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Jared Woodfill

Fired Methodist employees file another lawsuit

In state court this time, in what should be one of the friendliest venues available to them.

A new lawsuit filed Monday in Montgomery County against Houston Methodist claims the hospital wrongfully terminated 62 employees over their COVID-19 vaccine requirement.

The suit, filed by attorney Jared Woodfill, alleges the hospital’s COVID vaccine mandate goes against Gov. Greg Abbott’s statement that the government can’t mandate vaccine passports in Texas, that breakthrough infections pose a problem with the current COVID-19 vaccines available and that there was no exception for people who have not been vaccinated because they previously caught COVID-19 as a result of their employment.

In June, a federal judge tossed a lawsuit filed against Houston Methodist Hospital over its COVID-19 vaccine requirement, finding that the mandate “was not coercion.”

Houston Methodist became the first hospital in the nation to require a COVID-19 vaccine as a condition of employment. The health system’s human resources policy required employees to be fully vaccinated by June 7, or risk suspension and eventual termination.

[…]

Woodfill, the former Harris County GOP chairman who is representing the 62 plaintiffs, noted in an interview that Abbott has repeatedly said vaccines will not be mandated by the state.

Specifically, he noted Abbott’s most recent order, in which the governor said Texans “have the individual right and responsibility to decide for themselves and their children whether they will wear masks, open their businesses and engage in leisure activities.”

Woodfill said Abbott’s order “articulates or identifies a public policy for the state of Texas, that you can’t just force people to comply with.”

In the first lawsuit filed against Houston Methodist, Woodfill and more than 100 plaintiffs argued the vaccine requirement was unlawful. The complaint likened the vaccine requirement to a violation of the Nuremberg Code, the set of medical ethics created following World War II in response to Nazi atrocities.

U.S. District Judge Lynn Hughes called the comparison “reprehensible” in his June ruling tossing the lawsuit. Woodfill and the plaintiffs have appealed the ruling.

More than 170 employees at Houston Methodist were fired after not receiving the COVID-19 vaccine by the June deadline, according to the hospital.

Houston Methodist CEO Marc Boom said Monday he was “not surprised” by the complaint.

“It just seems to completely rehash the other lawsuit, which was very clearly and definitively overturned and dismissed by Judge Hughes,” Boom said. “We would expect the same thing in this case.”

See here, here, and here for some background on the federal lawsuit. While Montgomery County is likely to be as pro-COVID a location as Jared Woodfill could find for this nonsense, the fact remains that Texas is a strongly pro-employer state, and that will be a high hurdle to overcome. As the story notes, multiple other hospital systems including (finally) Texas Children’s and St. Luke’s have initiated similar mandates, so there doesn’t seem to be any fear of the legal risk on their part. I expect this will get swatted back, but with Montgomery County you can never be too sure. We’ll keep an eye on it.

Methodist anti-vaxxers officially fired

I have three things to say about this.

More than 150 Houston Methodist Hospital employees resigned or have been fired as of Tuesday over a recent policy that required hospital employees to be vaccinated against COVID-19 by Monday.

All told, 153 people are no longer employees of the Houston health care chain, Methodist spokesperson Patti Muck said. The hospital has about 25,000 employees, nearly all of whom have abided by the policy, Methodist leaders have said previously.

The firings follow a contentious few weeks in which hospital employees staged protests and filed a lawsuit against the hospital, claiming the policy, announced in April, violated their rights. Methodist was one of the first large health care providers in the country to announce vaccine requirements.

“I’m so happy and relieved,” Jennifer Bridges, the lead plaintiff in the suit, said Tuesday. “I don’t want any part of Methodist.”

Earlier this month, a federal judge tossed the lawsuit filed by more than 100 Methodist employees, most of whom were not doctors or nurses. In it, the plaintiffs argued Methodist’s policy violated the Nuremberg Codes, a World War II-era agreement that bans involuntary participation in medical trials.

Bridges said Tuesday that she and others planned to protest outside Methodist on Saturday, and that conspiracy theorist Alex Jones will be in attendance.

See here and here for the background. My three things:

1. I strongly suspect Methodist would say that the feeling is mutual, Jennifer.

2. Inviting Alex Jones to your protest really makes one question the previous statements made about how these folks are not anti-vaccine, just super cautious about this particular vaccine.

3. As Methodist cardiovascular technician Deedee Mattoa says in this story, the real surprise here is not that Methodist followed through, but that Memorial Hermann and Baylor College of Medicine, which have made public promises to require COVID-19 vaccines but have not set deadlines for when staff will need the shots, have not yet followed suit. What are you guys waiting for? The Trib has more.

Methodist anti-vaxxers appeal lawsuit dismissal

As expected.

A group of Houston Methodist employees who sued the hospital system over its COVID-19 vaccine requirement have appealed a ruling dismissing the case.

Over the weekend, U.S. District Judge Lynn N. Hughes tossed the lawsuit, calling it “reprehensible” to compare the vaccine requirement to Nazi Germany’s medical experiments.

“Equating the injection requirement to medical experimentation in concentration camps is reprehensible,” Hughes said. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.”

[…]

Although the lower court judge thought the case had no merit, Woodfill could get traction from the 5th U.S. Circuit Court, known as one of the most conservative appeals courts in the country. On several recent occasions, the 5th Circuit has dealt blows to Hughes, a historically stubborn 79-year-old Reagan appointee.

The appeals court ordered him to re-sentence a defendant in a terrorism case who was accused of supporting ISIS overseas. After Hughes re-sentenced the man to the same abbreviated sentence, 18 months, which did not consider a sentencing enhancement, the government appealed and the 5th circuit removed the sentencing from Hughes’ court.

The 5th circuit also admonished Hughes for remarks he made on the record about female employees of the federal government. Hughes later barred the Houston prosecutor from appearing at the jury trial involved in that case.

More than half of frontline medical workers nationwide have received at least one dose of the COVID-19 vaccine, according to a survey from the Kaiser Family Foundation, a Washington, D.C.-based think tank. But as of April, nearly one in five said they did not plan on receiving a COVID-19 vaccine.

See here for the previous entry. It’s true that Judge Hughes can be a crank, but I kind of doubt that any of those previous instances will weigh on this case. For some analysis of the lawsuit and subsequent dismissal, this WaPo story has some good information.

Valerie Gutmann Koch, co-director of the University of Houston’s Health Law & Policy Institute, called the decision “another step in demonstrating the legality of these mandates, particularly in a health crisis like this.”

“There isn’t much there to rely on to argue these mandates should be illegal,” she said.

[…]

Akiko Iwasaki, an immunologist at Yale University, characterized the lawsuit’s claims as “absurd” in recent remarks to The Washington Post, noting that tens of thousands of people participated in the vaccine trials. The suit also repeats misinformation circulated widely online about the shots altering DNA.

The inoculations are seen as key to a return to normalcy, yet most employers have shied away from mandating them, concerned about the thorny politics and previously untested legal issues. Colleges and universities, along with Houston Methodist and a handful of other health-care institutions, are the exception.

Koch said the ruling shows “employer mandates of the covid-19 vaccine, particularly in the health care arena, are absolutely legal.” She said she expects to see more legal battles around vaccination mandates but noted she has “always predicted that they have very thin legal legs to stand on.”

There is precedent for vaccine requirements, she said, such as when health-care institutions require vaccinations during particularly bad flu seasons. Koch said she was “encouraged by the fact that this was dismissed as quickly and expeditiously as it was.”

Veronica Vargas Stidvent, executive director at the Center for Women in Law at the University of Texas School of Law, said the ruling is based on employment law in Texas, so the extent to which it sets a precedent for other jurisdictions is not clear.

“At least here in Texas, under this ruling, it’s pretty clear employers can require employees to get vaccinated,” she said.

Yeah, I don’t think it should be a surprise that Texas employment laws are much more favorable to employers than to employees. As Reuters notes, Judge Hughes wrote that “Texas law only protected employees from being fired for refusing to commit an illegal act and that the requirement is consistent with public policy.” I’ll be more than a little surprised if the Fifth Circuit decides that this is the place to take a stand in favor of the workers.

Lawsuit over Methodist Hospital vaccination mandate tossed

That was quick.

A federal judge has tossed a lawsuit against Houston Methodist over its policy to terminate workers who refuse to get the COVID vaccine, calling it “reprehensible” that plaintiffs compared the requirement to those made under Nazi Germany.

In the lawsuit on behalf of 117 Houston Methodist employees, lawyers likened the vaccine requirement to the Nuremberg Code, a set of medical ethics standards created at the end of World War II following medical experiments by the Nazis on German citizens.

U.S. District Judge Lynn Hughes heavily criticized the comparison in a decision Saturday.

“Equating the injection requirement to medical experimentation in concentration camps is reprehensible,” Hughes said. “Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases, death.”

Houston Methodist is one of the first hospitals in the nation to require employees to be vaccinated. The hospital system allows employees to opt out of the vaccine requirement if they provide a medical or religious exemption.

[…]

Jennifer Bridges, a Houston Methodist Baytown nurse who originally circulated a petition in April asking the hospital’s executives to reconsider the policy, said the plaintiffs plan to appeal.

“This will go all the way,” Bridges said. “This is only the beginning.”

Occupational Safety and Health Administration officials issued guidance on Thursday outlining new COVID-19 precautions and procedures to prevent the spread of the virus in health care workplaces. Under the new rule, health care employers must provide paid time off for workers to receive COVID-19 vaccinations and recover from the side effects. Federal regulators in May issued guidance allowing employers to require proof of vaccination as a condition of employment.

Hughes wrote in the dismissal order that the vaccinate mandate “was not coercion.”

“Methodist is trying to do their business of saving lives without giving them the COVID-19 virus,” the judge wrote. “It is a choice made to keep staff, patients and their families safer.”

He also denied a request for a temporary restraining order to block the hospital from suspending the 178 employees who have not received a shot.

See here for some background – the policy was announced in late April, the lawsuit was filed shortly afterwards. As of the last day before the suspensions, all but 178 employees out of 25,000 had been vaccinated, and 27 of those 171 had since received a first shot. The nurse who has acted as the spokesperson for the holdout employees has insisted this isn’t about vaccine skepticism but about not wanting to rush things and so on, but as the Chron editorial board noted over the weekend, her rhetoric has veered more into conspiracy theory land as this has progressed. Plus, there’s the whole “hiring Jared Woodfill as their attorney” thing, which is something you never do if you want to be taken seriously. Anyway, my guess is that they will get no joy from the appeals courts, who I suspect will be more pro-employer than pro-not-getting-vaccinated, but we’ll see. The Press has more.

Will Methodist fire its unvaccinated workers?

In two weeks, if they haven’t gotten vaccinated, the answer is Yes.

Dozens of cheering supporters gathered outside the Houston Methodist Baytown campus Monday evening as several medical workers who refused to get a COVID-19 vaccine ended their last shifts working for the hospital system.

The act of protest was aimed at what workers said was the hospital’s decision to suspend employees for two weeks without pay and then fire them for failing to immunize themselves.

Jennifer Bridges, a nurse who effectively lost her job at the Baytown facility for deciding not to be inoculated, said the goal was to stage a walkout but that did not go as planned. Participating employees who refused the vaccine’s first dose were told not to gather or linger on the hospital grounds after ending their shift, she said.

“The hospital wouldn’t let us do it,” Bridges said.

She got out of work early, emptied her locker and gathered with others on a grassy medium near the ambulance entrance to the hospital. Bridges fished a paper out of a backpack — a suspension report — that she had been asked to sign. She refused, she continued.

About 117 employees in May filed a class action lawsuit against the health system for requiring its workers to be vaccinated against COVID-19. Bridges said the plaintiffs in the suit are a mix of those who want more trial data to emerge on the long-term effects of the vaccine before taking it, and those who simply don’t want any shots.

Sorry, I’m with Methodist on this. I cannot see any reason why health care workers – who by the way were already required to get a flu shot every year – should be able to opt out of this. If the concern is that we still don’t know enough about the potential negative effects of the vaccines, which at this point have emergency authorization from the FDA and not full clearance yet, all I can say is that over 300 million doses have been administered so far, with basically zero serious negative effects. There’s no way that the risk analysis comes out more favorably for not being vaccinated. Hiring Jared Woodfill as your attorney for that class action lawsuit doesn’t say much for one’s commitment to science, either.

In the end, it’s a pretty small number of employees who are affected.

While nearly 25,000 Houston Methodist workers are now vaccinated against COVID-19, 178 employees are now suspended without pay for not receiving a shot.

In a Tuesday memo to hospital staff, Houston Methodist CEO Marc Boom said 27 of the 178 workers who have not been fully vaccinated have received at least one dose of the vaccine. If they comply, they will not face termination.

“I wish the number could be zero, but unfortunately, a small number of individuals have decided not to put their patients first,” Boom said.

More than 600 employees were granted deferrals or exemptions for medical or religious reasons, the hospital said.

The hospital will have a final number of employees fired for not complying with the vaccine mandate in two weeks. Houston Methodist also requires its workers to get an annual flu shot.

That’s 0.7% of the Methodist workforce that was affected, and some of them have already decided it wasn’t worth getting fired over. Good for them. All of these folks did have a choice, and they made it. That there are consequences is just how life is sometimes. Erica Greider and the Press have more.

Zombie same sex employee lawsuit denied again

Shuffling along like the undead flesh eater that it is.

A Texas appellate court struck a challenge Thursday to Houston’s policy giving same-sex spouses of city employees the same benefits as different-sex spouses, saying that the city was immune from the case and that three major U.S. Supreme Courtrulings barred the claims.

A split Fourteenth Court of Appeals panel affirmed a state trial court’s February 2019 ruling against Jack Pidgeon and Larry Hicks, who challenged the benefits policy in an October 2014 suit.

“Because appellants’ attempt to prevent the city from offering employment benefits to married same-sex couples on the same terms and conditions as married different-sex couples cannot be reconciled with the requirements of the U.S. Constitution, we reject it,” Justice Margaret Poissant said in an opinion for the panel.

Mayor Sylvester Turner is not liable for the plaintiffs’ ultra vires claim, a claim used to target government officials for acting beyond their authority, because the 2013 directive issued by his predecessor was discretionary, the panel found.

The plaintiffs had even conceded that point when they argued the mayor and other officials spurned state marriage law “because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires,” the panel noted.

Further, Houston didn’t waive the immunity it typically has in ultra vires claims, according to the opinion. For a city to be a party to such a suit, the case must challenge a statute or ordinance, but the plaintiffs instead alleged violations of state law.

The plaintiffs also failed to establish that the directive was made without legal authority, according to the opinion.

Justice Poissant said the plaintiffs were wrongly trying to relitigate the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges , which legalized same-sex marriage and made the Texas state laws at issue unconstitutional.

The panel also cited the high court’s 2017 ruling in Pavan v. Smith , which allowed same-sex parents the right to be listed on their children’s birth certificates, and its 2019 decision in Bostock v. Clayton County , which protected transgender individuals from discrimination.

The panel further denied the plaintiffs’ request for an injunction barring the city policy, saying their claim that the city used their tax dollars to “subsidize homosexual relationship,” which they believe is “immoral and sinful,” didn’t demonstrate imminent harm.

Justice Randy Wilson penned a partial dissent, saying the rest of the panel took the issue too far.

The trial court, Wilson said, had “paradoxically” dismissed the claims for lack of jurisdiction while essentially granting summary judgment on the merits. The appellate court should have addressed only the former and simply vacated the latter, he said.

See here for the previous update, and for the case information, including the opinion and concurrence and dissent from Justice Wilson. The original lawsuit was filed in 2013, for those keeping score at home. How much do you have to hate gay people to continue to pursue this eight years later? Jared Woodfill is their lawyer, if that helps you answer that question. Let us hope there is no further news to note on this.

Parents sue Katy ISD over its mask mandate

Someday, these dumb stories will stop happening. Others will replace them, to be sure, but this type of dumb story will eventually fade away.

A group of parents are suing the Katy Independent School District, calling its continued requirement for masks in schools unconstitutional and a violation of Gov. Greg Abbott’s executive order from last month that lifted the statewide mask mandate, among other COVID-19 safety restrictions.

The lawsuit, filed Thursday by a Houston attorney for parents Bonnie Anderson, Jenny Alexander, Doug Alexander, Heather Calhoun and Stephen Calhoun, takes issue with the district’s current safety protocols for in-person schooling, specifically its requirement that students wear masks in hallways, buses, and other common areas.

When Abbott announced his executive order, he did not address the ways rescinding the mask mandate affected public schools. In a later interview with radio host Chad Hasty, Abbott said he expected the Texas Education Agency to leave the decision to require masks up to local school boards.

The agency’s updated mask policy has allowed “local school boards have full authority to determine their local mask policy,” according to its website. In public planning guidance, the agency also recommends the use of masks.

Under Katy ISD’s policies, students who don’t comply with the mask policy will be moved to online school and aren’t allowed to participate in other student activities. Those who have medical conditions that preclude them from wearing a mask must notify the school nurse and have documentation from their medical provider, according to the policy.

The lawsuit also argues under the U.S. Supreme Court’s decision Brown v. Board of Education that forcing students to switch to virtual school is a form of “separate but equal” discrimination.

The Supreme Court case’s ruling focused on segregation between Black and white students in public schools and discrimination on the basis of race.

[…]

Katy ISD responded to the lawsuit with a statement that it is complying with the agency’s public planning recommendations.

“Katy ISD continues to follow the Governor’s Executive Order GA-34 and comply with the Texas Education Agency’s Public Health Planning Guidance,” said the statement, obtained by Fox 26 Houston.

If you guessed that only Jared Woodfill would be dumb and obnoxious enough to cite Brown v Board of Education as a precedent for this silly lawsuit, congratulations. You don’t win a prize but you do get to live with the knowledge that you are familiar enough with Jared Woodfill to recognize his handiwork. It sure seems to me like this lawsuit is unlikely to win, but the part of my brain that tries to make sense of the world around me is convinced there must be some merit to this, however hard it may be to find. I don’t think my analysis can get any deeper than that, so let’s wrap this up. The Chron has more.

AC repairman sues Hotze

Hell yeah.

An air conditioning repairman who was held at gunpoint last October as part of a right-wing group’s voter fraud investigation has sued the group and its CEO, Houston conservative activist Steven Hotze.

David Lopez, the repairman, filed a lawsuit Tuesday against Hotze and his organization, Liberty Center for God and Country, for civil conspiracy, civil theft, and aiding and abetting Mark Aguirre, the former Houston police captain who faces a felony charge of aggravated assault with a deadly weapon stemming from an Oct. 19 confrontation with Lopez.

Aguirre told police he was investigating a massive “ballot harvesting” operation on behalf of Hotze’s group. He previously alleged that Lopez had about 750,000 fraudulent mail ballots in his truck and had been “using Hispanic children to sign” the ballots because the youths’ fingerprints would not appear in databases. Lopez’s truck contained only air conditioning parts and tools, authorities said.

Hotze paid Aguirre $266,400 to investigate voter fraud allegations through his group, including more than $211,000 the day after the incident in which the former cop rammed Lopez’s truck and then held him at gunpoint until a Houston police officer happened by. In December, shortly after Aguirre was arrested, Hotze called the assault charge “bogus.”

At the time, Hotze said he would not condone Aguirre’s actions if they were proven true, but he was not worried about being legally implicated as the one funding Aguirre’s investigative work.

Jared Woodfill, Hotze’s attorney, said Tuesday that Hotze had not instructed Aguirre to take any of the actions mentioned in the lawsuit, and contended that Hotze could not be found culpable of any legal wrongdoing.

[…]

Lopez is seeking more than $1 million for “bodily injury, physical pain, past and future mental anguish, exemplary damages and attorney fees,” according to the suit.

Woodfill said Aguirre’s attorney has given a different version of events, alleging Lopez and Aguirre got into a “fender bender” and Lopez prompted the confrontation when he rushed at Aguirre. In any case, Woodfill said Hotze should not be held responsible for Aguirre’s actions.

“When an allegation of voter fraud would come in, he would turn it over to investigators and they would do their work in the way they thought best,” Woodfill said. “So, using the plaintiff’s logic, if one were to go out and hire a contractor to do whatever the project may be, and they did something that you didn’t agree with, then according to the plaintiff, you’re responsible for it. I don’t believe that’s consistent with the law.”

Woodfill also said he believes the lawsuit is “politically motivated,” pointing to Lopez’s decision to sue Hotze but not Aguirre, and to hire attorneys K. Scott Brazil and Dicky Grigg, both of whom have represented the Texas Democratic Party in voting lawsuits. Woodfill noted Lopez’s lawsuit references Hotze’s numerous legal challenges against Harris County’s efforts to expand voting during the 2020 election, which it is part of Hotze’s “long history of pursuing and alleging bizarre unfounded voter fraud allegations.”

Grigg said Lopez is not suing Aguirre because he already has been indicted in the separate criminal case, and because Hotze — not Aguirre — is the one funding the operation.

“He’s just a puppet, and instead of going against the puppet, we’re going against the puppetmaster, the one pulling the strings,” Grigg said.

He added that the lawsuit was not motivated by Hotze’s political claims or the legal actions he took against Democrats and voter expansion measures.

“This lawsuit is not about any of the claims that Dr. Hotze’s making, no matter how ridiculous or unfounded they are,” Grigg said. “This is against actions that people he paid $300,000 to, the actions that these people took. And the whole purpose of the lawsuit is, fine, you can say what you want, you can hold the opinions you want. But you’re responsible for your actions and your conduct.”

See here, here, and here for the background – that last link has a lot of information. A copy of the lawsuit is embedded in the Chron story. I have never wanted a lawsuit to succeed more than I want this one to succeed. No one deserves this more than Steven Hotze. Attorney Grigg has this exactly right. Let’s hope that a jury, and eventually the Supreme Court, see it that way.

Have you been pining for another Hotze/Woodfill lawsuit?

Well, then today is your lucky day.

Not that kind of face mask

Texas Agriculture Commissioner Sid Miller and conservative activist Dr. Steven Hotze, a prolific litigant, are suing Lt. Gov. Dan Patrick for requiring COVID-19 tests for entry into the Texas Senate gallery and committee hearings.

In the 18-page suit filed in Travis County court, Miller and Hotze argue the Senate rule violates the Texas Constitution and Open Meetings Act and ask the court to block the rule. Patrick’s spokesman did not immediately respond to a request for comment.

“Gov. Abbott is opening up businesses while Patrick is shutting down the people’s access to their government,” the plaintiffs’ attorney Jared Woodfill said in a statement.

Members of the public wishing to view proceedings must receive a wristband that indicates a negative COVID-19 test. The rule was established to prevent the spread of the virus at the statehouse, which proved to be hotspots in other states.

[…]

The lawsuit says the Senate rule “unreasonably restricts speech” by mandating a “medical procedure as a prerequisite” and violates the right to free speech guaranteed by the Texas Constitution.

“The constitutional mandate that the legislative session be ‘open’ supersedes any statutory emergency authority that may otherwise apply to the Senate,” the suit reads, noting Hotze had tried to enter on March 2 but was denied entry when he refused a COVID-19 test.

See here for some background. I couldn’t find a copy of the lawsuit online, but Jasper Scherer has an image of the first four pages. In the name of preserving my sanity, I did not read them. One does not have to be a lawyer to think that the “free speech” argument here is a stretch, though maybe there’s something to the open meetings claim. I’ve got better things to worry about, so we’ll see what the courts make of it. We know what their recent track record is, I’ll just leave it at that.

A closer look at the Aguirre/Hotze debacle

This WaPo story was pointed out in the comments here, and it’s worth your time to read. I should note that while the Houston Chronicle has not (at least so far) identified the air conditioning repairman that Aguirre attacked, this story did identify and talk to him. For now, I’m going to stick to the Chron’s style guide, so where the WaPo story includes his name, I’m going to put “[the ACRM]” in my excerpt, to stand for “the air conditioning repairman”.

The episode illustrates the extreme and sometimes dangerous tactics that a set of conservative groups have employed in an effort to substantiate President Trump’s unproven allegations of widespread voting fraud in the election. Theories about truckloads of missing mail-in ballots, manipulated voting machines and illegal mail-in ballot collections have abounded in far-right circles, despite a lack of credible evidence, leading to threats of violence against election workers and officials.

Many of the fraud allegations have come in the form of lawsuits that have been rejected by state and federal judges across the country.

The overall effort in Houston stands out because it relied on an expensive, around-the-clock surveillance operation that, for reasons so far unknown publicly, targeted a civilian — authorities called him “an innocent and ordinary air conditioner repairman” — with no apparent role in government or election administration. The operation was also financed by a newly formed nonprofit group run by a well-known GOP donor in Texas and prominent former party officials in Harris County, the state’s most populous county, corporation records show.

The nonprofit group, the Liberty Center for God and Country, paid 20 private investigators close to $300,000 to conduct a six-week probe of alleged illegal ballot retrievals in Houston leading up to the election, the group has said. None of its allegations of fraud have been substantiated.

The group’s president, Steven F. Hotze, did not respond to an interview request.

Aguirre declined to say why the operation focused on [the ACRM].

“I’m not trying my case in the paper,” Aguirre, who was released on $30,000 bail, told The Post in a brief phone interview on Dec. 16. “I don’t care about public opinion. I’m trying my case against these corrupt sons of [expletives].”

The origins of Aguirre’s election fraud investigation date to the formation of the Liberty Center for God and Country in late August.

[…]

Hotze’s nonprofit group was created “for the purpose of ensuring election integrity primarily,” said Jared Woodfill, Hotze’s personal lawyer and the former executive director of the Harris County Republican Party, the county that includes Houston. Woodfill is listed on state incorporation records as a director of the nonprofit group, along with Jeffrey Yates, the former longtime chairman of the county’s Republican Party. Yates did not respond to phone messages.

“The socialist Democrat leadership in Harris County has developed a massive ballot by mail vote harvesting scheme to steal the general election,” a now-deleted fundraising page for the group alleged. “We are working with a group of private investigators who have uncovered this massive election fraud scheme.”

The group raised nearly $70,000 through a GoFundMe page from Oct. 10 through last week. Hotze has said publicly that he donated $75,000 to the probe and that an unnamed individual had donated another $125,000.

Hotze turned to Aguirre to assemble a team of 20 private investigators, according to Aguirre’s attorney, Terry Yates, who is not related to Jeffrey Yates.

“Mark would say he’s the guy who was in charge,” Terry Yates told The Post.

I’m not going to try to guess what might be going on in Steven Hotze’s whack-a-mole brain, but I do want to understand why these jokers came to focus on this one poor guy. There had to be some reason for it, however irrational and ultimately wrong-headed. If nothing else, the attorney that eventually files a massive lawsuit against Hotze for the pain and suffering our ACRM endured will want to know the full story.

In September, Aguirre wrote an affidavit for a lawsuit brought by Hotze and the Harris County GOP before the Texas Supreme Court seeking to curtail early and mail-in voting. The affidavit alleged Democrats had devised a scheme to submit as many as 700,000 fraudulent ballots in Harris County. The Texas Supreme Court dismissed the lawsuit on Oct. 7.

Nevertheless, law enforcement officials in Harris County began looking into the claims in the affidavit. The affidavit did not mention [the ACRM], but described what it contended was a broader ballot-harvesting effort directed by local Democratic officials.

Four investigators from the Harris County Precinct 1 Constable’s Office, which is responsible for investigating voter integrity issues, were assigned to the investigation, an official said.

“We looked into the allegations,” said Constable Alan Rosen, who said investigators conducted interviews with various people but got no cooperation from Aguirre and other private investigators. “We wanted to investigate their side of the story and they wouldn’t talk to us.”

“No proof was ever substantiated,” according to Rosen.

As the Nov. 3 Election Day neared, Aguirre and other unidentified private investigators began to monitor [the ACRM] more closely, court records show. By mid-October, they had devised a plan to carry out extensive monitoring that kept eyes on the air conditioning repairman day and night, court records show.

Beginning around Oct. 15, the investigators started “24 hour surveillance” on [the ACRM]’s mobile home, a police affidavit states. They set up a “command post” nearby, renting two hotel rooms for four days in a Marriott hotel, according to the affidavit. As they watched [the ACRM], Aguirre unsuccessfully tried to convince law enforcement authorities at the state level that he was on to something big, according to several law enforcement agencies and court records.

On Oct. 16, Aguirre called a member of the state attorney general’s election task force, Lt. Wayne Rubio, to request that Rubio order a traffic stop of [the ACRM]’s vehicle, court records show. Rubio declined. Aguirre “seemed upset that the Department of Public Safety could not stop and detain an individual based solely on [Aguirre]’s uncorroborated accusations,” Rubio later told police, according to the affidavit.

Aguirre told Rubio that he would make the traffic stop and execute a “citizen’s arrest,” the affidavit states. Rubio did not respond to interview requests, and the Attorney General’s Office declined to comment.

Aguirre also contacted Jason Taylor, a regional director at a separate statewide law enforcement agency — the Texas Department of Public Safety — the agency said in a statement to The Post. That contact came a day before Aguirre is accused of ramming [the ACRM].

“Mr. Aguirre brought up the allegations of election fraud during a phone call on Oct. 18, 2020, with the Texas Department of Public Safety (DPS) Regional Director,” a spokesman wrote. “Based on that call, the matter was then discussed with the (DPS) Texas Ranger Division. The decision was then made to refer Mr. Aguirre to the Office of the Texas Attorney General.”

Aguirre later told police he was frustrated that he had “not received any help” from law enforcement agencies, according to the police affidavit.

So many questions here. What evidence did Aguirre present to DPS and the AG task force? Clearly, it was pitiful, because had there been anything at all to the juicy allegation of Democrats engaging in massive fraud, these guys would have been all over it, but that’s not the whole picture. The bigger question is, should Aguirre’s delusions have given these guys cause to worry about his actions and the potential danger to the ACRM? Did they take his threat of a “citizen’s arrest” seriously, and if not why not? Imagine for a minute if our ACRM had had a concealed carry license, and had made the determination when he saw Aguirre approach him that his life was in danger (which, as it happens, it was) and he needed to defend himself. Or instead imagine if Aguirre had gotten jumpy and made the same decision for himself. This “citizen’s arrest” could very well have had a body count, which is why I ask, should the law enforcement officers that Aguirre complained were unwilling to help him have taken action against him instead? It’s more grist for our ACRM’s future attorney, I suppose.

Police later reviewed grand jury subpoena records from Aguirre’s bank, the police affidavit states, and saw wire transfers of nearly $270,000 to his account from the Liberty Center for God and Country with payments of $25,000 each wired on Sept. 22 and Oct. 9, and $211,400 deposited the day after the alleged assault.

Houston police declined an interview request and said they would not answer specific questions about the case because the department’s investigation is ongoing.

The Harris County District Attorney’s Office, which charged Aguirre after a grand jury indictment, also declined to answer questions. “This is an active, ongoing investigation,” spokesman Michael Kolenc wrote in an email.

As I said before, I really hope that this ongoing investigation includes Hotze and the malevolent organization he spawned to finance this travesty. I sure won’t be surprised to learn that they were not scrupulous in following the law prior to Aguirre’s attack on the ACRM. Don’t be afraid to go where the evidence leads.

Aguirre’s arraignment

The latest update on the Aguirre/Hotze fever-dream “vote fraud” case.

An ex-Houston police officer on Friday swore he is “done” with private investigations after being arrested and charged with assaulting an air conditioning repairman he claimed was involved in a massive ballot fraud scheme.

Mark Aguirre, a former Houston Police Department captain who is now a licensed private investigator, called in to state District Judge Greg Glass’ courtroom for his first court appearance in the case. His setting originally was scheduled for Thursday but was postponed because he has COVID-19, his attorney said.

As conditions of his release on bond, Aguirre is barred from contacting the repairman, possessing firearms, or continuing to work with the Liberty Center for God and Country, which hired him to investigate voter fraud leading up to the Nov. 3 general election.

When prosecutors requested Aguirre no longer work with the right-wing group, he volunteered not to do any more investigations, period.

“No. I’m done,” he said.

Aguirre frequently works with law firms around Houston, defense attorney Terry Yates said.

Glass denied prosecutors’ requests that Aguirre be monitored by a GPS tracking device. He has one firearm that he said he would turn over to his attorney.

Aguirre was charged Tuesday with aggravated assault with a deadly weapon, a felony, and was released after posting bond on a $30,000 bail.

[…]

Yates gave a different account of what happened in an interview Friday, alleging that the incident took place after Aguirre and the repairman were involved in a “fender bender.” Yates said the repairman got out of his truck and rushed at Aguirre, prompting the confrontation.

“(The police) came out and investigated, and after they took quite a bit of time out there interviewing everybody, they gave (Aguirre) his gun back and told everybody to go their separate ways,” Yates said.

See here and here for the background. My first thought is that I’m going to need to come up with a pithy name for this saga, because the description I used in the opening of this post just won’t do. My second thought is that if Aguirre goes and does something stupid before his trial, at least he met the criteria of being able to pay a bail bondsman for his ability to be out on the street. My third thought is that defense attorney Terry Yates, and by extension Hotze, is going long on the defense here by claiming a completely alternative reality, one in which the victim in the alleged crime is actually the instigator and the defendant is the real victim. I presume there will be a heaping helping of conspiracy as part of this defense, since there was a few weeks between the event in question and the arrest of Aguirre. I wonder if Yates will have any evidence to present to back his claims about the van driver, or if he’s just going to spray a lot of countercharges and hope to confuse the jury. I have previously speculated that there may be further investigation into the payments that Hotze made to Aguirre, and so I wonder if we will see further charges down the line. Or maybe this is all there is and it will fizzle out, perhaps into a misdemeanor plea. It’s something to look forward to in 2021, at least.

Hotze spews some BS

That could be a perennial headline, like a pinned tweet, but here it’s for a specific purpose.

Conservative activist Steven Hotze said Wednesday he does not know if the former Houston police captain he hired to investigate voter fraud really did detain an air conditioning repairman at gunpoint and direct his associates to search the man’s truck for stolen ballots, as prosecutors alleged a day earlier.

He did not witness the predawn Oct. 19 confrontation with his own eyes, so he chalked up the felony charge of aggravated assault with a deadly weapon against Mark A. Aguirre as “one man’s word against another man’s word.” The repairman’s truck contained only parts and tools, authorities said.

Hotze did not, however, apply that same skepticism in urging the public to take seriously his claims of a large-scale ballot harvesting operation perpetrated by powerful Houston Democrats that he said Aguirre and around 20 other investigators in his employ had uncovered and then foiled leading up to the Nov. 3 general election.

During a bizarre news conference that began with Hotze accusing Harris County District Attorney Kim Ogg of a politically motivated prosecution and concluded with him recommending an unproven drug to ward off COVID-19, the activist alleged that Democrats had attempted to forge hundreds of thousands of mail ballots without providing evidence to support his claims.

Hotze confirmed that he paid Aguirre $266,400 to investigate voter fraud allegations through his group, Liberty Center for God and Country, including more than $211,000 the day after the Oct. 19 incident. And he called the assault charge “bogus,” questioning why Aguirre was not arrested earlier.

“Two months later? Really? … Something smells,” Hotze said.

Hotze said he would not condone Aguirre’s actions if they were proven true, but he called the inquiry from a reporter a “hypothetical.” And he said he was not worried about being legally implicated as the one funding Aguirre’s investigative work.

See here for the background, and here for an update on defendant Mark Aguirre. Challenge accepted, I hope. Nothing would please me more than to see someone slap handcuffs on Steven Hotze. An acceptable consolation prize would be for one of Houston’s fine trial attorneys to sue the bejeezus out of him on behalf of the air conditioning repairman who was threatened and terrorized by Aguirre and whatever other thugs were involved. A multi-million dollar judgment, along the lines of the cases that the SPLC won against various domestic terrorists in the past, would be a fine coda to this story.

The real danger of unhinged conspiracy theories

Because sometimes malevolent people act them out, with potentially deadly consequences for others.

An air conditioning repairman was driving in south Houston around 5:30 a.m. on Oct. 19 when a black SUV rammed the back of his truck. When he pulled over in the darkness and got out to check if the other driver was OK, the man in the SUV drew a pistol and ordered him to the ground.

He complied. As the other driver drove a knee into his back, the repairman saw two other vehicles pull up, and feared he would be killed in what he believed was a predawn carjacking.

Instead, according to an indictment announced Tuesday by the Harris County District Attorney’s Office, the incident was a brazen attempt by a former Houston police captain to secure evidence to support a far-fetched claim that prominent local Democrats had orchestrated a scheme to harvest more than 700,000 ballots leading up to the Nov. 3 election. The ex-lawman, Mark A. Aguirre, 63, faces a felony charge of aggravated assault with a deadly weapon stemming from the Oct. 19 confrontation.

“He crossed the line from dirty politics to commission of a violent crime and we are lucky no one was killed,” District Attorney Kim Ogg said. “His alleged investigation was backward from the start — first alleging a crime had occurred and then trying to prove it happened.”

Aguirre told police they would find hundreds of thousands of ballots in the repairman’s truck. Instead they found only air conditioner parts and tools.

The Chronicle is not identifying the repairman.

Court records chronicling Aguirre’s arrest also reveal new details of an extensive investigation of alleged voter fraud funded through an organization run by conservative activist Steven Hotze and former Harris County Republican Party Chairman Jared Woodfill. Affidavits by Aguirre and others were used as evidence in several lawsuits the Republicans filed this fall challenging Texas and Harris County’s election plans.

The charging documents reveal that beyond pushing a conspiracy theory that Democrats had collected hundreds of thousands of fraudulent ballots, the “citizens investigation” by Aguirre and others put at least one resident in danger.

The repairman said as the man later identified as Aguirre held him at gunpoint, additional vehicles arrived at the scene. Aguirre ordered a second person to search the victim’s truck, court documents state. Other people then drove the truck to a different location.

A Houston police officer happened upon the scene, stopped and ordered Aguirre to release the repairman. After police confiscated two handguns Aguirre was carrying, he told Detective John Varela that he and others were part of a group called the Liberty Center, an affidavit by Varela states.

According to the affidavit, Aguirre said his team had been surveilling the repairman for four days, convinced he was involved in a ballot harvesting conspiracy at his mobile home. The repairman, Aguirre alleged, had about 750,000 fraudulent mail ballots which he was “using Hispanic children to sign” because the youths’ fingerprints would not appear in databases.

Varela said the victim let police search his home and truck, where Aguirre said the ballots were stored. Officers found the home was “appropriately furnished” and the truck had air conditioning tools and equipment, but neither contained any evidence of a ballot harvesting operation.

[…]

Affidavits by Aguirre and former FBI employee Charles Marler were part of a lawsuit filed this fall by conservative Houston activist Steven Hotze, who sought to prohibit voters from dropping off mail ballots in person before Election Day.

Aguirre and Marler provided sworn statements included in the lawsuit alleging that powerful Democrats in Harris County had devised a scheme to submit as many as 700,000 fraudulent mail ballots, representing nearly a third of the entire voter roll.

Citing secondhand sources and videotaped interviews, the pair alleged that several African-American businessmen and elected officials were involved, including Harris County Commissioner Rodney Ellis, State Sen. Borris Miles and Biden campaign Texas political director Dallas Jones.

All three denied the claims. Aguirre in October hung up on a reporter seeking evidence of the allegations. Aguirre and Marler did not respond to requests for comment Tuesday.

There’s more, so keep reading. If the name Mark Aguirre is familiar, it’s because he was a captain with HPD who was fired for his role in the infamous bust of dozens of teenagers for alleged street racing – see here for a brief highlight of Aguirre’s role in that debacle. According to the story, Aguirre was paid over a quarter million bucks from the Hotze and Woodfill-run outfit Liberty Center for God and Country, most of which came right after the alleged assault. Hotze is of course out there in front of the media lying his ass off, because that’s who he is and what he does. I can’t help but feel the financial aspect of this, and the “I’m so shocked such a man might be accused of such things” reaction that Woodfill gave in the Chron story, means there will be more to this as the case progresses. We saw all of the lawsuits that Hotze filed against voting this election, there’s no reason to believe he wouldn’t go farther than that in pursuit of his electoral fantasies. You can be sure I’ll be keeping an eye on this. TPM, the Trib, the Texas Signal, Daily Kos, and Juanita have more.

Federal judge denies Hotze petition

Hopefully, this will be the end of this particular nonsense.

A federal judge Monday rejected a request by a conservative activist and three Republican candidates to toss out nearly 127,000 votes cast at drive-thru polling sites in Texas’ most populous, and largely Democratic, county.

The ruling by U.S. District Judge Andrew Hanen, a George W. Bush appointee, follows two earlier decisions by the all-Republican Texas Supreme Court rejecting similar efforts by Republicans challenging the validity of drive-thru voting in Harris County. Although Hanen’s ruling is still expected to be appealed quickly, it appears to clear the way for counting the early voting drive-thru ballots on Election Day.

In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. He noted, however, that the U.S. 5th Circuit Court of Appeals could think differently if the cases reaches them.

If he had ruled on the larger issues in the case, Hanen said he would have rejected the request to toss out votes already cast. But Hanen said he would have shut down Harris County’s drive-thru polling places for Election Day, because the tents being used for the sites don’t qualify as “buildings” under state election law.

“If I were voting tomorrow … I would not vote in a drive-thru just out of my concern as to whether that’s illegal or not,” he said. “I am going to order the county to maintain all the drive-thru voting records … just in case the 5th Circuit disagrees.”

Ten percent of Harris County’s in-person early voters cast their ballots at the county’s 10 drive-thru locations. Dismissing the votes would have been a monumental disenfranchisement of voters in a presidential election besieged with fights over voter suppression and fraud.

The judge ruled from the bench after a hearing with plaintiffs, the county and numerous Texas and national voting rights and political groups joining Harris County to argue that the drive-thru program was legal under Texas election law.

See here, here, and here for the background. This is obviously a great relief, because as ridiculous as this lawsuit was, the cost of an adverse ruling was sky-high. There will be an appeal, but it looks like that will be to stop drive-through voting on Election Day, not to continue the pursuit of throwing these votes out. I think.

On that note: You saw Judge Hanen’s words about voting at a drive-through location today. Drive-through locations will be open today, and if you have the need to use one, then use it. I believe there’s form you can use to attest to your need to vote curbside, which is legally different than drive-through and which is expressly allowed under Texas law (the whole dispute here ultimately boils down to the allegation that drive-through voting is an illegal expansion of curbside voting). Otherwise, I agree with the lawyers who say just park and go inside to vote. Don’t take the chance that this could come up again after the election.

Statements from the ACLU and the Texas Civil Rights Project are beneath the fold, and a statement from the Texas Democratic Party is here. This Twitter thread by Raffi Melkonian is a terrific blow-by-blow account of the hearing and ruling, with some explanations thrown in for the non-lawyers. The Chron, Houston Public Media, the Press, Mother Jones, Politico, and Daily Kos have more.

UPDATE: And so the appeal is happening in the night. Here’s another Twitter thread to keep track. I hope like hell I don’t have to rewrite this whole damn post in the morning.

UPDATE: As of 9 PM, no actual filing yet.

UPDATE: OK, the petition has been filed. They are just asking for drive-through voting to be halted for Election Day. Stay tuned.

UPDATE: Hopefully, this is the final final update:

You can see the denial in its glory here. The remaining drive-through location will be at the Toyota Center, which no one can deny is a building; the reason that Judge Hanen would have halted drive-through voting on Election Day is because the law is actually different for Election Day than it is for early voting, specifying “buildings” instead of “structures”. At this point, there really isn’t anything left to litigate. Happy voting to whoever will be doing so today.

(more…)

SCOTX rejects Hotze petition to throw out drive through votes

One piece of good news.

A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.

[…]

Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

Plus, the county argued in a Friday filing that Texas’s election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the filing said.

See here and here for the background. I’m glad to see SCOTX affirm my faith in them. They’re partisan, but I didn’t think they would want to set their reputations, and the court’s legitimacy, on fire for such a blatant and sloppy effort to disenfranchise thousands of people. So we’ve got that going for us, which is nice.

There’s still the matter of that federal lawsuit, for which there will be a hearing this morning at 10:30. I have no idea when there might be a ruling – it’s not out of the question that the judge could rule immediately upon the completion of the hearing – but it’s still looming out there. If you were one of the 126K+ drive-through voters, you can add yourself to the lawsuit as an intervenor, and put your experience on the record. Just fill out this form – quickly, the hearing is at 10:30 as noted – and you’ll have done your part. Here’s hoping. The Statesman has more.

UPDATE: From Twitter:

The attached brief is custom-made to convince a partisan Republican judge to throw out the plaintiffs’ petition. Let’s hope this helps.

Hotze and Woodfill take their fight against drive-thru voting to federal court

Just another quiet Saturday…

Mark can be a bit of an alarmist, but that doesn’t mean he’s wrong. For what it’s worth, Rick Hasen thinks this suit is without merit, though again worth worrying about given the deranged nature of parts of the federal judiciary these days.

Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.

On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively

You can click over and read Hasen’s reasons, and you can read these threads by law professor Michael Morley and Buzzfeed News reporter Molly Hensley-Clancy for more reasons. You should also remember that at the end of the day, Jared Woodfill is a complete moron, and anything that relies on his legal acumen is likely to fall well short of the mark. Again, that doesn’t mean that a pliant federal judge won’t give him what he wants. It just means that would be the only reason why he’d succeed. Democracy Docket has intervened, and Josh Marshall, whose post alerted me to Mark Joseph Stern’s tweets, has more.

In the meantime, the State Supreme Court will also be dealing with this tomorrow.

The Texas Supreme Court drew alarmed attention Friday after directing Harris County to respond to a petition that seeks to invalidate more than 117,000 votes cast in drive-thru lanes.

The court’s interest came as an unwelcome surprise to voting advocates and Harris County officials who were banking on a quick dismissal of the petition, filed by two GOP candidates and a Republican member of the Texas House.

[…]

The petition — filed by state Rep. Steve Toth, R-The Woodlands, GOP activist Steven Hotze and two Republican candidates in Harris County — argued that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who have an illness or disability that could put them at risk if forced to enter a polling place.

The court responded by giving Harris County until 4 p.m. Friday to file a legal brief responding to the petition, raising fears that the Supreme Court was giving consideration to tossing out tens of thousands of ballots.

However, it takes only one justice on the nine-member court to request a response to a petition, and there is no way of knowing how many justices were interested in Harris County’s response because the court does not disclose that information.

In addition, before tossing out the votes, the court would have to acknowledge that 117,000 Harris County voters had visited a drive-thru polling site by Thursday night, including more than 42,000 drive-thru votes that were cast since justices first had a chance to stop the practice a week earlier but did not.

In a memo prepared for Harris County on the issue, noted Austin lawyer C. Robert Heath said the bid to void drive-thru votes faces the daunting challenge of overcoming a key legal supposition — that state laws are to be interpreted in favor of preserving the right to vote.

“If a court or other authority were to decide to invalidate those votes, it would require ignoring or overruling more than a century of Texas law,” Heath concluded.

In the brief requested by the Supreme Court, Harris County lawyers argued that there is nothing illegal about drive-thru voting, nor can votes cast that way be considered illegal.

“Uncountable votes are those that resulted from clear fraudulent behavior,” they argued. “There is nothing about an eligible voter casting an in-person vote from their car that renders their vote illegal, fraudulent, or not countable.”

The brief argued that drive-thru voting is just another polling choice with a different structure. Vehicles enter the voting area, typically a large individual tent, one at a time. A clerk checks each voter’s photo ID and has them sign a roster before handing over a sanitized voting machine.

More importantly, the county said, drive-thru voting was approved by the Texas secretary of state’s office before being adopted and was used, without objection, in the July primary runoff election.

Reform Austin also covered this, with a focus on Harris County’s response, so go check that out. This is another reason why we need comprehensive legislation, at both the state and national levels, to clarify, affirm, and assert the right to vote, and to explicitly ratify different methods to expand voting access. If nothing else, that is needed to ward off future bullshit lawsuits like these.

As for this one, I maintain my belief that SCOTX is unlikely to do anything radical. You are free to freak out as you see fit over either of these.

UPDATE: Here’s the Chron story on this.

UPDATE: If you participated in drive-through voting and want to intervene in this federal lawsuit, fill out this form.

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.

Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

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

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

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

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

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

To the Honorable Supreme Court of Texas:

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

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

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

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

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

Hotze’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.

Supreme Court issues possibly pointless stay in mail ballots case

This story doesn’t quite say what it seems to say, as we will see.

The Texas Supreme Court has temporarily blocked Harris County from sending mail-in ballot applications to all its voters for the November election.

The decision Wednesday came in response to a lawsuit filed days ago by Republicans in the state’s largest county. Attorney General Ken Paxton has since launched his own legal challenge to the plan.

Harris County Clerk Chris Hollins announced last month that the county would send applications to its more than 2.4 million registered voters, an effort to make it easier to participate in the election due to the coronavirus pandemic. After being sued by Paxton, Hollins said he would only send applications to voters 65 and older, who are eligible to vote by mail under state law, pending the litigation.

The Harris County GOP lawsuit alleges that Hollins is a “rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County.” The lawsuit was brought by the county party, conservative activist Steve Hotze and judicial candidate Sharon Hemphill.

See here and here for the background. Before we go on, let’s look at the actual order released by SCOTX:

The Emergency Motion for Temporary Relief is GRANTED in part. In conformance with the Rule 11 agreement in State of Texas v. Hollins (No. 2020-52383, 61st Judicial District Court, Harris County), Real Party in Interest Hollins is ordered to refrain from sending applications to vote by mail to registered voters under the age of 65 who have not requested them until five days after a temporary injunction ruling in State of Texas v. Hollins. The Real Party in Interest should inform the Court of any developments in State of Texas v. Hollins that may affect this order.

[Note: The petition for writ of mandamus remains pending before this Court.]

Emphasis mine. This is of course what Hollins had agreed to do, so functionally there are no changes since yesterday. The reason for this stay is that it came from the Hotze mandamus action, whereas Hollins’ agreement to suspend any mailings to under 65 voters came from the state lawsuit. Note also that this does not in any way affect the mandamus itself – as the Court says, that’s still pending. There should be a hearing on the state lawsuit early next week, which corresponds with the timeline for this order as well. Bottom line, nothing has changed here.

One more thing:

Amid the latest legal chapter Wednesday, Democrats called Republicans hypocrites for apparently sending out their own mail-in ballot applications while fighting Harris County’s plan in court. Hollins tweeted pictures from a mailer, paid for by the Texas GOP, that says President Donald Trump “is counting on you” and urges recipients to fill out an attached mail-in ballot application after confirming they are eligible.

“Much like Trump, Texas Republicans have been exposed as hypocrites to the highest degree,” state Democratic Party spokesperson Abhi Rahman said in a statement. “Voting by mail is safe, secure, and convenient.”

Remember how much the Republicans whined about straight-ticket voting in 2018, even as they were exhorting their own voters to vote a straight Republican ticket? It’s like that. Pay no attention to the noise machine.

Hotze and the Harris County GOP try to stop the Clerk from sending out mail ballot applications

It’s mandamus time! Again.

The Harris County Republican Party on Monday joined a lawsuit asking the Texas Supreme Court to halt the county clerk’s plan to send mail ballot applications to all 2.4 million registered voters.

The lawsuit accuses County Clerk Christopher Hollins of ignoring the court’s June ruling on mail ballots and misreading the Texas Election Code.

“Harris County has a rogue clerk who is abusing the application to vote by mail process and compromising the integrity of elections in Harris County,” the suit states. The other plaintiffs in are conservative activist Dr. Steven Hotze, and Sharon Hemphill, a Republican running for judge in the 80th Judicial District Court.

[…]

The suit argues that the Election Code states residents must request a mail ballot application, and that absentee voting in Texas is reserved for a small group of voters. Since the code does not specifically permit a county clerk or elections administrator to send mail ballot applications to residents who do not request them, the suit claims this practice is illegal.

Myrna Pérez, director of the voting rights and elections program at the Brennan Center for Justice, told the Houston Chronicle on Friday that nothing in the Texas Election Code prohibits Harris County from mailing applications to whomever the clerk chooses.

The plaintiffs also claim Hollins disregarded the Supreme Court’s June ruling, which held that lack of immunity to COVID-19 alone did not qualify voters for a “disability,” one of three conditions that permit a resident to vote by mail in Texas.

Hollins and the Harris County Attorney’s Office have interpreted the ruling to mean that fear of the virus can constitute one of several factors to meet the disability standard. Since the county clerk has no duty to challenge mail ballot applications, this effectively leaves voters to decide for themselves where they qualify.

See here and here for the background. This mandamus makes two arguments, both of which seem incredibly thin to me. One is a rehash of the state Supreme Court opinion in the earlier lawsuit by the TDP to expand vote by mail, in which SCOTX agreed with the state that “lack of immunity to COVID-19” did not qualify as a “disability” under the law that defined vote by mail eligibility. That opinion also concluded that it was up to the voter to determine whether or not they met the definition of “disability” under this law, and that local election administrators have “no responsibility to question or investigate a ballot application that is valid on its face”. Their claim is that this means that it’s illegal to send people who may not qualify for a mail ballot an application for a mail ballot, which sure looks to me like an enormous leap. I can certainly imagine SCOTX taking an opportunity to clarify their earlier ruling, but I would hope they’d prefer to do it after a case has been argued and facts established by a lower court.

The other argument is an even bigger head-scratcher. Allow me to quote:

III. State Law Requires Voters to Request an Application to Vote by Mail

The Texas Election Code § 84.012 states: CLERK TO MAIL APPLICATION FORM ON REQUEST. The early voting clerk shall mail without charge an appropriate official application form for an early voting ballot to each applicant requesting the clerk to send the applicant an application form.

Limitations on voting by mail and fraud related to the voting by mail process has been the subject of “intense political debate, in this State and throughout the country.” In re State, 602 S.W.3d 549, 550 (Tex. 2020). This Court has not taken “a side in that debate,” and has left the decisions regarding voting by mail “to legislators and others.” Id.

The issue before this Court is not whether the application process for voting by mail is a better policy or worse, but what the Legislature has enacted. It is purely a question of law. This Court’s “authority and responsibility are to interpret the statutory text and give effect to the Legislature’s intent.” Id.

Here’s the law in question. I Am Not A Lawyer, but I am capable of reading an English-language sentence and inferring its meaning. I say the plain meaning of this text is that the intent of the Legislature was to mandate that County Clerks send a mail ballot application to anyone who requests one. The purpose of this law is to remove any discretion from the Clerk’s procedure – in other words, to forbid a Clerk from deciding not to send someone a mail ballot application because the Clerk thinks that person is ineligible or whatever else. I’m hard-pressed to see how this could be interpreted any other way.

The law, as written, does not specify that the Clerk may not send an application to anyone who did not specifically ask for one. Nor does it say that they Clerk may only send an application to those who do. It just says that if a Clerk gets a request for a mail ballot application, the Clerk must send the mail ballot application. What else would it mean?

The relators elaborate on their argument a couple of paragraphs later, and it’s almost as if they’re trying to make my argument:

A. The plain language of Texas Election Code § 84.012 prohibits Respondent from sending applications to all registered voters.

Texas statutes are to be interpreted based on their plain language. See Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). The Court presumes the Legislature included each word for a purpose and that words not included were purposefully omitted. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). It also presumes the Legislature understood and followed the rules of English grammar. Tex. Gov’t Code § 311.011; See also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 140 (2012) (describing the presumption as “unshakeable”).

[…]

The plain language of the statute makes it clear that the clerk shall mail the appropriate official application form for early voting only to “applicant[s] requesting the clerk to send the application form.” Id. The Texas Election Code § 84.012 does not allow for the clerk to send applications to all registered voters.

The Legislature’s refusal to add such language is consistent with the Legislature’s desire to curtail fraud associated with voting by mail. If the Legislature had wanted to require the clerk to send the application to vote early to all registered voters, they could have done so. Additionally, if they wanted the clerk to have this option, they could have provided it in the language of the statute. Instead, the Legislature limited the mandate to provide the application only to those who request it.

Emphasis in the original. Note how the word “only” in the penultimate paragraph is not included in the quote from the law. That’s because that word was not included in the law. Like I said, it’s almost as if they agree with me.

I would also point out that if the Legislature really did intend to “limit the mandate to provide the application only to those who request it”, then campaigns and political parties have been violating this law with impunity for decades. I myself would have violated it in 2018 when I participated in HCDP phone banks to remind voters that the HCDP had already sent mail ballot applications to complete them and mail them in. Remember how the TDP recently boasted about sending out zillions of mail ballot applications to voters this year? Or for that matter how County Clerk Hollins sent mail ballot applications to all registered voters 65 and over for the primary runoffs? No one filed any mandamuses over those actions. That’s because the law does not forbid them. Capische?

Now again, the relators here are trying to wedge the door open to allow SCOTX to revisit its opinion from that earlier suit and clarify that no, actually, only people who are Legitimately Disabled (whatever that means) can get mail ballots. That would mean not only making up a new law on the spot but also defining how to enforce it, and while I would not put it past the Supreme Court to try and pull such a stunt, it would be a big goddamn mess if they did so. I don’t think they have it in them, but we’ll see.

One more thing: Do go and give this mandamus a scan – the link from above is to a Quorum Report post, and the mandamus filing is there as a downloadable PDF. Look at how much of the language in this filing is about buzzwords and slogans – fraud! rogue! more fraud! – and how little refers to actual law and precedent. Now compare it to the mandamus writ in the attempt to knock Libertarian candidates off the ballot, which whatever you may think of it is sober, to the point, and full of citations. Maybe it’s just me, but the former comes off as desperate, while the latter has some faith in its arguments. Campos has more.

SCOTX rejects multiple Hotze petitions

Some good news.

The Texas Supreme Court has refused to hear several challenges by a Houston conservative power broker to emergency orders on coronavirus issued by Gov. Greg Abbott and Harris County Judge Lina Hidalgo.

Without comment, the nine Republican justices on Friday denied a request that they review a trial court that upheld Hidalgo’s April 22 mask order.

The order required residents to wash hands before leaving home and wear masks, stay 6 feet away from each other and avoid touching their faces in public. For a time, Abbott, a Republican, prevented Hidalgo, a Democrat elected in 2018, from enforcing it. The governor later reversed course and issued his own mask order.

Experts said Friday they weren’t surprised that in five recent lawsuits, the state’s highest civil court has declined Dr. Steve Hotze’s demands that it step in and overturn Abbott and Hidalgo’s COVID-19 orders. Each time, the court ruled on procedural grounds.

Hotze, a staunch conservative who for decades has wielded influence with his “slate cards” telling Harris County voters whom to back in Republican primaries, said his bid to protect Texans’ state and federal constitutional rights will continue.

“We fight on,” he said. “It’s obvious to me some members of the Supreme Court just don’t want this case to come up. They don’t want to go against Abbott. Six of them were appointed by Abbott.”

See here for the background, and here for the one-line denial. This follows on the heels of an earlier denial over Abbott’s statewide mask order.

The Texas Supreme Court on Friday dismissed a lawsuit disputing Republican Governor Greg Abbott’s executive orders closing nonessential businesses during the Covid-19 pandemic, but one justice expressed concern he is improperly taking the role of state lawmakers.

The Republican-controlled high court dismissed without comment the lawsuit filed by lead plaintiff and Republican activist Dr. Steven Hotze for a lack of jurisdiction.

Justice John Devine agreed with the dismissal, concluding a lawsuit against the governor is the incorrect vehicle. Nonetheless, Devine said Abbott’s emergency actions are not “categorically immune” from review by the courts and he finds it “difficult to square” the governor’s orders and state law.

“I share relators’ concern in what they describe as ‘an improper delegation of legislative authority’ to the executive branch,” his five-page concurring opinion states. “During declared states of ‘disaster,’ the Texas Disaster Act of 1975 bestows upon the governor the power to issue executive orders that have ‘the force and effect of law.’ Disaster or not, the Texas Constitution doesn’t appear to contemplate any circumstances in which we may condone such consolidation of power.”

Devine, a Republican, said the constitution’s ban on a branch of government exercising another branch’s powers “is not simply a suggestion.”

“In the first article, it states: ‘No power of suspending laws in this state shall be exercised except by the Legislature,’” he wrote. “This provision means what it says. The judiciary may not suspend laws. Nor may the executive. Only the Legislature.”

The Texas Legislature is only in regular session once every two years for 140 calendar days beginning in January. Abbott has so far ignored calls by state lawmakers to call a month-long special session to replace his executive orders during the pandemic.

Devine wrote the court’s dismissal “should not be misperceived as a judicial kowtow” to Abbott, saying there is no “pause” button to the Texas Constitution. He expressed worry that more executive orders will come when a second wave of the virus hits, resulting in “short-term orders could continually escape” the court’s review.

See here for that background, and here for that denial. This recapitulates what I’ve been saying all along – there are serious questions to be asked about the Governor’s powers at this time and what the role of the Legislature should be, questions that I sincerely hope are addressed by the next Lege, but Steven Hotze and Jared Woodfill and their shambling evil Lawsuits R Us clown car is absolutely the wrong way to examine those questions. I would also add that SCOTX’s loopiest Justice John Devine is exactly the wrong person to be setting the outlines of this debate, but at least he did so in a concurring opinion. I’ll take what I can get at this point.

On a side note, in that first article Rice poli sci professor Mark Jones is quoted saying that in a 2015-2017 context, Greg Abbott very likely would have given more weight to the demands of the fringiest wingnuts in the Republican Party, because there would have been no political counterweight to them. But now, at a time when Donald Trump is at best running even with Joe Biden in the polls of Texas and the Democrats have a legitimate shot at taking the State House and knocking off a bunch of GOP members of Congress, some discretion on his part is the better part of valor. In other words, elections do have consequences.

Finally, since all news of bad things happening to Steven Hotze is good news, I was recently sent some relevant court documents by a very helpful reader that I will chare with you here. First, is this by a Harris County judge, issued on his own volition (the fancy Latin legal term for this is “sua sponte”), chiding Hotze and Woodfill for not properly serving all parties of his various lawsuits the relevant pleadings he’d been filing with SCOTX in a timely manner. Even more interesting is this one, filed by the Harris County Attorney on behalf of County Judge Lina Hidalgo and County Fire Marshal Laurie Christianson, accusing Hotze of filing multiple bullshit lawsuits against the county as a harassment tactic and asking for sanctions. Here’s a taste:

Hotze filed five lawsuits and two appeals against Judge Hidalgo in the last four months. Many of these cases are based on fabricated facts, and they all make identical constitutional challenges to the Texas Disaster Act. Based on Hotze’s own statements and actions, it is clear that he brought these duplicative suits for the improper purpose of harassing Judge Hidalgo.

Not only are these duplicative suits made for an improper purpose, but Hotze litigates them in a manner orchestrated to be as harassing as possible. Hotze presents all of his cases as urgent matters requiring emergency temporary restraining orders and emergency petitions for writ of mandamus to the Supreme Court. However, these cases are never urgent, have typically been pre-filed for days or weeks, are often set for hearing long after the orders they complain about have expired, and have nothing to do with science, liberty, or the Constitution. Their “urgency” is manufactured to deny Defendants due process by preventing them time to respond.

Hotze’s five lawsuits were designed to maximize delay and cost and create a never-ending conveyor belt of litigation using a six-step formula: (1) Hold a rally and generate negative media attention toward Judge Hidalgo, (2) solicit plaintiffs for a choose-your-own-adventure style lawsuit, (3) file a lawsuit, never serve it, then email opposing counsel about a hearing on a few hours’ notice, (4) make false claims, (5) amend, dismiss, or appeal before the court considers sanctions, and (6) start over with a new lawsuit and repeat the cycle.

It goes from there. It was filed in the 189th Civil Court, the same one whose judge issued that sua sponte order, and it requests “$10,000 in attorney’s fees and a conditional $10,000 in attorney’s fees if this matter is unsuccessfully appealed” on behalf of Hidalgo and Christianson in their official capacities. I have no idea what the odds of success of this motion are, but you do love to see it.

The school situation remains a big ol’ mess

You can blame Greg Abbott for all this confusion.

After weeks of confusion and conflicting signals, Texas has settled into policies that effectively compel schools to reopen their classrooms this fall no later than eight weeks after the academic year begins, whether they want to or not.

Teachers, parents, school administrators and public health officials have been seeking clarity for weeks on how the state will approach reopening schools safely as coronavirus infections and deaths rise across Texas.

Gov. Greg Abbott has not responded directly to questions from reporters about who has the authority to order schools closed in areas hard-hit by the virus, and the Texas Education Agency has sent mixed messages on reopening guidelines.

But despite the lack of any formal announcement from the governor, the die was cast in in a rapid two-step process Tuesday. First, Texas Attorney General Ken Paxton released nonbinding legal guidance saying local public health officials do not have the power to preemptively require all schools in their jurisdictions to remain closed, even as COVID-19 cases continue to climb in many Texas hotspots.

Then, state education officials reversed an earlier decision by announcing they will not fund school districts that keep classrooms closed for longer than the state allows even if ordered to do so by a local health mandate. Taken together, the actions put school districts in the position of reopening classrooms on the state’s timetable or losing funds and risking potential litigation.

Educators and families must now once again rethink their back-to-school plans this fall. The education agency has given school districts up to eight weeks to limit the number of students permitted on their campuses, after which they must open classrooms to all students who want to attend.

That ninth week is looming large for superintendents who are not sure what the public health landscape will look like at that point. Now, they can’t depend on their local health officials to give them more time, without losing money.

“Starting in the ninth week of our respective school years, regardless of the status of the virus in our communities, as the guidance is written today, we would be faced with two options,” said Northside Superintendent Brian Woods in an interview with the San Antonio Express News editorial board Wednesday. “One would be to ignore a local health order, and in doing so likely put our students and staff and families at risk, or lose funding, which is essential to teaching and serving our families.”

At a school board meeting Tuesday night, Woods indicated he and other superintendents would consider filing a lawsuit seeking to keep their classrooms closed longer if necessary. Paxton’s decision to step into the fray weeks before the school year begins has prompted more questions than answers, including whether a deluge of lawsuits is expected to hit Texas courts demanding health mandates be revoked or enforced.

Emphasis mine, and see here for the background. The Chron’s Jacob Carpenter tries to make sense of this hash.

What is the impact of Paxton’s letter?

Paxton’s letter is not legally binding. The only way the local health authority orders can be negated is through an executive order issued by the governor or a judge’s ruling in a lawsuit.

As of now, Abbott has not issued an executive order declaring that local health authorities cannot mandate school closures, and nobody has filed a lawsuit challenging the local closure orders.

As a result, at this time the school closure mandates issued by local health authorities are legally valid and enforceable.

What did Morath do Tuesday?

Hours after Paxton published his letter, Morath issued new guidance saying public school districts risk losing state funding if they keep campuses shuttered solely as a result of a local health authority closure order.

Districts still can require students with at-home technology access to remain in online-only classes for up to the first eight weeks of the school year. School boards also can push back their school start dates.

If local school closure orders are legally valid, why did Morath say districts risk losing state funding if they follow closure orders?

Morath cited Paxton’s letter in issuing the new guidance on school funding.

“As a state agency, we will follow the Attorney General’s guidance,” Morath said in a statement. “Consequently, a blanket order closing schools does not constitute a legally issued closure order for purposes of funding solely remote instruction for an indefinite period of time.

However, another section of TEA guidance says the agency will continue to provide funding to districts that are forced to close campuses by an entity “authorized to issue such an order under state law” — and as of now, local health authorities have issued legal orders.

Essentially, the TEA has provided two potentially conflicting pieces of guidance.

Who can clear up this conflict?

The simplest answer: Abbott.

At any time, Abbott could issue an executive order that negates all local health orders, or he could announce he will allow the orders to stand.

Abbott has made no move in either direction.

Asked multiple times by the Houston Chronicle earlier this month whether he planned to allow local health officials to order school closures, the governor’s office never directly answered the question. Abbott’s staff also did not respond to a request for comment Tuesday following the release of Paxton’s letter.

Yes, our Governor continues to be basically useless. At this point, the best advice seems to be just wait and see what happens. Maybe Abbott revises his executive order. Maybe all the school districts and county health authorities cave. Maybe someone (or multiple someones) files a lawsuit – unfortunately, one of those someones is gonna be Jared Woodfill, so prepare yourself for the stupid – and a judge makes a ruling that forces the issue one way or another. It’s still the case that schools don’t have to open till September 8, which is what HISD is doing, and the first six weeks after that can be online-only. It’s after that it gets dicey. So sit tight and wait to see how it gets sorted out.

There’s a lot of COVID litigation out there

Texas Lawyer surveys the landscape.

The COVID-19 pandemic has created a growing subset of new business litigation in Texas: companies suing the government over shutdown orders or definitions of essential versus nonessential businesses.

One of the latest examples to make headlines was a large group of bar owners who sued Texas Gov. Greg Abbott over his order that closed bars again because of the rising infection rate in the Lone Star State.

But Texas Lawyer’s research revealed that the bar litigation was at least the 15th similar lawsuit filed in the state since the onset of the pandemic in early March. It’s likely that there are even more cases filed in small or mid-sized cities in Texas.

One of the most interesting legal claims raised by this type of litigation is whether the governor has exceeded his authority under the Texas Disaster Act to suspend laws in the state, said Brad Nitschke, partner in Jackson Walker in Dallas, who has been tracking COVID-19 litigation.

“The executive is given a large toolbox to respond to emergency situations. To some extent, at least, it sort of has to be that way,” Nitschke said. “I think we are more accustomed in Texas to what that looks like for a hurricane or tornado, or a catastrophic drought.”

Using the same statute to respond to a pandemic is sort of like trying to put a square peg into a round hole, he added.

“It’s clear the governor has significant authority to act in the case of a disaster,” Nitschke said. “I think the unique circumstance of a pandemic like this one is going to give courts a chance to figure out what the outer limits of that authority may be.”

[…]

It will be tough for plaintiffs to win these sorts of cases, said Christy Drake-Adams, assistant general counsel of the Texas City Attorneys Association and the Texas Municipal League.

Drake-Adams noted that the league’s insurance risk pool has seen eight similar lawsuits against small and mid-sized Texas cities, which generally argue about the definition of essential versus nonessential businesses.

“They think they should have been allowed to continue operating, because they were an essential business,” explained Drake-Adams.

She said that government defendants who are fighting these types of lawsuits have a strong defense: That governmental immunity protects them from the claims.

“To the extent that plaintiffs are throwing in constitutional claims, I would say it’s pretty clear that the government has broad authority to act to protect the public health and to regulate in times of emergency, and that authority is expressly provided in law. It’s not clear that anyone’s constitutional rights have been violated as a result of those regulations,” Drake-Adams said.

There was a quote in there from Jared Woodfill about why the plaintiffs are right, but 1) screw that guy, and 2) we’ve heard from him plenty in the stories about each individual lawsuit he’s filed. This was the first time I’d seen an analysis from someone not connected to any of the lawsuits, though since cities or counties are the defendants in some of them, the perspective given here isn’t fully objective, either. Texas Lawyer reviewed the Hunton Andrews Kurth COVID-19 Complaint Tracker for the basis of this story; you can see media coverage of that tracker here. About half of the lawsuits involve the state (two), a state agency (one), or local governments (five), the rest are between private entities. I feel like it will be multiple years before there’s little to no litigation of interest of this nature to continue tracking.

Federal judge rules GOP can have its in person convention

Unbelievable.

A federal judge on Friday ruled that Mayor Sylvester Turner and Houston First Corp. must allow the Texas Republican Party to proceed with an in-person convention at the George R. Brown Convention Center, though the party now only intends to use the facility as a backup option.

Judge Lynn Hughes of the Southern District of Texas found the city had infringed upon the Texas GOP’s constitutional rights by canceling the convention, which initially was set to run from Thursday through Saturday before Turner ordered Houston First, the city’s convention agency, to nix it.

Hughes gave the party the option of using the convention center this weekend and next, according to Jared Woodfill, an attorney for Houston conservative activist Steve Hotze, who initially filed the lawsuit with a handful of other plaintiffs.

The party began its convention online Thursday but encountered numerous technical difficulties, forcing officials to postpone the event until Saturday. The party joined Hotze’s lawsuit Friday “to provide a last-resort method in-person if we needed it to secure our national election obligations,” Chairman James Dickey said in a statement following Hughes’ ruling. He said the party still “is on track to hold its convention online.”

Party officials will elect their party chair and select delegates for the national Republican convention at the state convention.

“Our online convention provides the greatest opportunity for as many delegates who want to participate in the convention as possible,” Dickey said. “We learned a hard lesson yesterday and with this win today, if for any reason there is an issue tomorrow, we know that we have a single location where, with the necessary SREC authorizations, we could” elect delegates to the national convention.

Turner in a statement blasted the party for its legal efforts to proceed with the convention, and said the city and Houston First would appeal upon receiving a written order from Hughes.

“We are in the midst of a pandemic, a public health crisis. More people are being admitted to our hospitals and ICUs, and more people are dying,” Turner said. “The State Republican Executive Committee is being totally irresponsible in continuing to push for an indoor, in-person convention. This reflects a total disregard for the health and safety of employees and people in our city.”

[…]

Hughes, in granting the Texas GOP an injunction that bars Turner from canceling the event, agreed with the argument by Hotze and the party that Turner’s move to cancel the convention “at the last minute” deprived party members “of their right to express their political beliefs, and make core political determinations,” a right protected by the First Amendment.

In a court filing Friday, Woodfill wrote that the party “has attempted a virtual convention and found that it is an unworkable platform.”

“Accordingly, the Republican Party of Texas has no choice but to seek relief from the Court to allow the Republican Party of Texas to prepare for the upcoming election season,” Woodfill wrote.

See here and here for some background. The plaintiffs knew which judge to pick, you have to give them credit for that. The judge bought the argument that the late cancellation of the convention, which came after they had considered but rejected changing to an online convention, which Mayor Turner begged them to reconsider, plus the GOP’s complete inability to get Zoom to work, meant that their rights were being infringed. Putting it another way:

The city and Houston First will appeal, so we’ll see what happens. Even on the Republican side, this was a bit controversial:

Before Friday’s ruling, Texas GOP Chairman James Dickey said the party was still working toward resuming the virtual convention Saturday.

“Today we have been hard at work for hours already on Plan A and Plan B and Plan C,” Dickey said during an interview with Texas Values. “We are going to make sure that we can move forward with our convention virtually tomorrow.”

[…]

Dickey’s chairmanship is on the line at the convention, where he faces a serious challenge from Allen West, the former Florida congressman. The election is tentatively scheduled for Sunday.

West has mostly stayed out of the debate over holding the convention in person, though he has increasingly questioned Dickey over the voting technology for the virtual meeting. And earlier Friday, West’s team seemed to reach a boiling point when word got out that the party was making a last-ditch legal push to join Hotze’s lawsuit.

“It is beyond belief that Chairman Dickey and the RPT allowed a foreseeable catastrophic failure such as this to unfold,” West lawyer Clyde Siebman wrote in a letter to Dickey. “Colonel West grew to doubt that it was by mere negligence but continued to give fellow Republicans the benefit of the doubt — until today.”

The party’s 11th-hour participation in the lawsuit “proves an intent to disenfranchise large blocks of grassroot Republicans across Texas,” Siebman added.

I don’t know what’s going to happen at this point, but my advice is to avoid downtown until this is over. And pray for those workers whose lives are being put in danger.

Dems ask some Supreme Court justices to recuse themselves from convention appeal

Stay with me here, this will all make sense.

The Texas Democratic Party on Friday called for four of the state’s nine Supreme Court justices to recuse themselves from a case involving the Texas Republican Party’s in-person convention, claiming each had a conflict of interest.

The campaigns of Chief Justice Nathan Hecht and Justices Jane Bland, Jeffrey Boyd and Brett Busby each sponsored the convention, according to an archived list of sponsors that since has been removed from the Texas GOP’s website.

[…]

Texas GOP officials are seeking a writ of mandamus from the court that would block Turner from canceling the convention, a day after a Harris County judge denied the party’s attempt to do so in state district court.

Democratic Party Chairman Gilberto Hinojosa said the four justices, each of whom is up for re-election in November, are “faced with an obligation to do the right thing and choose the law over political allegiance.”

“A justice who funds a dangerous convention should not judicially decide the fate of that same convention,” Hinojosa said in a statement. “All four have interests in the case coming before them and all four should recuse.”

See here for the background. The allegation is that by sponsoring the convention and being on the November ballot, these judges have a conflict of interest. A press release from the TDP provided the following justification for the petition:

Canon 3(B)(1) of the Texas Code of Judicial Conduct provides that Texas judges “shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”

Texas Rule of Civil Procedure 18(b) requires a judge to recuse themself from a case when “(1) the judge’s impartiality might reasonably be questioned” or “(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”

I’m not qualified to assess this claim, but I will note that if the four Justices do recuse themselves, there’s still enough justices left to issue a ruling, and since all nine are Republicans it doesn’t change the dynamic. Given the compressed timeline for this litigation, I presume we’ll get an answer quickly.

GOP sues over cancelled convention

As the night follows the day.

The Texas Republican Party on Thursday sued Mayor Sylvester Turner and Houston First Corp. for canceling the party’s in-person convention that was scheduled for next week in downtown Houston.

The lawsuit, filed in Harris County state district court, alleges that Turner erred when he invoked a “force majeure” clause of the contract between the Texas GOP and Houston First, the city’s public nonprofit that operates the George R. Brown Convention Center. The Republican Party also is suing Houston First President Brenda Bazan and the city of Houston.

Turner, who ordered Houston First to cancel the convention on Wednesday, said the clause allows one side to cancel over something that is out of its control, including “epidemics in the City of Houston.” In its petition filed Thursday, the GOP said Turner simply does not want to hold the convention, thus failing to meet the force majeure standard.

“Houston Mayor Sylvester Turner’s use of the force majeure clause is just a pretext to his intent to treat the Republican Party of Texas differently than other groups, such as those we have seen from recent protests in the city of Houston,” the party said in a statement Thursday. “It should go without saying that a political viewpoint cannot be the basis for unequal treatment.”

Turner said he called off the convention based on concerns about Houston’s recent COVID-19 surge and input from various medical professionals. A spokeswoman for the mayor said he would address the lawsuit at a 3 p.m. news conference.

In the lawsuit, Texas Republican Party officials are seeking a temporary restraining order that would allow the convention to continue as planned and damages due to Turner’s “anticipatory breach of contract,” including the cost of all losses and the “increased costs of handling the Convention elsewhere.”

The party argued that Turner and Houston First violated the “equal rights clause” of the Texas Constitution, and that Gov. Greg Abbott stripped Turner’s power to cancel the convention in one of his COVID-19 executive orders.

See here for the background, and here for a copy of the lawsuit. I’d love to hear from any of the attorneys out there about the merits of this one. I can’t remember where I saw this now – probably Twitter, my brain is mush – but Jared Woodfill (who is of course the plaintiffs’ attorney for this, along with fellow genius Briscoe Cain) said he was going to try to get a hearing today and secure a temporary block on the cancellation. I can imagine that happening, at least long enough for a judge to make a preliminary ruling. (UPDATE: Per a press release from the Texas GOP received at 7:30, they were indeed denied a motion to block the cancellation. They will appeal directly to the Supreme Court. Stay tuned.) Beyond that, who knows? Insert giant shrug emoji here. Texas Lawyer and the Trib have more.

UPDATE: Jasper Scherer tweets about the TRO denial. Apparently, there’s a second lawsuit as well, by Steven Hotze, because of course there is. Both motions were denied.

UPDATE: An updated Chron story, with more details on the TRO denials. Also, too, this:

The mayor also encouraged party officials to move their convention to Montgomery County, where County Judge Mark Keough offered to host the event and vowed “there will be no last-minute changes.”

“I think Judge Keough in Montgomery County is more than happy to host the 6,000 delegates (there),” Turner said. “I think they should go to Montgomery County.”

Seems like a match made in heaven to me.

Of course there’s a lawsuit against Abbott’s mask order

And of course it involves the usual suspects.

The day Gov. Greg Abbott’s mandate that face masks be worn in most public places across Texas went into effect, a GOP activist and group of conservatives filed a lawsuit in an attempt to block it.

In the lawsuit, filed Friday in Travis County District Court, Houston GOP activist Steven Hotze, former Republican state Rep. Rick Green, former chair of the Republican Party of Texas Cathie Adams and two Houston business owners argue that Abbott’s executive order and the law that gives him the authority to issue it are unconstitutional.

The lawsuit was filed by Jared Woodfill, a Houston attorney and former chairman of the Harris County Republican Party, who has been involved in previous challenges to Abbott’s executive orders. It seeks both a temporary restraining order and permanent injunction against Abbott’s order, which it argues is “an invasion of liberty.”

“Today a mask, tomorrow a hazmat suit — where does it stop? Everyday GA-29 is in effect, the government tramples on the liberties of Texans,” the lawsuit reads.

[…]

The lawsuit questions the science behind wearing face masks to limit the spread of COVID-19, calling it “uncertain.” It points to changing guidance on wearing masks, and suggestions that people who wear face masks for extended periods of time experience reduced oxygen levels.

Public health experts and virologists have debunked similar claims, including that face masks do not reduce oxygen intake. A recent study worked on by researchers from Texas A&M University and the University of Texas at Austin found that wearing a face mask is one of the most effective ways to prevent the transmission of COVID-19.

The lawsuit also points to the more than 2,000 COVID-19 related deaths that have occurred statewide, arguing that a majority of Texans survive COVID-19. As of Thursday, the Texas Department of State Health Services showed at least 2,525 COVID-19 related deaths had been reported.

Compared to “approximately 180,000 deaths in Texas, caused by multiple diseases and accidents” reported by DSHS last year, COVID-19 “has been a trivial cause of disease and death in Texas” the lawsuit reads.

We knew this was coming, didn’t we? This suit also makes claims about the mask order violating the state constitution, in a similar fashion to what the nine million other lawsuits Hotze and Woofill have filed have made. I rounded up all the ones I was aware of here. Apparently – not surprisingly, but I hadn’t seen any other mention of it – they also filed suit against Judge Lina Hidalgo’s business-focused mask order. You can see a bit of this latest lawsuit here.

I think my favorite bit in this lawsuit, ahead of the science denial and cherry-picking, is the blithe dismissal of over 2000 deaths so far in Texas due to COVID-19. I will remind you, Hotze and his co-plaintiffs are among the most fanatical anti-abortion zealots in the state, because in that context all life is precious to them. Never is the old saw about Republicans valuing life only until the point of birth more clearly expressed than when Steven Hotze does it.

And yet there’s so much more to the Steven Hotze experience.

In the days after George Floyd’s death in police custody in Minneapolis last month, as massive protests against police brutality spread across Texas and other states, conservative power broker Steve Hotze of Houston called Gov. Greg Abbott’s chief of staff to pass along a message.

“I want you to give a message to the governor,” Hotze told Abbott’s chief of staff, Luis Saenz, in a voicemail. “I want to make sure that he has National Guard down here and they have the order to shoot to kill if any of these son-of-a-bitch people start rioting like they have in Dallas, start tearing down businesses — shoot to kill the son of a bitches. That’s the only way you restore order. Kill ‘em. Thank you.”

The voicemail, which The Texas Tribune obtained Friday via a public information request, came on the weekend of June 6, several days after Abbott activated the Texas National Guard as some of the protests became violent. It is unclear whether Saenz responded, and Abbott’s office declined to comment on the voicemail.

What a guy, huh? And such a wonderful exemplar for modern Christianity, as practiced by mostly conservative white people. I will just note that while the Trib may have gotten that voicemail via a public information request, it surely was not the case that someone at the Trib idly mused to themselves that now was a good time to make a public information request for recent voicemails received by Greg Abbott’s staff. Someone tipped them off about it, and kudos to them for doing so. The man is a plague, and has been for a long time. It’s the Republicans who need to realize that and find ways to diminish the power he wields.

Abbott finally issues a mask order

Better late than never, but it’s pretty damn late.

Gov. Greg Abbott issued a nearly statewide mask mandate Thursday as Texas scrambles to get its coronavirus surge under control.

The order requires Texans living in counties with 20 or more positive COVID-19 cases to wear a face covering over the nose and mouth while inside a business or other building open to the public, as well as outdoor public spaces, whenever social distancing is not possible. But it provides several exceptions, including children who are younger than 10 years old, people who have a medical condition that prevents them from wearing a mask, people who are eating or drinking and people who are exercising outdoors.

The mask order goes into effect at 12:01 p.m. Friday.

The order represents a remarkable turnaround for Abbott, who has long resisted such a statewide mask requirement, even as the coronavirus situation has gotten worse than ever over the past couple weeks in Texas. When he began allowing Texas businesses to reopen this spring, Abbott prohibited local governments from punishing people who do not wear masks. As cases began to rise earlier this month, he clarified that cities and counties could order businesses to mandate customers wear masks.

In recent days, though, Abbott had held firm against going further than that, saying he did not want to impose a statewide requirement that may burden parts of the state that are not as badly affected by the outbreak.

Abbott on Thursday also banned certain outdoor gatherings of over 10 people unless local officials approve. He had previously set the threshold at over 100 people. The new prohibition also goes into effect Friday afternoon.

[…]

Abbott’s announcement came a day after the number of new daily cases in Texas, as well as hospitalizations, reached new highs again. There were 8,076 new cases Wednesday, over 1,000 cases more than the record that was set the prior day.

Hospitalizations hit 6,904, the third straight day setting a new record. The state says 12,894 beds are still available, as well as 1,322 ICU beds.

Abbott has been particularly worried about the positivity rate, or the share of tests that come back positive. That rate, presented by the state as a seven-day average, has jumped above its previous high of about 14% in recent days, ticking down to 13.58% on Tuesday. That is still above the 10% threshold that Abbott has long said would be cause for alarm amid the reopening process.

First-time offenders of Abbott’s order will receive a written or verbal warning. Those who violate the order a second time will receive a fine of up to $250. Every subsequent violation is punishable also by a fine of up to $250. The order specifies that no one can get jail time for a violation.

Remember that PolicyLab projection from May that said Harris County would go from 200 cases a day to over 2,000 by now? Thankfully, we’re still not close to that – the ReadyHarris dashboard has mostly shown us in the 600 to 800 cases per day range recently, though I suspect there’s some lag in the data because there’s no reason why this week would be lower than the two previous weeks. Point being, we most certainly could have seen this coming, and we could have done a lot to protect ourselves before this happened. You know, like having mask orders in place all along, and letting local governments have more leeway to control crowd sizes. Note here that Abbott’s order targets outdoor gatherings, but not indoor gatherings. You know, like this one. I don’t understand the logic here, but whatever.

The real question is after all this time and all that bullshit from Republicans like Dan Patrick, how much resistance do you think there will be to this new order? Like, remember when Dan Patrick called Judge Hidalgo’s mask order “the ultimate government overreach”? Also, too, Jared Woodfill and Steven Hotze are suing to basically stop emergency orders, and had previously sued to stop Judge Hidalgo’s mask order, before Abbott overruled it himself. Our state has plenty of people who will perform their rage over being asked to take the health and well-being of their neighbors into consideration. I’m curious, and more than a little afraid, to see how that segment of our population reacts to this. The Current, the Press, and the Dallas Observer have more.

UPDATE: My God, but Dan Crenshaw is a hack.

More on that bar owners’ lawsuit

It’s something, that’s for sure.

Maybe not the best messaging

They’re here. They serve beer. And they are hopping mad at Greg Abbott.

As the Washington Post’s Teo Amus reported Tuesday, a group of Texas bar owners from around the state has banded together to sue Governor Greg Abbott for what they believe is a prejudiced edict targeting bar-owning Americans.

“You can’t tell me that my tiny little bar is the problem,” said Tee Allen Parker, a 45-year-old bar owner from Kilgore who recently banned wearing masks in her establishment.

Frustrated by the initial shutdown, reopening and subsequent backpedaling in the face of surging coronavirus case numbers, Parker has singled out the governor as the one recurring feature in her misery.

“[Abbott]’s the problem,” Parker says. “He’s targeting us, and it’s discrimination.”

Parker and 21 other bar owners have joined with Houston attorney Jared Woodfill to sue the governor and state alcohol regulators for Friday’s order, which shut down bars and restaurants with alcohol-dominant revenue streams. They claim the order is unconstitutional and unfairly discriminates against bar people and bar spaces.

“It’s just a horde of infringement on people’s individual liberties and constitution,” said Woodfill, a high profile right-leaning litigator who has already filed six lawsuits against state and local governments for COVID-related orders since the pandemic’s beginning.

“This is one individual making draconian decisions that have destroyed the Texas economy.”

I noted this in an update to my local control post from yesterday; here’s the Trib story that was based on. I have three comments to make. One, to Tee Allen Parker, we can indeed tell you that your bar is part of the problem. Or at least, experts like Dr. Peter Hotez can tell you that. Maybe not your bar specifically, but bars as a category. I’m sorry, I truly am, that you’re going through this. It sucks, I agree. But bars really are an excellent vector for this virus. Two, for all the lawsuits that the Woodfill/Hotze machine have filed, we have no rulings or orders from any of them yet to gauge if they’re onto something, or just basically farting in our general direction. I wouldn’t put it past the State Supreme Court to issue some truly oddball rulings, but I also wouldn’t advise anyone to mistake either of these guys for legal geniuses. And three, I’ll ask again, when does Steven Hotze, Woodfill’s partner in crime, announce his primary challenge to Abbott? This all just feels more like real bad blood than a typical fight within the family. We’ll see.

Hey, how about trying that local control thing again?

Seems like it might be worth a shot to led Mayors and County Judges lead on coronavirus response again, since they’ve done so much better a job of leading than Greg Abbott has.

As Texas grapples with soaring coronavirus cases and hospitalizations, local elected officials in some of the state’s most populous counties are asking Gov. Greg Abbott to roll back business reopenings and allow them to reinstate stay-at-home orders for their communities in an effort to curb the spread of the virus.

Officials in Harris, Bexar, Dallas and Travis counties have either called on or reached out to the governor in recent days, expressing a desire to implement local restrictions for their regions and, in some cases, stressing concerns over hospital capacity.

Stay-at-home orders, which generally direct businesses deemed nonessential to shut down, were implemented to varying degrees by local governments across the state in March before the governor issued a statewide directive at the beginning of April. Abbott’s stay-at-home order expired at the end of April, when he began announcing phased reopenings to the state and forcing local governments to follow his lead. Since then, a number of local officials, many of whom have been critical of Abbott’s reopening timeline, have argued that the jurisdiction to reinstate such directives is no longer in their hands.

“If you are not willing to take these actions on behalf of the state, please roll back your restriction on local leaders being able to take these swift actions to safeguard the health of our communities,” Sam Biscoe, interim Travis County judge, wrote in a letter to Abbott on Monday.

Biscoe asked Abbott “to roll all the way back to Stay Home orders based on worsening circumstances,” further cap business occupancy, mandate masks and ban gatherings of 10 or more people.

Officials in Bexar County also wrote a similar letter to the governor Monday, writing that “the ability to tailor a response and recovery that fits the San Antonio region’s need is vital as we look forward to a healthier future.”

“Our region’s hospital capacity issues and economic circumstances require stronger protocols to contain the spread of this disease,” Bexar County Judge Nelson Wolff and San Antonio Mayor Ron Nirenberg wrote. The two asked Abbott to “restore the ability for the City of San Antonio to take additional local preventative measures, including potential Stay Home/Work Safe restrictions.” They also asked the governor to mandate face coverings when outside a household and “clearer language that strictly limits social gatherings,” among other things.

[…]

Meanwhile, counties and cities across the state have implemented face mask requirements for businesses after Wolff, the Bexar County judge, moved to do so without facing opposition from Abbott. The governor had previously issued an executive order banning local governments from imposing fines or penalties on people who chose not to wear a face mask in public.

Local leaders have also voiced concerns about the testing capacity of large cities. In Travis County, Biscoe explained that because of the “rapidly increasing demand,” they are rationing testing only for people with symptoms. The stress on the system is also making contact tracing efforts more difficult.

“In summary, the rapid increase in cases has outstripped our ability to track, measure, and mitigate the spread of the disease,” Biscoe wrote.

Here’s the Chron story; Mayor Turner has joined the call for this as well. I seriously doubt Abbott will do any of this, because it will serve as an even more stark reminder of his abject failure to lead. But if the worst is still ahead of us, then it’s a choice between taking action now and making it end sooner, or denying reality and letting more people get sick and die. Abbott’s going to have to live with the consequences of his poor decision-making regardless, he may as well choose to do the right thing this time.

Of course, there may be other complications this time around.

The Texas Bar & Nightclub Alliance said it plans to sue the state of Texas over Gov. Greg Abbott’s recent order once again shutting bars across the state.

“Texas Bar and Nightclub Alliance (TBNA) is taking the necessary steps to protect the rights of our members and their employees across the state, who have been unjustly singled out by Governor Abbott,” TBNA president Michael E. Klein said in a statement.

[…]

TBNA said its members want to be allowed to reopen and have the same capacity allowances as restaurants, grocery stores and big-box retailers. It will sue in both state and federal court seeking to override Abbott’s order.

The majority of Texas bars had been adhering to strict guidelines restricting occupancy and ensuring safe serving practices for both customers and employees, TBNA’s Klein said. His take: if restaurants with bar rooms can operate at limited capacity, why can’t actual bars?

“To suggest the public welfare is protected by singling out one specific type of alcoholic beverage license over another is without logic and does not further the aim of protecting the public from COVID,” he added.

Well, one way to cure that disparity would be to order that all of them be closed for all except to go service. We’d also need to extend that waiver that allow restaurants to sell mixed drinks to go, which I’d be fine with. While I understand where the TBNA is coming from, this is Not Helping at a bad time. But then, given how Abbott folded on enforcing his own executive order in the Shelley Luther saga, I get why they thought taking an aggressive stance might work. Eater Austin has more.

UPDATE: Looks like the TBNA has been beaten to the punch:

Hoping to block Gov. Greg Abbott’s Friday decision ordering Texas bars to close due to a rise in coronavirus cases, more than 30 bar owners filed a lawsuit Monday challenging Abbott’s emergency order.

The lawsuit, first reported by the Austin American-Statesman, was filed in Travis County District Court by Jared Woodfill, a Houston attorney who has led previous legal efforts opposing Abbott’s other shutdown orders during the pandemic.

“Why does he continue unilaterally acting like a king?” Woodfill, former chair of the Harris County Republican Party, said of Abbott in an interview. “He’s sentencing bar owners to bankruptcy.”

[…]

In the lawsuit, the bar owners argue that their rights have been “trampled” by Abbott, while “thousands of businesses are on the brink of bankruptcy.”

Abbott on Friday said it “is clear that the rise in cases is largely driven by certain types of activities, including Texans congregating in bars.”

Tee Allen Parker said she is confused. As a bar owner in East Texas, she’s allowed to walk into church or a Walmart but not permitted to host patrons at Machine Shed Bar & Grill.

“I don’t think it’s right that he’s violating our constitutional rights,” Allen Parker, the lead plaintiff in the lawsuit, said Monday in an interview. “The reason I’m speaking up is I don’t like that he can’t be consistent. You lead by example. Everything he’s said he’s walked back. And I’m disappointed in him because I was a big fan of his.”

A copy of this lawsuit is here. I’ll say again, as with all of the other COVID-related lawsuits that Jared Woodfill has had his slimy little hands in, we deserve to have serious questions asked by better people than this. As for Tee Allen Parker, I swear I am sympathetic, but no one actually has a constitutional right to operate a bar. I would suggest that the solution here that prioritizes public health while not punishing businesses like hers that would otherwise bear the cost of that priority is to get another stimulus package passed in Washington. Such a bill has already passed the House, though of course more could be done for the Tee Allen Parkers of the world if we wanted to amend it. Maybe call your Senators and urge them to ask Mitch McConnell to do something that would help? Just a thought.

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

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

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

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

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

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

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

[…]

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

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

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

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

Hotze goes crying to the Supreme Court

This effing guy, I swear.

Houston conservative activist Steve Hotze on Monday filed a petition with the Texas Supreme Court seeking an emergency ruling on Harris County Judge Lina Hidalgo’s mask order, which took effect this morning.

Hotze originally filed the lawsuit in state court last week, but District Judge Steven Kirkland on Friday denied his request for a temporary restraining order, allowing Hidalgo’s mandate to take effect Monday, as planned.

Hotze’s new filing echoes the argument he made to Kirkland: that the Texas Constitution and local government code do not give Hidalgo authority to require people to cover their faces in public.

[…]

During a Friday hearing in Kirkland’s court, Assistant County Attorney Seth Hopkins argued that Hotze did not have standing to challenge the order because he had no “actual imminent fear of prosecution.”

“The order itself tells the law enforcement, use broad discretion,” Hopkins said, according to a court transcript. “And the plaintiff concedes he’s not going to be prosecuted.”

Hotze attorney Jared Woodfill responded, “So, I guess my question is, if they don’t plan to enforce it, then why is the language even there? Why wouldn’t it just continue to be voluntary…?” He also clarified Monday that Hotze does not “concede he’s not going to be prosecuted” under the order.

Hopkins said the order allows officers to impose a fine if there is an “extreme case, but I think in the examples we have, we don’t have a case like that right now.”

See here for the background. We now have the Abbott reopening order, which overrules any local order that allows for a fine or other punishment for non-mask-wearing. I would think, in my non-lawyerly way, that Harris County will add that to its argument that Hotze has no standing. The Supreme Court has asked for a response from the county by this Friday, so we’ll see.