

The Chron advances the ball.

Best mugshot ever

The top state officials who staged a mutiny against Attorney General Ken Paxton warned that he was using his office to benefit campaign donor Nate Paul, an embattled Austin real estate investor.

Paul, a once high-flying businessman whose offices were reportedly raided by the FBI last year, gave Paxton $25,000 ahead of the attorney general’s hard-fought re-election battle in 2018.

The No. 2 official in the attorney general’s office, First Assistant Attorney General Jeff Mateer, put Paul at the center of allegedly illegal activities by Paxton in a text message sent Thursday. Mateer, who resigned Friday, joined six other high-ranking employees in accusing Paxton, the state’s top law enforcement officer, of abuse of office, bribery and improper influence.

“Each of the individuals on this text chain made a good faith report of violations by you to an appropriate law enforcement authority concerning your relationship and activities with Nate Paul,” Mateer wrote in the text message, which was obtained by Hearst Newspapers.

The group requested an immediate meeting with Paxton, but the attorney general said he was “out of the office” and asked them to email him with their concerns. The Austin American-Statesman, which first reported on the allegations against Paxton, published a letter the officials sent to the attorney general’s human resources office on Oct. 1.

Neither Paul nor his attorney returned calls or messages left on their voicemail.

Paxton said in a statement Sunday: “The Texas attorney general’s office was referred a case from Travis County regarding allegations of crimes relating to the FBI, other government agencies and individuals. My obligation as attorney general is to conduct an investigation upon such referral. Because employees from my office impeded the investigation and because I knew Nate Paul, I ultimately decided to hire an outside independent prosecutor to make his own independent determination. Despite the effort by rogue employees and their false allegations, the AG’s office will continue to seek justice in Texas.”

The uprising against Paxton crystallized when a special prosecutor he appointed, Houston lawyer Brandon Cammack, issued grand jury subpoenas last week targeting “adversaries” of Paul, a senior AG official told Hearst Newspapers.

The official who spoke with Hearst Newspapers said those subpoenas spurred the seven top deputies in the attorney general’s office into action. One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state district court in Austin to halt the subpoenas. The motion to “quash” them was granted on Friday, records show.

In filing the subpoenas, Cammack “represented that he was acting on behalf of the office of the Attorney General as a Special Prosecutor,” Penley’s motion said. “He is not properly authorized to act as a Special Prosecutor, and … has no authority to appear before the grand jury or issue grand jury subpoenas.”

See here for the background. The information about the special prosecutor appointed by Paxton who’s been issuing subpoenas that “target adversaries” of this Nate Paul character is what really made my hair stand on end. If there is any truth to that, then this is a massive violation of the AG’s office and I can see why his top lieutenants rebelled the way they did. Greg Abbott and Dan Patrick are quoted in the story issuing “this sounds bad but let’s wait an see” statements – which, in all honesty, is reasonable enough for now – but the pressure is going to be on them, too.

There’s more in the story about Nate Paul, who sounds like a typical “more money than brains or ethics” sort, and I’ll leave that to you to read. This is the other bit that had me going “hmmmm”:

Kent Schaffer, a special prosecutor in [the long-running financial fraud case against Paxton], said Saturday that the latest accusations, if they leads to charges, could imperil Paxton’s odds of securing any kind of deal to resolve the criminal case.

“We were trying to get this case resolved, but if this guy’s out committing crimes while he’s on bond, then it’s going to become an extremely serious matter,” Schaffer said. “I’m not saying that he has — I don’t know the specifics, (but if he has) then it’s game on.

“Maybe the people that reported him are not shooting straight, but I want to hear from both sides, if possible. We’re going to do what we can to investigate.”

Schaffer said he contacted the Texas Rangers on Saturday immediately upon hearing the news. He declined to comment on whether the agency mentioned any existing investigation on the matter.

Paxton has also been accused by his staff of accepting bribes in the past.

Those 2016 bribery allegations did not lead to charges, though they did give us all a momentary thrill. The idea that the special prosecutors in the current case against Paxton might be able to get some leverage against him from this scandal-in-the-making is also giving me a thrill. I should know better by know, but I can’t help myself.

The revelations over the weekend appeared to have shaken the agency, where Ryan Bangert, deputy first assistant attorney general and one of the seven officials who reported Paxton to the authorities, sent out a letter of reassurance to staff.

“I write to assure you that the executive team remains committed to serving you, this office and the people of Texas,” Bangert wrote. “Your work, your sacrifice, and your dedication to this office inspire us all.”

Jordan Berry, Paxton’s political adviser, said he resigned after news of the allegations broke.

Watch what the people around Paxton do. We could be in for a mass exodus. I will try to stay on top of things. The Statesman has more on Nate Paul, and there’s national coverage from Bloomberg and CNN.

How not to be “ground zero” for voter suppression

It starts with winning elections. Which would be easier to do if Republicans weren’t hell-bent on making it hard to vote, but then that’s why they do what they do.

Fewer and fewer states are standing with Texas as it continues to resist calls to expand mail-in voting amid the coronavirus outbreak, with South Carolina on Wednesday becoming the latest to allow anyone to cast a ballot by mail this fall.

Texas is now one of just five states won’t accept concerns about the coronavirus as an excuse to vote by mail and state leaders have blocked attempts by local officials in Harris County to make voting by mail more accessible.

That Texas is out on the edge on an issue of voting access should come as no surprise, experts in voting laws say.

The Republicans who run state government have made Texas a national leader in voting restrictions, ground zero in a series of long-running fights over voting rights, and hotly debated allegations of potential voter fraud. It’s a battle President Donald Trump has escalated in the past week, tweeting repeatedly about mail-in voting, which he alleges will lead to “MAYHEM!!!” despite no evidence of such in the states that already have widespread voting by mail.

Democrats have poured millions into at least 18 different legal battles against Texas over mail-in voting and a host of other election issues — more than anywhere in the nation — as the state’s elections have grown more competitive. They charge that the Republicans who run state government have placed hurdles at every step of the electoral process to keep their power despite demographic changes that have diminished their public support.

Texas’ sluggish voter turnout rates are frequently cited as evidence that GOP suppression efforts are working. The state’s decision not to make it easier to vote by mail, critics say, is just the latest example.

You can read the rest for a recitation of the greatest hits in making it harder to vote, but it’s all familiar. (This was also written before the Abbott order about mail ballot dropoff locations, which shows that there will always be new frontiers in this field.) The key to this whole thing is right there in the fourth paragraph, “The Republicans who run state government”. The only way this is going to change is for the Republicans to not be running state government. We can take an important step in that direction in this election, especially if we can get an all-Democratic federal government that will pass an expansion of the Voting Rights Act and other protections. We can finish the job in 2022 and pass laws to repeal voter ID, allow for no-excuses vote by mail, enable online voter registration, and more. The courts aren’t going to save us. The Republicans have no interest in any of this – indeed, as I’ve argued before, if they maintain their trifecta after this election, they are now strongly incentivized to rein in efforts to send out vote by mail applications to those who hadn’t requested them. We win these elections and we move forward, or we don’t and we move back. The fact that it’s harder for us to win these elections is just too bad. That’s how it is. It’s all up to us.

Second lawsuit filed against Abbott’s mail ballot dropoff order

From Chuck Lindell on Twitter, on Saturday afternoon:

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

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

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

As expected.

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

The Chron adds some details.

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

[…]

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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.

You can track your mail ballot in Harris County

Nice.

Harris County residents now are able to track the status of their mail ballots through a new system launched by County Clerk Christopher Hollins Wednesday.

For the first time, a voter can see when their ballot is mailed to them and when it is processed by the clerk’s office after being returned.

“Providing voters with more information … gives voters peace of mind about the mail voting process,” Hollins said in a statement. “I encourage Harris County voters who have applied to vote by mail to track their ballots using our website.”

To do so, residents must visit www.harrisvotes.com/tracking and enter their name, birth date and last four digits of their Social Security or Texas ID number. The Secretary of State’s Office did not immediately respond to a question about how many other counties have such a tracker, though it offers the service on its website.

See here for the Clerk’s press release. Over 200K people have been sent mail ballot applications so far – a few people have even received, filled out, and returned their mail ballots already. We’re still waiting on the Supreme Court to see how many more mail ballot applications get sent out, and of course now we have to deal with Greg Abbott’s mail ballot dropoff bullshit, but those of you who have requested them, this is how you can be sure that yours gets to the finish line.

Luther and Springer advance to SD30 runoff

By the way, that special election in SD30 to succeed Pat Fallon was on Tuesday, and the two presumed leading contenders were basically tied at the top.

Sen. Pat Fallon

Republicans Shelley Luther and Drew Springer are advancing to a runoff in the special election to replace state Sen. Pat Fallon, R-Prosper, according to unofficial election returns.

Each was getting about 32% of the vote late Tuesday in the six-way special election, with all polling locations reporting. Luther is the Dallas salon owner who was jailed earlier this year after refusing to close her business due to coronavirus restrictions, and Springer is the state representative from Muenster. The runoff has yet to be scheduled.

The sole Democratic candidate, Jacob Minter, was trailing in third with 21% of the vote. None of the other three candidates broke double digits.

Tensions were already running high between Luther and Springer, and the runoff is poised to be even more contentious. Addressing supporters shortly after 10 p.m. in Aubrey, Luther sought to prepare them for a brutal second round.

“I refuse to act like a politician,” she said. “I refuse to sling personal mud and lies … so when we go to this runoff, no matter how dirty they get, no matter how disgusting they are, we will rise above that because we don’t need to be that way.”

Springer briefly thanked his supporters on social media a short time later. “On to the runoff!” he wrote.

See here for the background. The runoff will be scheduled by Greg Abbott after the vote has been officially cannvassed; my best guess is it will be in early December. The choice, such as it is, is between standard issue conservative Republican Drew Springer and Empower Texans-backed Abbott-bashing loose cannon Shelley Luther. May God have mercy on the souls of everyone who will be subjected to another sixty days or so of advertising in this race.

Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

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

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

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

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

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

To the Honorable Supreme Court of Texas:

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

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

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

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

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

PPP/TDP: Trump 48, Biden 48

More polls.

A new poll of likely voters found that President Trump and Democratic presidential nominee Joe Biden are tied in Texas. The poll, commissioned by the Texas Democratic Party through Public Policy Polling, is the latest reflecting a dead heat race in the state.

Trump and Biden both received 48% support with 4% of respondents undecided.

Trump has led six of the last seven statewide polls in Texas, according to a tracker of 2020 presidential polls compiled by the Texas Politics Project at the University of Texas. Before that, Biden had led five of seven polls.

[…]

The poll also found an underwater approval rating for Trump in Texas, 47-to-48. Trump and Biden will participate in the first 2020 presidential debate on Tuesday.

Polling data is here. They did not include a question about the Senate race, unfortunately. Biden wins 2016 Clinton voters 93-3 and the “Other/Did not vote” contingent 66-25, while Trump carries his voters from 2016 by an 89-8 margin. (The sample reported voting for Trump in 2016 by 50-41.) Biden wins Democrats 88-7, Trump wins Republicans 87-11, and Biden wins independents 54-41. Biden wins Black voters 88-7, Latinos 63-32, and “Other” voters 68-19, while Trump takes white voters 66-32. Voters 18 to 45 go for Biden 56-41, voters 46 to 65 go for Trump 49-47, and voters older than 65 back Trump by a 58-37 margin. None of those data points stand out as being out of whack with other polling.

I should note that the aforementioned poll tracker shows an August 22 PPP poll done for the TDP that had Biden up 48-47. I either missed that one or didn’t get around to it. I have a June 5 PPP/TDP poll that also had a 48-48 tie, which the tracker does not include. For whatever the reason, some polls get Chron/DMN/Trib coverage, while others do not. There is a lot of news out there, I get it.

Along those lines there was a Data for Progress poll from last week that was interesting in a couple of ways.

For this November’s election, Biden trails Trump by 1 point in Texas. Senator John Cornyn maintains a 2-point lead over his Democratic challenger, MJ Hegar. In the Senate race, it is notable, however, that a significant block of voters (22 percent) say they’re not yet sure for whom they will vote. In the GCB, Democrats trail by five-points.

In 2022, Texas will hold elections for governor and attorney general. These positions are held by Republicans Greg Abbott and Ken Paxton, respectively. Currently, Abbot enjoys a 12-point lead over a generic Democratic challenger. In the 2018 race for attorney general, Democrat Justin Nelson ran against Republican incumbent Ken Paxton, and when we retested this race, we found that Paxton leads Nelson by 4 points. Like with our other 2022 polling, about one in five voters remains unsure for whom they will be voting.

The numbers, which they are only showing in graphical form, are 46-45 for Trump, 40-38 for Cornyn, and 46-41 for the Generic Congressional Ballot (GCB). There was a Data for Progress poll done in early September for the HDCC that had Biden up 48-45, so this isn’t a terrific result when put next to that, but it’s in line with most other polls. DfP also polled Florida (three point lead for Biden) and Arizona (one point lead for Trump, which is better for Trump than other polls).

The 2022 polling is interesting but not worth taking too seriously. Greg Abbott may be leading a generic Democrat 46-34, but he’s very likely not going to have a generic Dem running against him, at least not if all the candles I’ve been lighting for Julian Castro have any effect. Ken Paxton’s 41-37 lead over Justin Nelson makes some sense, but as of today Paxton’s opposition comes in the form of Joe Jaworski, though as that post notes Jaworski is sure to have company in the primary, and it would shock no one if that company includes Justin Nelson. Take this all for pure entertainment value and check with me again in a year or so.

Hotze’s latest Supreme Court gambit

He has nothing else to do, clearly.

A litigious conservative activist in Houston, the Harris County Republican party, and a number of Republican officials and candidates are asking the Texas Supreme Court to limit in-person and absentee voting options for Harris County voters during the pandemic.

The county, the state’s most populous and a major Democratic stronghold, began letting voters drop off absentee ballots Monday for the Nov. 3 general election at 11 annexes. In line with a directive from Republican Gov. Greg Abbott, the county also intends to begin in-person early voting Oct. 13.

Prominent activist Steve Hotze, as well as Wendell Champion, a Republican candidate for Congress; Sharon Hemphill, a Republican candidate for judge; and the local GOP chair, are suing to stop that, arguing Harris County Clerk Chris Hollins is overreaching the bounds of state election law. They’re asking the state’s highest civil court to order Harris County to not begin early voting until Oct. 19 — the date set by state law that Abbott extended by executive order, citing safety concerns — and not accept absentee ballots delivered in person until Nov. 3.

[…]

The conservative plaintiffs also argue that state law does not allow Hollins to permit voters to drop off their ballots at the 11 sites, a strategy they claim “creates an opportunity ripe for fraud.”

According to the Harris County clerk’s website, voters who complete absentee ballots may drop them off at any of 11 locations during specified hours, including 7 a.m. to 7 p.m. during the early voting period and on Election Day. Voters can deliver only their own ballots in person, and when they do they must present identification.

As the story notes, this is in addition to the mandamus request to halt the extra week of early voting statewide. I have a hard time imagining even this Supreme Court thinking that the law supports halting the extra week in only one county. The use of County Clerk annexes and locations like NRG Arena as mail ballot dropoff locations has been discussed for weeks and weeks, so you have to wonder why this is just being filed now. (It may be because it wasn’t an issue that could be litigated before now – the legal system can be funny that way.) Hotze of course was also the first to try to stop the sending out of mail ballot applications, for which there should be a SCOTX hearing on Wednesday. The other stuff, I have no idea. There’s nothing to indicate any action from SCOTX on the mandamus to halt the extra week of early voting, but I suppose that could happen out of the blue at any time between now and October 12, so who knows. Hotze is basically Pennywise without the makeup, but that doesn’t mean that SCOTX won’t join him down in the sewer.

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

Here we go again.

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

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

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

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

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

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

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

[…]

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

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

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

The Chron adds some detail.

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

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

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

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

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

Never stop never stopping, Stevie.

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

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

Bar owners still mad at Abbott

Can’t blame them, but the situation is complicated.

As Gov. Greg Abbott outlined his latest reopening plan this week, bar owner Greg Barrineau watched in disbelief. Abbott, who announced that Texas restaurants could expand dine-in service to 75% capacity, said bars must remain closed.

“Some bars and their associations have offered some very helpful ideas,” Abbott said of reopening, “and we will continue to work with them on that process.”

But Barrineau, who has laid off his 12 staff members and suffered hundreds of thousands of dollars in losses at Drink Texas, a bar with locations in San Antonio and Boerne, said that assertion of collaboration is “insanity — he doesn’t care about small businesses.”

Michael Klein, the head of Texas Bar and Nightclub Alliance, which represents thousands of bars, said that Abbott’s statement about working together was “incorrect,” carefully choosing his words. The TBNA laid out a six-point plan to reopen in August, but Klein said the governor, whom he referred to strictly as “anti-business Abbott,” has not responded to the plan.

“We’ve never heard back from them,” Klein said. “We believe that he is disingenuous.”

Abbott’s office did not respond to requests for comment.

While restaurant owners applauded Abbott’s move to allow them to increase operations, Klein said Thursday’s ruling was “completely unacceptable” for many bars and other facilities where alcohol sales make up more than half of the revenue. It could leave 30% of Texas bars and 39% of distilleries permanently closed within six months, industry leaders said.

[…]

Spread from conventional bars and nightclubs has been widely documented throughout the U.S., and infectious disease experts caution going inside establishments that don’t follow social distancing protocols.

Kristin Mondy, chief of the infectious disease division in the University of Texas at Austin’s medical school, said there is increased risk in spreading the virus if strangers mingle in a tight, closed space, especially as drinking could cause bar customers to loosen their inhibitions.

Klein said the industry’s plan would reduce those issues by complying with Centers for Disease Control and Prevention requirements.

Some of the requirements in TBNA’s plan include ensuring all patrons are seated at their own tables, barring dance floors and mingling among groups, requiring face masks for all servers and customers when not at their tables, and conducting temperature checks upon entry. Mondy said these procedures could help as long as mask-wearing and social distancing are enforced.

[…]

Cord Switzer, who has helped run Fredericksburg Winery for almost 25 years with his family, said he has been able to technically and legally become a food server — but no one that comes is actually eating the food. That’s not why they go to a winery, he said.

“It makes no sense to me,” Switzer said. “We have never been interested in being in the food service business. We have no intent of doing that in the future, but it was our only choice.”

Switzer started wine tastings on Saturday for the first time in two months and hopes to begin recouping his losses after making 30% of last year’s revenue. But he doesn’t understand the governor’s categorization, and industry advocates share Switzer’s confusion.

“Texas winery owners continue to be perplexed by Governor Abbott’s steadfast refusal to recognize that the lion’s share of Texas alcohol manufacturer’s tasting rooms have little, if anything, in common with bars and nightclubs,” said Patrick Whitehead, the president of the Texas Wine and Grape Growers Association, in an email. “Governor Abbott’s arbitrary, and frankly unfair, act of lumping our tasting rooms into the category of bars is like a surgeon operating with a chainsaw rather [than] a scalpel.”

Switzer’s money troubles are not unique; nearly half of distilleries surveyed by the Texas Whiskey Association have experienced revenue losses greater than 60%. Spence Whelan, the head of the association, which represents distilleries across Texas, said continued restrictions could be disastrous for the industry, which normally relies on a big fourth quarter in holiday sales to stay afloat. This fall, with little or no visitors, that could be wiped out. Under Texas law, whiskey distilleries cannot ship or deliver whiskey directly to customers, nor can they sell more than two bottles of whiskey per person.

At the very least, Whelan said, those rules should be relaxed. Many places don’t want to open yet anyway, and there are other ways to bring in money. He said the industry has sent more than 15,000 letters to the governor’s office asking to waive those restrictions and has received no response.

Let’s acknowledge that bars are a high-risk environment for COVID-19, and the reopening of bars in May was a significant contributor to the subsequent outbreaks that swept the state in June and July. We should also acknowledge that there’s evidence that the reopening of restaurants, even at lower capacities, is also a risk factor in spreading COVID-19. The bar owners’ complaint – and wineries’, and distilleries’, and craft breweries’ – is that Abbott has been particularly rigid about how these risks are categorized, and has been unresponsive to any input that would allow these entities to operate in a lower-risk fashion.

I have a lot of sympathy for these complaints. Some bars have been able to reopen by creative interpretation of the 51% rule, by incorporating to-go service, and by a recent rule change that lets them have food trucks on their premises. But this doesn’t work for every bar, it imposes extra costs on them, and it doesn’t change the fundamental nature of their business. The only good thing that may come out of it is the expanded allowance for to-go service, and maybe if we’re very lucky a broader rethinking of our antiquated regulatory scheme for alcohol. I don’t know how effective the risk-mitigation strategies that have been proposed by the various industry groups would be, but we could study them and try the ones that comply with known best practices. We could surely let the places that have ample outdoor space like wineries and craft breweries with beer gardens take advantage of those spaces (to some extent we already are permitting this), and we could make allowances for those that have large and well-ventilated indoor spaces where social distancing would work. And, you know, Abbott and Dan Patrick could put a little pressure on the two Republican Senators to support a relief bill in Congress that included funds for bars and other places that rely heavily on alcohol sales (such as music halls) that just can’t be allowed to reopen right now. Abbott has done none of this, and as noted in the story has been repeatedly unwilling to engage in any discussion about it.

So this is both a legitimate set of concerns by members of a significant sector of the Texas economy, and a real opportunity for Democrats going forward. Dems don’t need to pander or reverse course on their properly-held principles about minimizing COVID risk. They just need to be willing to consider the various risk-mitigation strategies that have been proposed, and to continue to push for a response from Congress that truly addresses the broad economic pain that much of the country is still experiencing. Good policy is so often good politics, and the opportunity to do both here is enormous.

Two more polls of Texas

Trump is up two in this one.

Florida and Texas remain tight battlegrounds in the presidential election, according to CBS News Battleground Tracker polls released Sunday.

The current margin in both states is 2 percentage points, with Democratic nominee Joe Biden up by 2 in Florida and President Donald Trump up by 2 in Texas. Trump won both states in 2016; no Democratic presidential candidate has won Texas since Jimmy Carter in 1976.

In both cases, the leads were within the margins of error for the polls (3.7 points in Florida, 3.5 points in Texas). The polls were conducted by YouGov from Sept. 15-18 of 1,220 registered voters in Florida and 1,161 in Texas.

The Texas poll showed an unexpectedly close Senate race, with Republican Sen. John Cornyn ahead of Democratic challenger Mary “MJ“ Hegar by a mere 5 points, 46 to 41. That seat has not been high on the lists of ones most likely to flip.

The CBS News story for this poll is here. It’s about 95% focused on Florida, so, you know. CBS News and YouGov had polled Texas in July, and found Trump up by one, 46-45. Full poll data for Texas is here; for what it’s worth, this poll has Biden up among Latino voters 61-30.

And then there’s this:

The press release for that is here. The poll is a month old (taken August 20-25), and it includes results from the other Gulf Coast states. The Texas summary is here, and the numbers of interest are as follows:

Presidential race: Biden 48, Trump 44
Senate race: Cornyn 44, Hegar 42
Trump approval: 45 approve, 49 disapprove
Cornyn approval: 35 approve, 33 disapprove
Ted Cruz approval: 45 approve, 43 disapprove
Greg Abbott approval: 54 approve, 38 disapprove

Not much beyond the very high-level summaries, but there you have it. There are similar summaries for other states polled (Louisiana, Mississippi, Alabama, and Florida), but they’re all returning 404 errors now, even though they worked when I first clicked on them. The link above gives the poll results. Most of the questions involved were about people’s opinions on energy and offshore drilling, and some of the Presidential results seem a bit too good to be true (Trump up in Alabama by four? In Louisiana by six?), but that’s what they report. Take them for what they’re worth.

Still code red

We’ll turn it down a notch when the data says we should.

The counts of coronavirus patients in local hospitals have been falling for two months. Restaurant patios are packed. Houston’s symphony and pro soccer teams are resuming at limited capacity. The state is relaxing restrictions on many businesses next week.

So, why is Harris County still at its highest threat level, urging residents to stay home?

Simple, County Judge Lina Hidalgo says: The metrics her office compiled in forming the threat level system in June have not all been met.

Hospitalization trends met the county’s goals weeks ago. A change to the way new cases were tallied cleared that hurdle on Monday, as did the last hospital target — COVID-19 patients making up less than 15 percent of intensive care beds. The lone barrier to downgrading from red (“stay home”) to orange (“minimize ALL contacts”) is now the county’s test positivity rate, which, at 7.7 percent, exceeds the 5 percent target.

Hidalgo said she understands the public is tired of vigilance, but she loses no sleep over being a holdout.

“What I’m trying to do is have at least one level of government that’s offering research and numbers-based information and consistently refuses to be swayed by political one-liners,” she said. “That continues to be my commitment. When you have folks pretending we can just go back to normal, it puts the community at risk and it gives people false hope.”

[…]

Dr. James McDeavitt, senior vice president at Baylor College of Medicine, called the county’s 5 percent target reasonable and widely used, but said, broadly, COVID-19 indicators suggest this is an appropriate time to slowly reopen.

Setting goals and then ditching them when the public grows tired of the restrictions they support would be a mistake, McDeavitt said. When Abbott reopened the state in May, Texas had not hit the benchmarks his own advisors had set.

“On the other hand,” McDeavitt added, “if you set metrics and slavishly wait until every single one of those numbers is where it needs to be, that is also problematic. You need to look at the big picture — and I know from talking to the county that’s what they do. Everybody is trying to find the right balance.”

Hey, if Greg Abbott isn’t going to pay attention to his own metrics, someone has to. To be fair, other counties have lowered their threat levels, and Dr. McDeavitt’s point about where the metrics are is well-taken. Positivity rate is a key figure, but it’s also affected by the number of tests that are given, which in turn is affected by test availability. It may be that we need to have a discussion about this, and it may be that we need to reassess what our risks are these days. But still, the fact that Judge Hidalgo is consistent about the metrics we have set for Harris County is a good thing.

And so the re-reopening begins

Are we really ready for this?

Gov. Greg Abbott announced Thursday that most of Texas will be able to loosen some coronavirus restrictions, including letting many businesses increase their capacity to 75%, as soon as Monday.

Retail stores, restaurants and office buildings, which have been open at 50% capacity, will be permitted to expand to 75% capacity. Hospitals will be allowed to offer elective procedures again and nursing homes can reopen for visitations under certain standards.

The new reopening stage applies to 19 of the state’s 22 hospital regions. The three hospital regions excluded are in the Rio Grande Valley, Laredo and Victoria. Abbott said those regions’ hospitalizations are still “in the danger zone,” which he defined as places where coronavirus patients make up 15% or more of all hospitalizations.

At the same time, Abbott said the state was not yet ready to reopen bars, saying they are “nationally recognized as COVID-spreading locations.” He stressed, though, that the state is looking for ways to let bars reopen safely.

[…]

“Gov. Abbott’s press conference today was notable for what he didn’t say,” state Rep. Chris Turner of Grand Prairie, who chairs the House Democratic Caucus, said in a statement. “There was no mention of a contact tracing program, no mention of improving the state’s unreliable data and no mention of expanding Medicaid to increase access to health care for the millions of Texans who are uninsured.”

The Texas Democratic Party said Abbott is “basing his decisions on dirty data.”

Abbott began the news conference by hailing the state’s progress in the fight against coronavirus, saying the “biggest reason” for improvements has been that Texans are taking the pandemic seriously and exercising personal responsibility.

The governor reminded Texans that doctors have said the goal is not to eradicate the virus but to “contain the disease, to limit its harm and to maximize the health care system’s ability to treat both COVID patients as well as other medical needs of the community.”

When it comes to further reopenings, he emphasized the state will consider all data but “rely most heavily” on hospitalizations, calling that metric the “most important information about the severity of COVID in any particular region.” It is also the “most accurate information available on a daily basis,” Abbott said.

To that end, the regions that will be allowed to further reopen must have seen coronavirus hospitalizations make up less than 15% of all hospitalizations for seven consecutive days, according to the governor. If coronavirus hospitalizations rise above the 15% threshold for seven consecutive days in a region, a “course correction is going to be needed,” Abbott said, suggesting the solution would be a reversal of the area’s latest reopenings.

Given that many other countries have essentially eradicated the virus, one could certainly disagree with Abbott’s assertion about what the goal should be. Though to be fair, it does seem impossible to set such a goal while Donald Trump is President, so perhaps this is just Abbott acceding to that reality. The Chron adds some details.

The new regional threshold marks a significant shift for the Republican governor as the state’s pandemic response moves into the fall, with flu season arriving and many schools about to reopen for in-person instruction. He previously resisted committing to a regional approach, and said he would rely on a range of metrics — not just hospitalizations — to determine policies.

But the state’s health agency has been dogged by data backlogs, and some counties said they had lost confidence in state metrics such as the number of new daily infections and the percent of positive COVID tests, also known as the positivity rate. While the state has remedied at least some of the issues, hospitalization data have been more reliable throughout the pandemic.

Other large states, including New York and California, are currently using regional reopening plans based on several criteria, including new cases and test positivity. Public health experts caution against relying on hospitalizations alone, since they lag behind infections and therefore provide a delayed glimpse into the community spread of the virus.

All but two of the state’s 22 hospital regions have previously surpassed the new 15-percent threshold, according to the state’s calculation. The governor did not provide the methodology for how they calculated the percentages, and a spokesman did not immediately respond to questions about how the benchmark was selected.

The state has reported nearly 700,000 infections since March and nearly 14,500 deaths, a toll similar to that in other large states, including California and Florida. New York has reported fewer infections but more deaths, stemming from a surge earlier this year.

Texas has been below 10 percent test positivity for at least two weeks now. Earlier this week, state health officials unveiled a new method of calculating the rate, which shows it first dropped below 10 percent in mid August. Abbott has said before that he would consider further reopenings once the state remained below that threshold for two weeks.

Yes, our lousy data quality is an issue. I get that there’s a lot of pressure to let businesses get back to “normal” again. But let’s be real here: One, plenty of people will still not change their habits to what they were in the Before Times until they feel confident that the pandemic is truly under control. Public opinion is clear that most people do not feel this way, and as such this greatly limits the upside of any reopening scheme. Two, we have been down this road before, and the last time we went this way Abbott basically ignored all the metrics that he himself set and just went about loosening restrictions even though none of his own stated criteria were being met. There’s no reason to believe he has learned this lesson. Three, even if we had complete clarity on hospitalizations, that’s a lagging indicator, meaning that by the time the hospitals have started to fill up again, it’s already too late to stop it. Four, see above about the lack of our data quality, which again strongly suggests that even if Abbott is sincere about turning the car around at the first sign of trouble, that first sign may not be at all apparent when it’s happening.

Finally, the reason why people finally started to take the pandemic seriously is because Greg Abbott finally started taking it seriously, and conveying a message that we all needed to be wearing face masks and social distancing and avoiding large gatherings, especially indoors. We certainly haven’t gotten that message from Donald Trump or his biggest toadies like Dan Patrick. If you want to praise everyone for their personal responsibility, then you need to emphasize that they have to continue being personally responsible, which means wearing masks and so on. If that makes the rock-filled heads of Steven Hotze and his ilk explode, then so be it. Abbott loves being in front of the parade, but he does a crappy job of leading it. As I said the last time we re-opened, I really hope this works out. And I really hope Abbott is serious about backing off at the first sign that it isn’t. A statement from Mayor Turner is here, and the Dallas Observer, Reform Austin, the Texas Signal, and the Houston Press have more.

We suck at COVID data, the continuing story

Would have been nice to have known this when it was happening.

State health officials published new data this week that showed the state’s positivity rate was higher in the spring that originally disclosed, even as public officials cited the data to justify business reopenings during the pandemic.

The Department of State Health Services on Monday announced a new method for calculating the positivity rate, or the proportion of positive tests, and conceded the previous method obscured the extent of viral transmission by combining old and new cases. The new formula relies on the date a coronavirus test was administered, rather than the date it was reported to health officials and verified as a case.

As Texas prepared for the first phase of reopening in late April, Gov. Greg Abbott repeatedly pointed to the state’s positivity rate, even as the number of new cases and deaths continued to rise. Announcing his initial reopening order on April 27, Abbott declared that the “COVID-19 infection rate has been on the decline over the past 17 days.”

The following week, the governor downplayed a new single-day record in new COVID-19 cases by again pointing to the positivity rate.

“Despite concentrating on areas where we think there may be a high level or number of people who could test positive, the fact remains that more than 95% of the people who were tested test negative,” Abbott said during a May 5 news conference.

State data at the time placed the seven-day average positivity rate at 5.84%, near the 5% benchmark recommended by the World Health Organization before governments ease restrictions. The actual rate, however, was higher. According to the new method employed by DSHS, Texas’ seven-day average positivity rate was actually 8.4%, near the 10% threshold Abbott had called a “warning flag” indicating a high level of community spread.

Following the reopening of bars, restaurants, stores and child care centers throughout May, Texas saw a surge in cases beginning in June. The state’s reported seven-day average positivity rate under the old method jumped from 4.27% at its lowest point in late May to 17.4% at its peak in mid-July. After revising the data, the state’s new chart shows that the positivity rate jumped from 5.81% in May to a peak of 21% in early July.

See here, here, and here for earlier entries in this chronicle. This stuff is hard, I don’t want to minimize that. Doctors and scientists have made mistakes and have changed their tune on COVID-related matters over time, as new data has come in and revised our understanding of what we thought we knew. Maybe no one could have known this at the time, I’m not in a position to judge. But as we’ve said before, the state rushed to reopen on Greg Abbott’s orders even as the Abbott-defined metrics for reopening were not being met. Now we know we were even further from the desired levels than we thought, and many more people have gotten sick and died or are suffering from long-term effects of the virus. We can have some level of sympathy for Greg Abbott, we can recognize that anyone would have made bad decisions if they were given bad data, and still hold him responsible for the outcome. His decision to reopen as he did was risky at the time, and it’s so much worse now. That’s all on him.

One lawsuit about voting locations thrown out

This was filed just a couple of months ago.

Continuing to fend off attempts to alter its voting processes, Texas has convinced a federal judge to dismiss a lawsuit that sought sweeping changes to the state’s rules for in-person voting during the coronavirus pandemic.

U.S. District Judge Jason Pulliam dismissed a legal challenge Monday from Mi Familia Vota, the Texas NAACP and two Texas voters who claimed the state’s current polling place procedures — including rules for early voting, the likelihood of long lines and Gov. Greg Abbott’s decision to not require voters to wear masks — would place an unconstitutional burden on voters while the novel coronavirus remains in circulation.

In his order, Pulliam noted that the requests were not unreasonable and could “easily be implemented to ensure all citizens in the State of Texas feel safe and are provided the opportunity to cast their vote in the 2020 election.” But he ultimately decided the court lacked jurisdiction to order the changes requested — an authority, he wrote, left to the state.

“This Court is cognizant of the urgency of Plaintiffs’ concerns and does respect the importance of protecting all citizens’ right to vote,” Pulliam wrote. “Within its authority to do so, this Court firmly resolves to prevent any measure designed or disguised to deter this most important fundamental civil right. At the same time, the Court equally respects and must adhere to the Constitution’s distribution and separation of power.”

The long list of changes the plaintiffs sought included a month of early voting, an across-the-board mask mandate for anyone at a polling place, the opening of additional polling places, a prohibition on the closure of polling places scheduled to be open on Election Day and a suspension of rules that limit who can vote curbside without entering a polling place. Other requested changes were more ambiguous, such as asking the court to order that all polling places be sufficiently staffed to keep wait times to less than 20 minutes. The lawsuit named Abbott and Texas Secretary of State Ruth Hughs as defendants, but the suit targeted some decisions that are ultimately up to local officials.

The plaintiffs argued the changes were needed because the burdens brought on by an election during a pandemic would be particularly high for Black and Latino voters whose communities have been disproportionately affected by the virus.

See here for the background. As noted in the story, there is now a third week of early voting, and at least the larger counties like Harris have been making plans to greatly expand the number of in-person voting locations, both for early voting and Election Day, so the plaintiffs didn’t walk away with nothing. Harris County will also have expanded curbside voting; I don’t know offhand what other counties are doing. That’s not the same as a statewide mandate, but it will be good for the voters who can experience it. The mask mandate seems like the most obvious and straightforward thing to me, and anyone who would argue that being forced to wear a mask in order to vote is an unconstitutional violation of their rights will need to very carefully explain to me why that’s a greater obstacle than our state’s voter ID law. I would have liked to see this survive the motion to dismiss, but at least we are all clear about what the to-do list for expanding voting rights in the Legislature is. Reform Austin has more.

Politico profile of Lina Hidalgo

Good stuff.

Judge Lina Hidalgo

In late April, Lina Hidalgo stood at a microphone in the Harris County emergency operations center in Houston and pushed up the teal fabric face mask that had slipped off her nose. Her voice was slightly muffled as she spoke. Next to her, an American Sign Language interpreter translated for an audience that couldn’t see her lips. But there was no need to worry her message would be lost. Soon it would become the subject of debate across the country—and so would she.

Hidalgo, the county judge of Harris County—the top elected official in the nation’s third-largest county—announced that millions of people in the Houston area would be required to wear a face covering in public to slow the spread of the coronavirus. People who didn’t comply would risk a fine of up to $1,000. Behind her, charts and graphs told the statistical story that had led Hidalgo to this moment. Since early March, when the state’s first case of Covid-19 had been identified in Houston, the urban heart of Harris County, the number of infected people in the county had climbed to 3,800. That day, the death toll stood at 79 and Houston’s mayor, Sylvester Turner, warned that number could “exponentially increase.”

Hidalgo had been bracing for the disease for weeks. She had sought advice from officials in King County in Washington state, the nation’s first hot spot. Armed with their insight, she rallied her own emergency management and public health officials to prepare a response and on March 16 ordered the closure of bars and restaurant dining rooms. Initially, state officials followed suit. Three days after Hidalgo’s order, Gov. Greg Abbott declared a public health disaster for the first time in more than a century. Texans huddled indoors. But by early April, pressure was mounting on Abbott to end the lockdown. Hidalgo was pulling the other way.

You know what happened from there. You should read the whole thing, it’s mostly stuff you already know but it’s deeply satisfying to see someone who’s been right about the virus in all the ways that matter and who’s been the target of some vicious, racist insults as a result of her being right about it get her due. I’m going to highlight two other bits here:

“The perils of straight-ticket voting were on full display Tuesday in Harris County,” the Chronicle’s editorial board clucked. “Longtime County Judge Ed Emmett, a moderate Republican who’s arguably the county’s most respected official, was ousted by Lina Hidalgo, a 27-year-old graduate student running her first race.”

“We hope she succeeds,” the editorial continued, “but residents can be forgiven for being squeamish about how Hidalgo will lead the county and, by extension, the region’s 6 million people, through the next hurricane.”

I can understand the initial apprehension about a political newcomer taking over as County Judge, and I can understand some unease at it happening as part of a partisan wave. But I guess I’m just going to die mad about all the pearl-clutching over straight-ticket voting, which casts a whole lot of people as mindless automatons instead of individuals who made a choice. That choice in 2018 was to vote for change, and to vote against Donald Trump. One can admire Ed Emmett for his competence, his compassion, his deep concern for Harris County and its residents, and still disagree with him on principles and priorities, and want to see our county government move in a different direction. The sheer condescension in that first paragraph will never not annoy the crap out of me.

“I expect for some Texans it’s a little hard to take that a young Latina who earned her citizenship, as opposed to being born here, has the level of authority that she has,” one of her advisers, Tom Kolditz, told me. “She absorbs every criticism, she listens to every racial dog whistle, she puts up with ageist comments about what her abilities are or are not.”

[…]

Re-opening schools has emerged as another battleground. Hidalgo has taken a position that is consistent with her aggressiveness throughout the pandemic. On July 21, she ordered all school districts in Harris County to delay opening schools for in-person learning for at least eight weeks. Wearing a floral face mask at a recent press conference, her curly hair longer than normal due to the pandemic, she urged the community to work together “until we crush this curve.”

“Then, we can responsibly bring your kids back to school,” she said. “Right now, we continue to see severe and uncontrolled spread of the virus and it would be self-defeating to open schools.”

A familiar chorus of criticism from state and federal Republicans followed quickly. Rep. Crenshaw, among others, has beat the drum that schools must open. And a week after Hidalgo’s announcement, the Texas attorney general said that local health authorities can’t close schools to preemptively prevent the spread of Covid-19. The Texas Education Agency, which oversees public education in the state, announced it wouldn’t fund schools that closed under such orders.

Kolditz, Hidalgo’s adviser and a retired Army brigadier general, has framed the pandemic like a war that can’t be won without a common objective and unity. When Hidalgo was empowered to call the shots in Harris County the pandemic was relatively under control, he said. Since Abbott undermined that, “it’s been a disaster.”

“We’re going to wake up from this pandemic and be stunned by how many lives were wasted by bad leader decisions, and she is not a part of that,” he said.

Hidalgo has largely tried to avoid making the pandemic into a political fight, but she is not naïve about the political implications of every decision. “If we do the best we can and, politically, that wasn’t appropriate for people and I’m not re-elected in two years, I’ll be disappointed, but I’ll be able to sleep at night.”

I mean, we could listen to the person who’s been consistently right, or we could listen to the people who have been consistently wrong. Seems like a clear choice to me, but what do I know?

How are things at college these days?

About as can be expected.

Students at a Baylor University dormitory are required to “reside in place” after a spike in positive coronavirus cases in a campus dormitory.

Baylor officials wrote in a letter to the community that the number of positive COVID-19 cases within Martin Hall increased from five to 21 cases within three days. All Martin Hall residents on the two affected floors — about 80 of 250 students — were notified about the next steps and university officials asked students to not leave their respective floor for four days.

Other Texas campuses also saw an increase of positive cases following the return to campus in mid-August.

Two people living in on-campus dorms have tested positive at the University of Texas at Austin, according to UT spokesman J.B. Bird. Since the beginning of August, 37 positive cases have been reported at UT.

[…]

Since dorms opened on Aug. 20, eight students and five UT faculty and staff members have tested positive for COVID-19, but it is unclear how many of those individuals live in on-campus facilities or are working on campus.

The UT flagship has reported 493 COVID-19 cases since March 1 on its dashboard, which tracks the number of cases of the virus.

Baylor now plans to conduct daily rapid testing and assessment of symptoms and complete contact tracing. All positive cases have been isolated and are no longer in the dorm, university officials said. And residents on other floors were asked to not visit any of the upper floors and to contact Baylor Health Services to schedule COVID-19 testing.

In the meantime, Baylor also hopes to “tailor its response” to the outbreak without requiring a full quarantine for the residence hall. The university launched “weekly surveillance testing” Monday, which will conduct ongoing testing of 5 percent of the campus at random.

Additionally, officials reminded its campus community to wear face coverings, maintain social distance, upkeep hygiene and hand sanitizing, and to monitor for any COVID-19 symptoms.

The outbreak is just a fragment of the 645 positive cases at Baylor since the beginning of August, according to the university’s dashboard. The dashboard, updated daily at 3 p.m., showed that of those cases more than 450 are still active, and about 400 of those cases were produced in the last week.

It’s just two schools, so we shouldn’t rush to conclusions, but other schools around the country have had major outbreaks and caused all kinds of disruptions. The fact is, you’re bringing a lot of people into a relatively small geographic area, into mostly indoor spaces, with loads of opportunities for in-person gatherings. What did you think was going to happen? To be sure, if I were a college student, I’d rather be on campus with my friends and hope for the best, rather than continue to quarantine somewhere and pay tuition for online classes. As with everything else, if we’d done a better job – or, really, any job at all – combatting the virus at the national level, we’d be in a much better position today than we are. Ain’t happening with the current President, or the current Governor. Someday, hopefully soon, but not now.

We are not ready to re-reopen

I don’t know who needs to hear this, but…

Texas COVID-19 hospitalizations have declined the most significantly — 4,144 Tuesday, down from 10,893 on July 22 — but new cases, positive test rates, daily deaths and viral spread are all dropping. They are dropping enough that one Texas modeler, Spencer Fox of University of Texas at Austin, went so far as to say he thinks that Texas may have seen the worst of the pandemic — as long as people continue to wear masks and keep their guard up.

A number of other health experts warned against lifting restrictions, noting that the coming Labor Day weekend, the expected resumption of schools and seasonal weather changes have the potential to cause a resurgence like Texas experienced earlier in the summer. They also said the amount of transmission, although improved, is still way too high.

“I don’t want to be Debbie Downer, but we’ve been surprised before,” Catherine Troisi, an infectious disease epidemiologist at the UTHealth School of Public Health, said last Friday. “It’s a double-edged sword when things start looking better. The virus is still out there, but people think things can go back to normal.”

Troisi added that some experts are hesitant because of the state’s data reporting problems, because it’s possible some other issue will surface. Those problems include under testing, coding errors that caused backlogged results and combining positive diagnostic and antibody tests.

Chris Amos, a Baylor College of Medicine quantitative scientist, said “the timing could not be worse for rolling back.”

“Given the number who test positive reflect perhaps 10 times as many individuals who have not been tested but are positive,” said Amos, “there remains a large pool of individuals who can spread COVID-19 if they begin interacting with many others, and particularly if we allow large groups to start coming together again.”

Amos acknowledged that optimism about opening up is natural given the slowing of COVID-19’s spread. The spread is measured by a value, known as reproductivity, that suggests a slowing or growing of the virus. Over 1 means each infected person transmits it to an average of more than one person and the epidemic grows; under 1 means the virus is transmitted to less than one person and the epidemic won’t sustain itself.

The value for the state overall has been under 1 since July 20.

According to Amos’ calculations, if the state maintains the current trend, with the number around 0.87, it would take 38 days to reduce the COVID-19 burden by another 50 percent.

It’s important to keep reducing that burden before students resume in-person classes, Amos said. He and others advised against a one-size-fits-all approach.

“Not every community or county in Texas is experiencing the same burden of disease,” said Angela Clendenin, an epidemiologist with the Texas A&M School of Public Health. “In some places, it may be justified to roll back some restrictions whereas in others, it’d be ill-advised to do so. It will be critically important that rolling back restrictions does not send the message that we are somehow ‘all clear.’”

See here for the background. The basic fact remains that we are still at levels well above where we were in early June, when we first re-opened. There’s no question that if we re-reopened like we re-opened the first time around, we will get the same result. To me, three things are clear. One we shouldn’t change anything until we are back at early-June levels. Two, we should have sensible objective metrics that we can actually measure with accuracy and that we stick to, unlike the first time around. And three, give some discretion back to local jurisdictions so that the counties with a sufficiently low infection rate can be more open (though still within state guidelines) while those that aren’t ready for that kind of openness can continue to do what they need to do to get there. All of this should be screamingly obvious after what we just went through, but I see no reason to believe that Greg Abbott or Dan Patrick have learned anything from that experience.

Wait, there’s a Census going on?

I smack my forehead so hard.

Through a small notice tucked into the state’s business register, Texas appears to have acknowledged that the 2020 census count is going badly.

With just a month of counting to go in the crucial decennial census, the self-response rate for Texas households has barely topped 60%. As census workers have followed up in person with households that haven’t responded, the share of households accounted for has risen to 79.5% — but Texas is still far behind several other states and several percentage points behind the national average.

On Aug. 26, the Texas secretary of state’s office quietly put out word that it has up to $15 million to spend on an advertising campaign intended to urge residents to get themselves counted. The effort — which Texas will pay for by dipping into federal dollars meant to address the coronavirus pandemic — amounts to a last-minute about-face by the state, whose Republican leadership had previously shot down any significant state funding for efforts to avoid an undercount.

The urgency the state is feeling a month out from the census deadline is apparent in the timeline of its request for proposals for a broadcast, print and digital campaign to “educate Texans on the significance and value of participating in the 2020 Census” and drive up response rates. The notice was posted last week, and bids are due by Wednesday. The contract is projected to begin two days later. Counting for the census is set to end Sept. 30.

The latest census figures showed that households in urban, Democratic-leaning areas of Texas had filled out the census online, by phone or by mail at higher rates than those in more rural, Republican-controlled areas and South Texas communities. The U.S. Census Bureau’s door-to-door campaign to follow up with households that did not self respond to the census is ongoing.

Wait, you’re telling me that the deliberate choice made by the Republican leadership to not give a dime to Census outreach efforts may actually be coming back to hurt them politically? That’s a plot twist I hadn’t anticipated. Now it all makes some sense – if it was only Dems that were in danger of being screwed, for sure they wouldn’t care now.

The state’s sudden pursuit of a multi-million advertising campaign to promote the count comes more than a year after it left local governments, nonprofits and even churches to fill the organization void in chasing an accurate count.

“It’s frustrating that we’re doing this at the last minute,” said Luis Figueroa, the legislative and policy director for Every Texan, a left-leaning think tank previously known as the Center for Public Policy Priorities that has been at the forefront of census efforts in the state. “We hope there is enough time for it to be meaningful and effective. There’s an adage about ‘better late than never,’ but there is also ‘a day late and a penny short’.”

[…]

If enough Texans are missed in the count, it would jeopardize the three additional seats in Congress the state was expected to gain after this census.

Even as other states put millions of dollars to mount census campaigns, Texas lawmakers during last year’s legislative session declined to put additional state dollars toward the census, rejecting proposals by Democratic lawmakers to create a statewide outreach committee and set aside millions of dollars in grants for local outreach efforts.

Already without state funds, the local canvassing and outreach efforts were derailed by the coronavirus pandemic. Then, the U.S. Census Bureau announced it was cutting moving up the deadline for responding up by a month. Combined with the strain on outreach efforts brought on by the pandemic, the earlier deadline has heightened the risks that Texas will be undercounted and that some Texans, particularly those who are low-income or Hispanic, will be missed in the count as the pandemic continues to ravage their communities.

“Republicans had an opportunity to address this. They refused to do this, and now the secretary of state is in the fourth quarter of the game, in the final seconds, trying to throw a hail mary, and it ain’t going to work,” said state Rep. César Blanco, an El Paso Democrat who had unsuccessfully pursued state dollars for the census. “This is an embarrassment.”

See here for more on that earlier deadline, which is now even earlier than before thanks to continued malfeasance from the federal government. This was a deliberate choice by our Republican state leaders. We will pay the price for that choice for the next ten years.

From the “Those who forget the past are condemned to repeat it” department

Who’s ready to re-reopen Texas?

Gov. Greg Abbott signaled he may be preparing to roll back some emergency restrictions put in place this summer at the height of the state’s coronavirus surge.

Responding to concerns from the battered restaurant industry, the governor tweeted Monday night that new infections and hospitalizations from COVID-19 are receding, and added, “I hope to provide updates next week about next steps.”

“Since my last orders in July, COVID numbers have declined—most importantly hospitalizations,” said Abbott, a Republican.

The governor gave no indication about what steps he might take, and a spokesman did not respond to questions. Abbott has previously said he would consider allowing bars to reopen and restaurants to open further if positive trends continue.

Statewide, new daily infections and hospitalizations are declining, though they remain well above where where they were when Abbott began reopening the state in May — hospitalizations are now double, and average new daily infections are four times as high. It’s also unclear whether the rate of people testing positive, a key metric, is anywhere near where public health experts recommend before opening more businesses and allowing children back into schools.

What could possibly go wrong? See here for a statement from Mayor Turner, who unsurprisingly urges caution. You should also read this Politico profile of County Judge Lina Hidalgo, which I will blog about separately, and remember that at every step of the way in this crisis, Lina Hidalgo has been right and Greg Abbott has been wrong.