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Ken Paxton

SCOTX reinstates Abbott’s mail ballot dropoff location limit

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

Judge sends Paxton case back to Collin County

Pending appeal, of course.

Best mugshot ever

A Harris County judge on Friday moved Attorney General Ken Paxton’s criminal case to Collin County, handing Paxton a major win by placing the case in his hometown, where legal experts say he’s more likely to face a sympathetic judge or jury.

Judge Jason Luong ruled that he did not have the authority to move the case, deferring to an earlier order moving the case to Collin County.

Special prosecutors Brian Wice and Kent Schaffer said Friday that they plan to appeal. Paxton’s attorneys could not immediately be reached.

The decision adds yet another layer of complication — and likely more delays — to a case that has dragged on for more than five years over numerous issues unrelated to the substance of the accusations against Paxton.

I’m going to jump in here to remind everyone that Judge Robert Johnson had ordered the case back to Collin County in June, agreeing with Paxton’s defense team that the judge who had sent the case to Harris County in the first place did not have the authority to do so. Johnson then recused himself from the case, because the AG’s office is representing the criminal district court judges in the felony bail reform lawsuit, though it is not clear that he had to do so, since Paxton is not directly involved in that case and the judges who are defendants are being sued in their official capacity, not as plain old citizens. The First Court of Appeals set that order aside in July (the technical legal term is “abated”), on the grounds that the new judge, Jason Luong, needed to have an opportunity to review Judge Johnson’s order and either agree with it or vacate it. (Team Paxton later tried to get Judge Luong removed, but that motion was denied and subsequently mocked.)

In his ruling Friday, Luong added that even if a higher court rules that he does in fact have authority, he agrees with Paxton’s lawyers that the judge who allowed the case to move to Harris in the first place lacked authority as well, meaning the case would remain in Collin County.

As it was explained to me, the same mandamus that had been filed with the First Court of Appeals to challenge Judge Johnson’s ruling will now be taken up for Judge Luong’s ruling. I should note that the First Court’s abatement was supposed to be for 45 days, but as with everything related to this Paxton case, things took longer than that. Lord only knows when the next thing will happen. In the meantime, of course, there is now the Nate Paul shitshow, and if that does not have an effect on this case somehow at some point, I will be puzzled and very, very disappointed – like, Susan Collins clucking her tongue at Donald Trump-level disappointed. What the world needed now, when not much else is happening, is some more Ken Paxton news, am I right? The Trib has more.

SCOTX rejects challenges to drive-through voting

Halle-fricking-lujah.

Voters in the state’s most populous county can continue casting their ballots for the fall election at 10 drive-thru polling places after the Texas Supreme Court Thursday rejected a last-minute challenge by the Texas and Harris County Republican parties, one of many lawsuits in an election season ripe with litigation over voting access.

The court rejected the challenge without an order or opinion, though Justice John Devine dissented from the decision.

[…]

Though the program was publicized for months before the ongoing election, it was not until hours before early voting started last week that the Texas Republican Party and a voter challenged the move in a state appeals court, arguing that drive-thru votes would be illegal. They claimed drive-thru voting is an expansion of curbside voting, and therefore should only be available for disabled voters.

Curbside voting, a long-available option 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 lawsuit also asked the court to further restrict curbside voting by requiring that voters first fill out applications citing a disability. Such applications are required for mail-in ballots, but voting rights advocates and the Harris County Clerk said they have never been a part of curbside voting.

The Harris County clerk argued its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore available to all voters. The clerk’s filing to the Supreme Court 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.

See here, here, and here for the background, and here for County Clerk Chris Hollins’ attempt to get the Secretary of State on record about this. The decision came down a couple of hours after County Judge Lina Hidalgo (among others) called on Greg Abbott to do the same. This would have been a monumental middle finger to the voters of Harris County, and an utter disgrace for the Supreme Court, had they upheld the Republican challenge. I don’t know what took them so long, but if they’re going to be slow about it, they’d better get it right, and this time they did. Exhale, everyone.

We shouldn’t leave this item without giving Hollins the victory lap he deserves:

There’s a bit more on Hollins’ Twitter feed. When he says that every county should do it like this, he’s absolutely right. You can see all the SCOTX denials here, and the Chron has more.

(Oh, and let’s please do remember this when John Devine is up for election next. The rest of the court may have done the right thing, but that guy has truly got to go.)

Time to check in on Ken Paxton again

It’s good to know, in times of crisis, that there are friendly fake media outfits one can run to to deny all the allegations against you.

Best mugshot ever

When Texas Attorney General Ken Paxton decided to break his silence about accusations by his top aides that he had committed crimes including bribery and abuse of office, he turned to a little-known legal outlet called the Southeast Texas Record.

In the exclusive interview, he trashed the aides and claimed that before his top deputy resigned, Paxton had planned to put him on leave anyway.

The website where that interview was posted has been identified as part of a national network of some 1,300 pay-for-play news websites that publish on-demand coverage for Republican political campaigns and public relations firms. According to The New York Times, those websites, whose names sound like ordinary local news outlets, have received at least $1.7 million from Republican political campaigns and conservative groups.

Ian Prior, who promoted the story for the Paxton campaign, denied to The Texas Tribune that the campaign had paid the outlet to run the story — “definitive no,” he said — saying he had merely reached out to set up an interview with an outlet that had already covered the story.

The Southeast Texas Record describes itself as a legal outlet focused on informing readers about the courts, with a weekly print edition published on Sundays.

After the interview was published, Prior shared it with reporters via email.

He declined to answer questions about why the campaign chose a little-known legal publication as opposed to a news outlet with wider readership, such as The Dallas Morning News, Houston Chronicle or Austin American-Statesman, which had all been following the Paxton story closely.

“Appreciate the question but not going to get into [public relations] strategy/discussions,” Prior said in a text message Tuesday.

[…]

In the Oct. 13 Paxton story, the Record foregrounds Paxton’s point of view in the ongoing scandal and elaborates less on the allegations against him, which remain murky, with federal authorities refusing to confirm whether there is an investigation into Paxton’s behavior at all. The author, David Yates, writes that Jeff Mateer — the top Paxton deputy who resigned after accusing his boss of criminal wrongdoing — did not return requests for comment.

It gives no indication that the author attempted to reach David Maxwell or Mark Penley, two top aides whose work is questioned in the story and whom Paxton placed on leave from the agency.

And the story elides details that raise questions about Paxton’s role in the scandal. In an internal email that was obtained by the Tribune, top aides alleged Paxton was using the power of his office to help a donor, real estate investor Nate Paul, who accused federal authorities of wrongdoing after the FBI raided his home and office in 2019. Paxton has claimed his office was investigating Paul’s allegations merely because local authorities in the Travis County district attorney’s office referred the complaint to the agency. But Travis County DA Margaret Moore has disputed that timeline, telling reporters that Paxton sought a meeting with her office about the complaint before it was referred.

The Record story does not include those details, nor does it extensively detail the accounts of the seven senior aides who have leveled accusations against Paxton.

The strategy is obvious: Talk to friendly people who won’t ask any embarrassing questions, and avoid any outlets that will probe or push back. That way, the core supporters will only hear your side of the story and can thus dismiss anything that comes out elsewhere, since it’s not from a “trusted” source. This doesn’t stop all the bad information from getting out, but it does put a barrier up to it for the base.

Also, the retributions have begun.

Lacey Mase, one of the top aides who accused Texas Attorney General Ken Paxton of crimes including bribery and abuse of office, has been fired, she told The Texas Tribune on Tuesday evening.

“It was not voluntary,” she said, but declined to comment further.

Mase was hired in 2011 and worked most recently as the deputy attorney general for administration. Paxton’s office did not respond to a request for comment Tuesday.

[…]

Mase’s personnel file, obtained through a public records request, shows she rose quickly through the agency’s ranks, earning frequent promotions. She was promoted as recently as Sept. 1, 2019, earning a nearly 12% pay bump to $205,000 annually. When Mase was promoted in April 2018, a supervisor wrote that she “consistently exceeded standards” in all her roles at the agency. Her salary has multiplied over the past few years, from $50,000 in 2013 to more than $200,000 most recently.

Texas law “protects public employees who make good faith reports of violations of law by their employer to an appropriate law enforcement authority,” according to the Texas attorney general’s website. “An employer may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who makes a report under the Act.”

Firing Mase so soon after she and the other top aides made their report is “suspicious,” said Jason Smith, a North Texas employment attorney who has handled whistleblower cases and who worked in the attorney general’s office in the 1990s.

“This looks and smells like classic whistleblower retaliation,” Smith said. “This situation looks like what the Texas Whistleblower Act was designed to prevent. And the timing looks bad.”

Smith said the aides appear to have taken all the proper steps to invoke whistleblower protections, reporting suspect behavior to “an appropriate law enforcement authority” as specified in the law, and making their employer aware of the allegations through the letter to human resources. The aides used that exact language — “appropriate law enforcement authority” — in their Oct. 1 letter to the agency.

I mean, maybe there was a reason for this, but it sure looks suspicious, and there’s no way Ken Paxton deserves any benefit of the doubt. And hey, now there’s a pattern.

A second whistleblower has been fired from the Texas attorney general’s office after reporting his boss, Texas Attorney General Ken Paxton, to law enforcement for crimes including bribery and abuse of office, according to a former senior official with the agency who had knowledge about the firing but did not want to be named for fear of legal repercussions.

Blake Brickman, who had served as deputy attorney general for policy and strategy initiatives for less than a year, was fired Tuesday, the official said.

[…]

Brickman and Mase were among seven top aides in Paxton’s office who alerted law enforcement weeks ago that they believed their boss had run afoul of the law. In internal emails obtained by the Tribune, they accused Paxton of using the power of his office to serve the financial interests of a donor, Nate Paul.

I mean, once you’ve fired one whistleblower, why not go all in and fire another? In for a penny and all that. I hope Ms. Mase and Mr. Brickman find themselves some good employment attorneys. The Chron has more.

Hollins calls on Secretary of State to defend drive through voting

Good.

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

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

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

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

[…]

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

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

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

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

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

On a side note, we also have this:

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

Your handwriting should not jeopardize your vote

Jesus Christ.

Texas election officials may continue rejecting mail-in ballots if they decide the signature on the ballot can’t be verified, without notifying voters until after the election that their ballot wasn’t counted, the U.S. Fifth Circuit Court of Appeals ruled on Monday.

The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts.

Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by U.S. Fifth Circuit Judge Jerry E. Smith.

“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith wrote.

Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.

The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification.

Voters must be notified within 10 days after the election that their ballot was rejected, but state election law does not require affording them an opportunity to challenge the rejection, the appeals court ruling noted.

[…]

Plaintiffs said they will now push counties to voluntarily give early notice to voters whose ballots are rejected for signature-match issues, allowing them a chance to rectify the situation and let their vote count.

“It will affect this 2020 election, so voters will not be notified in time, and so I think the main thing we’re trying to do now is notify counties that ballot boards are not required to give pre-election day notice, but they can,” said H. Drew Galloway, executive director of MOVE Texas, a plaintiff. “We encourage them to follow the original intent of the lower courts here so folks (whose ballots were rejected) can go vote in person, or contest that decision.”

See here for the background. That ruling had been stayed pending this appeal, so in that sense nothing has been lost. It’s another typical hatchet job from the country’s worst court. Let me bullet-point this, because I’m tired and this shit needs to stop.

– We all know that if this had a disproportionate effect on white voters, the concern about “safeguarding the integrity of its elections from voter fraud” would be a mere footnote. Some voters are more equal than others.

– On the very same day that this turd was handed down, a state court in North Carolina ruled that “voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day”. We need uniform national standards that prioritize and protect the rights and ability of all citizens to vote. That needs to be very high on the to do list of the next Congress.

– Can we please give some serious consideration to packing the Fifth Circuit? Quite a few Trump-appointed judges are there because vacancies were not allowed to be filled during Obama’s terms. This court is in serious need of reform.

– On a more practical note, Drew Galloway is correct: We need to be talking to local election officials to get them to agree to try to fix these problems in advance. The court didn’t say that they couldn’t do this, just that they didn’t have to. Well, if it’s a choice, then let’s make sure they make the right choice.

That’s all I’ve got. This effing court. The Chron has more.

Texas, the “We don’t want you to vote” state

And by “We” I mean “Republicans”.

In five states controlled by Republican governors and legislatures, new policies allow all voters to use COVID-19 as an excuse to mail in their ballots. In Iowa, the Republican secretary of state sent absentee ballot applications for the November election to every active, registered voter. And in Mississippi, one of the few states not offering universal absentee voting this year, Republican state leaders extended the deadline to receive mail ballots.

Republican lawmakers across the country, including those in battleground states with tight Senate races, have lifted restrictions and defied President Donald Trump’s unfounded warnings of mail-in voter fraud by expanding the practice, in an attempt to prevent the coronavirus from spreading at polling sites.

And then there is Texas, one of five states where voters cannot use fear of COVID-19 to vote by mail, one of 10 without widespread online voter registration and one of two without either option. Top Republicans, including Gov. Greg Abbott and Attorney General Ken Paxton, have made a series of moves they say are necessary to protect election integrity — but that also make it harder for Texans to cast ballots.

Democrats have condemned the actions as thinly veiled attempts at voter suppression designed to prevent them from winning control of the Texas House and delivering the state’s 38 electoral college votes to their presidential nominee, Joe Biden.

Republicans wave off those assertions, noting the expanded voting policies sought by Democrats were not implemented in prior election cycles. And they point to Abbott’s decisions to add a week of in-person early voting and let voters drop off mail ballots before Election Day — though the governor later undercut the latter move by limiting each county to one drop-off site, forcing Harris County to close 11 and prompting accusations of voter suppression from Democrats and lawsuits from civil rights groups.

“There’s no question that the intent behind these moves is to cause there to be fewer Democrats voting,” said Joseph Fishkin, an elections expert at the University of Texas School of Law. “You want to call that voter suppression, I think that’s not unreasonable.”

I’m not sure what else you’d call it if the intent is indeed to make it harder to vote, but whatever. I’ve hit on these themes before, and I’ll repeat them here, because there are two basic facts we have to keep in mind. One is that if the Republicans felt confident that they were the majority, they would not feel the need to compulsively push to restrict the vote. It’s not just the things we’ve seen this year, it’s the resistance to online voter registration, it’s everything about the voter ID law, it’s the fanatical insistence that vote fraud – exclusively by people who don’t vote for them, of course – is rampant, and so on and so forth. They fear that if it were easy and convenient to vote, they’d lose. Donald Trump says it out loud, but their actions have been saying it just as loudly for much longer.

And two, the only way out of this is through it. That means overcoming all the obstacles and winning enough elections to be able to pass laws that will reform and repeal these laws. The courts won’t save us – indeed, considering the Fifth Circuit and SCOTUS, the courts will be another obstacle to overcome. It’s not just this year – we cannot begin to make real progress until we win statewide elections, and that means making an even bigger push in 2022. It’s not just about winning the elections, too – it’s about putting pressure on the leaders we elect to enact the reforms we demand and deserve. This is a long haul, and there will be setbacks along the way. But it is the way, and there’s no going around it. Remember this, and use it to push for the changes we need.

How hard it is to vote is a policy choice

Harris County tried to make it easier. The state GOP, various other Republican contingents, Greg Abbott, Ken Paxton, and others fought that choice every step of the way.

Much of the Democrats’ dream of turning Texas blue is pinned on ramping up turnout in Houston and other Texas cities where voters, many of whom are people of color, trend heavily their way.

In a bitterly contested election, overlaid with the fears and risks of an uncontrolled pandemic, Harris County has become a case study in raw politics and partisan efforts to manipulate voter turnout. Republican leaders and activists have furiously worked the levers of power, churning out lawsuits, unsubstantiated specters of voter fraud and official state orders in their bid to limit voters’ options during the pandemic.

Their power hemmed in by state officials, Houston Democrats have launched a robust effort to make voting as easy as possible, tripling the number of early and Election Day polling locations and increasing the county’s election budget from $4 million in 2016 to $33 million this fall. They reject GOP claims that making voting easier carries inherent risks of widespread voter fraud.

The battle lines were acknowledged in one of the many lawsuits Republican leaders and activists filed in the past few months attempting to rein in Harris County’s efforts to expand voting access.

“As Texas goes, so too will the rest of the country. As Harris County goes, so too will Texas,” the GOP lawsuit read. “If President Trump loses Texas, it would be difficult, if not impossible, for him to be reelected.”

Local political observers agree the writing is on the wall: Most of Houston’s residents are people of color, its local leaders are Democrats, and it is the fastest-growing county in the state, according to recent census data.

“This county looks like what Texas is going to look like in 10 years, and they know that if Harris County can become solidly entrenched in the Democratic Party, it’s just going to disperse from there,” said Melanye Price, endowed professor of political science at Prairie View A&M University and a Harris County voter. “I think in some ways they’re going to have more of an influence, and the governor knows that, and the attorney general knows that, and that is why they’ve decided to hobble them at every turn.”

It’s no coincidence, Harris County Clerk Chris Hollins said, that GOP efforts to tightly enforce Texas voting laws — among the nation’s most restrictive — target an important Democratic stronghold and one of the country’s most diverse cities.

“If you look at [election results] for Harris County, you see a very clear trend,” Hollins said. “If I were in the business of trying to suppress Democratic votes, I know where I would target.”

The piece will be largely familiar to anyone who has been following along, but go read the rest for a review. Again, I want to emphasize, Harris County – by which I mean Judge Hidalgo and Commissioners Ellis and Garcia and County Clerk Hollins – made a choice to invest the time and money to make it easier to vote. They did things that I think were revelations to all of us, who have been so used to the old ways for so long. “Wait a minute, we can have a lot more early voting locations? And more voting by mail, with options to drop off ballots instead of waiting on and worrying about the postal service (but we can also track our ballot if we do mail it), and with drive-through service? Who even knew any of this was possible?” Just spend a few minutes on Twitter or Facebook and see the many selfies and videos people have posted with their enthusiastic reaction to all this.

And then remember that every step of the way, Republicans of all stripes have tried to stop any of this from happening. From the two Republican Commissioners voting against that money that was budgeted for the election, to the Governor (who, to be fair, did extend the early voting period, and did extend the period during which mail ballots could be dropped off to all of early voting, even if he did later limit it all to one location) and the Attorney General and the Steven Hotze/Allen West minions filing lawsuit after lawsuit, every single innovation was opposed with a barrage of lies about “vote fraud” and not much else. Thanks to a batch of sympathetic Republican judges, though, they have been quite successful at it.

I’ve made this point before, but this is a long-term loser for the Republicans. People like ease and convenience. They want new ways to do things that take less time and require less effort. The Democrats, in Harris County and elsewhere, want to give it to them. The Republicans want to take it away or make sure they never get it in the first place. What side of that argument do you want to be on in the next election, or even before that in the next legislative session? Texas is a lousy state in which to vote, with obstacles everywhere you look. That’s a policy choice, enabled by the Republicans who run the state. The only way to change that is to change who runs the state. Look at Harris County’s vision for how voting could and should be, and then look at what the Republicans have done about it. What happens when the voters want something to be done about this?

State judge halts Abbott’s mail ballot dropoff limit order

Remember there was a state lawsuit over the executive order that limited counties to one mail ballot dropoff location? That suit had a hearing this week, and the plaintiffs prevailed. For now, at least.

A Travis County state district judge on Thursday ordered a halt to Gov. Greg Abbott’s directive limiting Texas counties to one drop-off location for hand delivery of absentee ballots. The ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties..

On Monday, a federal appeals court upheld the Republican governor’s order under federal law, overturning a lower court’s ruling. The Travis County decision, however, applies to potential violations of state law.

A Texas-based Anti-Defamation League, voting rights advocacy group and a voter filed the lawsuit in Travis County district court last week arguing that the governor doesn’t have authority under state law to limit absentee ballot delivery locations. The lawsuit also claimed Abbott’s order violates voters’ equal protection rights under the state constitution.

In a short order Thursday, Travis County District Judge Tim Sulak ruled against Abbott and the Texas secretary of state.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

It’s unclear if and when additional mail-in ballot drop-off locations might be re-opened. Travis County had four drop-off locations before the Oct. 1 order, and Harris County had a dozen in place. But the decision is expected to quickly be appealed to a higher state court.

See here for more about the state lawsuit, which as we had heard was scheduled for a hearing this week. The Statesman has some more details.

In a letter sent Thursday afternoon, state District Judge Tim Sulak, who presided over a hearing in the matter on Tuesday, told lawyers that he will issue a temporary injunction against Abbott’s Oct. 1 order.

“The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things,” Sulak wrote.

As the Chronicle notes, this ruling is (very likely) stayed for the time being:

Paxton said his appeal in the case means an automatic stay of Sulak’s decision. The constitutionality of that part of the Texas Rule of Appellate Procedure, which allows governmental bodies’ appeals to supersede lower court orders, is being questioned in a case currently before the Texas Supreme Court.

Plaintiffs did not immediately respond to requests for comment on whether they agree with Paxton’s interpretation.

Remember a million years ago when the Libertarian/Green challenge to filing fees was still in effect despite the lower court ruling because of superseding? That’s the principle here. I’ll leave it to the lawyers to explain if it should be the principle here or not, but that’s where it’s at. The question now is, how quickly does this get to SCOTX? It seems likely to me that the ruling would be upheld by the Third Court of Appeals, but we all know where this is headed. It’s just a matter of when. So offer a halfhearted cheer for now, but keep your expectations in check until it’s all over.

Paxton accuses his accusers

Well, that’s one way to do it.

Best mugshot ever

In Republican Attorney General Ken Paxton’s first interview since seven of top aides accused him of accepting bribes and abusing his office, he said Tuesday that he was about to put one of them, first assistant attorney general Jeff Mateer, on administrative leave when Mateer made those accusations and resigned instead.

“I think he found out about it and decided he wanted to leave and set the narrative,” Paxton told the Southeast Texas Record.

Paxton also told the paper that he has placed two remaining executive employees — David Maxwell, director of law enforcement, and Mark Penley, deputy AG for criminal justice, who were among his seven accusers — on administrative leave while he investigates their actions.

Paxton’s statements on Tuesday provide the public’s first glimpse into how he is handling the matter inside the office of the Attorney General, where more than half of the executive staff has accused him of committing crimes.

[…]

In his interview Tuesday, Paxton reiterated his counterclaims against the whistleblowers, saying that they were trying to impede a legitimate investigation of the law enforcement agencies.

“It seems like my office did everything possible to stop an investigation of some law enforcement agencies,” Paxton said. “I can only come to the conclusion that there was an effort to cover up the reality of what really happened. This wasn’t supposed to be a complicated investigation.”

[…]

Paxton also backed accusations by Paul’s attorney, Michael Wynne, who said in a letter released late Sunday that Maxwell, a former Texas Ranger, berated Paul for even bringing the complaint. Paxton said he watched a video of the meeting between Maxwell and Paul.

“It was not a good interview — it was pretty harsh,” he said. “It was clear he had no interest in doing an investigation.”

In the interview, Paxton said Mateer also insisted that the attorney general did not have the authority to sign contracts and that only he, as first assistant, did. Paxton said he reviewed support documentation provided by Mateer and found it to be false.

“I don’t know why there’s so much turmoil over this investigation. I’m not impugning every law enforcement agent,” Paxton said. “We all should be held accountable. We all have to follow the law.”

Well, he was going to defend himself one way or another, and given what the accusations were, a defense of “no, they’re the real criminals” seems like the best option. That would then lead to the question of how it is Paxton managed to hire so many bad actors for high-ranking positions in his office, but that’s a problem for another day. For now, keeping his own ass out of trouble is the main goal.

Here we must pause and note that so far all we know is there were a bunch of accusations leveled against Paxton. We don’t know if there’s an investigation into the actions he’s alleged to have taken, much less if he did do the things he’s accused of. We do know that his accusers are fellow travelers in conservative circles, and that former Paxton lieutenant Chip Roy sided with them. We know that folks like Greg Abbott and Dan Patrick and John Cornyn have been in full “wait and see” mode, which may suggest that they genuinely don’t know what to make of all this, or that they’ve heard enough scuttlebutt to think there’s something to it, but they’re either not ready to throw Paxton overboard, or they’re seeking a more graceful way out of this mess. A lot of information has come out so far, none of which looks great for Paxton, but nothing yet that would force him to resign. That may be what this is like for awhile, and then either the feds do something to make it clear they’re going after him, or we get a press release saying he’s in the clear. Until then, this is what we have to sustain ourselves.

Well, there’s also this.

[Brandon] Cammack declined to answer questions about his work for the agency or speculate as to why Paxton called him about the job. But said he “rose to the occasion” in accepting a major assignment from the state’s top lawyer and that the fallout has been “unexpected.”

“When one of the highest elected officials in the state reached out to me to go conduct this investigation, knowing what my background and knowing what my experience was, with regards to state law claims… I took it seriously,” Cammack told The Texas Tribune Tuesday.

“I don’t know anything about office politics… I don’t know anything about [the relationship] between people. I was called to duty. I showed up for duty,” he said.

Cammack’s work for the attorney general’s office has ended, though he said it was “beyond” him to know if the review would go forward in someone else’s hands.

[…]

Legal experts have questioned the precise nature of Cammack’s job — Paxton described him as both an “outside independent prosecutor” and as “independent counsel” — and asked how he was able to issue subpoenas that aides said “related to private business concerns of Nate Paul.”

They also raised concerns that Cammack — who is connected to [Nate Paul’s attorney Michael] Wynne through their involvement in the Downtown Rotary Club of Houston and the Houston Bar Association — lacked the experience for such a high-profile assignment.

Cammack said the subpoenas were issued by a Travis County judge and that he never went before a grand jury. He submitted an application for subpoenas to the Travis County district attorney’s office and they assisted in getting them issued, he said. He declined to answer other questions about the subpoenas, including which judge issued them, and his role.

Cammack also disputed the notion that he lacked experience, saying he’d had a “successful practice” in Houston for about two and a half years, handling primarily criminal defense work. His investigation for the attorney general’s office centered on violations of the Texas penal code — “something I’m very well versed in having handled hundreds of cases for hundreds of families here in Harris County and contiguous counties.”

He said he was “not friends” with Wynne, but declined to say why Wynne was present when at least one subpoena was delivered. He also would not specify Paxton’s involvement in his work or provide specifics about his investigation.

Cammack said he was interviewed for the outside counsel position on Aug. 26 by Paxton and Mateer. He declined to provide specifics about the conversation, but said he understood there were a few other candidates for the job, and that Paxton asked about his educational and professional history.

A few days later, Cammack received a call from Ryan Vassar, deputy attorney general for legal counsel, about his contract, he said. Signed in early September, the agreement says Cammack would be paid $300 an hour to investigate a complaint and compile a report about any potential criminal charges. It did not give him the authority to indict or prosecute, and said he could work only as directed by the office of the Attorney General.

Cammack’s work on the case largely ended in late September when he received a cease and desist letter from Penley, the deputy attorney general for criminal justice, and then Mateer.

I mean, we still don’t know much, but what we do know just looks sketchy. And so we wait for more.

Nate Paul strikes back

Just when I think this can’t get any better.

Best mugshot ever

When Ken Paxton announced Friday his office was dropping the investigation into an Austin real estate investor’s claims of mistreatment during a federal raid of his home and business, the attorney general may have hoped the questions swirling around his relationship with Nate Paul would dissipate.

But a letter released late Sunday by Paul’s attorney that appears to be laying the foundation for a lawsuit against Paxton’s office dispelled any notion the controversy would go away soon.

[…]

Until now, Paul and his attorney, Michael Wynne, have remained mostly silent. But Sunday’s letter, in which Wynne demands that the attorney general’s office preserve documents related to the investor’s contact with Paxton’s office, flips that narrative.

In it, Wynne asserts that, far from helping his client’s cause, deep dysfunction inside Paxton’s office scuttled his client’s legitimate claim of abuse at the hands of federal investigators and has led to “A chaotic public spectacle of allegations.”

In Wynne’s telling, investigators’ behavior during the August 2019 raid against Paul were “among the most egregious examples of inappropriate behavior by government officials that I have witnessed in my professional experience.” The searchers tampered with records and then gave testimony contradicted by documents, he wrote.

Paul took his complaints to District Attorney Margaret Moore, who advised him that Paxton’s office was the correct agency to conduct any investigation of wrongdoing on the part of the searchers, including the FBI. But when Paul detailed his complaints, Paxton’s staff was dismissive and abusive, Wynne wrote.

At a July meeting, Paul’s team was “met with open hostility,” Wynne wrote. Paxton’s director of law enforcement, David Maxwell, “berated and insulted my client for bringing the complaint.”

Wynne said additional meetings with Paxton’s staff yielded the same “hostile attitude.”

Paxton personally attended a third meeting, Wynne wrote. At it, Paul demonstrated that the attorney general’s review of his complaint had been cursory and contained several errors, and that “this appeared to be an embarrassment to your office,” Wynne recounted in the letter.

Oh, my. Paul and his attorney are mad about the way Paxton’s office handled his demand for an investigation into the way he was treated by the feds, whom you will recall were investigating him for various alleged financial misdeeds. The seven senior members of Paxton’s staff found Paul’s complaint to be without merit, and the fact that Paxton proceeded – including the hire of the inexperienced and unqualified Brandon Cammack – is what led to them sending Paxton a letter alleging that he was taking a bribe. Maybe this is Paul’s way of saying he expected better service at that price.

The Trib adds some details.

Wynne’s letter places the blame for the debacle on the attorney general’s office, alleging top aides there failed to investigate his client’s claims as they should have and “deprived [Paul] of a proper review.”

“The mishandling of this complaint as outlined below has risen to an alarming level,” Wynne wrote in the letter, which also demands that the agency retain all related documents and files in preparation for potential litigation.

[…]

Wynne questioned the attorney general’s office’s basis for closing the inquiry, accused employees in the attorney general’s office of making “numerous inappropriate and false statements to the media” and said their handling of Paul’s complaint culminated in a “chaotic public spectacle of allegations, mudslinging, and an apparent power struggle” within the agency last week.

Top aides to Paxton have said internal investigations showed that Paul’s complaint lacks “any good-faith factual basis” and have accused their boss of serving a donor’s interest by hiring an outside attorney to pursue it.

Wynne said the circumstances of the federal search were “among the most egregious examples of inappropriate behavior by government officials” that he had witnessed.

In May 2020, Paul “sought guidance on the protocol for reporting a complaint” about the search and was told by Paxton to file it with the Travis County district attorney’s office.

The next month, the district attorney’s office referred the complaint back to Paxton’s agency after determining it would be “inappropriate” to send it to the Department of Public Safety, which was named in the complaint.

Wynne said “seven weeks of inaction” were followed by a series of meetings between him, Paul and officials in the attorney general’s office, whom he accused of being “hostile.”

At a meeting on July 21, the attorney general’s director of law enforcement, David Maxwell, “berated and insulted” Paul for bringing the complaint and attempted to intimidate them into dropping the matter, Wynne alleged.

He wrote that Maxwell and another top official — Mark Penley, one of the signatories on the letter about Paxton — attended a second meeting, in which Maxwell at one point yelled at Paul and asked “who [does] he think he is?”

At a third meeting, personally attended by Paxton, the review was found to be flawed and “appeared to be an embarrassment to your office,” Wynne alleged.

The Karen-like “I want to speak to your manager” energy out of this is strong, isn’t it? I’m dying for them to file a lawsuit against the AG’s office over this, because discovery is sure to be a hoot. The capacity this scandal has had to surprise and amaze me has been quite the source of joy these past few days.

And speaking of Brandon Cammack, the Paxton special prosecutors have some thoughts – and a motion – about how much Paxton paid him.

Texas Attorney General Ken Paxton has argued that $300 an hour is too much to pay the two special prosecutors appointed to take him to trial in a long-running felony securities fraud case — but that’s the rate his agency is paying the inexperienced attorney Paxton hired last month to investigate a complaint by a political donor.

[…]

The prosecutors, Brian Wice and Kent Schaffer, pointed out that irony in a spirited filing Friday before Harris County District Judge Jason Luong, asking that they be compensated at the same rate as Cammack, whom they dismissed as “an untested and unqualified rookie.”

“If this hourly rate sounds familiar, it should: it is the very rate the Pro Tems were promised when they were appointed,” they wrote in a Friday filing. “If the defendant’s choice to pay Cammack $300 an hour appears to be disingenuous, it is only because it is: in successfully derailing this prosecution by spearheading a concerted effort to defund it, the defendant has repeatedly referred to the Pro Tem’s $300 hourly rate in his filings as unreasonable and unwarranted.”

Wice and Schaffer, who told the court that between them, they have 80 years of experience in the criminal justice system, questioned why they should not be entitled to the same sum as Cammack, “whose own experience, training and expertise, compared to the Pro Tems, is virtually microscopic.”

Paxton can “run but not hide” from his “concession that $300 an hour is reasonable,” Wice and Schaffer argued.

In their own filing to the court, Paxton’s defense attorneys told the judge that Cammack’s contract is irrelevant to the issue of pay for the prosecutors.

[…]

The issue of prosecutor pay in the securities fraud case against Paxton was raised by a Paxton donor, Jeff Blackard, in December 2015, when he sued, calling the fees exorbitant. Since then, the issue has dragged through the courts for years, bouncing all the way up to the Texas Court of Criminal Appeals, the state’s highest court for criminal matters.

Paxton’s defense attorneys told Luong he should rely on the high court’s ruling — which found the $300 hourly rate fell outside legal limits — in determining how much Wice and Schaffer should be paid.

Nothing in the prosecutors’ filing, “which contains unsubstantiated gossip about an irrelevant matter and no legal argument, authorizes this court to disregard the holding of the CCA and grant the relief requested by the pro tems,” Paxton’s attorneys wrote.

I don’t know if Wice and Schaffer’s motion can be a justification to essentially overturn that CCA ruling, but it certainly shows (again) why that ruling was ridiculous, and why the current system for hiring special prosecutors is fundmentally flawed. They may not be able to do more than score political points, but even just a reminder of how much Paxton has been coddled and protected by his political buddies all these years is useful. The Chron and Rick Casey, who notes a connection between Michael Wynne and Brandon Cammack, has more.

Fifth Circuit upholds Abbott’s mail ballot dropoff limits

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Why did Ken Paxton hire a newbie attorney to be a “special prosecutor” or whatever he meant to call him?

The Trib has some questions.

Best mugshot ever

It was a baffling, perilous, perhaps unprecedented task.

Texas Attorney General Ken Paxton hired an outside lawyer last month to look into a complaint of misconduct by a host of state and federal officials, including the Texas Department of Public Safety, the Federal Bureau of Investigation and a U.S. attorney’s office. The claim had been made by a Paxton donor whose home and office were reportedly raided by federal agents last year.

Some legal experts say the investigation should never have been in the hands of the attorney general’s office at all. But if it was, longtime Texas attorneys say, it’s a job for a seasoned prosecutor, perhaps someone with years of experience as a U.S. attorney or district attorney, someone who’d already established a reputation, someone who’d taken dozens of cases all the way from investigation to sentencing.

Instead, Paxton personally signed off on a $300 hourly rate for Brandon Cammack, a 34-year-old Houston defense attorney with ties to the donor’s attorney and five years of experience whose docket, court records show, largely comprises cases involving driving while intoxicated, low-level theft or assault.

Paxton’s office abruptly ended that investigation Friday after political backlash from both parties and criminal allegations from his own top aides. But questions about Cammack’s role — and the process of his selection — persist.

“That’s the $64,000 question: How did Paxton come to hire this particular lawyer?” said Tim Johnson, a former U.S. attorney for the Southern District of Texas. “You’d expect, for something that would have the possibility for serious consequences, that you’d want to have somebody that had a great deal of experience in the criminal justice system. And it doesn’t appear that they did that.”

Equally inscrutable is the precise job Cammack was hired to perform for the attorney general’s office. Paxton has described him both as an “outside independent prosecutor” and as “independent counsel,” and one subpoena obtained by The Texas Tribune refers to Cammack as a “special prosecutor.”

But Cammack’s contract, which Paxton released this week, shows that Cammack was never independent, nor was he a prosecutor. Cammack can investigate “only as directed by the [Office of the Attorney General],” and his contract specifies that he will not be involved in any indictment or prosecution born out of his investigation. He’s submitted an invoice for more than $14,000 of work, according to media reports.

I’ll get back to this article in a second, but I should note that it’s a pretty good overview of the story so far, and includes a lot of new details. Because this is a sprawling story that’s being told in multiple places, it also covers some stuff we’ve already talked about. No one is going to be able to write a short article for anything related to this just because recapping the backstory will take at least six paragraphs.

Legal experts and lawyers who’ve worked with Cammack, including his estranged father, questioned whether he has the experience needed to take on such a high-profile assignment.

As recently as 2018, a judge appointed a more senior attorney to assist Cammack when he was working as a defense attorney on a felony manslaughter case.

Mark Hochglaube, the longtime prosecutor and defense attorney who was brought in, said it wasn’t clear whether the judge or Cammack himself considered the young lawyer too inexperienced to handle the case alone — but that both were on board with getting Cammack some help.

Their client, who was found guilty of manslaughter, was sentenced to 50 years.

He praised Cammack’s effort on the case but questioned his selection for the high-profile appointment.

“If I were the attorney general, and I was in this predicament, would the name Brandon Cammack be the first name that popped into my mind? No, it wouldn’t,” Hochglaube said.

Young attorneys can often punch above their weight and rise quickly through the ranks, Hochglaube said, but he added, “I have a hard time saying, based on my experience with Brandon, that I would’ve thought this was suitable for him.”

[…]

Beyond questions about Brandon Cammack’s qualifications, the scope of his role is murky, too.

Why, some legal experts wondered, would a state attorney general be investigating claims against federal authorities at all? Some called the situation unprecedented.

“I guess every politician is limited only by his imagination,” said longtime Houston defense attorney Rusty Hardin, “but that’s a pretty unique event.”

Edward Loya, a Dallas attorney and former federal prosecutor for the U.S. Department of Justice, said FBI agents are not above the law, and, in principle, there is nothing wrong with the state attorney general looking into FBI misconduct for violations of Texas law.

But he added that it is unusual — and raises serious ethical questions — for a state attorney general to take on an investigation of FBI misconduct in a case involving alleged criminal activity of one of the attorney general’s donors. The prudent course, he said, would have been to refer the matter to the U.S. Department of Justice’s Office of the Inspector General, an independent division within DOJ that probes such claims made against DOJ employees.

“I can’t imagine that’s ever happened before,” said Johnson, the former U.S. attorney, adding that if he had been asked to fill Cammack’s role, “I would’ve stayed as far away as I could.”

“Anybody with half a brain would’ve gotten as far away from this as they possibly could,” Johnson said. But Cammack “may not have had enough experience to realize this is something he really shouldn’t want to get involved with.”

Lawyers interviewed by The Texas Tribune said Cammack’s official role as outside counsel raises questions about whether he had the authority to issue subpoenas, a power limited to prosecutors and assistant attorneys general. His actions in the case could open him up to legal liability if he usurped his authority, and Phelps, the former official in the attorney general’s office, questioned whether the issuance of the subpoenas amounted to a criminal offense.

“An outside counsel is not a ‘special prosecutor’ and has no authority to issue subpoenas, appear in front of a grand jury, or prosecute a criminal case,” said Phelps, who also worked for a decade as first assistant district attorney in Brazos County, and head of a special prosecutions division under Morales.

“I wish someone would pull that Brandon Cammack aside because I think he’s being used, because of his inexperience,” Phelps said.

I skipped over a couple of paragraphs that describe Brandom Cammack’s relationship with his father, who is also an attorney and who comes across as an abusive. It’s icky stuff.

After several days and a whole lot of reading, I’ve been thinking about how to summarize what we know so far, so if we get into a conversation with someone who knows nothing about this other than a vague recollection of some headlines or Facebook posts, we can help them understand. The basic gist of it is that a real estate hotshot in Austin named Nate Paul had been the target of an FBI investigation into his finances, which involved raids on his offices. Paul filed a complaint about the investigation and searches of his properties with the office of Attorney General Ken Paxton, to whom he had contributed $25K in the last election. Paxton did open an investigation, going through the Travis County DA’s office first with a somewhat shady legal pretext to get the investigation handled by his office instead of the DA. He then hired Brandom Cammack, an inexperienced attorney, in a role that is not clearly defined but is something like a special prosecutor, except that Cammack was not independent of Paxton, and no one thinks he had the qualifications or experience for the job. All of this looked like Paxton doing some legal work on behalf of Nate Paul but with the official seal of the AG’s office. That caused a revolt among Paxton’s senior assistants, who told him all of this was highly inappropriate at the least. In the end, seven top assistants to Paxton asked for a federal investigation of Paxton’s involvement in the Nate Paul situation, accusing him of being paid off by Paul to help Paul defend himself against the feds in their investigation of him. Whew!

That’s where things stand now, and there are various subplots and unanswered questions and who knows what else. You can see what I mean when I say that it will be impossible any time soon to write a short article relating to this. I feel like there are still some big shoes to drop, but I couldn’t even guess at what that might mean. It’s becoming quite the political hot potato, as US Rep. Chip Roy – a former top lieutenant to Paxton – has called on him to resign (as have a couple of newspaper editorial boards), and Sen. John Cornyn, himself a former AG, has expressed his disappointment in Paxton’s handling of this. I have to believe that this will be an issue in 2022, in a bigger way than the existing Servergy indictments of Paxton ever were.

One more thing, just to expand on an item noted in the story above: Paxton has officially closed the Nate Paul investigation that started all this, shortly after Travis County DA Margaret Moore told him her office was not going to be involved any more in any way.

Texas Attorney General Ken Paxton said his office is closing its investigation into a complaint made by one of his donors, hours after the Travis County District Attorney formally distanced itself.

Also on Friday, the Texas Department of Public Safety said it was not investigating allegations by aides in Paxton’s office that he committed bribery and other corruption crimes but instead the matter had been referred to the Federal Bureau of Investigations. A DPS spokesman said the Texas Rangers are available to assist.

Paxton had argued that he only pursued an investigation urged by the donor, Austin real estate investor Nate Paul, after getting a referral from Travis County District Attorney Margaret Moore’s office. Moore already told the Houston Chronicle that it was Paxton who first brought Paul’s request for an investigation to her and not the other way around.

A letter she sent Paxton Friday upped the ante and made clear her office is cutting all ties to the probe. Moore noted all the revelations that have come out in recent days — revelations that demonstrate Paxton has more than gone out of his way to assist Paul and his troubled real estate dealings.

“Any action you have already taken or will take pursuing this investigation is done solely on your own authority as provided by Texas law,” Moore said. “The newly surfaced information raises serious concerns about the integrity of your investigation and the propriety of your conducting it.”

She said the referral of the Paul matter from her office to his — until now in the hands of an outside Houston lawyer Paxton hired — “cannot be used as any indication of a need for an investigation …or an endorsement of your acceptance of the referral.” She also said she had instructed her employees “to have no further contact with you or your office regarding this matter.”

Paxton said in a statement Friday that he closed the investigation because his office “can only investigate in response to a request for assistance from the District Attorney’s office.”

I wonder if we’ll hear some more about this from the perspective of someone in Moore’s office, now that they are free of any constraint. We’re almost a week into this story and it’s still a total firehose of new information. The Statesman has more.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

More on Nate Paul

This Trib story delves into the life and times of Nate Paul, the young Austin real estate entrepreneur whose relationship with Ken Paxton is the underpinning of the current scandal surrounding Paxton. The story goes into some detail about Paul’s life, which includes a habit of stiffing creditors and a general dickishness that I find crummy but which apparently don’t bother Paxton, but the key bit is right here:

Best mugshot ever

Meanwhile, Paxton’s office has come to Paul’s defense in at least one other legal matter, records show. Paul’s World Class firm works through a complex web of more than a dozen affiliated business partnerships, which jointly own properties with investors.

A dispute arose two years ago between companies affiliated with World Class and the Roy F. and Joann Cole Mitte Foundation, which invested in multiple Austin properties with the companies. The foundation is an Austin-based nonprofit that provides grants to charitable organizations and academic scholarships for students with financial needs.

The Mitte Foundation sued Paul in 2018, claiming he wasn’t sharing financial information on their jointly owned investments that Paul’s businesses managed. The case went to arbitration, and on July 1, 2019, a company affiliated with World Class agreed to buy out Mitte’s interest in the real estate partnerships for $10.5 million with payment due that August.

It never came, said Ray Chester, the lawyer representing the Mitte Foundation in the case.

In October 2019, the judge in the case ordered a receiver to take over the business partnerships, which would compel Paul to reveal the financial records that Chester said still hadn’t been shared with the Mitte Foundation. Chester said that within days, Paul “blatantly defied” the arbitrator’s ruling and said he had sold the partnerships at less than half of their market value.

But the sale was to another company affiliated with Paul, Chester said.

“He basically sold it to himself at below market value,” Chester said, although court records show the sale was never consummated.

As Paul’s firm cycled through teams of attorneys and held back on making the $10.5 million payment, Paxton’s office intervened in the case on behalf of World Class and its business affiliates this June, court records show. Paxton argued that his office needed to “protect the interests of the public” because the suit involved a charitable trust.

In July, Paxton asked a judge to halt the case. During that time, Chester said Paxton’s office called him five to 10 times per day to try to get him to settle for “pennies on the dollar,” calls that Chester characterized as “vaguely threatening.”

On Sept. 20, less than two weeks before news broke about the allegations against Paxton, the attorney general’s office reversed itself and announced its intention to step away from the case, which is still ongoing.

After filing for bankruptcy in August, the World Class affiliate handling investments in the property did not pay the $10.5 million or turn over the records, Chester said. But a clause in the settlement agreement does allow the Mitte Foundation to take a valuable, larger ownership share in the downtown property, Chester said.

One can certainly see some parallels to another well-known real estate personality, but that’s not what caught my interest. The obvious question here is why was Ken Paxton inserting himself into this particular dispute? It sure seems like a standard fight between a creditor and a debtor, so what was the state’s interest? I didn’t publish this post on Thursday because of Too Damn Much Other News, which is just as well because I then saw this Statesman story, which helped with some of these questions. As noted above, Ray Chester is an Austin attorney who has been representing the Mitte Foundation in its legal battles against Nate Paul and World Class, and apparently also Ken Paxton.

Chester contends the attorney general’s office exerted undue pressure to push for a settlement financially advantageous to Paul — or “pennies on the dollar” compared with what the foundation was owed under a previous $10.5 million settlement reached in 2019.

“We suspected all along that something fishy was behind the AG’s intervention in our case,” Chester said. “There is no legitimate reason why they would be helping Mr. Paul’s companies at the expense of a charity.”

The limited partnerships are called WC 1st and Trinity LP and WC 3rd and Congress LP, named after the locations of their properties. The 1st and Trinity partnership owns prime waterfront land on East Cesar Chavez, next to the Four Seasons Hotel and across from the Austin Convention Center. The WC 3rd and Congress partnership owns several tracts around the Austonian high-rise condos downtown.

In court documents and in an interview with the Statesman, Chester said Paul didn’t pay the $10.5 million settlement.

And as things continued to “go south” for Paul, Chester said Paxton started taking an interest in the legal fight.

Any time a charity is involved in litigation, the charitable trust division of the attorney general’s office must be notified because it has a right to intervene on behalf of the public interest in the charity.

But the only reason the attorney general should get involved in such cases “is to help the charity — not help the criminal guy against the charity,” Chester said. “And that’s what happened here, and that’s what’s made it so unusual.”

Michael Wynne, an attorney for Paul, told the Statesman that the foundation “refused to engage in any meaningful resolution” to the litigation, however, and also “colluded” with a court-appointed receiver in the case, squandering “over a million dollars in legal fees to line their lawyers’ pockets.”

Those are the among the reasons Paul brought the case to the attention of the attorney general’s charitable trust division, he said, disputing a contention by Chester that Chester’s office did so when the lawsuit was first filed — as it was required to do by law.

Wynne also said he is unaware of anyone from the attorney general’s office attempting to pressure Mitte to accept a settlement.

“We were obviously not privy to any of those conversations and have no basis to comment on them,” he said.

This at least helps me understand the claim that the AG needed to step in because the case involved a public trust. I’d love to hear from someone with actual experience what they think about all this.

Paxton mounted an investigation into allegations made by Paul that federal agents with the FBI and U.S. Department of Treasury acted unlawfully during [2019 searches of some of his properties]. Paxton tapped an outside attorney, Houston lawyer Brandon Cammack, to conduct that probe.

Seven senior Paxton aides — including his first assistant, who recently resigned — subsequently filed a criminal complaint against the attorney general that they say stems from his dealings with Paul, who donated $25,000 to Paxton’s reelection campaign in 2018. They’ve asked federal agents to investigate their boss for potential crimes that include bribery, abuse of office and improper influence.

Cammack’s appointment was among the actions that prompted the complaint. Paxton’s intervention in the Mitte case also has sparked controversy.

A senior official in the attorney general’s office recently voiced concerns to the American-Statesman about Paxton’s involvement in the Mitte lawsuit, saying attorneys in the agency’s charitable trust division were instructed by Paxton to weigh in, even though Paxton doesn’t typically take such a hands-on approach.

“I saw just no interest why our office should get involved in this thing,” the official said. “Legally, and just the optics of doing something for a guy who is under FBI investigation — I am like, ‘This is reckless.’”

Documents obtained by the Statesman indicate Paul prodded some staffers of the attorney general’s office to discuss with him their handing of the Mitte case and what Paul alleged to be improprieties by the foundation.

“Your decision to not even respond to my emails has only amplified my concern about your bias toward helping the Mitte Foundation,” Paul wrote in a July 1 email to Josh Godbey, head of the attorney general’s charitable trust division. “I have raised many issues and you have chosen not to respond.”

In a July 23 email, Paul complained to Jeff Mateer — Paxton’s former first assistant who recently resigned — about Godbey’s lack of action. Mateer responded to Paul’s attorneys, asking that all communications be conducted through them, and he also attempted to make clear the agency’s position on such matters.

“It is not our role to assist a party adverse to a charity in pending litigation or provide status updates on those matters,” Mateer wrote in a July 24 email. “Any such non-privileged communications subject to public disclosure might be perceived as questioning our office’s necessary impartiality, which we carefully guard at all times.”

Chester said his firm notified Paxton’s office about the lawsuit as required when it was filed, but was told the agency’s involvement wasn’t needed.

“A junior attorney called me, asked me a few questions and said, ‘You’re fine, we don’t need to intervene,’” Chester recalled.

That was the end of it, he thought.

But subsequently, Paul suffered a series of setbacks in the case. In addition, the court-appointed receiver started making plans to sell the 1st and Trinity property.

“The next thing you know, (the attorney general’s office) intervened,” Chester said. “At that point, we knew there was some connection between Nate and the attorney general’s office.”

“We quickly started getting pressure to settle the case,” Chester said, and “for much less” than the 2019 agreement of $10.5 million.

“They were strong-arming us to settle,” Chester said. “It was very uncomfortable and very threatening. Multiple people told me the pressure was coming straight from Paxton.”

There’s been a lot more reporting on this saga, which I have covered in another post. This is going to be a challenge to follow because multiple publications are all chasing different leads and advancing the story in a variety of ways. We still don’t have a clear picture of what was happening, and some facts are in dispute. But boy, everything we’ve seen so far looks deeply sketchy. I have no idea what Ken Paxton is thinking, but I suspect he’s in for some very rough times. And deservedly so.

On executive power and the role of the Legislature

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

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

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

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

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

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

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

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

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

First hearing for mail ballot dropoff locations

Hopefully we’ll get some action quickly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: Here’s the Chron story:

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

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

[…]

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

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

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

Paxton’s first line of defense

Settle in, folks, this is going to be a long one. We’ll start with the Dallas Morning News.

Best mugshot ever

Texas Attorney General Ken Paxton is defending his decision to bring on an outside lawyer to look into a complaint from real estate developer and campaign donor Nate Paul.

In an unusual step Wednesday, Paxton’s office released documents to beat back accusations by his own top deputies that the outside attorney, Brandon Cammack, is acting without authority. The records show Cammack is billing the state $300 an hour and that Paxton personally signed his hiring document.

The records — released through the agency’s Twitter account — signal Paxton is digging in for a fight after seven of his most senior employees accused him of bribery and abuse of office. The staff have raised concerns over Paxton’s relationship with Paul, whose home and businesses were raided last summer by the FBI.

Multiple senior officials in the agency told The Dallas Morning News late Wednesday they believed Paul was attempting to use the power of the office of the attorney general for personal and financial gain. And in a document obtained Wednesday by The News, Paxton’s deputy warned Cammack his employment agreement was invalid and may have been signed by Paxton “under duress.”

“The document appears to be signed by Attorney General Ken Paxton. To be clear this office has no record authorizing such a retention under our agency’s operating policies and procedures,” then-First Assistant Attorney General Jeff Mateer wrote in a letter dated Oct. 1.

“We believe this purported agreement is unlawful, invalid, unenforceable, against public policy, and may have been executed by the Attorney General under duress,” Mateer wrote, without elaborating.

“Under duress”? UNDER DURESS? Holy mother of Ann Richards. What does this even mean?

Cammack, 34, told The News on Tuesday that Paxton reached out to him in August to gauge his interest in working as outside counsel. He was asked to look into a complaint from Paul alleging misconduct by state and federal employees that was referred to Paxton’s agency by the Travis County District Attorney in June.

On Thursday, Travis County DA Margaret Moore said Paxton personally asked her to look into the complaint. After her office held a meeting with Paxton, Paul and Paul’s attorney, Moore referred the complaint to the Office of the Attorney General.

“The scope and nature of the complaints comprised matters that the D.A.’s Office would normally refer to a law enforcement agency with the resources necessary to conduct the investigation,” Moore said in a statement. “The entities complained against included the FBI and the Texas Department of Public Safety, so the only appropriate agency left to whom we would typically make the referral was the Office of the Attorney General.”

But the agency’s investigation into Paul’s complaint stalled. Multiple senior officials told The News on Wednesday they recommended not proceeding further with the probe because they found that the agency had no authority to investigate the claims in the complaint or that they lacked merit. They believed that Paul was attempting to use the office for personal and financial gain.

Paxton reached out reached to Cammack, the lawyer told The News, to pick up the investigation. On Wednesday, the statement from Paxton’s office said he decided to hire Cammack as outside counsel because his own employees impeded the investigation and “because the Attorney General knew Nate Paul.”

But multiple senior officials who would have needed to sign off on outside counsel told The News on Wednesday that they vigorously opposed Cammack’s hiring.

We should note that as some other outlets reported, Paxton made it sound like Travis County DA Margaret Moore approached his office to handle this complaint. Moore has released a statement making it clear that Paxton approached her, and the referral back to his office was because it was legally the only appropriate way to proceed. Once again, my jaw is hanging open.

The way Cammack was brought on is highly unusual, according to a person familiar with the agency’s policies and procedures, who said all contracts must be approved by several divisions and senior officials. It’s unclear whether that occurred in this case.

While Paxton has said he decided to bring on outside counsel because he knows Paul, the agreement released Wednesday does not give Cammack independence from Paxton and requires him to conduct an investigation only as directed by the Office of the Attorney General.

The hiring documents Paxton released Wednesday include an employment agreement and job description, which Paxton said “legally authorized [Cammack] to act.”

Paxton’s office also released emails between Cammack and one staff member, in which the two discussed a draft of a hiring agreement. That staff member, Deputy Attorney General for Legal Counsel Ryan Vassar, is one of the seven employees who lobbed criminal allegations against Paxton.

Cammack has said that his work is still going on. Who even knows what that means.

All that is a lot, but there’s still more. The Chron finds some more oddities about Brandon Cammack and how he came into the picture.

While a contract released by the attorney general’s office explains how outside counsel Brandon Cammack came to be hired, it leaves questions unanswered about how the arrangement allows Cammack to be independent of Paxton, who is at the helm of the agency and signed the contract.

“They may very well be allowed to do it,” said Larry McDougal, president of the Texas Bar and a former prosecutor. “I’ve just never actually seen it … Thirty years of being a lawyer, and I’ve never had that come up.”

We’re off to a great start. Now we look at the meeting with Travis County DA Margaret Moore again, and the way that Paxton’s office came to be involved in this investigation that he wanted.

Some lawyers interviewed said Paxton could also have declined the case or referred it to another law enforcement agency. All said it’s unclear what part of the law Paxton leaned on when bringing on Cammack.

Paxton’s office has described Cammack as “outside independent counsel,” but in at least on subpoena, obtained by Hearst Newspapers, he is called a “special prosecutor.”

“I was very surprised to hear that he was appointed as a special prosecutor only because I, candidly, don’t know that the Attorney General’s office has the authority to do so,” said Chris Downey, a Houston-based criminal defense attorney who has been an attorney pro tem three times before. “I think that’s a point of concern and potential exposure.”

The contract released Wednesday by Paxton’s office shows that Cammack was hired to investigate but not prosecute. That differentiation could mean legal consequences for Cammack if a court later finds that he was acting without authority.

In July 2020, the Fifth Circuit Court of Appeals ruled that prosecutors aren’t shielded with immunity from lawsuits when they are performing investigative functions.

Attorneys interviewed also raised questions about the choice of Cammack, who graduated from University of Houston law school in May 2015, was licensed in November of that year and has been in private practice for about five years. He’s also the chair-elect of the Houston Bar Association.

“Normally, when you do bring on someone as a special prosecutor, you do so because you’re trying to tap into that person’s unique skill set,” Downey said. “I would be surprised given that he’s been a lawyer for five years that he has a defined skillset that they couldn’t find within the attorney general’s office.”

Everywhere you turn, more and more questions. Many more questions than answers, that’s for sure.

My previous blogging on this topic can be found here, here, and here. I’ll have a separate post on the Nate Paul side of things, because this is all Just Too Much.

The Trib also covered this topic, but the DMN had the most comprehensive story, while the Chron has been running down other angles as well. One more detail in all this is that Paxton’s contract with Cammack pays him $300 and hour. You know who else is supposed to get paid that much? The special prosecutors against Paxton in the Servergy case. The same guys who have been fighting Paxton, his army of cronies and minions from Collin County, and the Republican-dominated courts to actually get that pay, which Team Paxton et al have claimed is extravagant. I expect the rotting corpse of Irony to turn up any day now.

UPDATE: Damn, there’s a lot happening with this story.

Five senior officials in the Texas Attorney General’s Office accused their boss, Ken Paxton, on Wednesday of subverting his office to serve the financial interests of a political donor, according to an email obtained by The Texas Tribune.

The aides are doubling down on accusations they made last week to law enforcement — that Paxton had committed crimes including bribery and abuse of office — even as the second-term Republican says he’ll forge ahead as the state’s top lawyer under a fresh cloud of criminal allegations and as some in his party call on him to resign.

“It would be a violation of our own public responsibilities and ethical obligations to stand by while the significant power and resources of the Texas Attorney General’s Office are used to serve the interests of a private citizen bent on impeding a federal investigation into his own alleged wrongdoing and advancing his own financial interests,” the aides aides wrote in the email. “We urge you to end this course of conduct immediately.”

[…]

The damning Oct. 7 email was addressed to Paxton and his new First Assistant Brent Webster and sent by five of the same senior aides and whistleblowers — Ryan Bangert, Blake Brickman, Lacey Mase, Darren McCarty and Ryan Vassar— who reported allegations of criminal activity to law enforcement last week. Two of Paxton’s aides, including former First Assistant Jeff Mateer who reported him to law enforcement have since resigned.

Their concerns stem from Paxton’s hiring of a special prosecutor to investigate claims made by Nate Paul, an Austin real estate investor and donor, of alleged impropriety by federal and state authorities. But several subpoenas served by the prosecutor, the aides said in the email, were “related to private business concerns of Nate Paul” — and were not the subject of the “narrow criminal referral” he was appointed to investigate.

“This office’s continued use of the criminal process, in a matter already determined to be without merit, to benefit the personal interests of Nate Paul, is unconscionable,” they wrote.

They’re bringing the heat, I have to say. It really is mind-boggling what these top assistants are saying about their boss, and sharing with the press. It’s also easy to imagine that there’s more coming. In the meantime, John Cornyn gets on the Concern Train, on which he will Wait And See before drawing any conclusions. Better buckle in, John.

Win one, lose one at SCOTX

The win:

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This one’s in state court.

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

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

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

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

[…]

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

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

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

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

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

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

Here, have a Paxton scandal roundup

At first I couldn’t decide if I wanted to put the juiciest bit up front or at the end. I decided to put it at the end, to hold your interest throughout.

From the Trib, life and business tries to go on at the AG’s office.

Best mugshot ever

It had already been a difficult fall for the Texas attorney general’s office.

The sprawling agency, which employs some 4,000 people in more than 100 offices across Texas, has for months had to contend with the added challenges of the coronavirus, many staff members working from home and others deployed as legal backup to Gov. Greg Abbott in coronavirus-related lawsuits on everything from abortion rights to business closures.

Communications director Marc Rylander departed more than a month ago, and Nick Moutos, an assistant attorney general, lost his job at the agency in early September after revelations that he had shared racist rhetoric and QAnon conspiracy theories on social media. Meanwhile, top state attorneys are juggling a handful of fast-moving election-related lawsuits — When will early voting begin? Will Texas ballots allow for straight-ticket voting? — and gearing up for a Nov. 10 argument before the U.S. Supreme Court, the culmination of a yearslong effort to strike down the Affordable Care Act.

But things hit a fever pitch this weekend as seven of the agency’s most senior staff members accused their boss, Texas Attorney General Ken Paxton, of crimes including bribery and abuse of office, as the Austin-American Statesman and KVUE-TV first reported Saturday night. One of the whistleblowers, Jeff Mateer, abruptly resigned his position as Paxton’s top aide Friday after telling a human resources administrator at the agency that he and other aides “have a good faith belief that the attorney general is violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses.”

But Paxton, who has pledged to forge ahead as attorney general, pointed the finger back at the seven aides.

“Despite the effort by rogue employees and their false allegations I will continue to seek justice in Texas and will not be resigning,” Paxton said.

Now, agency staff will have to juggle coordinating child support payments, open-records requests and major court dates under the cloud of fresh allegations against their boss, without Mateer, and with an internal battle quietly raging between Paxton and many of the most senior aides who remain.

Yes, so many distractions they must deal with as they work so hard to take away your health care and restrict your access to the ballot box. I don’t know how they manage to do it all.

A spokesperson for the agency, Kayleigh Date, said Saturday that the top aides made the allegations against Paxton “to impede an ongoing investigation into criminal wrongdoing by public officials including employees of this office.”

And she seemed to suggest that state officials hope to investigate or even prosecute the whistleblowers.

“Making false claims is a very serious matter and we plan to investigate this to the fullest extent of the law,” Date added.

Date declined to provide any further details about the investigation or how the agency will run amid the chaos. She also did not respond to questions about how many of the seven remain employed at the agency.

For his part, Paxton worked Monday to signal business as usual, appointing Brent Webster, a former assistant criminal district attorney in Williamson County, to replace Mateer in the critical role of first assistant attorney general.

Paxton also had lunch at an Austin barbecue restaurant with Bill Miller, a friend and longtime lobbyist, who said Paxton was surprised and puzzled by the allegations and maintains that he has not done anything wrong.

Miller said Paxton hadn’t heard from law enforcement or retained an attorney on the matter and pointed out that the aides leveling accusations against Paxton have yet to publicly show evidence: “There’s a lotta smoke; where’s the fire?”

Paxton doesn’t understand where the claims came from, and “he isn’t going anywhere,” Miller said, but is committed to forging ahead with the agency’s work with Webster as the new first assistant.

Yes, it would be nice to know what if anything is happening with these accusations. As per usual custom, there won’t be any comment from the FBI or US Attorney’s office, so unless someone leaks to the press, or until people with badges and search warrants show up at the office, all we can do is wait and speculate. I hate to say it, but there may not be much news on this for awhile.

The Chron goes into the politics and gets some detail on one of the more alarming charges.

Texas political analyst Mark Jones of Rice University, who has studied the felony case that has been hanging over Paxton for five years now, said these allegations are different.

“This isn’t an accusation that comes completely out of left field regarding a public servant who has an unblemished track record,” Jones said. “This is someone, from when he arrived in the state House, moved to the state Senate, moved to the office of the attorney general, has had a trail of questionable ethical behavior.”

Jones added: “We’re talking about the chief law enforcement official in the second-largest state in the country.”

Most state Republicans, watching as Paxton has weathered such allegations in the past, have backed him or stayed silent over the years. This time likely will be different, Jones said.

Hearst Newspapers reported Sunday that Houston lawyer Brandon Cammack, whom Paxton hired as a special prosecutor, issued grand jury subpoenas last week targeting “adversaries” of Paul, according to a senior attorney general’s office official. There were 37 subpoenas that targeted actions of federal authorities in an August 2019 raid of Paul’s home and offices, the Austin American-Statesman reported Monday.

One of the signatories on the letter accusing Paxton, deputy attorney general for criminal justice J. Mark Penley, filed a motion in state District Court in Austin to halt the subpoenas. The motion to quash them was granted Friday, records show.

Many questions remain about the nature of the alleged bribery and how Cammack came to work for the office in a move that has been opposed by half of Paxton’s executive staff.

Paxton has not responded to questions about any contract the office had with Cammack, when he was hired, how much he is being paid or any other details.

Hearst Newspapers has filed open records requests for records of payments to Cammack as well as any agreement the office had with him.

This right here is what I want to know more about, and it won’t be dependent on any loose lips or federal action. Let’s get those records and see what they tell us.

The Chron also has a timeline of Paxton’s malfeasance and pettifoggery. The MontBlanc pen episode is probably my favorite of them. The Trib reminds us that AGs in Texas often go on to run for other things, though not always with success. I don’t see much of a future in higher office for Paxton, but he went from the House to the Senate to the AG’s office pretty quickly, so it’s not like it couldn’t happen.

And finally, the bit you’ve been waiting for, from Law.com:

Appointed prosecutors who have been pursuing felony securities fraud charges against Texas Attorney General Ken Paxton for five years are researching new allegations that Paxton committed crimes in office.

If Paxton gets charged with new crimes, the prosecutors would seek to revoke his bond.

[…]

“We’re making contact with the individuals involved to determine what exactly happened and what evidence exists that suggests he was involved in misconduct,” said Kent Schaffer, one of the appointed prosecutors in Paxton’s pending case.

If Paxton does get charged with new criminal offenses, the prosecutors in his current felony case would file a motion to revoke Paxton’s bond, explained Schaffer, partner in Schaffer & Carter in Houston.

“When you’re under indictment in a felony case and you’re on bond, if you get a new violation, then your bond can be revoked and you can be held without bond,” he noted. “I’m not saying it’s going to happen. So far, we don’t have any evidence. He is not charged in a new case.”

Also, if Paxton eventually goes to trial in the securities fraud case, and he were also charged for crimes related to the new allegations, then Schaffer said the prosecutors would tell the jury about the new alleged crimes during the sentencing phase of the trial in order to argue for a harsher sentence.

Now, this could all be many months off, if it happens at all, but still. Enjoy the thought for a moment. You deserve it.

Chip Roy calls on Paxton to resign

Interesting.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More details emerge about the latest Paxton allegations

The Chron advances the ball.

Best mugshot ever

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How not to be “ground zero” for voter suppression

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

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

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

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

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

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

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

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

Federal bribery complaint alleged against Paxton

Holy moly.

Best mugshot ever

Top aides of Texas Attorney General Ken Paxton have asked federal law enforcement authorities to investigate allegations of improper influence, abuse of office, bribery and other potential crimes against the state’s top lawyer.

In a one-page letter to the state agency’s director of human resources, obtained Saturday by the American-Statesman and KVUE-TV, seven executives in the upper tiers of the office said that they are seeking the investigation into Paxton “in his official capacity as the current Attorney General of Texas.”

The Thursday letter said that each “has knowledge of facts relevant to these potential offenses and has provided statements concerning those facts to the appropriate law enforcement.”

Paxton, a 57-year-old Republican, was elected in 2014. His office said in a statement Saturday evening: “The complaint filed against Attorney General Paxton was done to impede an ongoing investigation into criminal wrongdoing by public officials including employees of this office. Making false claims is a very serious matter and we plan to investigate this to the fullest extent of the law.”

The statement did not elaborate.

The letter to human resources was signed by Paxton’s first assistant, Jeff Mateer, who resigned Friday, as well as Mateer’s deputy and deputy attorneys general overseeing divisions that include criminal investigations, civil litigation, administration and policy.

“We have a good faith belief that the attorney general is violating federal and/or state law including prohibitions related to improper influence, abuse of office, bribery and other potential criminal offenses,” the letter states.

Their decisions to report possible illegal activity involving their employer represents a stunning development in an agency that prizes loyalty, particularly from within Paxton’s inner circle. It places a renewed spotlight on Paxton, who is already under indictment for alleged securities fraud.

The complaint concluded by saying that they notified Paxton in a text message Thursday that they had reported the alleged violations to law enforcement.

The whistleblowers, who notified human resources to protect their jobs, offered no other details about the allegations and did not describe what they believe Paxton did that was illegal. Efforts to reach them were unsuccessful Saturday.

Mateer’s inclusion in the complaint letter, and his departure as Paxton’s second in command, was particularly significant, coming from a political ally who shared a conservative Christian perspective on many social and legal issues.

“Stunned” doesn’t begin to describe how I feel about this news. This is a bombshell, and it’s a question of how big it is. The fact that this accusation was made by Paxton’s staffers, including an ideological ally like Jeff Mateer, makes it all the more momentous. I cannot wait to see what happens next.

Paxton’s defense appears to be “I’m not doing illegal stuff, it’s these staffers of mine who are the bad guys”. Not sure how well that will work out, but as we do not have any details from either side as yet, it is very likely there’s more to this, and we’re just going to have to wait to see what else there is. Neither this story nor the KVUE story has a copy of the letter, so what you see here is what we’ve got. Stay tuned. See Jessica Shortall on Twitter for more.

UPDATE: Here’s the letter. Doesn’t say anything that wasn’t already quoted, but you can see who signed it. The Trib has more.

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

As expected.

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

The Chron adds some details.

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

[…]

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

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

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

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

[…]

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

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

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

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

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

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

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

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

Abbott moves to stop mail ballot dropoff locations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SCOTX hears mail ballot case arguments

Here we are.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

And straight ticket voting is off again

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

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

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

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

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

[…]

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

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

Paxton opposes Hotze mandamus to curb early voting

From Reform Austin:

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

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

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

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

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

To the Honorable Supreme Court of Texas:

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

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

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

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

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

PPP/TDP: Trump 48, Biden 48

More polls.

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

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

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

[…]

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

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

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

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

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

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

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

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

Paxton appeals stright ticket voting ruling

Letting no moss grow.

Best mugshot ever

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

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

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

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

[…]

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

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

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

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

The 2022 election has officially started

And Joe Jaworski is the first candidate out of the box.

Joe Jaworski

Joe Jaworski, a mediator and former Galveston mayor, is not a fan of Texas Attorney General Ken Paxton, a Republican first elected to statewide office in 2014.

“I have always thought the attorney general should be the attorney for the people, not a particular political party or ideology,” he told me Tuesday.

That may sound naive to Texans who’ve followed state politics in recent years. But Jaworski, a Democrat, has a unique vantage point as the grandson of the late Leon Jaworski, the Houston lawyer and one-time Nuremberg prosecutor who gained fame as the second special prosecutor during the Watergate scandal.

Jaworski said his grandfather — “the Colonel,” to family members — put country over party. A Democrat, he became disillusioned with the party after Lyndon Johnson’s administration and voted for Richard Nixon twice. His legal clash with Nixon over Oval Office audio recordings culminated in Nixon’s resignation in 1974.

“Leon Jaworski was always on the right side of history, and that is a meaning that I feel very strongly about,” Joe Jaworski said of his grandfather.

Joe Jaworski announced his own bid for attorney general last week, getting an early start in a bid to unseat Paxton, a Republican, in 2022. Jaworski doesn’t expect to be the only Democrat vying for the job.

But Paxton might as well be on the ballot this cycle, Jaworski argued. Some of Paxton’s peers in statewide office have laid low this election cycle, or focused their efforts on fundraising for downballot GOP candidates. But the attorney general, who continues to fight his own five-year-old indictment for felony securities fraud, has vigorously inserted himself into the political fray.

We are familiar with Paxton’s actions. I met Joe some years ago and did an interview with him for his 2008 race for State Senate in SD11. He’ll be an energetic campaigner and I suspect a decent fundraiser. I’m not surprised that he expects company in the primary – I can imagine 2018 AG candidate Justin Nelson giving it another shot, and there will likely be others out there – but it’s exciting to think about a compelling lineup of primary contests. Lord knows, there will be no shortage of issues to highlight in a race against Ken Paxton, even if he still hasn’t seen the inside of a courtroom for his alleged misdeeds by then.

Jaworski’s got a campaign Facebook page up, which I had come across a couple of days ago, before Erica Greider wrote that column. Obviously, what’s happening this November is the top priority, and the legislative session that follows will be next in line. But the 2022 election has a chance to be truly transformative in Texas, and even if you think that’s an overbid, there will surely be a hotly contested effort to take or maintain control of the House, plus all 31 Senate seats will be up. The sooner we can get some quality folks out there for the statewide positions, the better.