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Ken Paxton

Chip Roy calls on Paxton to resign

Interesting.

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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.

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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.

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

Here we go again.

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

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

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

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

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

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

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

[…]

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

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

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

The Chron adds some detail.

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

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

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

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

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

Never stop never stopping, Stevie.

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

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

A matter of timing

That’s the stated reason why SCOTX overturned the earlier decision that booted three Green Party candidates off the ballot.

The Texas Supreme Court in a new opinion Friday explained its decision to reinstate to the November ballot Green Party candidates who did not pay their filing fees, saying lower courts denied them the chance to resolve the issue while there was still time under the law.

[…]

Justices acknowledged the strain that adding last-minute candidates may put on county elections officials, who were just days away from sending out their first rounds of ballots before the court’s order was announced on Tuesday. The high court did not publish its opinion in the matter until Friday.

“We recognize that changes to the ballot at this late point in the process will require extra time and resources to be expended by our local election officials,” the opinion read. “But a candidate’s access to the ballot is an important value to our democracy.”

[…]

In the unsigned opinion handed down Friday, justices said Democrats challenging the validity of Green Party candidates failed to prove that the election law requires party chairs to declare candidates ineligible when they don’t pay filing fees, and that the 2019 law doesn’t include a deadline for paying them.

Justices also say the Third Court of Appeals should have given Green Party candidates a chance to pay their fees before declaring ineligible and tossed from the ballot.

See here and here for the background. The opinion is here, and Michael Hurta continues his Twitter thread on this here, with some replies from me at the end. We’re going to need to delve into the opinion, because it’s more nuanced than what this story gives, and also clarifies something else that I hadn’t realized I was confused about.

First, in stating that RRC candidate Chrysta Castañeda “failed to prove the Election Code clearly spelled out the duty of the co-chairs to declare the Green Party candidates ineligible for their failure to pay the filing fee”, SCOTX clears up something from the legal challenge to the filing fees that I had missed.

The court explained that section 141.041 does not set a deadline for compliance but that the requirements apply only to the candidates actually nominated at a party’s nominating convention generally held in March or April of the election year. Id. at ___. Candidates who intend to seek a nomination at a convention must file a notarized application in December before the convention. Id. at ___ (citing TEX. ELEC. CODE §§ 141.031, 172.023(a), 181.031–.033). The advisory, by requiring payment of the filing fee before the nominating convention, expanded the requirements in 141.041 from all nominated candidates to all candidates seeking nomination. Id. at ___. The court ultimately held that payment of the filing fee under section 141.041 was still required, but the court affirmed the trial court’s order temporarily enjoining the Secretary of State from refusing to certify third-party nominees on the grounds that the nominees did not pay a filing fee at the time of filing. Id. at ___.

We agree with the Fourteenth Court of Appeals that under section 141.041 only a convention-nominated candidate is required to pay the filing fee. See TEX. ELEC. CODE §141.041(a) (“[A] candidate who is nominated by convention . . . must pay a filing fee . . . .”). Therefore, we also agree that the Secretary of State’s advisory requiring payment of the filing fee at the time of filing an application is not required by, and indeed conflicts with, the Election Code. See id. Section 141.041 does not include a deadline for compliance, but as we explained in In re Francis, when an Election Code provision does not provide explicit guidance, we apply a presumption against removing parties from the ballot. 186 S.W.3d at 542.

I had not understood the distinction between mandating that all candidates who compete for the nomination must pay the fee and just mandating that the candidates who actually receive the nomination must pay it. I’m fine with that. The key to the decision here is the question about deadlines, and how much time the Green Party and its candidates were supposed to have to fix their failure to pay these fees (which as we know they claim are unconstitutional).

Castañeda presented a public record to the co-chairs showing that as of August 17, the Green Party candidates had not paid the filing fee. As previously noted, section 141.041 requires the filing fee but contains no deadline for its payment, see TEX. ELEC. CODE § 141.041, and the only potential applicable deadline in the Secretary of State’s election advisory conflicts with that provision. Hughs, ___ S.W.3d at ___. Strictly construing these sections against ineligibility, we disagree that the public document demonstrating that the Green Party candidates had not paid the filing fee as of August 17 conclusively established that they were ineligible. To be “eligible to be placed on the ballot,” the Green Party Candidates were required to pay the filing fee or file signature petitions. TEX. ELEC. CODE § 141.041 (emphasis added). The co-chairs did not have a ministerial statutory duty to declare the candidates ineligible, as the law did not clearly spell out their duty on August 17 when the candidates had not yet paid the filing fee such that nothing was left to the exercise of their discretion. See In re Williams, 470 S.W.3d at 821.

The court of appeals ordered the co-chairs to declare the Green Party candidates ineligible and take necessary steps to ensure their names did not appear on the ballot. ___ S.W.3d at ___. But the court did not address a deadline for payment, nor did it otherwise allow for payment of the fee. And under In re Francis, an opportunity to cure should be provided when a candidate could still comply with Election Code requirements. 186 S.W.3d at 541–42 (noting that an opportunity to cure complies with the purposes of the Election Code and avoids potential constitutional problems that “might be implicated if access to the ballot was unnecessarily restricted”). “The public interest is best served when public offices are decided by fair and vigorous elections, not technicalities leading to default.” Id. at 542. In the absence of recognizing a deadline for paying the filing fee or giving the candidates an opportunity to comply, the court of appeals erred in ordering the Green Party candidates removed from the ballot on August 19.

Emphasis in the original. The opinion cited an earlier case of a candidate who had turned in petition signatures to be on a ballot but failed to correctly fill out all the petition pages with information about the office he sought, and was tossed from the ballot as a result. On appeal, he was restored on the grounds that he should have been given the chance to fix the error before having the axe fall on him. Much as I dislike this opinion, I agree with that principle, and I don’t have a problem with it being applied here, though of course we can argue about what a reasonable amount of time should be to allow for such a fix to be applied. SCOTX left that question open, so if the filing fees are still in place in 2022 and the Libertarians and Greens are still resisting it, look for some judges to have to determine what sort of schedule should be applied to non-fee-payers, in an attempt to follow this precedent.

As I said, I don’t like this decision, but I can accept it. It didn’t immediately make me want to crawl through the Internet and slap someone. But let’s be clear about something, if SCOTX is going to appeal to higher principles in cases like this, which just happen to also align with the desires of the Republican Party, then I’d like to see some evidence that they will err on the side of the voters in a case that doesn’t align with the GOP. Like, say, the Harris County mail ballot applications case. What are you going to do with that one, folks? And please note, the clock is ticking. A decision rendered for Chris Hollins in late October doesn’t exactly mean anything. Let’s see where the SCOTX justices really stand.

Appeals court sides with Hollins in mail ballot applications case

It’s up to SCOTX now.

A Texas appeals court on Friday upheld a district court ruling that denied Attorney General Ken Paxton’s request to block Harris County officials from sending mail ballot applications to the county’s 2.4 million registered voters.

Despite the decision, Harris County Clerk Chris Hollins remains barred from sending out the applications under a Texas Supreme Court ruling earlier this week. Paxton has sought a writ of mandamus and an injunction from the high court to permanently block the mailout, both of which remained pending Friday.

In the appellate ruling, 14th Court of Appeals Justices Charles Spain, Meagan Hassan and Meg Poissant wrote that the state failed to prove Hollins’ plan would cause irreparable injury to voters. State officials have argued that by sending mail ballot applications to every registered voter, Hollins would be “abusing voters by misleading them and walking them into a felony.” County attorneys noted that Hollins planned to attach a brochure to each application informing voters of the eligibility requirements to vote by mail.

“The State’s argument is based on mere conjecture; there is, in this record, no proof that voters will intentionally violate the Election Code and no proof that voters will fail to understand the mailer and intentionally commit a felony, or be aided by the election official in doing so,” the justices wrote.

The justices also cited an exchange between Hollins’ attorney and Texas Elections Director Keith Ingram, during which Ingram was asked how a voter could knowingly or intentionally cast a fraudulent ballot after reading the information on the clerk’s brochure.

“I don’t know the answer to that question. I mean, for most voters, I agree this is sufficient, but not for all of them,” Ingram said, adding that some voters may “have the attitude, well, I’m not really disabled, but nobody is checking so I’m going to do it.”

The justices cited Ingram’s response in concluding that a voter who “intends to engage in fraud may just as easily do so with an application received from a third-party as it would with an application received from the Harris County Clerk.”

See here, here, and here for the background. The 14th Court’s opinion is here, but you can just read the excerpt in Jasper Scherer’s tweet to get the main idea. Basically, the court said that the state needed more evidence than just Keith Ingram’s claims of mass hysteria if Hollins sent out the applications. It’s not a whole lot deeper than that.

So now it goes to the Supreme Court, and as noted in the story, the previously granted order preventing Hollins from moving forward with the sendout of applications to the not-over-65 voters is still in effect, until such time as SCOTX rules on the appeal (we know it will be appealed, because of course it will). This provides them an opportunity to play politics without necessarily appearing to play politics. Hollins had intended to begin sending out the applications by now, because as we all know, people are going to want and need to get and return their mail ballots early in order to ensure that they get counted. As such, a ruling from SCOTX on, say, September 25 is a lot more meaningful than the same ruling on October 25. Will they take the weasel’s way out and slow-walk this to a resolution, or will they dispose of it in a timely manner? Only one way to find out. The Trib has more.

The Green Party owes Ken Paxton a thank-you note

He did them a solid, that’s for sure.

Turns out it is easy being Green

In the legal fight to exclude minor party candidates from the November ballot, Republican Attorney General Ken Paxton took a flexible view of time and deadlines.

After the Texas GOP filed suit Aug. 21 to remove 44 Libertarians from the ballot for failure to pay a required candidate filing fee, Paxton told the Texas Supreme Court that there was plenty of time to pursue the challenge.

This week, however, Paxton told the same court that a Democratic bid to oust three Green Party candidates — filed four days before the unsuccessful GOP challenge — was begun much too late and needed to be overturned.

“The (Democrats’) dilatory conduct and unjustified delay in seeking relief imposed an undue burden on the Green Party officials,” Paxton told the court in a brief filed Monday.

[…]

[F]acing an Aug. 21 deadline to declare candidates ineligible, Democrats sued Aug. 17 to strike three Greens running for U.S. Senate, U.S. House and Railroad Commission.

The Austin-based 3rd Court of Appeals gave the Greens less than 48 hours to respond, then issued an Aug. 19 order declaring the three Green Party candidates ineligible for failure to pay the filing fee. The 2-1 ruling had two Democrats in the majority and one Republican dissenting.

The ruling drew the notice of Republican Party leaders, who quickly demanded that Libertarian leaders drop a long list of candidates for the same reason.

When those demands were rejected, Republican organizations and candidates asked the 3rd Court of Appeals to follow the precedent set in the Democratic challenge and order the Libertarians removed from the ballot.

But the GOP filed its challenge on Aug. 21, the deadline to declare candidates ineligible, and the appeals court tossed it out, ruling that there wasn’t time to hear from all parties and gather the necessary information before the deadline expired.

The GOP turned to the Texas Supreme Court, arguing that instead of challenging candidate eligibility under an expired deadline, it was challenging the Libertarians’ candidate applications as improper — giving them until Sept. 18 to seek court intervention.

Paxton, in a letter brief to the Supreme Court, agreed with the GOP interpretation of state election law.

“Under Texas law, there is still time for this Court to compel compliance,” Paxton told the court on Sept. 4.

The all-Republican Supreme Court disagreed, ruling Sept. 5 that the GOP and Paxton were looking at the wrong section of the Election Code on deadlines. The court concluded that the Libertarians could not be removed from the ballot because the GOP challenge was filed too late.

[…]

Then on Friday, the Green Party asked the Supreme Court to reinstate its three candidates, arguing that like the GOP, the Democrats relied on the wrong part of the Election Code, rendering their challenge void as well.

The court asked Paxton’s office for its opinion.

In Monday’s response, filed 10 days after arguing that the GOP had not acted too late in challenging Libertarian opponents, Paxton urged the court to reinstate the Green candidates because the Democrats waited too long to act and because the 3rd Court of Appeals engaged in a rushed process that didn’t give the Greens, other political parties and other candidates time to weigh in.

“The 3rd Court abused its discretion,” Paxton wrote.

The Supreme Court’s one-paragraph order to reinstate the Green candidates did not explain the court’s rationale.

See here for the background. We expect SCOTX to publish its opinion on this ruling today, so we may get some idea if it’s all a bunch of sophistry or if they can make a principled argument that the Greens were deprived of their right to respond to the Dems’ legal action in a timely manner, which was a part of the ruling against the GOP in the Libertarian purge attempt. That Ken Paxton was willing to be morally and conveniently flexible on the subject should come as no surprise, given everything we know about him and his character. The Republican Party of Texas has a longstanding willingness to help the Greens whenever they think it might benefit them. This time that support came from an elected official instead of a deep-pocketed donor. Whatever works.

There was a debate in the comments of the last post about ranked choice voting (RCV) being a solution to this kind of legal gamesmanship. The theory is that since the people who voted Green or Libertarian (or independent, or whatever else may have been on the ballot) would still be able to express their electoral support for whichever major party candidate they like as their backup selection, which in turn would reduce the incentive for the major parties to bump them off the ballot. The logic has merit, though the lack of RCV around the country means there’s no data to test that hypothesis.

In this case, the argument that had been made by both the Ds and the Rs is that the other parties’ candidates had violated the law by not paying the newly-mandated filing fees – you may note, the Dems did not challenge the three Greens who did pay their filing fees, just the three candidates who had not – and there is a long history of candidates being challenged because they failed to meet eligibility requirements. If the filing fee law continues to survive the lawsuits against it, and there are Greens and Libertarians who refuse to comply with it in 2022, I would fully expect them to be taken to court again, surely in a more expeditious fashion, and I would expect that even in an RCV-enabled world. This is a basic tool in the political toolbox, one that I would not expect to go away if the method of determining the winner of an election changes. That too is a testable question, and perhaps one day we’ll have an answer for it. For now, that’s how I see it.

Harris County preps to print mail ballots

How many they have to print remains an open question at this time.

For the first time, Harris County will pay a third-party vendor to print mail ballots, a move intended to help the county clerk handle what is expected to be a record number of requests for absentee voting during the COVID-19 pandemic.

Commissioners Court on Tuesday approved $1.5 million to hire Arizona firm Runbeck Election Services to print up to 1.5 million ballots for this fall’s presidential election. That figure may end up smaller, however, because Attorney General Ken Paxton so far has thwarted Harris County’s plan to send mail ballot applications to all 2.4 million registered voters.

To date, the County Clerk’s Office has received 187,552 mail ballot applications; the deadline to apply is Oct. 23. County Clerk Chris Hollins said the 1.5 million figure is the high estimate, so the county can ensure it can handle any volume of mail ballots.

Planning to use an outside vendor to print ballots began last year, as the county prepared for potentially record turnout in a presidential election, Hollins spokeswoman Elizabeth Lewis said.

[…]

During the July primary runoff, the first since COVID-19 arrived in March, 36 percent of voters cast mail ballots. If a similar proportion do so in the general election, using Harris County’s 2016 turnout of 61 percent, 529,000 mail ballots would be cast.

That number, however, may be determined by a lawsuit filed by Paxton against Harris County. Mail ballot applications are available online, though Hollins had planned to send one to each registered voter as a way to encourage more participation.

See here for the background. There were about 84K mail ballots returned in the primary runoffs, the first post-COVID election in the county. In the 2016 and 2018 general elections, there were about 100K mail ballots returned. Some 400K ballot applications have been sent so far to the over-65 crowd. How many more wind up getting sent depends on the outcome of the current litigation.

Whether the latest stay would be lifted or the case resolved before the election remains unclear. An appeals court is expected to rule on the merits of the case this week, though the case is likely to end up before the Supreme Court

Martin Siegel, a Houston appellate lawyer who has practiced before the high court, said he expected the justices to rule well before the Oct. 23 mail ballot application deadline. If recent history is any indication, he said, the attorney general is likely to prevail.

“I’m confident the court will make its decision on the merits, but so far they’ve construed the vote-by-mail right quite narrowly despite a raging pandemic, and the fact that the court is made up entirely of justices from the party that’s tried so hard to constrict voting rights in Texas these many years won’t give people any comfort,” Siegel said.

Siegel was a candidate for the 14th Court of Appeals in 2008, and as noted he practices before the Supreme Court. It’s actually kind of shocking to see him speculate like that. I hope his initial confidence is accurate, but we should bear what he’s saying in mind.

Lawsuit filed over gun sign law

This is interesting.

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

SCOTX extends stay in Harris County vote by mail case

I was set to be super outraged about this, but as you will see it’s not quite as bad as it first looked.

The Texas Supreme Court on Tuesday blocked Harris County from sending mail ballot applications to all registered voters in the county, granting Attorney General Ken Paxton’s request hours earlier for the high court to step in before a different order halting the mailout was set to expire.

Paxton, a Republican, has argued that Harris County Clerk Chris Hollins’ plan to send applications to each of the county’s 2.4 million registered voters would confuse voters and lead to potential fraud. A state district judge rejected that argument Friday, and Paxton swiftly appealed to Texas’ 14th Court of Appeals.

The appellate court denied Paxton’s request for an order blocking the mailout, deciding instead to speed up the trial by ordering Hollins and Paxton to submit arguments by Wednesday afternoon. Under an agreement between the state and county offices, Hollins was barred from sending out mail ballot applications until 11:59 p.m. Wednesday.

Paxton, who noted that the appeals court “offered no assurance” it would issue a ruling by then, argued in a court filing Tuesday afternoon that the Texas Supreme Court should prevent Hollins from sending out applications once the clock strikes midnight Thursday morning. The court granted Paxton’s request, ordering Hollins not to send unsolicited applications “until further order of this court.”

The state Supreme Court already had blocked Hollins from mailing out applications to voters under 65 through a similar lawsuit filed by the Harris County Republican Party and conservative activist Steven Hotze. However, Paxton noted, the court’s stay order will expire before the state and county agreement is up Wednesday evening.

Hollins was not immediately available for comment.

The clerk’s office already has mailed applications to voters who are 65 and older, all of whom are eligible to vote by mail under Texas law. The state election code also allows voters to cast mail ballots if they are disabled, imprisoned or out of their home county during the voting period.

Emphasis mine, and see here and here for the background. You can see the court’s order here, a statement from County Clerk Chris Hollins here, and the filings in the appeal to the 14th Court here. (You might also note that the three judges in the panel are all Dems, which may have influenced Paxton’s actions.) There should be a hearing today, and one presumes a fairly quick ruling, after which point this will go back to SCOTX and they’ll have to rule one way or the other on the actual case, not on what can happen while the case is being appealed. So as Samuel L. Jackson once said, hold onto your butts. The Trib and Reform Austin have more.

Now we wait on SCOTX

Shouldn’t have to wait too long to get a resolution to the “Harris County Clerk wanting to send out mail ballot applications to all registered voters” question.

Chris Hollins

A day after a court ruled against him, Texas Attorney General Ken Paxton appealed on Saturday an order that allowed mail-in ballot applications to sent to all of Harris County’s 2.4 million registered voters.

Paxton indicated in a press statement that he expects the court should rule by Monday.

“The proposed mass mailing would sow confusion because applications would go to all registered voters, regardless of whether they legally qualify to vote a mail ballot and regardless of whether they even want to vote by mail,” says a news release from Paxton’s office. “Texas law requires the clerk to send applications to voters who specifically request them.”

Harris County Clerk Chris Hollins said Saturday that applications to voters under 65 are in production and will be sent out soon. His office has already sent out vote-by-mail applications to registered voters 65 and older.

“We’re disappointed that the attorney general is fighting so hard to keep information and resources out of the hands of Harris County voters, but, sadly, we aren’t at all surprised,” Hollins said. “The Harris County Clerk’s Office will continue to do everything we can to protect Texans’ right to vote, and we know that the law is on our side.”

See here for the background. Judge Sandill’s ruling very clearly addressed Paxton’s claims, so it’s really just a question of whether the Supremes want to put a thumb on the scale for Paxton or not. I keep coming back to their original ruling in the TDP vote by mail lawsuit, and I don’t know how you get to Paxton’s desired outcome without really warping the meaning of the existing law. Which doesn’t mean that they won’t do it, just that it should be clear what it would mean if they did. I don’t know what else to say.

One lawsuit about voting locations thrown out

This was filed just a couple of months ago.

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

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

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

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

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

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

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

County Clerk can send his vote by mail applications

Good.

Chris Hollins

A judge on Friday rejected Attorney General Ken Paxton’s request to halt Harris County’s plan to send mail ballot applications to all 2.4 million registered voters.

State District Judge R.K. Sandill denied Paxton’s request for a temporary injunction, stating that nothing in the Texas Election Code bars Harris County Clerk Christopher Hollins from carrying out the plan.

Sandill was unpersuaded by the state’s argument that sending applications to voters, accompanied by eligibility rules, would lead residents to apply for mail ballots for which they do not qualify. Texas Elections Director Keith Ingram warned that this would lead to voter fraud and potential felony prosecutions of residents.

“This Court firmly believes that Harris County voters are capable of reviewing and understanding the document Mr. Hollins proposes to send and exercising their voting rights in compliance with Texas law,” Sandill wrote in his opinion.

The case now will be decided on its merits, with Hollins free to send the applications in the meantime. His spokeswoman said the mailings to voters under 65 would be sent starting Saturday.

See here for the background. The ACLU sent out a link to a copy of the ruling, which is short and straightforward. There were two claims made by the plaintiffs, that County Clerk Chris Hollins was acting ultra vires, which is the fancy Latin term for “outside his authority”, and that sending the applications could cause fraud by luring unsuspecting voters who did not qualify for the mail ballot to commit fraud. On that second point, the embedded illustration of the ballot application makes exceedingly short work of that concern:

As for the ultra vires claim, let me quote from the ruling:

The Legislature has spoken at length on the mechanisms for mail-in voting. There are no fewer than 42 Election Code provisions on the subject. See TEX. ELEC. CODE, Chs. 84, 86 & 87. In those provisions, the Legislature has made clear that in order to vote by mail a voter first “must make an application for an early voting ballot.” Id. at § 84.001. But, as to how the voter is to obtain the application, the Election Code is silent.

There is no code provision that limits an early voting clerk’s ability to send a vote by mail application to a registered voter. Section 84.012 contains no prohibitive language whatsoever, but rather, requires the early voting clerk to take affirmative action in the instance a voter does request an application to vote by mail. That the clerk must provide an application upon request does not preclude the clerk from providing an application absent a request.

Indeed, there are a number of code provisions that demonstrate the Legislature’s desire for mail voting applications to be freely disseminated. For example, section 1.010 mandates that a county clerk with whom mail voting applications are to be filed (e.g., Mr. Hollins) make the applications “readily and timely available.” Id. at § 1.010. In addition, section 84.013 requires that vote by mail applications be provided “in reasonable quantities without charge to individuals or organizations requesting them for distribution to voters.” Id. at § 84.013. Further, the Court notes that, consistent with these provisions, both the Secretary of State and the County make the application for a mail ballot readily available on their respective websites.

Against the backdrop of this statutory scheme, the Court cannot accept the State’s interpretation of section 84.012. To do so would read into the statute words that do not exist and would lead to the absurd result that any and every private individual or organization may without limit send unsolicited mail voting applications to registered voters, but that the early voting clerk, who possesses broad statutory authority to manage and conduct the election, cannot. Mr. Hollins’s contemplated conduct does not exceed his statutory authority as early voting clerk and therefore is not ultra vires.

I made pretty much the same argument, so yeah. This was a weak case, and I’d hate to have been the attorney that was forced to make it. They had to know it was a loser, but I guess once you’re all in for stamping out voter convenience, you’ve got to take it to the finish line. The state has filed its appeal, so one presumes they are hoping to get lucky with the Supreme Court.

Which brings me to the larger point that needs to be made here. As with the age discrimination claim, there is a clear and straightforward legislative solution to this. Unlike that age discrimination case, the legislative solutions go both ways. What I mean by that is that with this ruling in the books, the Republicans have a planet-sized incentive to close this gaping loophole (as they see it) in the law. If the Republicans maintain control of the House, I guarantee you – guarantee you – they will pass a bill that severely restricts the ability to send out vote by mail applications to anyone who does not expressly ask for them. One could argue, given recent legislative history, the only reason such restrictions don’t already exist is that they hadn’t thought of it before. (And to be fair, up until very recently vote by mail was very much the province of Republican candidates and campaigns. I’ve said this before and I’ll say it again, there’s a reason why voting by mail was excluded from the voter ID law, and that reason is because at the time, voting by mail was seen as a boon to Republicans. Now that any form of convenience for voters is seen as pro-Democratic, it’s open season.)

So, either we flip the House to Democratic control, and prevent a bill like that from passing, or Republicans maintain control and voting by mail becomes that much more obstacle-laden. Maybe they will find a way to add mail ballots to the voter ID law, perhaps by requiring all mail ballots to include a notarized signature. The Republicans have made it clear what they want to do. We have one chance to stop them. The Trib has more.

Fifth Circuit rejects age discrimination claims in vote by mail lawsuit

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

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

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

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

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

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

[…]

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

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

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

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

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

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

Where are we with the lawsuit to stop Harris County from sending out vote by mail applications?

Thanks for asking, we had the hearing in district court yesterday.

Voting in person will be safe across Texas in this fall’s general election despite the ongoing coronavirus pandemic, the state’s elections director asserted in a Harris County courtroom Wednesday

Keith Ingram, with the Texas Secretary of State’s office, made the statement while testifying against Harris County Clerk Christopher Hollins’ plan to send mail ballot applications to all 2.4 million registered voters in the county.

“Voters who want to vote by mail, and qualify to vote by mail, they should. And voters who want to vote in person, we would encourage them to do so,” Ingram said. “It’ll be safe for them to do so, and the counties will have a good experience for the voters.”

The Attorney General’s Office called Ingram as a witness in an injunction hearing seeking to halt Hollins’s plan while the underlying case makes its way through the courts. Attorney General Ken Paxton sued Hollins on Aug. 31.

State District Judge R.K. Sandill made no immediate ruling on the injunction, though at times appeared skeptical of the state’s arguments.

At the heart of the case is whether Hollins would exceed his authority as county clerk by sending mail ballot applications to each voter, which Harris County never has done. In the four-hour online hearing, lawyers for the state and county described starkly different consequences of carrying out the plan.

Ingram said Harris County’s plan would confuse voters and encourage some to vote fraudulently, undermining the public’s trust in the integrity of elections. He noted that lying on a mail ballot application is a state jail felony and residents could be prosecuted well after this fall’s election.

“When something strange, or unusual happens, voters are very concerned that this is an opportunity for fraud, and when they think the other side is cheating, they tend to stay home, Ingram said. “That’s the concern about a mass mailing like this.”

Hollins said he simply is trying to help as many eligible voters cast ballots as possible, especially during the COVID-19 pandemic when many would feel safer voting by mail. The top of each application would feature a checklist explicitly explaining the eligibility rules. Hollins dismissed the state’s argument that voters would be confused as absurd.

“It would be a very bizarre and highly unlikely outcome that somehow, someone would unfold this fully, go to the very bottom, and think ‘I need to fill this out,’ without ever having looked up here,” Hollins said, pointing to a draft mailer in his hand.

See here and here for the background. You already know how I feel about this, and there’s nothing in this story to suggest that the state has improved on its weak arguments. I’m glad to see that Judge Sandill pointed out to the state that they had no objections before when Hollins sent applications to every over-65 voter in the county. There’s an edge of desperation in this lawsuit, and while one could argue it’s not the best use of the county’s money to do this, the law as interpreted by the Supreme Court seems pretty clear.

Several organizations have taken action to support the County Clerk or oppose the state. The League of Women Voters of Texas, the ACLU of Texas and the Texas Civil Rights Project filed an amicus brief, as HEB executive Charles Butt had previously done. The NAACP of Texas and the Anti-Defamation League Southwest Region filed a petition to intervene in opposition to the state, saying an injunction would harm the people they represent. Clerk Hollins’ response to Paxton is here. We should get the ruling by tomorrow, but we all know it will be appealed.

Speaking of such thing, here’s Hollins’ response to Hotze, from that ridiculous mandamus. The arguments are what you’d expect, and given the courtroom action in Houston I’d expect the Supremes to deny the writ, since there clearly is the time to litigate the matter. When they take action is of course anyone’s guess. Stay tuned.

A win for those with lousy signatures

Some good news on the voting litigation front.

As Texas prepares for an expected deluge of mail-in votes in November, a federal judge has found that one facet of the state’s signature verification rules for those ballots is unconstitutional and must be reworked for the upcoming election.

U.S. District Judge Orlando Garcia ruled Tuesday that the state’s process for determining whether there is a mismatch between a voter’s signature on their ballot envelope and the signature the voter used on their application to vote by mail “plainly violates certain voters’ constitutional rights.”

In his order, Garcia ordered the Texas secretary of state to inform local election officials within 10 days that it is unconstitutional to reject a ballot based on a “perceived signature mismatch” without first notifying the voter about the mismatch and giving the voter a “meaningful opportunity” to correct the issue.

Additionally, to “protect voters’ rights” in the upcoming election, Garcia said the Texas secretary of state must either advise local election officials that mail-in ballots may not be rejected using the existing signature comparison process, or notify them that they are required to set up a rejection notification system that would allow voters to challenge a rejection.

[…]

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.

But because the state election code does not establish any standards for review, the plaintiffs argued that the law is applied unequally, with each county “necessarily” developing “its own idiosyncratic, arbitrary, and ad hoc procedure to determine that a ballot should be rejected” with no requirement to notify voters about the rejections until 10 days after Election Day.

To correct course ahead of the November general election, Garcia ordered the Texas secretary of state to either halt all rejections based on a “perceived signature mismatch” or implement an “immediate remedial plan” that requires local election officials to notify a voter within one day of determining a perceived mismatch and allow the voter to challenge the rejection.

Under that plan, voters must be mailed notices of rejection within one day of a mismatch determination by the local review board. Those who provided phone numbers on their applications must be called at least once within one day of the decision.

See here for the background, and observe how adorably optimistic I was that this shouldn’t be a partisan issue since both parties use voting by mail. What can I say, it was 2019, you had to be there. I don’t have much to say now that I didn’t say then – this ruling makes total sense, the “standard” that was used was arbitrary and needlessly harsh, and it really is in everyone’s interests to make an effort to count these ballots. I assume Ken Paxton will appeal this because that’s what he does, but until then let’s be happy we got what we got. The Chron has more.

They just don’t want you to vote by mail

It’s okay if you’re a Republican, of course.

As states across the country scramble to make voting safer in a pandemic, Texas is in the small minority of those requiring voters who want to cast their ballots by mail to present an excuse beyond the risk of contracting the coronavirus at polling places. But the ongoing attempts by the White House to sow doubt over the reliability of voting by mail has left Texas voters in a blur of cognitive dissonance. Local officials are being reprimanded by the state’s Republican leadership for attempting to proactively send applications for mail-in ballots, while the people doing the scolding are still urging their voters to fill them out.

What was once a lightly used and largely uncontroversial voting option in Texas — one even Republicans relied on — is now the crux of the latest fight over who gets to vote and, equally as crucial in a pandemic, who has access to safe voting.

“Ensuring vulnerable populations can vote by mail during a pandemic is designed to protect human life & access to the vote,” Harris County Judge Lina Hidalgo said on Twitter this week after the county’s mailing plan was temporarily blocked by the Texas Supreme Court. “Those who stand in the way—using voter suppression as an electoral strategy—are throwing a wrench in democracy. We’ll keep fighting.”

[…]

Lt. Gov. Dan Patrick characterized efforts to expand mail-in voting during the pandemic as a “scam by Democrats” that would lead to “the end of America.” In a rolling series of tweets, President Donald Trump has pushed concerns of widespread fraud — which are unsubstantiated — in mail-in ballots. Texas Attorney General Ken Paxton quoted a local prosecutor saying voting by mail “invites fraud.”

Meanwhile, the Texas GOP sent out applications with mailers urging voters to make a plan to request their mail-in ballots. Fighting in court against Harris County’s plan, Paxton’s office argued “voting by mail is a cumbersome process with many steps to limit fraud.”

Luke Twombly, a spokesperson for the Texas GOP, confirmed the party had sent out ballot applications “like we do every year” to older voters and voters with disabilities that would allow them to qualify. Twombly did not respond to a follow up question on how the party determined voters who would be eligible based on a disability, nor did he respond to questions asking for specifics on the party’s get-out-the-vote efforts tied to voting by mail.

“The cynical explanation is that the intent here is to make it as easy as possible for Republicans to vote by mail but discouraging others and casting doubt over the process following the lead of the president,” said Rick Hasen, an elections lawyer and professor at the University of California-Irvine. “I think that’s a real fine needle to thread.”

It might be in the GOP’s best interest to “encourage voters to vote safely” by mail, particularly as the state’s vote-by-mail rules allow many of their base voters to be automatically eligible for an absentee ballot, but the president is complicating matters for them, Hasen said

“They are caught between a rock and a hard place,” Hasen said.

Some Texas Republicans quietly express frustration that party leaders are casting doubt on a system that they have worked for years to cultivate. West and other prominent Texas Republicans have floated unsubstantiated concerns that increased mail-in voting creates opportunities for widespread voter fraud. In interviews with multiple Republican operatives and attorneys who have worked on campaigns in the state, all suggested privately that the modernized system precludes such a scenario. None of these Republicans would go on the record, for fear of alienating colleagues.

There are some documented cases of fraud in mail-in voting in Texas. But like voter fraud overall, it remains rare.

“This issue … of fraud and voting fraud and all that was brought up years ago, 19 years ago when I was secretary of state,” said U.S. Rep. Henry Cuellar, a Laredo Democrat who was appointed Texas secretary of state by former Gov. George W. Bush, a Republican. “I looked at it as secretary of state, and it was so rare, so rare.”

[…]

In an effort to combat confusion among voters, Harris County said it intended to send the applications for mail-in ballots with “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” In its mailers, the Texas GOP instructs voters to “take immediate action” by confirming they meet the eligibility requirements and filling out an application proactively sent out by the party.

[Derek] Ryan, the Republican voter data expert, suggested that a past Republican campaign emphasis on vote-by-mail lends credibility to the objections Republicans are raising in Harris County.

“Voting by mail is our bread and butter,” said Ryan, the Republican voter data expert. “I kind of dismiss that more ballot by mail votes automatically favor the Democrats over the Republicans. That might not necessarily be the case. I think that kind of says the Republicans who are opposed to it aren’t necessarily doing it because they think it benefits the Democrats. They’re doing it because of election integrity.”

But in light of those objections, the Texas Democratic Party painted the GOP’s mailings to voters who did not request them as “a shocking display of hypocrisy.”

“It seems if Republicans had their way, the only requirement for Texans to cast a mail-in ballot would be ‘are you voting for Donald Trump?’,” Abhi Rahman, the party’s communications director, said in a statement this week.

I don’t know that I have anything to say here that I haven’t said multiple times already. There’s no valid principle behind the Republicans’ zealous objections to vote by mail, which is something they have used and still use but apparently cannot believe that anyone else would dare use against them. The screeching claims of fraud are just the usual shibboleth, packaged for today’s needs. We know that national Republicans have largely given up on their ability to win a majority of the vote. It’s just kind of morbidly fascinating to see Republicans in Texas adopt the same stance. Who knew they had so little faith in themselves?

Good riddance to a bad person

We should all be thoroughly disgusted by this.

A Texas assistant attorney general sent dozens of tweets over the past several months threatening violence against progressives, spouting racist and transphobic rhetoric, casting doubt over the seriousness of the coronavirus pandemic and sharing QAnon conspiracy theories. On Thursday, he lost his job with the state agency after national media reported on his social media activities.

Nick Moutos, whose racist tweets were reported Thursday morning by Media Matters, threatened Black Lives Matter protesters and has regularly referred to the organizers as “terrorists.” He called Islam a “virus” and trans people an “abomination.”

“As of today, this individual no longer works for the Office of the Attorney General,” Kayleigh Date, spokesperson for the attorney general’s office, told The Texas Tribune.

[…]

This isn’t the first time a staffer in the attorney general’s office has been in hot water over their social media presence. In 2018, the communications director for the office deleted his Twitter account after sharing tweets mocking sexual misconduct allegations brought against Supreme Court Justice Brett Kavanaugh. In 2017, an associate deputy attorney general resigned after a Dallas Morning News story drew attention to comments he made about #MeToo survivors.

And don’t forget Jeff “Satan’s Plan” Mateer, another hateful asshole that your tax dollars pay for. They are really not sending their best to the AG’s office. This particular jackwad has been quite prolific and not at all discreet about it on Twitter, which makes me wonder how it is that it took so long to identify him and get his ass out of there. This guy worked for the public, while having loads of contempt and revulsion for large portions of the public. That’s just not acceptable, in any form or fashion. We really, really need to do some housecleaning in 2022.

When HEB is on your side

Who could be against you?

Charles Butt, the billionaire owner of the San Antonio-based grocery chain H-E-B, sent a letter to the Texas Supreme Court this week, siding with Harris County on its plan to send mail ballot applications to all registered voters ahead of the November election.

In the letter, Butt argued that Harris County Clerk Chris Hollins’ plan was permissible under the Texas Election Code.

“Clerk Hollins’s efforts to make absentee ballots widely available trusts voters, protecting those who are vulnerable from unnecessary exposure in this new Covid world in which we’re living,” Butt wrote. “It’s always been my impression that the more people who vote, the stronger our democracy will be.”

[…]

“Based on our experience at H-E-B, many people, including those of all ages, are nervous about contracting the virus,” Butt wrote. “By extension, in my opinion, many would be anxious about voting in person. Clerk Hollins has reasonably given these voters a chance to guard against perilous exposure in a manner consistent with this Court’s opinion and the Election Code.”

Butt previously has weighed in on political debates, and he is a top contributor during election cycles. His campaign contributions cross party lines.

That letter was being quote-tweeted all over the place on Wednesday. One could look at this and furrow one’s brow at the intervention by a wealthy individual, one who does play a fair amount in Texas politics, in a court case like this. One could also shrug one’s shoulders and say that this looks an awful lot like an amicus brief, except it was released on Twitter instead. I lean towards the latter, and given the overheated and frankly harmful rhetoric being unleashed by Trump and Paxton and the like, I’m glad that Charles Butt decided to speak up and inject a little sanity into the discourse. Your mileage may vary. Reform Austin has more.

Supreme Court issues possibly pointless stay in mail ballots case

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

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

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

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

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

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

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

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

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

One more thing:

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

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

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

County Clerk scales back mail ballot application sendout for now

Seems like a wise tactical move.

Chris Hollins

The Harris County clerk is holding off his plan to send ballot applications to every registered voter in Harris County.

County Clerk Chris Hollins said for now he is going to send ballot applications to everyone 65 and older.

Hollis added he will wait for the lawsuit filed by Texas Attorney General Ken Paxton to work its way through the court to see if he can send ballot applications to other people in the county.

Hollis also said he tried to discuss this with the Texas Secretary of State but a discussion did not take place. Then Paxton filed his lawsuit on Monday, according to a report from the Texas Tribune.

See here for the background. Sending an application to all the 65-and-over voters is what Clerk Hollins did for the primary runoffs, and no one raised a fuss about it. It seems clear that Hollins has the law on his side, as confirmed by Supreme Court Chief Justice Nathan Hecht in a recent chat with the Chron editorial board, but politics plays a role as well, and one could argue that turning down the heat a bit is in Hollins’ best interests. One could also argue that getting the state to do something stupid isn’t a bad idea either, but I’ll set that debate aside for now. For now, we wait for some action in the courtroom. The Chron and the Press have more.

(On a side note, Bexar County will be sending vote by mail applications to all of its 65-and-over voters as well. As I said before, this sort of thing should be the norm going forward.)

Fifth Circuit hears arguments on vote by mail case

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

And now the state has sued to stop the Clerk’s mail ballot application program

Such a busy day in court.

Acting at the request of the secretary of state, the Texas attorney general on Monday sued Harris County after it refused to drop plans to send applications for mail-in ballots for the November general election to more than 2 million registered voters.

Attorney General Ken Paxton is asking a state district court to bar Harris County Clerk Chris Hollins from proactively providing the applications to every registered voter in the county, alleging Hollins does not have the authority under state law to carry out the plan.

[…]

There is no state law that specifically prohibits election officials from sending out mail-in ballot applications to all voters. Instead, Paxton argues that county clerks are only “expressly empowered” by the Texas Election Code to send out applications to voters who request them, “but there is no statute empowering County Clerks to send applications to vote by mail to voters who have not requested such an application.”

“And Hollins’s plan to send vote-by-mail applications to every registered voter, regardless of whether the application was requested or whether the recipient is qualified to vote a mail ballot, is not an exercise of power that is necessarily implied to perform his duties,” Paxton wrote.

The legal action was sought by the secretary of state’s office, which last week demanded the county retract its plan by Monday at noon. The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older — the only predetermined qualification for a mail-in ballot in Texas — to avoid confusion about eligibility.

The secretary of state’s office claimed that Harris County’s endeavor would amount to “abuse of voters’ rights,” raising the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

But Harris County refused to back down from its plan, with Hollins noting that the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail.” The county has also previously indicated it is planning to purchase more mail-sorting equipment and hire hundreds of temporary workers who will focuse on processing voting-by-mail applications and ballots.

“They have taken the position that somehow sending the form that would make it easier for someone to vote is somehow impeding a person’s ability to vote,” said Douglas Ray, a special assistant county attorney in Harris County. “The lack of logic in that assertion is beyond me.”

See here and here for the background. A copy of the AG’s filing is here. There are two main differences between this action and the Hotze filing. One is that this is a lawsuit filed in Harris County district court, for which the AG will seek a temporary restraining order, while the Hotze action is a writ of mandamus to the Supreme Court. The other is that this one seems to make a narrower claim about the law in question, which is that the Lege didn’t give the Clerk this power and so the Clerk does not have it. It’s not as problematic or nonsensical as the Hotze argument, but it still fails my “plain reading” test and still invites the question of why anyone else would be empowered to do this if the Clerk is forbidden. You can read the other post, I’m not going to repeat myself. I will also confess that I didn’t read the AG’s filing, mostly because it was later in the day when this story hit and I was tired. I expect it’s less ridiculous than the Hotze filing, but that is a very low bar to clear. As of this moment, I have no idea what the schedule for this may be, but for obvious reasons there should be some action quickly. The Chron and the Texas Signal have more.

Giving a motion its proper due

Best mugshot ever

As you know, Ken Paxton really really wants to get his securities fraud case moved back to what he assumes are the warm and friendly confines of Collin County. The case was originally moved out of Collin County on the grounds that it would be hard to get a sufficiently impartial jury there, and so it has been in Harris County for the last million years, give or take a century. Then it looked like Paxton had scored a win, when Harris County Criminal Court Judge Robert Johnson ruled in favor of a Paxton motion to send the case back to Collin County, while also recusing himself from the case due to a potential conflict of interest, as the Attorney General’s office is representing the Harris County Criminal District Court judges in the bail practices lawsuit, for which they are named defendants. Johnson stepped down and fellow jurist Jason Luong was put on the case while Johnson’s ruling to move the case back to Collin County was appealed by prosecutors.

This presented a problem for Paxton, because prosecutors could ask Judge Luong to reconsider Judge Johnson’s ruling, and thus possibly rule instead to keep the case in Harris County. So, Team Paxton moved to have Judge Luong recused from the case (he declined to recuse himself) on the grounds that the same potential conflict of interest that Judge Johnson cited in his own recusal would apply to Judge Luong as well. The prosecutors objected, on the grounds that there really isn’t a conflict of interest here, in part because the AG’s office is representing the Criminal District Court judges as an entity not as individuals – they are being sued in their official capacity, not as private citizens – and also because Paxton himself is not involved in the bail litigation. Last Friday, Administrative Judge Susan Brown ruled for the prosecutors, denying Paxton’s motion to remove Judge Luong from the case, and thus allowing Luong to revisit Johnson’s ruling to move it.

I assume this ruling can and will be appealed, but in the meantime, Team Paxton has filed a motion asking Judge Brown to reconsider her ruling. This is the legal strategy of saying “Are you sure you meant to rule that way? Here, let me give you the same set of facts and arguments as before but maybe emphasize them a little differently, and you’ll see it my way this time, right?” This means that the prosecutors have to respond to this motion, and so they did, with the tone of voice and general tenor one might expect in such a circumstance. When you start with a quote from the movie Dumb and Dumber and conclude with the canonical definition of the word “chutzpah”, it’s safe to say you feel confident in your position. In between, the prosecutors remind everyone that both Paxton and his lawyer have stated that 1) the AG’s office has been “working to remove [Paxton] from ‘active participation in matters in which a conflict may exist’” and 2) “[Judge Johnson] did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Now, assuming that Judge Luong does stay on the case so that he can rule on the motion to reconsider Judge Johnson’s ruling to send the case back to Collin County (*), and assuming that he rules that Judge Johnson erred in his ruling and that the case should stay here, will the question of Judge Luong needing to be recused come up again? Probably, but we’ll cross that bridge when we get there. In the meantime, enjoy this little exercise in the fine legal art of saying “You’ve got to be kidding me” as only lawyers can.

(*) It’s quite standard for a new judge to revisit consequential rulings made by a previous judge on a case. That’s why having Judge Luong reconsider Judge Johnson’s ruling is not in the same category as asking Judge Brown to reconsider her own ruling.

SOS objects to Hollins’ mail ballot application plan

I suppose this was inevitable.

In a letter dated Aug. 27, Keith Ingram, director of elections for the Texas secretary of state, told Harris County to “immediately halt” its plans to send every registered voter in the county an application for a mail-in ballot for the general election. Ingram demanded the county drop its plan by Monday to avoid legal action by the Texas attorney general.

Sending out the applications “would be contrary to our office’s guidance on this issue and an abuse of voters’ rights under Texas Election Code Section 31.005,” Ingram wrote, citing a provision of state law that gives the secretary of state’s office power to take such action to “protect the voting rights” of Texans from “abuse” by local officials responsible for administering elections.

[…]

“Providing more information and resources to voters is a good thing, not a bad thing,” Harris County Clerk Chris Hollins said in response to the state’s letter. “We have already responded to the Secretary of State’s Office offering to discuss the matter with them.”

[…]

The secretary of state’s office has advised counties seeking to proactively send out applications to limit those mailings to voters who are 65 and older to avoid confusion about eligibility. But there appears to be no state law that specifically prohibits sending out applications to all voters.

On Friday, Harris said the county’s mailing would also include “detailed guidance to inform voters that they may not qualify to vote by mail and to describe who does qualify based on the recent Texas Supreme Court decision.” While the Texas Supreme Court has ruled that a lack of immunity to the new coronavirus alone doesn’t qualify a voter for a mail-in ballot based on disability, a voter can consider it along with their medical history to decide if they meet the requirement. The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without personal assistance or the “likelihood of injuring the voter’s health.”

“Voters will, of course, make their own decisions about if they qualify to vote by mail,” Hollins said.

In his letter, Ingram raises the prospect that sending applications to all voters, including those who do not qualify, may cause confusion among voters and “impede the ability of persons who need to vote by mail to do so” by “clogging up the vote by mail infrastructure” with applications from voters who do not qualify.

In applying for a mail-in ballot, voters must check off which of the state’s eligibility criteria they meet. (The secretary of state allows any voter to request an application for a mail-in ballot through its online portal without asking whether the voter meets the eligibility requirements.)

See here for the background. As the Chron story notes, Ingram’s plan is to get Ken Paxton involved if Hollins doesn’t back down by Monday. The thing is, though, as both stories note, there’s no actual law that says what Hollins did was illegal. Remember what the State Supreme Court opinion said when the original TDP lawsuit that made the claim that the pandemic itself was a condition that qualified voters for the disability provision in the mail ballot law:

We agree with the State that a voter’s lack of immunity to COVID-19, without more, is not a “disability” as defined by the Election Code. But the State acknowledges that election officials have no responsibility to question or investigate a ballot application that is valid on its face. The decision to apply to vote by mail based on a disability is the voter’s, subject to a correct understanding of the statutory definition of “disability”. Because we are confident that the Clerks and all election officials will comply with the law in good faith, we deny the State’s petition for writ of mandamus.

If “the decision to apply to vote by mail based on a disability is the voter’s”, and “election officials have no responsibility to question or investigate a ballot application that is valid on its face”, then what exactly is the problem with an election official giving each voter the explicit opportunity to make that decision for themselves? If you think that the two sentences that wrap around the ones I quoted from make the whole paragraph somewhat contradictory, I understand. Perhaps the lawsuit Paxton is no doubt itching to file would clear that up. The point is, this is not at all clear as the law now stands.

I’ll be honest, it will be all right by me if Hollins does back down, and instead limit himself to sending mail ballot applications to everyone 65 and older, and everyone who applied for a mail ballot in either the March primary or the July runoff. I do think that his effort here has the chance to confuse some folks, and the plethora of voting locations as extended early voting hours goes a long way toward mitigating any concerns about coronavirus risk for in person voting. That said, Hollins has taken a strong stand for making it as easy and convenient to vote as possible for everyone, and it’s shocking how bold that actually is. How is it that such a stand represents so powerful a departure from the way things had always been done? I think from a purely strategic viewpoint, Hollins can walk this back, having made his point and laying down a marker for the next Democratic Legislature in Texas. If he refuses to back down from this very honorable and principled position, everything will be immediately cranked up to 11, and I fear that the distraction will do more harm than good. But whatever Hollins does choose to do next, he has shown us what voting in Harris County, and all of Texas, should look like. Let’s not forget that.