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Runoff reminder: Statewide

As I said in the interview posts for SD14, I’m going to revisit the runoff races of interest ahead of early voting. It’s been awhile since we’ve really paid attention to a lot of these folks, what limited news there has been for them has likely fallen under your radar, and it’s time to get back into thinking about who we want to vote for. So with that, I’ll kick things off with the two statewide runoffs and go from there. This will be a mostly freestyle kind of thing, with whatever I can find, on an as-I-can-do-it schedule. Enjoy!

Senate

MJ Hegar

The Senate runoff features MJ Hegar and State Sen. Royce West, who led the field of about a million candidates in March. The Texas Signal had a nice brief overview of what has been happening since then. Hegar has been the much stronger fundraiser of the two, though it will be interesting to see how everyone has been doing in Q2 given the pandemic and the economy. She has a lead in one runoff poll – polling overall has been scant in this race – though neither Hegar nor West has gained enough traction to differentiate themselves in head-to-head matchups with Big John Cornyn.

All of the top candidates that have endorsed in the runoff have endorsed West, citing policy differences and Hegar’s less reliable attendance at primary candidate forums. Hegar has a lot of national backing, from the DSCC and EMILY’s List to former Presidential candidate Sen. Elizabeth Warren. There is an online debate scheduled for this Saturday, June 6, in case you haven’t had the opportunity to hear from the candidates before now.

Sen. Royce West

The November race has been on the fringes of the national radar. Nationally, Democrats have four strong pickup opportunities, in Colorado, Nevada, Maine, and North Carolina, with a second tier that includes the two Georgia races and Iowa. (There’s also the Doug Jones-held seat in Alabama, which is widely considered a lost cause for Dems.) The Texas race is usually lumped in with longer-shot races like the ones in Kansas and South Carolina, though Presidential-level polling in Texas shows a fairly tight race. It’s not clear to me how Cornyn will run compared to Trump statewide, but the better Biden does the better either Hegar or West will do. If polling between Biden and Trump remains tight, that increases the odds that the eventual nominee will raise more money and get support from national groups. Assume this same dynamic will play out, with less money, in other statewide contests.

Railroad Commissioner

Chrysta Castañeda

There’s not much news out there about the Railroad Commissioner race. That’s just the nature of the beast here – the RRC is fairly low profile and little understood by normal people, and just doesn’t have the opportunity to make much news. I couldn’t find any recent stories featuring candidates Chrysta Castañeda or Roberto Alonzo, but I did find this Star-Telegram profile of the four primary candidates, for which Alonzo and Castañeda were the first two. Neither candidate had raised much money as of the January finance report, but perhaps that will change for the July and 30-day-runoff reports.

The one relevant news item I found in searching for these two candidates was this KVUE story about the RRC meeting to suspend some operating rules, which drew a critical response from Castañeda. Both candidates participated in an online debate hosted by 2020 Democratic Candidate Debates. I’m not aware of any other similar events at this time. I did an interview with Castañeda for the primary – I didn’t reach out to Alonzo because he didn’t have any campaign presence at the time I was doing interviews.

Roberto Alonzo

As with the Senate race, I see this one to be about as competitive as the Presidential race is. There are two points of interest to note here. One is that the Republican incumbent, Ryan Sitton, was ousted in the GOP primary by some dude who raised no money. Sitton himself had about $2 million cash on hand, which isn’t a huge amount for a statewide race but ain’t nothing, either. The other is that low-profile statewide races like the RRC tend to draw a higher third-part vote – the Libertarian and Green candidates in 2016 combined for over 8.5% of the vote, though that was a stranger than usual race, with Libertarian Mark Miller receiving some newspaper endorsements. Undervotes are also an issue – the RRC race in 2018 drew about 150K fewer votes than the Senate race, and in 2016 it drew 200K fewer votes than the Presidential race. My point here is that Dems may be leaving some votes on the table, which a strong candidate and/or a strong coordinated campaign may mitigate. Let’s not lose a winnable race because we didn’t vote all the way down.

I’ll have a look at Congressional runoffs next. Let me know what you think.

Of course they have voted by mail

It should surprise no one that the three main opponents to an expansion of voting by mail have all voted by mail themselves in past elections.

Three of Texas’ top Republican leaders are vigorously fighting efforts to expand mail-in voting during the coronavirus pandemic, arguing it will lead to increased voter fraud, yet all three have themselves cast absentee ballots at least once in past elections.

Lt. Gov. Dan Patrick — then a state senator — voted by mail in 2007 for a May Houston municipal election and an ensuing runoff, though Harris County records show his first mail-in ballot was rejected because of a signature verification issue. Patrick is a regular voter in both local and state elections and favors casting his ballot during the early voting period. He’s been voting in Montgomery County since 2017.

Though he’s a regular in-person voter in Collin County, Texas Attorney General Ken Paxton used the voting by mail option to cast a ballot in a 2011 municipal election, according to county records. In recent elections, he’s opted for voting early.

Travis County election records show Gov. Greg Abbott cast a mail-in ballot in a 1997 special election when he was a justice on the Texas Supreme Court. Abbott consistently votes in local and state elections.

Abbott and Patrick and Paxton would no doubt assert that they were taking advantage of a perfectly legal opportunity to use an absentee ballot, and that all those other people are asking for something that the law does not allow. I would say that despite the recent Supreme Court ruling, the law as written is hardly clear and lower courts did not agree with that more narrow interpretation. I would also note that one can have a principled disagreement about what the law says without lying and fearmongering about voting by mail, which has the effect of suppressing turnout and delegitimizing the process. (To be fair, Patrick and Paxton have been far more egregious about this than Abbott has, though he’s hardly uttered a peep in dissent of their noxious views.) As with Donald Trump and his current spokesperson, the impression one gets is “it’s fine for me to do this, but lowlifes like you can’t be trusted with it”. None of this had to be this way.

More people are requesting mail ballots

It’s a trickle and not a flood so far, but I suspect that will change as we get closer to Novemner.

The legal status of mail-in voting for virus-related reasons has gone back and forth — earlier this month, one court gave the green light only to be overturned by another court less than 24 hours later. Nevertheless, a considerable number of voters have turned in early requests for mail ballots, a Hearst Newspapers analysis shows.

In Harris County, the number of accepted mail-in ballot requests has risen from about 2.4 percent of registered voters in 2016, or 51,451 voters, to 3.2 percent of voters, or 76,267 voters, so far this year. Most were annual applications and were not limited to a single election.

Requests from Harris County voters age 65 or older, who are guaranteed a mail-in ballot in Texas, continue to represent the vast majority of applications — more than 90 percent. Requests for ballots on the basis of a disability totaled 1,429 — 0.06 percent of registered voters, compared to 0.04 percent in 2016.

Bexar County has similarly seen a slight increase in mail-in ballot requests compared with 2016. They’ve risen from about 1.6 percent to 2.2 percent of registered voters, or 24,477 total. Voters 65 or older accounted for most of the increase.

Texas’ primary runoff is scheduled for July 14. The deadline to apply to vote by mail is July 2, some five weeks away. (Applications must be received by that date, not simply postmarked.)

Bob Stein, a Rice University political science professor who studies elections, said the initial numbers point to a significant shift toward mail balloting.

“It’s historically high,” Stein said. “For the fall, the data tells me that if the conditions today remain unchanged or worsen … the consequence is that more people will try to vote by mail, try to avoid contracting the virus by voting in person early or they won’t vote at all.

“But there’s no doubt in my mind that the share of the vote cast by mail will go up, and it will go up dramatically.”

Depending on how the courts rule, Stein said the number of mail-in ballots cast in Texas could increase anywhere from 15 to 100 percent or more in the Nov. 3 general election.

Let’s add some clarity to the math in the second and third paragraphs. First, the numbers cited for early voting are for the primaries. There were 124K absentee ballots mailed for the November 2016 election, and 120K absentee ballots mailed for November 2018. There were something like 833 mail ballots requested due to disability for the 2016 primary – we don’t know what the comparable figure for November was – which is needless to say a tiny figure in the grand scheme of things. The 1,429 disability ballots requested so far – it would be super nice to know how many have been requested for the Dem primary runoff and how many for the Republican primary runoff by the way, since this is a thing we can know – is way less than ten percent of the total mail ballots, more like 1.8%. If we take Bob Stein’s high end estimate for November, we could be looking at 250K ballot requests, with maybe up to five thousand of them being from people claiming a disability. Sure seems like a little bitty thing for the Republicans to be freaking out so much about.

Of course, we don’t have any idea how this will go. Maybe a huge number of people will request mail ballots if the federal courts ultimately rule in favor of the plaintiffs. Maybe more people than you might think prefer to vote in person, or just don’t want to try something new in such a consequential election when it’s the first time it’s been done and the chances of human error causing havoc are higher than usual. Maybe people will feel safer voting in person in November, or maybe we’ll have had a second spike and people will be even more scared of doing anything outside the house than they are now. The point I would make at this time is yes, more people are requesting mail ballots, at least in the biggest counties. The vast overwhelming majority of those making that request are people 65 and older, who have always had that legal right. Even with this increase, the mail ballot universe represents a small fraction of all registered voters – we’re talking maybe ten percent of registered voters if we assume the Bob Stein maximal figure, which in turn may be something like 15-20% of total turnout for November. Not nothing, but not earth-shattering either. Ask me again in October and maybe my answer changes, but for now it’s significant but still small, and nothing the system shouldn’t be able to handle.

We will have more early voting time in November

That’s good.

Gov. Greg Abbott said Thursday he will extend the early voting period for an unspecified amount of time during the November election as concerns continue to persist around in-person voting during the coronavirus pandemic.

Abbott has already doubled the time period for the primary runoff election July 14, calling it necessary so that “election officials can implement appropriate social distancing and safe hygiene practices.”

In a TV interview Thursday afternoon, Abbott was asked if he believes Texas voters will be able to cast their ballots safely not only this summer but also in the fall.

“We do, and for this reason, and that is … Texas has always had early voting, and what I did for the July time period and what we will do again for the November time period is we will extend the early voting period,” Abbott said in the interview with KCBD in Lubbock. “And what that does — it allows more people to go vote early in settings that are not highly congregated. As a result, you can go vote without having to worry about a whole bunch of people being around you that you could contract COVID-19 from. That makes voting a lot safer [of a] setting than it would otherwise be with the shortened early voting time period.”

See here for the background. I had called on Abbott to do exactly this, though I did not expect that he would. He hasn’t said yet how much he’ll extend early voting – maybe we’ll get a third week, maybe a third and a fourth, who knows – but this is a Good Thing, and I’m glad to see it. Having the state pony up to help counties cover their extra expenses in this weird year, and not being fanatically opposed to letting people with a legitimate fear of COVID exposure vote by mail, would also be nice. But this is something, and credit where it’s due.

State Supreme Court issues confusing ruling in vote by mail case

Let’s unpack this.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: Here’s the Chron story.

Voter, sanitize thyself

WTF?

With voting in the primary runoff election starting next month in the middle of the coronavirus pandemic, the Texas secretary of state on Tuesday issued “minimum recommended health protocols” for elections, including a suggestion that voters bring their own hand sanitizer to the polls and that they “may want to consider” voting curbside if they have symptoms of COVID-19.

In an eight-page document, Secretary of State Ruth Hughs laid out checklists for voters and election workers that range from self-screening for symptoms to increased sanitation of voting equipment — none of which are binding and many of which were already being considered by local election officials planning for the first statewide election during the coronavirus pandemic.

In its recommendations, the state said voters should consider wearing cloth face masks, bringing their own marking devices — like pencils with erasers or styluses — and using curbside voting if they have a cough, fever, shortness of breath or other symptoms associated with COVID-19, the disease caused by the new coronavirus. Voters in Texas have long had the option of having a ballot brought to them outside their polling place if “a voter is physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.”

The state instructed local election officials to place markings on the floor to facilitate social distancing and to keep at least 6 feet between voting stations. Election officials should also consider having all employees wear masks, the secretary of state said.

The recommendations are meant to serve as a baseline, and county officials can adopt additional protocols. Early voting for the July primary runoff starts June 29.

Man, this is weak. The main takeaway here is that the state of Texas really, really doesn’t want to do anything to make it safer or easier for anyone to vote. Let’s put aside the hotly-contested question about allowing more voting by mail and consider two fairly simple alternatives the state could do in this regard. One, the state could pay for the extra supplies that voters or county officials if they are willing and able are being encouraged to provide for themselves. A few million bucks from Greg Abbott’s discretionary fund would go a long way towards buying hand sanitizer, pencils, masks and gloves for poll workers, and so forth, not just for the July election but for November as well. Additionally, and speaking of November, Abbott could use his emergency powers – or call a special session if this would be too legally questionable – to extend the early voting period for November to four weeks. That would do a lot to address concerns about long lines and crowds of people crammed inside polling places waiting their turn. He extended the early voting period for July to address this, which I do appreciate. But no, we get this limp mixture of “you might wanna bring some Purell with you, and oh yeah, mark some spots on the floor”. Are you kidding me?

Republican voters should be unhappy about this inability to engage with the actual issue, too. This isn’t hard. And surely I’m not the only one looking at that recommendation to voters that they spend their own money to provide their own risk mitigation and thinking that telling voters there’s a cost to voting they have to pay amounts to a poll tax. If there isn’t a lawsuit filed over this, I’ll be quite surprised. I don’t know what it’s going to take to get the state to take this seriously.

Fifth Circuit flips the switch

It’s what they do.

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Federal court issues order to allow voting by mail

Here we go again.

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

More runoff debates

In case you had not seen this, as I myself had not before Sunday.

Watch Democratic Candidate Debates Here!

Every Tuesday and Thursday in May, join us for our debate series:

Debate Schedule:
Tuesday, May 5 – Harris County Precinct 3 Commissioner
Thursday, May 7 – Texas State House District 138
Tuesday, May 12 – Texas State House District 142
Thursday, May 14 – Texas State House District 148
Tuesday, May 19 – US Congressional District 10
Thursday, May 21 – Texas State Board of Education Position 6
Tuesday, May 26 – Texas Railroad Commission
Thursday, May 28 – United States Senate

Video of past debates are on the page, so for example if you want to hear Anna Eastman and Penny Shaw, go here. In some cases, one of the candidates in the runoff has declined or not responded, but in most cases you can hear both candidates. Early voting begins June 29, so remind yourself of who’s on your ballot and start making up your mind.

First federal vote by mail lawsuit hearing

One down, two to go.

U.S. District Judge Fred Biery heard arguments Friday in a federal lawsuit seeking to give all voters the option to vote by mail due to fears of catching or spreading the coronavirus.

[…]

During Friday’s federal court hearing, Texas Democratic Party General Counsel Chad Dunn argued that concerns about coronavirus should not disqualify someone from exercising their right to vote. Doing so discriminates against classes of voters, such as voters under the age of 65.

Requiring people under the age of 65 to vote in person creates a “survival of the fittest election,” Dunn said via videoconference, and an impossible choice between protecting their health and exercising their right to vote. In the meantime, voters will be left in a “twilight zone,” unclear if they can apply for a mail-in ballot or not, Dunn said.

The Texas Democratic Party named Gov. Greg Abbott, Secretary of State Ruth Hughs, Travis County Clerk Dana DeBeauvoir, and Bexar County Elections Administrator Jacquelyn F. Callanen as defendants in the suit. Other plaintiffs include the League of United Latin American Citizens (LULAC) and other individual voters Joseph Daniel Cascino, Shandra Marie Sansing, and Brenda Li Garcia.

They are seeking a preliminary injunction for the finding that the current election conditions violate tenets of the First, 14th and 26th amendments as well as some provisions of the Voting Rights Act. The suit also requests that the defendants stop issuing threats of criminal or civil sanctions for helping voters vote by mail.

Biery said he could not estimate when he would issue a ruling in the case. “All I can tell you is it will be forthcoming,” he said. “No guarantee as to when.”

Robert Green, an attorney representing Bexar County and Callanen, said the county “is not here to take a position” on the various legal arguments presented by the Democratic Party or by the State. However, Green stated that counties have no mechanism or authority to investigate what “disability” a voter cites in an application for a mail-in ballot.

“A voter who believes that they are eligible … is permitted to indicate that solely by checking a box,” he said. “If a court were to order or if the Secretary of State were to issue guidance that local officials should reject certain disability applications if they’re premised on some COVID-related fear or lack of immunity, it’s not clear at all that local officials would be able to do that because the application does not allow voters” to explain their disability, he said.

Lack of immunity to COVID-19 is a physical condition, Green said. “A voter lacking that immunity is endangered by in-person voting. I think that that’s an inescapable reality.”

See here and here for the background. As the story notes, not long after this hearing came the State Supreme Court ruling that for now at least halted efforts to encourage people to apply for mail ballots. The people who have already asked for them and cited “disability” as the reason will presumably still receive them – as noted, there’s neither a process nor the authorization to check on that. The other two federal lawsuits are not on the calendar yet as far as I know. I have no idea if we’re going to have a clear ruling on this in time for the primary runoff. Of course, the question of what comes after that is even bigger, so this story is just getting underway. Stay tuned.

Supreme Court sticks its nose in

I suppose this was to be expected.

The Texas Supreme Court on Friday temporarily put on hold an expansion of voting by mail during the coronavirus pandemic.

Siding with Attorney General Ken Paxton, the Supreme Court blocked a state appeals court decision that allowed voters who lack immunity to the virus to qualify for absentee ballots by citing a disability. That appellate decision upheld a lower court’s order that would have allowed more people to qualify to vote by mail. The state’s Supreme Court has not weighed the merits of the case.

It’s the latest in an ongoing legal squabble that in the last three days has resulted in daily changes to who can qualify for a ballot they can fill out at home and mail in.

Federal and state courts are considering legal challenges to the state’s rules for voting by mail as Democrats and voting rights groups ask courts to clarify whether lack of immunity to the coronavirus is a valid reason for people to request absentee ballots. A resolution to that question is gaining more urgency every day as the state approaches the July primary runoff elections.

[…]

The court also set oral arguments for May 20 on Paxton’s request for it to weigh in on whether the appeals court erred and abused its discretion when it allowed Sulak’s order to go into effect.

See here and here for the background. I just want to remind everyone, early voting for the July primary runoffs begins on June 29, and mail ballots are already being sent to voters who requested them. People are going to have to start making decisions about how they’re going to vote. And whatever the state courts ultimately say, there are those federal lawsuits out there as well. This is going to be a whirlwind of uncertainty for some time. The Chron has more.

Hegar and West to debate

I know it hasn’t gotten much attention lately, but the primary runoffs are coming up, and the biggest choice you’ll have to make is in the Senate race. You’ll get to hear from the candidates in an online debate on June 2.

MJ Hegar

The Democrats in the runoff race to challenge U.S. Sen. John Cornyn are set to face off in a debate next month, the Texas Democratic party announced on Monday.

The first debate in the runoff between former Air Force pilot MJ Hegar and longtime state Sen. Royce West is set for June 2 at 7 p.m. The debate will air on Nexstar stations across the state, including Houston’s KIAH and San Antonio’s KSAT, and will be streamed online.

“To take back our state, Democrats must get our vision for the future to as many Texans as possible and showcase our candidates on as many platforms as possible,” Texas Democratic Party Chair Gilberto Hinojosa said in a statement. “There is no Texas race bigger than the U.S. Senate race. MJ Hegar and Royce West represent the best of what Texas has to offer. This debate presents an opportunity for them to discuss our ideas and solutions to the challenges Texans face every single day.”

[…]

The runoff election, which was initially set for later this month, was pushed back until July 14 because of the coronavirus outbreak.

The Texas Signal adds a bit more:

Sen. Royce West

Texas Democrats announced today that they will be hosting a virtual Senate primary debate featuring candidates MJ Hegar and Royce West. This is the only debate scheduled, thus far, ahead of the July 14 runoff election.

In a Dallas Morning News/UT-Tyler poll from April, Hegar holds a double-digit lead over West. More than 40 percent of potential Democratic Primary voters still remain undecided.

[…]

According to KXAN, the host of the June debate, the event will consist of questions from moderators, other state journalists, and viewers. Viewers can submit questions using the hashtag #txsendebate on social media and email at [email protected]

The debate will be held on June 2, at 7 p.m. CST.

Here’s that KXAN story, which among other things shows where you can watch. In Houston, it will be on KIAH, the CW station, and also on their website. Click over to see where you can watch.

On a side note, I’m not paying a whole lot of attention to who is endorsing whom in the runoff. Both candidates are fine by me, but if this matters to you, then go check that out. Early voting now begins in June 29, so let’s start getting back in the zone.

Appeals court upholds vote by mail order

Second round goes to the plaintiffs.

A state appeals court upheld a temporary order Thursday from a state district judge that could greatly expand the number of voters who qualify for mail-in ballots during the coronavirus pandemic, rebuffing Attorney General Ken Paxton’s effort to have the ruling put on hold while he appeals it.

In a 2-1 split along party lines, a panel of the 14th Court of Appeals of Texas said it would let stand state District Judge Tim Sulak’s ruling from last month that susceptibility to the coronavirus counts as a disability under state election law and is a legally valid reason for voters to request absentee ballots. Paxton has been fighting that ruling and had argued that his pending appeal meant the lower court’s ruling was not in effect.

[…]

“Eligible voters can vote by mail during this pandemic,” Chad Dunn, the Texas Democratic Party’s general counsel, said in a statement Thursday. “It is time for a few state officers to stop trying to force people to expose themselves to COVID-19 in order to vote.”

In response to the appeals court’s ruling, a spokesperson for Paxton said his office will “look forward to the Texas Supreme Court resolving this issue.”

See here, here, and here for the background. A copy of the court’s order is here, and of the dissent is here. If you believed that Paxton went to the Supreme Court even before the 14th Court ruled on this motion for the purpose of gaining political advantage, the 2-1 partisan split in this ruling is not going to dissuade you. The Supreme Court’s gonna do what the Supreme Court’s gonna do, but that seems to me to not be a great sign. Sorry to be a party pooper, but it’s hard to miss the symbolism of that. The Chron has more.

Speaking of the Supreme Court, they have requested a response from the counties named in Paxton’s writ of mandamus no later than 4 PM on Monday the 18th. I don’t think we’ll have to wait much longer to hear from them.

I should note that despite my pessimism in that first paragraph, there are some Republicans who are fine with pushing mail ballots to anyone who wants them. Like Kathaleen Wall, for example:

[Wall] has sent out mailers in recent weeks telling voters they have the “green light” to vote by mail and that the secretary of state has cleared them to do so if they are worried about contracting or spreading the virus by voting in person.

[…]

The controversy in the 22nd District has caught the attention of state officials. The secretary of state’s office says it “has been made aware of the mailings that have been sent out and have been in touch with representatives of the Wall campaign.”

“We have informed them that certain statements attributed to the Secretary of State’s office are categorically false, instructed them to update voters who have already been contacted, and to immediately cease further distribution,” a spokesman for the office, Stephen Chang, said in a statement.

Wall’s campaign says she is doing her best to keep voters up to date on the fast-changing developments around voting by mail, pointing to posts on her website and social media that have come in addition to the mailers. In a statement, the candidate defended sending out the vote-by-mail applications.

“I’ve distributed over 60,000 face masks to first responders and businesses in CD22 to make sure they have the tools they need to stay safe,” Wall said. “Sending out ballot by mail applications is the same thing. I’m making sure voters know they have options if they want to exercise it and meet the qualifications.”

However, Wall’s questionable vote-by-mail efforts go back to mid-April, when she sent out a mailer with the state seal telling the voters that they had received the “green light” to vote by mail and that their applications would be arriving soon. (Federal candidates are exempted from state law that prohibits the use of the state seal in political advertising.) The mailer also said, “Recently, the Texas Secretary of State ruled that voters’ concerns over contracting or spreading the COVID-19 virus and endangering their health by visiting a public polling place meet the election law requirements to be deemed eligible to vote absentee.”

Wall’s campaign used the same language in the subsequent mailer with the application, which featured the “Disability” box pre-checked.

As the story notes, that’s not exactly what the SOS said in that advisory, and indeed this is basically the Democratic plaintiffs’ position in the nine million current lawsuits that have been filed on the topic. Kathaleen Wall is an idiot who maybe doesn’t fully grasp the politics here. Or who knows, maybe this is a sincere statement of her beliefs, in which case all I can say is welcome aboard. I will admit, it’s still a little weird to me that this has become such a partisan issue, since one would think there are plenty of Republican voters who aren’t over 65 that might like to have this option as well. But here we are anyway, and now we have Kathaleen Wall on our side. Hooray?

Paxton tries a Supreme shortcut

They sure are keeping busy.

In a bit of judicial leapfrog, Texas Attorney General Ken Paxton is asking the Texas Supreme Court to weigh in on his interpretation of how voters can qualify for absentee ballots during the coronavirus pandemic.

Various lawsuits are pending over whether eligibility for mail-in ballots can be expanded to voters who risk contracting the virus by voting in person. Paxton believes it can’t, and Wednesday asked the state’s highest civil court to issue a relatively rare writ of mandamus preventing local election officials from doing so.

In a motion filed Wednesday, the Republican attorney general asked the Texas Supreme Court to order election officials in some of the biggest, largely Democratic counties in the state to follow his reading of existing eligibility requirements for absentee voting, arguing the court must step in quickly because those county officials intend to apply an “incorrect reading” of state law.

[…]

The election officials Paxton is targeting — county clerks or election administrators in Harris, Dallas, Travis, El Paso and Cameron counties — have generally indicated they will process mail-in ballots that cite a disability in accordance with the law and court rulings.

In his filing, Paxton argued that county election officials are refusing “to discharge” their duty to reject applications to vote by mail from voters who don’t qualify under the state’s existing eligibility criteria.

“They have instead determined that the coronavirus pandemic allows them to unilaterally expand the Legislature’s determination of who is eligible to vote by mail,” Paxton wrote. “To the local election officials of Travis, Harris, Cameron, Dallas, and El Paso Counties —all Respondents here —a ‘disability’ does not mean a ‘sickness or physical condition.’ Instead, it means a generalized fear common to all voters of contracting disease.”

It’s unclear how election officials would be able to reject applications from voters who use the disability category of eligibility as a result of the coronavirus pandemic.

Voters who cite a disability to receive a mail-in don’t have to provide any information beyond checking a box on the application form. Election officials can reject applications if they know the applicant is ineligible, but they’re unable to require voters to substantiate their disability.

Paxton argued the election officials’ actions were “not only unlawful; they are also unnecessary” because the state is already making changes to the voting process during the pandemic. Earlier this week, Gov. Greg Abbott doubled the early voting period for the July 14 primary runoff.

This is of course in reference to the state lawsuit. As we know, Paxton had previously threatened county election officials who might be accommodating to people requesting mail ballots on the grounds that the original ruling only applied to Travis County and was stayed pending appeal. The TDP, the plaintiffs in the suit, filed a motion with the Third Court of Appeals opposing Paxton’s actions. I should note that this case has been transferred to the 14th Court of Appeals, which includes Harris County. The Trib story about the complaint filed against Paxton in Dallas County contains a reference to this. Here’s a copy of the briefing schedule for the 14th Court of Appeals, which looks to be set for a ruling in mid-June. Assuming the Supreme Court doesn’t take this out of their hands.

This is basically Paxton getting a second bite at the apple. It’s a writ of mandamus – you may remember, the thing that they acted on in 2015 when they ordered the city of Houston to allow the anti-HERO referendum to go forward – and not an appeal, since the appeals court hasn’t been heard from yet. They don’t have to do anything with this, they could just let the appellate court do its job. As the story notes, there’s no way for clerks to vet or verify anyone’s disability claim. I suppose either court could order clerks to shut up and not tell people that they have the right to ask for a mail ballot if they have a disability. I’m not exactly sure how that would work, but the law can be a funny thing. And of course, there are all those federal suits, over which the State Supreme Court has no jurisdiction. So who knows? I don’t know what else to say, we’ll just have to wait and see what they do. The Chron has more.

Early voting gets an early start

This is a remarkably sensible thing to do.

Ahead of the first statewide election during the coronavirus pandemic, Gov. Greg Abbott has doubled the length of the early voting period for the upcoming July primary runoff elections.

In a proclamation issued Monday, Abbott ordered early voting for the July 14 runoffs to begin June 29 instead of on July 6. He noted that sticking with the truncated early voting window that’s typical for runoff elections “would prevent, hinder, or delay necessary action in coping with the COVID-19 disaster.”

Abbott previously used his emergency powers under his statewide disaster declaration to delay the primary runoffs, which were originally slated for May, and a special election for the Austin area’s Texas Senate District 14.

[…]

“In order to ensure that elections proceed efficiently and safely when Texans go to the polls to cast a vote in person during early voting or on election day,” Abbott wrote in the proclamation, “it is necessary to increase the number of days in which polling locations will be open during the early voting period, such that election officials can implement appropriate social distancing and safe hygiene practices.”

See here for the background. Bear in mind, it is this election for which the expanded vote by mail order applies, pending the outcome of appeals. Both increasing vote by mail and extending the early voting period serves the purpose of reducing the risk of in person voting. It could be that this decision was a strategic one, designed to undercut the Democratic argument that fear of contracting coronavirus is a legitimate disability per Texas law that must be mitigated by mail ballots. The idea here would be that having a longer early voting period for this election means that the risk of being in a crowd or waiting on line to vote is sufficiently lower that no further mitigation is needed. It may also be that Abbott is responding to the wishes of Republican voters, who have so far expressed greater interest in voting in person. Or maybe, just maybe, Abbott did this because it was a smart and beneficial thing to do. Crazier things have happened. If that’s the case, maybe he’ll be amenable to allowing a longer early voting period for November as well. Be that as it may, you now have two weeks to vote early in person for the primary runoffs. It’s a good thing however it came to be.

Yet another lawsuit over voting by mail

Turns out there are a lot of obstacles to voting by mail in Texas, and so there are a lot of lawsuits being filed by various plaintiffs to rectify that.

A coalition of voters and civil rights groups opened a new front Monday in the legal wars over mail-in voting in Texas during the new coronavirus pandemic.

Several lawsuits already underway challenge state limits on who can vote by mail, but a lawsuit filed Monday dives into the mechanics of mail-in balloting, arguing that existing rules will deprive voters of their constitutional rights in the middle of a public health crisis. In the federal lawsuit filed in San Antonio, five Texas voters with medical conditions, Voto Latino, the NAACP Texas and the Texas Alliance for Retired Americans argue that four existing rules for absentee voting will place undue burdens on the right to vote, or risk disenfranchising Texans, during the pandemic.

First, they’re challenging a requirement that voters pay postage to return mail-in ballots, arguing that it amounts to a poll tax during a public health crisis. Second, they’re challenging a requirement that sets deadlines for when ballots must be postmarked and received, arguing that the window should be extended. Third, they object to a requirement for matching signatures on the flap of a ballot envelope and the signature used on an application to vote by mail, which they argue discriminates against voters with disabilities whose signatures may change. And fourth, they’re challenging restrictions on the assistance absentee voters can get to return a marked ballot.

Naming Texas Secretary of State Ruth Hughs as the defendant, they’re asking a federal judge to block the state from enforcing the provisions.

“Even if all registered voters are eligible to vote by mail in Texas in the November election, that would not be sufficient to prevent the serious risk of disenfranchisement and threats to public health that will occur if the Vote By Mail Restrictions remain in place in the pandemic,” the plaintiffs, who are backed by the National Redistricting Foundation, wrote in their complaint.

[…]

But the latest challenge brings in voters who already qualify to vote by mail based on their disabilities but who must navigate the provisions for absentee voting in question during the pandemic. Among the plaintiffs is George “Eddie” Morgan, a 63-year-old former nurse in Dallas who has a genetic lung disorder and has been in strict isolation during the coronavirus outbreak in his community.

Morgan receives $19 dollars a week in food stamps and relies on food banks. To obtain postage for a mail-in ballot online to remain in isolation, he would have to purchase an entire book of stamps for $11, according to the lawsuit.

“The Postage Tax’s burden on the right to vote is severe. At best, it requires Texans — millions of whom are vulnerable to severe complications from COVID-19 or have vulnerable loved ones — to pay to vote by mail so that they can avoid exposing themselves to the virus while exercising their right to vote,” the plaintiffs wrote. “At worst, it disenfranchises the millions of Texans who cannot risk exposure to COVID-19 but who also cannot obtain postage to mail their ballots.”

To recap, we have the federal lawsuit filed by the TDP, which has its first hearing this Friday, which argues that the threat of coronavirus qualifies as a disability under the law for anyone who wants to request a mail ballot. We have the federal age discrimination lawsuit, which alleges that the 65-and-over provision for requesting a mail ballot violates the 26th Amendment. We have the state lawsuit, also filed by the TDP on the same grounds, for which a judge has issued an order allowing anyone to request a mail ballot for the July runoff, with a hearing set for later on the merits, which would allow the same for November and beyond. That order is being threatened by Ken Paxton, and the plaintiffs have filed a motion with the Third Court of Appeals to end those shenanigans. Oh, and now a couple of activists have filed a complaint in Dallas County alleging that Paxton’s communication to county election officials constitutes voter fraud on Paxton’s part. I believe that sums it all up.

This lawsuit goes in a slightly different direction. It argues that even if everyone were granted the ability to request a mail ballot today, there would still be problems. In a rational world, with a well-designed election system, of course mail ballots would be postage free for exactly the reasons cited by the plaintiffs, there would be no effort to criminalize helping someone who needs it to fill out their ballot, and signature matching would be done in a fair and efficient manner. We obviously do not live in that world, but maybe we can take a step towards it with this flurry of litigation. At the very least, I hope they’re all losing sleep in the Solicitor General’s office. The Chron has more.

The bad guys will be spending a lot in Texas, too

Don’t get complacent.

The Koch-backed Americans For Prosperity is planning an unprecedented push into Texas in 2020, throwing its support behind a slew of Republican candidates and expecting to spend millions as Democrats also commit more resources to the state ahead of November elections.

Americans For Prosperity Action, a super PAC affiliated with the nonprofit funded by billionaire Charles Koch that has long supported conservative causes. It announced Wednesday its plans to spend heavily to support Republicans in three key congressional races in the suburbs of Houston, San Antonio and Dallas. The group also plans to spend seven figures defending U.S. Sen. John Cornyn, for whom it has already spent more than $700,000 on ads, as Democrats try to win their first statewide race in a generation. And it’s supporting a dozen Republicans — and one Democrat — in state House races.

[…]

Americans For Prosperity Action says it plans “robust” spending in three of those races: U.S. Rep. Chip Roy, a Central Texas Republican facing a challenge Davis; Wesley Hunt, an Army veteran challenging Fletcher in the west Houston suburbs; and Genevieve Collins, a Dallas business executive running against Allred.

That support will include ads, direct mail and efforts to reach voters through text messages, phone calls and virtual events.

The group says it has already spent more than $700,000 supporting Cornyn. It plans to run digital ads supporting the Texas Republican constantly through the election, as well as larger ad buys, such as $500,000 it spent on ads just after Super Tuesday.

While the group is mostly throwing its support behind Republicans, it is backing one Democrat this cycle: Longtime state Sen. Eddie Lucio, Jr., locked in an unexpected runoff to hold onto his Brownsville district against Sara Stapleton Barrera, who ran at him from the left.

Yes, that’s Chip “You get coronavirus! And you get coronavirus!” Roy. We’ve begun to see the money for progressive candidates come in. This was inevitable, and it’s in many ways a good sign. They can’t take Texas for granted any more. Now we have to show them their money’s no good here. How sweet will it be for them to spend all that dough and lose?

TDP petitions appeals court to get Paxton to knock it off

Good.

The Texas Democratic Party has asked a court to order state officials not to interfere with a previous court order that opened up mail-in voting in the state.

In their filing Tuesday with the Third Court of Appeals, lawyers accused the state of thrusting voters and local election officials into “legal limbo” by contradicting the earlier ruling.

[…]

Earlier this month, Attorney General Ken Paxton accused local election officials of “misleading the public about their ability to vote by mail.”

“Fear of contracting COVID-19, however, is a normal emotional reaction to the current pandemic and does not amount to an actual disability that qualifies a voter to receive a ballot by mail,” Paxton said in a statement last week. ““My office will continue to defend the integrity of Texas’s election laws.”

In its filing, the Texas Democratic Party said the court needs to step in to ensure counties and voters do not fear applying for and processing vote-by-mail applications.

“The State has taken the extraordinary action of publicly disregarding an order from a coequal branch of the government, asserting that its view of the Texas Election Code, which was rejected by the trial court, is law of the land and threatening those who follow the trial court’s interpretation with prosecution,” lawyers wrote in their motion. “This includes calling into question the validity of the injunction within Travis County and intimidating Travis County voters.”

See here and here for the background, and here for the TDP’s motion. Here I am Not Being A Lawyer again, but it sure seems weird to me that Ken Paxton would simply announce what Judge Sulak’s ruling meant, when the 3rd Court is right there. I get that the AG’s job includes offering non-binding legal opinion about things, but he’s also a party in this lawsuit, so his opinion in this case is hardly disinterested. Anyway, we’ll see what the 3rd Court makes of all this.

UT-Tyler/DMN: Trump 43, Biden 43

New day, new poll.

Donald Trump and Joe Biden are in a dead heat in the race for Texas, signaling that the Lone Star State is evolving into a presidential battleground.

A new Dallas Morning News/University of Texas at Tyler poll shows that Trump and Biden are backed by 43% of poll respondents, with 5% opting for “other” candidates and only 9% undecided. Trump’s overall approval rating was 45%.

A February survey had Trump with a one-point lead over Biden, with 11% choosing neither.

The poll of 1,183 registered voters was conducted April 18-27 with a margin of error of +/- 2.85 percentage points. The survey asked additional questions of 447 registered voters who indicated they voted in the Democratic primary, with a margin of error of +/- 4.64%.

[…]

The poll also revealed that the coronavirus pandemic has had a pronounced impact on Texas politics, with state and local leaders trusted more than President Trump. The president’s handling of the crisis is approved by 43% of respondents, while 44% disapproved. Respondents were evenly split — 45% to 45% — on whether they trusted Trump to keep them safe.

Meanwhile, the fight over the coronavirus is obscuring the U.S. Senate race. In the Democratic primary, Air Force combat veteran MJ Hegar of Round Rock has a 32% to 16% lead over state Sen. Royce West of Dallas. But just as in other surveys, there’s a large group of undecided voters.

Incumbent Republican John Cornyn leads both Democrats by double digits in head-to-head matchups.

Elsewhere, poll respondents favored Democrats over Republicans in the rumble for the Texas House, a body the GOP has controlled since 2003.

And for the upcoming runoff elections, most voters feel comfortable voting at polling places, but the majority of respondents also favored having the option to vote by mail.

There were actually two UT-Tyler polls published in February, one of which was conducted in late January and one of which was just before the primary (scroll down, it’s the third poll cited). They publish registered voter and likely voter samples for each poll, which can make the reporting on them, especially comparison reporting, a bit tricky.

As is usually the case, the DMN story is out ahead of the poll data being published on the UT-Tyler Center for Opinion Research page, so there’s only so much I can tell you that isn’t in the article. The numbers for both Biden and Trump are down a bit from those earlier polls, which may just be a fluke of the sample or may indicate a higher level of uncertainty at this weird time. I wouldn’t spend too much time thinking about it – it’s just one result, as we like to say – but it’s worth noting in case we see more like it.

The primary runoff poll between MJ Hegar and Royce West is also the first we’ve seen so far, as is this:

For the general election, Republican Cornyn leads Hegar and West by similar margins. The longtime incumbent is ahead of Hegar 37% to 24% and West 35% to 24%. For both head-to-head matchups, 34% of voters were undecided.

[…]

Perhaps the most competitive contests on November’s general election ballot will be for the Texas House. Republicans hold a nine-seat majority, which Democrats hope to topple.

As it did in February, the survey found that most respondents slighted trusted Democrats over Republicans to lead the House.

Those are large undecided numbers in the Senate race, and the lack of support for either Hegar or West is reflected in the fact that even most Democrats had no opinion. (The full poll data is not available as of this writing, but there were a few tables in the DMN article, including one for this race.) I believe Cornyn is leading this race, and I believe he may outperform Trump in November, but if Biden is even with or leading Trump, and if the generic State House ballot leans Dem, that’s going to be a problem for him.

One more thing:

Eighty-five percent of those polled intended to vote in the runoff election. The poll found that 51% of Texans were comfortable with voting in person, while 33% were uncomfortable.

Only 17% wanted to vote in person on Election Day, and 35% didn’t mind voting in person at an early voting location.

The majority of those polled (37%) preferred to vote by mail. Most Texans, even those who wanted to vote in person, support an expansion of vote-by-mail in Texas.

The current law states that only residents over 65, voters who are ill, out of town or in prison can vote with an absentee or mail ballot.

The poll found that 58% of Texans would allow residents to vote by mail without giving an excuse, and 50% would allow the activity for all elections. On that question, 22% opposed mail-in ballot expansion and 20% were neutral. Of those opposed to expanding mail-in voting, 95% were worried about election fraud.

The partisan breakdown given for the question “Do you support Texas revising its election laws to allow any registered voter to mail in a ballot without an excuse?” was Dem 76% support, 5% oppose, Independent 57% support, 18% oppose, Republican 42% support, 41% oppose. (Note that the options included “Strongly Support”, “Support”, “Neutral”, “Oppose”, and “Strongly Oppose” – I combined the two “support” and “oppose” responses in my numbers.) I expect that whatever the actual level of Republican support is for these things, the Republican politicians who are fiercely opposing any expansion of vote by mail will not suffer for it. The rank and file will ultimately follow their leaders on this.

First hearing for TDP federal vote by mail lawsuit set for next week

Here we go.

U.S. District Judge Fred Biery has ordered a hearing on expanding vote-by-mail to all Texas voters in advance of the July 14 Democratic Party runoff election. The hearing, set for 9 a.m. May 15, will allow only one lawyer and one staff person from each side of the case, essentially the Texas Democratic Party (TDP) vs. the State of Texas, to make their arguments.

Also because of the novel coronavirus pandemic, the public will not be allowed to attend and the number of journalists will be limited, though Biery’s order states that “to give due respect to our tradition of open courts and the public’s right to know, the Court will try to provide audio live streaming through the Court’s website.”

[…]

Biery’s order acknowledges that instituting statewide universal mail-in balloting might not be effective, given the likelihood that appeals in the case might take the final decision past the July 2 deadline for requesting mail-in ballots for the runoff.

That’s the only story I’ve seen so far, so those are all the details you get. As a reminder, this is about the TDP’s federal lawsuit to allow more people to request absentee ballots, at least for the July 14 primary runoffs and SD14 special election. The state lawsuit filed by the TDP, which AG Ken Paxton is currently throwing a hissy fit over, and the federal age discrimination lawsuit filed by a group of young voters, are separate actions. The TDP had filed a request for a ruling by May 15 that orders the state to allow anyone who wants one to request a mail ballot. As this is a morning hearing, and I presume both sides have filed their briefs, we could very well get some kind of order by the end of the day. Mark your calendars for next Friday the 15th.

Comparing the April finance reports

In my roundup of April finance reports for Congress, I said I’d do a comparison of the 2018 numbers to 2020. I’m a blogger of his word, so let’s have that look.


Dist  Year Name             Raised      Spent    Loans    On Hand
=================================================================
02      18 Litton          546,503    304,139        0    242,363
02      20 Ladjevardian  1,133,296    930,810   50,000    202,485

03      18 Burch           104,700    116,639   25,649     14,085
03      18 Johnson          62,473     59,143    3,100      6,490
03      20 McCaffity       387,506    313,098        0     74,407
03      20 Seikaly         252,591    232,038    3,000     20,552

06      18 Sanchez         241,893    188,313        0     56,456
06      18 Woolridge        75,440     45,016   15,000     47,708
06      20 Daniel          196,861    187,942    7,500      8,918

10      18 Siegel           80,319     65,496    5,000     19,823
10      18 Cadien
10      20 Siegel          664,291    542,317   10,000    125,464
10      20 Gandhi        1,011,877    948,927        0     62,949

21      18 Kopser        1,100,451    846,895   25,000    278,556
21      18 Wilson           44,772     51,041   26,653     20,384
21      20 Davis         3,047,765  1,094,009        0  1,953,755

22      18 Kulkarni        178,925    158,369   35,510     56,067
22      18 Plummer         108,732     99,153        0      9,578
22      20 Kulkarni      1,564,263  1,226,088        0    365,942

23      18 Ortiz Jones   1,025,194    703,481        0    321,713
23      18 Trevino          16,892     20,416    3,285      3,915
23      20 Ortiz Jones   3,310,358  1,024,041    3,024  2,377,835

24      18 McDowell         33,452     16,100        0     17,470
24      20 Olson         1,231,183  1,028,804   20,000    202,378
24      20 Valenzuela      647,105    506,708        0    140,397

25      18 Oliver           78,841     37,812    3,125     40,860
25      18 Perri           139,016    133,443   24,890     30,603
25      20 Oliver          464,623    427,972    2,644     36,651

31      18 Hegar           458,085    316,854        0    141,240
31      18 Mann             56,814     58,856    2,276          0
31      20 Mann            277,815    278,885   44,500        367
31      20 Imam            363,194    223,126  100,000    140,068

I included losing candidates from primary runoffs in 2018 as well, as they were still in the race at that time. I did not include the high-dollar races in CDs 07 and 32 – Lizzie Fletcher and Laura Moser had each raised over $1M by this point, with Colin Allred and Lillian Salerno combining for close to $1.4M – because I wanted to focus only on challengers. Reps. Fletcher and Allred are doing quite well in this department now, they’re just in a different category. It’s clear there’s a lot more money now than there was in 2018, which I attribute mostly to the national Democratic focus on many of these races. Only CDs 03, 06, and 25 are not official targets, but any of them could get bumped up if the environment gets more favorable or the nominees step it up another level. Both CD03 candidates and the 2020 version of Julie Oliver are well ahead of the 2018 pace, while Stephen Daniel was a later entrant in CD06 and may catch up in the next report.

We eventually got used to the big numbers from 2018, which I repeatedly noted were completely unprecedented for Democratic Congressional challengers in Texas, and so there’s less of an “ooh, ahh” factor when we look at this year’s numbers, but let’s not totally lose our ability to be wowed. Joe Kopser raised a ton of money in 2018, and Wendy Davis has left him in the dust, taking in three times as much at this point. Sri Kulkarni has nearly matched his entire total from 2018, while Gina Ortiz Jones is doing to herself what Wendy Davis is doing to Joe Kopser. Throw in Sima Ladjevardian and both Kim Olson and Candace Valenzuela, and wow. We do need to appreciate where we are now, because there was a long time when anything like this would have been unthinkable. Hell, you can count on one hand the number of statewide candidates from 2004 to 2016 who raised as much as these Congressional candidates have done so far.

There’s also a lot more spending, as four candidates have already dropped a million bucks, with Ladjevardian and Pritesh Gandhi not far behind. Those two plus Sri Kulkarni and Kim Olson were in competitive primaries, with Olson and Gandhi in the runoffs, while Wendy Davis and Gina Ortiz Jones had much less formidable opposition. I have to assume the latter two did most of their spending with an eye towards November.

I will admit that some of the cash on hand totals from this year’s report had me nervous, but doing this comparison mostly alleviates those concerns. I am of course still worried about the environment for raising money now, but there’s only so much one can worry about it, and as we saw in the previous post there was no noticeable slowdown for the month of March. We’ll see what the July numbers look like.

If there is a cause for concern, it’s in CD31, which has been a soft spot in the lineup from the beginning. Christine Eady Mann and Donna Imam seem to have finally hit a stride in fundraising after the entire field, including several who dropped out along the way, got off to a slow start, though Mann continues a pattern from 2018 of spending every dollar she takes in. Neither has matched MJ Hegar’s pace from 2018, and I seriously doubt they’ll do any better going forward. That’s a high hurdle to clear – Hegar eventually raised over $5 million – but I’m more hopeful now that whoever emerges in that race can at least be competitive.

The next finance reports of interest will be the 30-day reports for state candidates, and then the June reports for county candidates. You know I’ll be on them when they come out. As always, let me know what you think.

The TDP motion for a fast ruling in their federal vote by mail lawsuit

I mentioned this in passing in yesterday’s post, so here are some more details.

Updating an ongoing lawsuit, the Texas Democratic Party on Wednesday asked a federal judge in San Antonio to issue an order by May 15 requiring state officials to expand vote-by-mail opportunities in upcoming elections.

The motion also asked U.S. District Judge Fred Biery to block Texas Attorney General Ken Paxton “from threatening voters with criminal or civil sanctions” if they vote by mail over fears of contracting the coronavirus at polling places.

The fast deadline is required, the petition argued, because county election officials need clarity as they prepare for primary runoff elections and a special election to fill the seat of retiring state Sen. Kirk Watson, D-Austin — both set for July 14.

[…]

On April 15, state District Judge Tim Sulak ordered expanded ballot access due to coronavirus concerns, a ruling that Paxton has appealed. That same day, Paxton issued a statement saying that fear of contracting COVID-19 is not a legitimate excuse under state law.

“While the state Court has ruled that under age 65 voters can use the disability exemption to vote absentee, the Attorney General has threatened to prosecute those who engage in this activity,” the updated federal lawsuit said.

“Texas’ law discriminates on its face against younger voters by creating two classes of voters: those 65 or older and are able to access absentee ballots and those under 65, who generally cannot,” the lawsuit argued. “When in-person voting becomes physically dangerous, age-based restrictions on mail ballot eligibility become constitutionally unsound.”

See here, here, and here for the background. I presume the state will file its response shortly. There really is a compressed schedule here, because the more mail ballots that will need to be sent out, the more time election administrators will need to handle the requests. I’ll keep an eye on this.

Harris County preps for more mail ballots

Good.

Harris County Commissioners Court on Tuesday voted to spend up to $12 million for an expected uptick in requests for mail-in ballots in the July primary runoff and November general election from voters concerned about contracting the novel coronavirus at polling places.

The three Democrats on the five-member court voted to give County Clerk Diane Trautman enough to send a mail-in ballot to every registered voter in the county over the objections of the two Republican members who said the clerk failed to justify the expense.

Trautman said her office is planning for any outcome in a lawsuit filed by Democrats and voting rights advocates seeking to force the Texas secretary of state to allow any resident to request a mail ballot.

“No matter what the courts and the state decide for the July and November elections, we must be prepared for an increase in mail ballots, which we are already seeing,” Trautman said.

[…]

Trautman said her office “can’t turn on a dime” and must begin preparing to accommodate more mail ballots, which are more expensive to process than votes cast at electronic voting machines because they would require more equipment and staff, as well as the cost of postage.

She outlined the costs of an expanded mail voting program: about $3 million for 700,000 ballots; $8 million for 1.2 million ballots; and $12 million for all 2.4 million ballots. The Democratic majority — County Judge Lina Hidalgo and commissioners Rodney Ellis and Adrian Garcia — opted for the full sum, noting the county clerk may end up spending only a portion of the funds.

“We want to make sure, with the possibility of a record turnout, we’re giving… the support they need,” Ellis said. “I want us to do what we can to improve the percentage of people who vote in this county, because it’s embarrassing.”

Hidalgo urged Trautman to keep the court and the county health department apprised of her plans to ensure upcoming balloting is safe for voters.

Whatever happens in the lawsuits, we should expect an increase in people voting by mail this fall. I mean, plenty of regular voters are over the age of 65, and all of them are eligible to receive a mail ballot. There were over 100K mail ballots returned in the 2016 election. That number could easily double or triple without any objection from Ken Paxton. Just preparing for that is going to take time and money, and that’e before any consideration of the possibility that a whole lot more people will be allowed to receive a mail ballot. It would be negligent in the extreme to not address this ahead of time.

One more thing:

Alan Vera, chairman of the Harris County Republican Party’s ballot security committee, warned that expanding mail voting would be a “logistical nightmare” that would render the county clerk unable to count all votes on election night.

Vera said Harris County should instead adopt an in-person voting system similar to South Korea, which held a national election in mid-April. Election workers in that nation sanitized polling stations and took the temperature of each voter. Residents with confirmed coronavirus cases still could vote by mail.

Trautman said her office already has ordered sanitation supplies for poll workers, including masks, gloves and face shields.

Okay first, as we know, all early mail and in person ballots are counted and the results published on Election Day when the polls close. You also have to get your ballot in by Election Day. I see no reason why the Clerk could not produce an up-to-date set of results on Election Day evening. I agree that the final count would be later, but most results would be clear by then. Second, because Diane Trautman is not an idiot and we are all aware of the courthouse situation, they are planning for extra safety and cleanliness measures as well. Finally, you do know that Republicans vote with mail ballots, too, right? Making it harder to vote in Harris County is going to hurt y’all as well. I can’t believe I have to tell the Harris County Republican Party that, but here we are.

April 2020 campaign finance reports: Congress

Hey, remember politics? You know, races and finance reports and stuff like that? Yeah, it’s still happening, weird as that may seem right now. As we are well into April, the Q1 Congressional finance reports for 2020 are in, and thankfully for me the number of candidates whose reports I need to review is much smaller. Let’s have a look. The January 2019 roundup is here, which closed out the 2017-18 election cycle, the April 2019 report is here, the July 2019 report is here, the October 2019 report is here, and the January 2020 report is here. For comparison, the January 2018 report is here and the April 2018 report is here. The FEC summary page for Congress is here and for the Senate is here.

MJ Hegar – Senate
Royce West – Senate

Lizzie Fletcher – CD07
Colin Allred – CD32

Hank Gilbert – CD01
Sima Ladjevardian – CD02
Sean McCaffity – CD03
Lulu Seikaly – CD03
Stephen Daniel – CD06
Elizabeth Hernandez – CD08
Mike Siegel – CD10
Pritesh Gandhi – CD10
Adrienne Bell – CD14
Rick Kennedy – CD17
David Jaramillo – CD17
Wendy Davis – CD21
Sri Kulkarni – CD22
Gina Ortiz Jones – CD23
Kim Olson – CD24
Candace Valenzuela – CD24
Julie Oliver – CD25
Carol Ianuzzi – CD26
Christine Eady Mann – CD31
Donna Imam – CD31


Dist  Name             Raised      Spent    Loans    On Hand
============================================================
Sen   Hegar         4,830,038  3,781,873        0  1,095,647
Sen   West          1,363,387  1,242,563  242,162    242,162

07    Fletcher      3,375,004    723,963        0  2,693,107
32    Allred        2,370,113    555,774        0  1,917,783  

01    Gilbert         190,941     44,804   50,000    146,136
02    Ladjevardian  1,133,296    930,810   50,000    202,485
03    McCaffity       387,506    313,098        0     74,407
03    Seikaly         252,591    232,038    3,000     20,552
06    Daniel          196,861    187,942    7,500      8,918
08    Hernandez
10    Siegel          664,291    542,317   10,000    125,464
10    Gandhi        1,011,877    948,927        0     62,949
14    Bell             84,724     71,740        0     16,061
17    Kennedy          65,908     59,041   11,953      8,294
17    Jaramillo        20,681     17,864        0      2,816
21    Davis         3,047,765  1,094,009        0  1,953,755
22    Kulkarni      1,564,263  1,226,088        0    365,942
23    Ortiz Jones   3,310,358  1,024,041    3,024  2,377,835
24    Olson         1,231,183  1,028,804   20,000    202,378
24    Valenzuela      647,105    506,708        0    140,397
25    Oliver          464,623    427,972    2,644     36,651
26    Ianuzzi          82,254     63,909   47,032     18,344
31    Mann            277,815    278,885   44,500        367
31    Imam            363,194    223,126  100,000    140,068

Some real separation in the Senate race, as MJ Hegar approaches five million total raised. She is in a much stronger position for the runoff than Royce West, though there’s still time for him to raise a few bucks. Hegar has a long way to go to be on par with John Cornyn, but she’s at least putting herself into “reasonably viable for a statewide candidate” range. For what it’s worth, Cristina Tzintzún Ramirez and Amanda Edwards did eventually top a million dollars raised, and in the end they both spent nearly all of it. I still don’t know why Tzintzún Ramirez was unable to do better in this department, but that’s water under the bridge now.

As was the case in 2018, everyone in all of the interesting races is raising a ton of money. The two incumbents are doing what they should be doing. Six challenger candidates have now topped a million dollars raised, with Wendy Davis and Gina Ortiz Jones both over three million. Pritesh Gandhi and Kim Olson still have to make it through the July runoff, by which time their runoff opponents – Mike Siegel and Candace Valenzuela – may have also topped that mark. Of course, right now is kind of a lousy time to be raising money, so hold that thought for a minute. We’re at a point where it’s basically routine for everyone to pile up big money-raised numbers, so let me note that the thing that stands out here is the amount that some of these candidates have spent. It’s more than a little mind-boggling that four candidates so far have spent over a million bucks, and some people, even the big moneybags, have left themselves a bit bereft in the cash-on-hand department. I’m glad to see both CD31 candidates finally start to get on the board, but that’s quite the hole Christine Eady Mann left herself in cash-wise. I’m going to do a separate post with a direct comparison to April 2018 later, but let’s put a pin in that. We don’t know what the fundraising environment is going to be like over the next few months. Dems benefited from a lot of Congressional cash in 2018. We had every reason to believe the same thing would happen this year as of the last report, but that was in the Before Times. Now, who knows?

We can take a little peek at how the fundraising environment may be. Everyone had to report their totals as of February 22 as well, thanks to the March primary. So here’s a look at how the Raised totals varied from January to April:


Dist Candidate         Jan01      Feb22      Apr01
==================================================
Sen  Hegar         3,225,842  3,864,201  4,830,038
Sen  West            956,593  1,134,953  1,363,387

07   Fletcher      2,339,444  2,481,687  3,375,004
32   Allred        2,370,113  2,577,348  2,370,113

02   Ladjevardian    407,781    660,853  1,133,296
03   McCaffity       267,288    308,240    387,506
03   Seikaly         109,870    173,031    252,591
06   Daniel          148,655    179,330    196,861
10   Siegel          451,917    527,802    664,291
10   Gandhi          786,107    869,277  1,011,877
21   Davis         1,850,589  2,186,063  3,047,765
22   Kulkarni      1,149,783  1,246,943  1,564,263
23   Ortiz Jones   2,481,192  2,684,696  3,310,358
24   Olson           861,905    967,032  1,231,183
24   Valenzuela      333,007    442,351    647,105
25   Oliver          325,091    387,523    464,623
31   Mann            170,759    198,783    277,815

Donna Imam did not have a February 22 total when I went looking for these numbers, so I omitted her from this table. Honestly, it doesn’t look like there was much of a slowdown in March, which is what I had been afraid of. Hell, Wendy Davis raised nearly a million bucks just in the last five weeks of the period. With the primaries over, the federal contribution limits get reset, so I think Davis and at least a couple other candidates who emerged victorious reaped a benefit from becoming the official nominee. Certainly Sima Ladjevardian and Gina Ortiz Jones took in a decent haul in the latter half of the filing period. Julie Oliver and Stephen Daniel did not get such a boost, however. I don’t have much more to say about this, I was just curious about how this went. We’ll see what the next quarter brings. As always, let me know what you think.

How do you conduct an election in a pandemic?

We’re about to find out, one way or another.

There will be an election in Texas in mid-July, apparently with polling sites, election workers and voting machines in place so people can cast their ballots in person. How many voters might be willing to risk a trip to the polls during a pandemic, though, remains unknown.

As Texas Republicans work to block the expansion of mail-in balloting during the new coronavirus crisis, local election administrators across the state are deciphering how to safely host voters for the July 14 primary runoff elections — and eventually the November general election — under circumstances unseen by even the most veteran among them.

Looking to expand curbside voting, some election officials are considering re-tooling parking garages or shuttered banks with drive-thru lanes. Rethinking contact during a process that requires close proximity, others are toying with the idea of buying hundreds of thousands of pencils that voters would take home after using the eraser end to mark their ballots on touch screen voting machines.

Many are scrambling to add sanitizing and protective gear to the long list of equipment needed to pull off a safe election. Plexiglass or plastic shields, like those now common at grocery store registers, could make an appearance at polling place check-in stations.

One huge unknown hangs over all the planning — whether there will be a surge of mail-in voting that creates a whole new sphere of logistical challenges.

“It’s almost like you’re preparing for two elections rather than one,” said Lisa Wise, the elections administrator in El Paso County. “That’s just part of what we’re in right now.”

[…]

Operating polling places during a pandemic creates another set of safety challenges as voters must check in, sign poll books and stand in lines.

Election administrators recently shared among themselves a poll that offered insight into how people feel about voting in person during a pandemic — 66% of Americans said they would feel uncomfortable going to a polling place now.

In Aransas County, elections administrator Michele Carew is considering whether she should establish a pop-up voting center in a tent in a parking lot. Because the county is small, her office warehouse typically serves as the only early voting site in the county. But with social distancing rules in place, she’d only be able to fit five voting machines instead of the 10 that normally run. That would be particularly unworkable for the high turnout expected for the November election, she said.

Other election administrations are exchanging messages about whether reducing polling locations would allow them to get a better handle on the situation; others are responding with suggestions about doubling the number of locations so they can space out voters and machines.

But those conversations often dovetail into another crucial consideration — there’s no way to know if they’ll have enough poll workers to staff their voting sites.

“Sixty percent of my election officials are over 65 so obviously they need to be replaced or a vast majority of them need to be replaced,” said Jacque Callanen, the Bexar County elections administrator. She’s considering turning to a pool of county workers who she can train up for the election, but the coronavirus will also get in the way of that.

Typically, she’d be able to cram 80 people into her training room, but she’ll be down to 20 at a time with social distancing requirements.

At this point, though, Callanen isn’t even certain how many poll workers she’ll need. A majority of the county’s polling sites would be propped up in public schools, but she’s not sure if they’ll be able to open up those sites to the public during an outbreak.

This is all a big fricking mess, with the huge uncertainties of where we will be with the virus, whether or not expanded vote-by-mail will be allowed, what sites will be available and practical to use, who will be willing to staff them, and so on and so forth. It’s on thing to say “this is the way it is and these are the parameters you have to work with” and ask election officials to plan for that, and another entirely to say “we have no idea what the conditions will be so plan for every possible scenario”, which is where we are right now. We could at least try to settle the vote by mail question, but as is so often the case our wishy-washy Governor has yet to articulate a position on the matter, leaving it up to the courts and his nihilistic Attorney General to sort it out. The good news, if you want to look at it that way, is that the July primary runoffs, plus the SD14 special election, are going to be pretty low turnout overall. As such, we can probably cobble together something that will more or less work. November is an entirely different story. Remember those pictures from Wisconsin? As the Fort Bend elections administrator says, if we don’t figure this out we’re gonna be Wisconsin times ten. The clock is ticking.

Here’s the official order in the TDP vote by mail lawsuit

Round One went to the plaintiffs. From there, who knows.

A Texas state district judge on Friday issued an order allowing voters to use the coronavirus as a reason to vote by mail for as long as the pandemic lasts — an early victory for the Texas Democratic Party and civil rights groups seeking to expand mail-in voting, though the ruling is almost certain to be quickly appealed by the state.

Judge Tim Sulak’s temporary injunction says the state can’t stop voters from voting by mail based on disability “as a result of the COVID-19 pandemic,” and it stops the state from “taking actions” preventing county elections officials from accepting and counting mail-in ballots from those voters.

State law allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

Democrats and voting rights groups, who have sued in both state and federal court, argued the disability clause should cover voters who are worried about showing up to a polling place during a pandemic. But Republican Attorney General Ken Paxton has said fear of the coronavirus is not an acceptable excuse to claim disability to vote by mail.

The order was expected after Sulak said during a court hearing earlier this week he was inclined to issue it.

See here for the background, and here for a copy of the order. I don’t believe an appeal has been filed or even formally announced yet, but it’s 100% there will be one, and this won’t be settled as a matter of state litigation till the Supreme Court rules. As noted, there is also a federal lawsuit out there, so all sorts of things can happen. Also, so far this ruling just affects the primary runoffs in July. There will be another hearing in August on the merits of the case to determine whether this should be extended to the November election. Assuming that other rulings haven’t made this all moot by then, of course.

In the meantime, here’s another look from Vox’s Ian Millhiser, who had done an earlier analysis that outlined the cruz of the dispute. This article in Slate also provides a useful way of thinking about this case.

The election law in question says a person can only vote by mail if the would-be voter “has a sickness or physical condition that prevents the voter from appearing at the polling place on Election Day without a likelihood of needing personal assistance or of injuring the voter’s health.” On one hand, Paxton’s claim that being sick means actually being physically ill is plausible. The rule, he says, is about sick people who can’t get to the polls because they are sick, or who might get sicker if they had to vote in person. It is not about non-sick people afraid of getting sick if they go to the polls.

As the ACLU stated it in its motion in the case, though, it’s arguable that everyone now has a “physical condition” that increases the “likelihood” that going to the polls might “injure[] the voter’s health.” (New Hampshire has interpreted its analogous “physical disability” provision in precisely this way) Paxton’s construction of the statute, meanwhile, also might mean that someone who actually tests positive for COVID-19 but is asymptomatic may not qualify for an absentee ballot, which seems absurd. As Vox’s Ian Millhiser wrote: “Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate.”

This is where Texas’ judges should turn to the so-called “democracy canon,” a method of interpreting statutes that is tailor-made for cases like this one. In his 2009 Stanford Law Review article about the method, University of California, Irvine law professor Richard Hasen offered a case citation that perfectly captures the heart of the democracy canon: “[a]ll statutes tending to limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.” In other words, when there is a “tie” in how to interpret the statute, the tie goes to the voter.

The case Hasen cited—Owens v. State ex rel. Jennett—was, in fact, a Texas Supreme Court case. Indeed, Texas historically adopted a fairly strong version of what Hasen called the democracy canon. In one appeals court case from the 1950s on the very subject of absentee ballots, Sanchez v. Bravo, a Texas court established a “clear statement” rule regarding restrictions on the right to vote. If a state is going to prevent someone from voting, the court ruled, they have to say so in “clear and unmistakable terms.” Otherwise, courts must read the law in a way that promotes “the right of the citizen to cast his ballot and thus participate in the selection of those who control his government.”

Finally, there is a related issue about the good faith of the voters who’ve decided they want to vote absentee by mail. If the Texas Supreme Court eventually comes down on the side of a narrow reading of the law—turning its back on the democracy canon and an older body of the court’s own jurisprudence—this could be made up by voting officials and lower courts generously construing on a case-by-case basis voters’ reasons why they chose to vote absentee. It is here that Paxton’s veiled warning in the letter that those who obtain ballots by “false pretenses” can be prosecuted sounds a sour note. It is one thing to proclaim a general election rule regarding sickness and disability. It is a separate and more ominous thing for the state of Texas to threaten voters who understandably want to have it both ways: to stay safe in the middle of a pandemic and exercise their right to vote.

Again, nothing really matters in this lawsuit except what five or more members of the state Supreme Court say, but it’s good to have a way to make a coherent argument for the plaintiffs. And by the way, if you’d like to see that ambiguous language in the state law replaced by something that unambiguously allows for more people to vote by mail, that starts with electing more Democrats to office, most especially in the Attorney General’s office.

What’s weird in all of this is that voting by mail has long been a Republican asset, though admittedly in this state for a very small number of voters. I agree with Campos, Republican voters themselves like voting by mail. I’m old enough to remember that vote by mail is exempt from the state’s ridiculously strict voter ID law, in large part because the Republicans who passed our voter ID law recognized that vote by mail was their bread and butter. That appears to have been replaced by a larger fear of anything that might make voting easier for the general public, which for sure is what everyone from Trump on down is trumpeting. But be careful what you wish for, because the recent Wisconsin experience suggests that Democrats may be better equipped to overcome barriers to voting than Republicans are, since Democrats by now have so much more experience in having to overcome obstacles. Maybe – I know this is crazy talk, but hear me out – if the Republicans spent a bit more time persuading people to vote for them rather than making it harder for anyone to vote, they might be better off in the end.

So about that Senate race

I mostly agree with this.

MJ Hegar

U.S. Sen. John Cornyn’s re-election campaign should be his race to lose.

The coronavirus outbreak, by most measures, has given Cornyn an even bigger advantage as he runs for a fourth term. The Texas Republican is sitting on $12 million with ads already on TV as his challengers campaign online against each other in a runoff election that was delayed six weeks by the pandemic.

Democrats MJ Hegar and Royce West are competing for attention with the biggest public health crisis in a century as they prepare for the July 14 election. The winner will get less than four months of head-to-head campaigning against Cornyn.

The Democrats had hoped to ride the momentum from Beto O’Rourke’s narrow loss to U.S. Sen. Ted Cruz two years ago.

Sen. Royce West

Instead, “Sen. Cornyn is outpacing the Democrats on name identification, fundraising, and base support,” said Brandon Rottinghaus, a University of Houston political scientist. “Democrats are in a holding pattern, stalling their momentum when it was needed to ramp up support. Given where things are, it would take Beto-level enthusiasm to capture Texans’ attention, which is on anything but politics for the moment.”

But Cornyn’s opponents see an opening.

They are now doing all they can to tie Cornyn to the Trump administration’s slow response to the outbreak and to hammer him over health care, which their party believes is a winning issue for Democrats nationally — but especially against the Texas Republican, who played a crucial role in efforts to scrap the Affordable Care Act.

They say Cornyn has helped them make their case by tweeting pictures of Corona beer, saying it will be a “piece of cake” to beat the virus and blaming Chinese culture for COVID-19.

“I think we have more opportunity to show people the contrast of the type of leadership they can see from John Cornyn in a crisis, which is tweeting out pictures of beer in rocks glasses,” said MJ Hegar, a former Air Force pilot vying to challenge Cornyn. “Now more than ever, we’re seeing the importance that everyone have access to health care. We’re seeing how painful a health care model tied to your employment is when we have record unemployment numbers.”

Cornyn has the big advantages in fundraising and name ID as noted, and now is a lousy time for the two Dems remaining in the race to try to catch up on them. I mean, just look back at what I’ve been writing about for the past three or four weeks. There’s nothing to be said about most 2020 races right now, in part because everyone is focused on the pandemic, and in part because there’s not much the candidates themselves can do to make news, at least in a good way. The main potential for an equalizer is of course Donald Trump. His numbers have not been great in Texas, and if he slips into negative territory here – not just in approval ratings, but in actual head-to-head polling numbers – that will be a boost for the Dem and a drag on Cornyn. It’s too early to say what might happen, and at this point we have no idea how the 2020 election will be conducted and how that might affect things. Cornyn was always the favorite and he remains the favorite. The biggest risk to him is the one thing he cannot control, the virus and the President’s handling of it. We’ll see where we stand when things get back to something resembling normal.

TDP gets initial win in vote by mail lawsuit

It’s a good start, but we’ve got a long way to go.

A state district judge on Wednesday said he will move forward with an order easing restrictions for voting by mail in Texas in light of the new coronavirus pandemic.

After conducting a video conference hearing in a lawsuit filed by state Democrats and civic organizations, Judge Tim Sulak told the attorneys he will issue a temporary injunction allowing all voters fearful of contracting coronavirus if they vote in person to ask for a mail-in ballot under a portion of the Texas election code allowing absentee ballots for voters who cite a disability. His ruling, which is almost certain to be appealed by the state, could greatly expand the number of voters casting ballots by mail in the upcoming July primary runoff elections.

[…]

During the hearing, those plaintiffs offered up two expert witnesses — a local doctor and an epidemiologist — who testified to the risks for transmitting the virus that would come with in-person voting. Meanwhile, the risks tied to mail ballots are “negligible,” said Catherine Troisi, an epidemiologist with the University of Texas Health Science Center at Houston School of Public Health.

The Texas attorney general’s office, which intervened in the case, argued against the expansion, claiming the vote-by-mail disability qualifications apply to voters who already have a “sickness or physical condition” and not those who fear contracting a disease “whether it be COVID-19 or the seasonal flu.”

Just as the hearing was wrapping up, Texas attorney general Ken Paxton made public an “informal letter of advice” that further teed up what is expected to be a drawn out court battle over expanding voting by mail ahead of the runoffs and the November election.

Paxton stated that an individual’s sole fear of contracting the virus was not enough to meet the definition of disability to qualify for a mail ballot, and that those who advise voters to apply for a mail ballot based on that fear could be criminally prosecuted.

See here and here for the background; there is also a federal lawsuit over the same issues, for which I don’t know the status. The Chron adds some more detail.

State law currently allows voters to claim “disability” and apply for an absentee ballot if showing up at a polling place risks “injuring the voter’s health.”

“Mail ballots based on disability are specifically reserved for those who are physically ill and cannot vote in-person as a result,” Paxton wrote in a letter on Wednesday. “Fear of contracting COVID-19 does not amount to a sickness or physical condition as required by the Legislature … The integrity of our democratic election process must be maintained, and law established by our Legislature must be followed consistently.”

The state’s elections director earlier this month issued guidance to elections officials in all 254 counties pointing to the election code’s disability clause, which voting rights advocates had claimed as a victory.

Attorneys for the Democratic Party argued in court on Wednesday that the disability clause “plainly provided for circumstances such as this when public health makes it dangerous to vote in person.”

But they said the courts need to make that clear as county officials are currently wrestling with how to conduct the upcoming runoff elections in July, when voters will pick a Democrat to challenge U.S. Sen. John Cornyn.

“This is a total muddled mess,” said Glen Maxey, the Texas Democratic Party’s primary director, who administers elections in dozens of counties, as he testified about the guidance during a court hearing on Wednesday. “We’re going to have a mishmash of who can vote and who cannot vote by mail in this election.”

But Anna Mackin, an assistant attorney general, argued that the law clearly does not cover those afraid of COVID-19 and urged state District Judge Tim Sulak “not to allow this global crisis to be manipulated as a basis for rewriting a provision of the election code.”

Yes, Paxton’s “letter” does indeed seem to fly in the face of that SOS advisory. Is that a lack of communication between branches, or a real difference of opinion? Hard to say. Bear in mind, there’s nothing in state law that allows the Governor to order the cessation of abortions in the state. AG Ken Paxton interpreted the Abbott emergency order that initiated a shutdown of non-essential businesses and services to include abortion providers, which the exigent circumstances allowed. Here, however, he’s arguing that these same exigent circumstances do not allow for an interpretation of the state’s absentee ballot law that includes voting by mail for people who claim under that law that they are unable to vote in person. It’s not that these interpretations are indefensible, but the two of them together sure suggest a strictly partisan motive. (Add in the ruling that gun shops do count as “essential” for some extra zest.)

In a vacuum, I think people of good faith could reasonably differ on the interpretation of our vaguely-worded state law, and one could make a principled argument that it’s the role of the Legislature to make such a significant change in how it should be read and enforced. But Ken Paxton is not making a good faith argument, he’s simply doing what he always does, advancing his partisan interests over anything else. He certainly may win, in both venues. Let’s just be clear about what he’s doing. The TDP (a plaintiff in the case), the ACLU of Texas (an intervenor), and the Texas Signal have more.

UPDATE: More from Texas Lawyer:

The dispute—which asks whether all Texans should be able to vote by mail because of social distancing restrictions and the risk of contracting the coronavirus—was headed to a higher court. Acknowledging that, Judge Tim Sulak of the 353rd District Court ruled from the bench that he would grant a temporary injunction, and reject jurisdictional arguments by the state of Texas.
The judge will issue a written order once it’s prepared.

Sulak said that if voters didn’t get clarity on whether the Texas vote-by-mail law applied to them, they might face a choice of having to vote in person, and accept the risk of getting sick. Or they could try to apply for a mail-in ballot. However, if the government later found their mail-in ballot inappropriate, voters could face prosecution, or find that their ballot was not counted, the judge said.

Also, if Sulak didn’t grant relief, he said there was a risk of future conflicts involving candidates filing election contests to challenge the voting results.

“Some of that could lead to the unstable, unsettled, uncertain situation about: Who are our elected representatives,” Sulak said. “Especially now that we are in this disaster scenario, where we don’t have courts running as efficiently as they have previously, it could result in some very serious governance issues, very serious jurisprudential issues.”

[…]

The plaintiffs sought a temporary injunction, and eventually a permanent injunction, that would require the defendants to accept and tabulate mail-in ballots from voters who are practicing social distancing to stop the spread of the virus.

On the other hand, the state of Texas, which intervened as a defendant, argued that the court didn’t have jurisdiction. The state claimed that a voter wouldn’t qualify to vote by mail just from having a fear of contracting the coronavirus. Also, the claim wasn’t ripe, since no one knows if the contagion will still be present in July, when the primary runoff elections are scheduled.

However, during a hearing Wednesday on the application for a temporary restraining order, an infectious-disease epidemiologist who testified for the plaintiffs said that it’s highly likely that the coronavirus will continue to spread in Texas through the summer.

“Once social distancing guidelines are relaxed, in my expert opinion, it’s inevitable we will see a rise in cases,” said Cathy Troisi, a professor at the University of Texas School of Public Health in Houston.

Voters going to the polls will be at risk of infection because they’ll come into close contact with other people, and they’ll touch voting machines that many voters have touched, Troisi explained. Election workers would be at a higher risk, because they stay at polling locations all day and have contact with many more people, she added.

When asked if voting by mail carries a risk of infection, Troisi replied, ”Voting by mail does not, so yes, voting by mail would protect the public health and public safety of Texans.”

Sulak rejected the state’s jurisdictional arguments, which also included claims that the plaintiffs’ interpretation of the vote-by-mail law was significantly expanding the statute the Texas Legislature wrote.

“I respect the separation of powers. We’ve got a choice here between arguments from that perspective and arguments from something that has seminal, fundamental, individual constitutional rights: that is, free people making full choices and having full access to have choices about their government,” Sulak said.

The judge asked plaintiffs’ counsel to draft an temporary restraining order, and to submit a proposed order denying the state’s plea to the jurisdiction.

And now we wait for the appeal, and for a hearing in the federal case.

Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

Dutton’s colleagues ask for investigation of Natasha Ruiz

Hey, look, it’s actual election news!

Rep. Harold Dutton

Nearly the entire Harris County Democratic legislative delegation has asked the county attorney and district attorney to open a criminal investigation into the candidacy of a Texas House candidate whose existence was called into question after this year’s March election.

The candidate, one of four in the primary race for state Rep. Harold Dutton’s seat, received enough votes to help force Dutton, a longtime Houston Democrat, into a runoff this year.

“We are concerned that more than 2500 Harris County voters may have been duped into voting for a non-existent candidate, a serious theft of those voters’ most important right, and three legitimate candidates were harmed by the crimes committed,” reads the March 18 letter, which was signed by every delegation member except Dutton and released to a Tribune reporter on Thursday. “We request that your offices coordinate an immediate investigation into the events documented in the attached memo and take appropriate prosecutorial action at the earliest possible time.”

Dutton was the only Democrat from Houston not to sign the letter.

[…]

Dutton, who had previously said he had hired a private investigator to look into the matter, told the Tribune on Thursday that he was not involved with the delegation’s letter to Ogg and Ryan and was focused on winning the runoff election, which is now slated for mid-July instead of May.

“I hope someone takes a look at the system that allows this to happen and cleans it up so that it can’t happen again,” he said. “If there are people who have engaged in a conspiracy, I hope that law enforcement will deal with them in the proper context.”

The delegation’s letter also included an attached “Indices of Election Fraud,” which detailed the background of the long-winding drama and “known facts indicating election fraud.”

See here and here for the background. The letter sent by the delegation is here, and the “Indices of Fraud” attachment is here. The latter is the more interesting, and contains the most new information. It suggests strongly that the person originally identified as “Natasha Demming” is not the person who filed for a spot on the ballot, but was perhaps a victim of identity theft. What I had considered to be the wilder option, that someone impersonated this person when they filed for this seat, appears to be the more likely explanation based on what the delegation claims.

So yeah, this should be investigated. Start by talking to the private eye that Dutton hired, and talk to all the political insiders to see what crazy things they might have heard about this. The big question here isn’t who did this (if it really was a deliberate attempt to put a sham candidate on the ballot) but why they did it. If the intent was to hurt Dutton’s re-election chances, it seems to me that there are more straightforward ways to do that than putting an impostor on the ballot in the hope of forcing Dutton into a runoff that maybe he’d lose. (What do you think might have happened if Dutton’s runoff opponent had been Natasha Ruiz, for example?) For sure, if there is someone behind this, maybe that person isn’t the most clear-headed thinker you’ve ever known. Whatever the case, getting a handle on the motivation might at least point you in the direction of a suspect. There doesn’t appear to be much physical evidence (unless maybe someone managed to take a picture of “Natasha Ruiz”), so if this gets cracked it’ll be because someone talked. Find out who that might be, and the rest may follow.

UPDATE: And indeed, there will be an investigation.

The Harris County Attorney’s office told the Houston Chronicle on Thursday that it was looking into the matter.

The county’s District Attorney Kim Ogg responded to the delegation in late March by saying that she had forwarded the case to the public corruption division but could not confirm or deny whether it was under investigation.

“Please be assured that the protection of our democratic election process, along with enforcement of all related laws, is a top priority for my administration and that your complaint will be addressed by this office,” Ogg wrote.

Not exactly sure why it’s the County Attorney jumping in on this, but whatever. I very much look forward to seeing the results.

Intervening in the mail ballot expansion lawsuit

From the inbox:

The ACLU of Texas, American Civil Liberties Union, and Texas Civil Rights Project on Wednesday joined a case seeking to declare that under Texas law all registered voters qualify to request a mail-in ballot as a result of the COVID-19 public health crisis.

The lawsuit states that in order to prevent wide-scale disenfranchisement during this public health crisis, the court should declare that the Texas Election Code’s definition of “disability” in the vote-by-mail provision – one of the basis of eligibility to vote-by-mail in Texas – currently encompasses all registered voters. The suit further states that the court should order that all mail-in ballots received by eligible voters under this category due to the pandemic be accepted and tabulated.

Because of the current COVID-19 public health crisis and the need to be confined at home, all individuals cannot physically appear at a polling place on Election Day without a risk to their health. Texas has 3,997 confirmed cases as of today. The latest guidance from the Trump administration advises against gatherings of more than 10 people, and many Texas counties have ordered restaurants and bars closed.

“Public safety must be prioritized during the coronavirus pandemic,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “If we don’t address how COVID-19 will affect our access to the ballot, people will find themselves balancing their civic duty to vote and their need to stay healthy. Clarifying that all Texans may vote-by-mail during this crisis under current state law is unquestionably the most effective and immediate way to ensure we protect both public safety and voting rights. Our state leaders must act fast so we can educate the public about how they can safely exercise their right to vote.”

The civil rights organizations are asking for the court’s declaration that the vote-by-mail provision applies to all Texans in light of the pandemic to allow for public education and planning to process an increase of mail ballots.

“Texans should not be asked to choose between their physical well-being and their fundamental right to vote, when we already have an election code that can accommodate a public health emergency,” said Joaquin Gonzalez, lead attorney on the case in the Voting Rights Program at Texas Civil Rights Project. “The secretary of state has been shockingly silent when our clients have been seeking her leadership and guidance the most. I know we’re in isolation, but you can send an email.”

“States all across the country are making vote by mail available because they know it is a common-sense solution to protect democracy and people’s well-being during this public health crisis,” said Sophia Lin Lakin, deputy director of the ACLU’s Voting Rights Project, citing states such as West Virginia, Indiana, Delaware, and Virginia, among others. “In failing to issue guidance making clear that all Texans are eligible to vote by mail due to the COVID-19 outbreak, Texas is forcing a false choice between protecting public health and allowing Texans to exercise their right to vote. Vote-by-mail for all eligible voters allows for both. Texas can and should make this common-sense solution explicit.”

The plaintiffs in this filing include the League of Women Voters of Texas, MOVE Texas, League of Women Voters of Austin Area, Workers Defense Action Fund, and University of Texas student Zach Price.

A copy of the motion to intervene is available here.

See here for the background. Again, the arguments are straightforward and have been discussed before. It’s mostly a question of how the state will oppose them, and what the courts do from there. As the Chron editorial board notes, the Secretary of State could simply agree to the plaintiffs’ demands and be done with it, but I think we both know that Abbott and Paxton won’t let that happen. We’re going to need a ruling soon for this to matter for the primary runoffs. The Texas Signal has more.

UPDATE: And as soon as I finished drafting this, I got the following in my mailbox:

On Wednesday, Texas Secretary of State Ruth Hughs’s office responded to Progress Texas’ petition calling on Texas to implement universal vote-by-mail. So far, the petition has received roughly 3,000 signatures from voters across the state.

In the response, the Secretary of State’s office hinted at the possibility that Texans who are concerned for their health may meet the disability requirements currently in place to apply for a ballot by mail. However, the vague response is open to interpretation and requires clarity in the form of an official proclamation or agreed court order from Secretary of State Ruth Hughs or Governor Greg Abbott.

“Right now, no voter we know of has immunity to COVID-19, and physical polling places could risk exposure and cause injury by way of sickness,” said Ed Espinoza, executive director of Progress Texas. “We have to make our upcoming elections as safe as possible. We believe that election law provides a remedy for all voters to vote-by-mail, but we need clarity from the state. Texas already allows no-excuse vote-by-mail for voters aged 65 and up, and we need our statewide lawmakers to step up and expand the benefit to everyone.”

“Being terrified of catching a virus that’s killing hundreds of thousands of people should obviously qualify as a legitimate reason for Texans to want to vote by mail, but we need an advisory from Secretary Hughes to make that official,” said Anthony Gutierrez, executive director at Common Cause Texas. “This email communication seems to indicate the Secretary of State agrees with our position, but this needs to be explicitly stated.”

Secretary of State Ruth Hughs office’s response states:

“One of the grounds for voting by mail is disability. The Election Code defines ‘disability’ to include ‘a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.’ (Sec. 82.002). If a voter believes they meet this definition, they can submit an application for ballot by mail.

“As the situation changes, we will be updating our guidance. We hope this information has been helpful.”

Progress Texas and Common Cause Texas call on Secretary Hughs and Gov. Abbott to act in the interest of Texans’ health, safety, and voting rights to officially expand vote-by-mail universally through an official proclamation or agreed court order as soon as possible.

We all agree on what the law says. What matters is what it means. If, as we have previously discussed, the state agrees that anyone can claim the disability allowance, then great! We’re done here. If not – and clearly, I think they won’t, though I’ll be happy to be proven wrong – that’s where we need the court to step in and issue a ruling. The clock is ticking.

So about those runoffs

They’re still happening in July. For now.

Democrats and Republicans across Texas are settling in for the new normal that is campaigning in the time of the novel coronavirus.

Not only has the pandemic upended how candidates campaign for the foreseeable future, it has also caused the May runoff election to be pushed back seven weeks, adding more uncertainty to a high-stakes election cycle in Texas. The changes impact runoffs in a slew of especially consequential races, from the U.S. Senate contest to most of the U.S. House races that national Democrats are prioritizing.

Regardless of the runoff date change, campaigns were already making adjustments. Many have canceled in-person campaigning and moved as much of their efforts online as possible. Some have reoriented their campaigns for now to focus on community service in the face of the outbreak. And a few have even stopped actively fundraising, at least online.

“I think what my team knows is that we’re in a different time now than we were a couple weeks ago,” Pritesh Gandhi, an Austin physician running for Congress, told a Facebook audience Sunday.

To be sure, candidates are not setting politics entirely aside, especially as Democrats move to highlight what they see as an inadequate response to the pandemic by Republicans in Washington and Texas. But for now, they are stuck in a potentially monthslong limbo.

While Gov. Greg Abbott announced Friday that the runoff would be postponed to July 14, it remains to be seen whether additional adjustments will be necessary for the election. Democrats are all but unified in arguing that the runoff postponement is not enough on its own and that Texas needs to expand voting by mail as well. Abbott has not ruled that out, though other top Texas Republicans have balked at the idea so far.

Runoffs are already low-turnout affairs, and campaign operatives are bracing for the numbers to drop even further for the new July date, especially if public health concerns persist. The extended runoff also means a longer head start for a slew of candidates in battleground races who already won their primaries earlier this month.

I don’t think turnout will be that greatly affected. Primary runoff voters are already the hardest of the hardcore, and there’s only so far down turnout could go anyway. I think, given the races and candidates involved, there will be enough money to remind voters that there is an election and that they should vote in it. This assumes that we are actually able to have the runoff in July a currently planned, which we obviously hope will be the case. It would be nice if the state had a plan to deal not just with what happens if coronavirus is still an ongoing concern, but also if people are just still afraid of it. That could include – as we have beaten into the ground – expanding vote by mail, and also early voting, all in the name of social distancing. Which, again, I hope isn’t a necessity at that time, but may still be a good idea.

TDP files lawsuit to expand vote by mail

All right, then.

Following fruitless negotiations over how to proceed with the upcoming primary runoff elections, Texas Democrats are looking to the courts to push for an expansion of voting by mail in the state.

In a lawsuit filed in Travis County district court late Friday, the Democrats are asking a judge to declare that a portion of the Texas election code allowing voters to cast a mail-in ballot if they suffer from a disability applies to any voter in Texas “if they believe they should practice social distancing in order to hinder” the spread of the new coronavirus.

The lawsuit was filed on behalf of the Texas Democratic Party and two individual voters who would seek to vote by mail given the state of the coronavirus outbreak.

“Whatever happens from this moment forward with respect to the pandemic, numerous voters, including the two individual Plaintiffs herein, seek to avail themselves of the option of mail-in ballots,” the lawsuit reads. “Similarly, the Texas Democratic Party needs to know how state law permits local election officials to handle such ballots cast in the Texas Democratic Party Runoff Primary Election so the [party] can determine how it desires to proceed in selecting nominees who were facing a runoff.”

[…]

Election officials in Texas generally agreed that a traditional election for the runoffs is implausible if the current circumstances — including limits on public gatherings and the ongoing closures of locations that typically serve as polling sites — were still true in May.

But in conversations with the Texas Democratic Party this week, some local election officials said they opposed moving to universal voting by mail, under which all registered voters or all voters who participated in the March primaries would be automatically sent ballots, without a postponement to build up their capacity to take on that expansion.

The expansion Democrats are seeking would not result in all mail-in ballot election, and voters would still have to formally request mail ballots from their counties.

See here for the background, and here for a copy of the lawsuit. It’s basically the argument that we’ve discussed before about the law as written being sufficiently broad – or vague, if you prefer – as to allow anyone who believes they qualify for the disability provision due to health issues, especially in this time of coronavirus, to be able to vote by mail. Obviously, I believe this argument has merit, though I thought it would be more of a stealth application rather than formally litigating the question. There will need to be a quick ruling for this to be relevant to the runoff, so I expect we’ll have an idea of what the courts think shortly. We’ll see.

Primary precinct analysis: Who did what in the RRC race

The Railroad Commissioner primary was a bit like the Senate primary – multiple candidates (though not nearly as many), not a whole lot of money, but the candidate who did best in fundraising was also the leading votegetter. Here’s a look at the top 25 counties in terms of votes cast for the Railroad Commissioner’s race:


County    ALONZO   CASTAÑEDA    STONE   WATSON      Total
=========================================================
All        503,666   592,770  380,236  277,578  1,754,250
HARRIS      77,618    85,166   59,552   40,428    262,764
DALLAS      56,824    57,822   48,718   36,255    199,619
TRAVIS      30,199    97,284   37,641   20,290    185,414
BEXAR       50,228    62,708   22,880   16,583    152,399
TARRANT     35,318    36,767   28,238   25,021    125,344
COLLIN      15,227    22,793   18,487    9,250     65,757
EL PASO     25,353    21,426    6,750    7,065     60,594
FORT BEND   12,550    14,895   16,826   12,685     56,956
DENTON      10,804    21,541   14,966    6,851     54,162
WILLIAMSON  11,031    19,375   10,852    9,924     51,182
HIDALGO     24,057    15,382    6,617    3,699     49,755
CAMERON     11,849     9,267    3,691    3,558     28,365
WEBB        13,080     7,841    2,455    1,850     25,226
HAYS         5,161     6,451    6,152    4,059     21,823
MONTGOMERY   4,820     5,963    5,248    3,898     19,929
NUECES       7,364     5,914    3,146    2,424     18,848
BRAZORIA     4,643     4,659    4,961    4,502     18,765
GALVESTON    4,020     5,225    4,914    3,127     17,286
BELL         4,818     4,619    4,056    3,577     17,070
JEFFERSON    4,640     3,132    3,704    4,813     16,289
LUBBOCK      3,462     3,858    2,741    2,081     12,142
MCLENNAN     2,308     3,078    3,623    2,290     11,299
SMITH        2,536     2,512    2,466    2,985     10,499
BRAZOS       3,000     3,429    2,571    1,488     10,488
ELLIS        2,524     2,266    2,410    1,737      8,937

Chrysta Castañeda

Chrysta Castaneda, who led the pack with nearly 34% of the total vote, also led the way in 13 of these 25 counties, including the top six and eight of the top ten. That’s a pretty good recipe for success in the runoff as well. She led in Dallas County, which is the home of runnerup Roberto Alonzo, who represented a State House district in Dallas County for 26 years. Alonzo led in the five big predominantly Latino counties – El Paso, Hidalgo, Cameron, Webb, and Nueces – plus Bell and Ellis Counties. Castaneda leads Alonzo by five points going into the runoff, which is hardly insurmountable, and other than Travis County her lead over him in the biggest counties was small. I feel like Castaneda’s big lead in Travis County is a significant advantage for her for the runoff. It’s hard to project anything based on past primary runoffs because the data set is so small, but given that there will be a Senate runoff as well, and given that Travis County was also a strong performer for MJ Hegar, it could deliver a decent margin for Castaneda in May. If that happens, it may be hard for Alonzo to make up the ground elsewhere.

Of the other candidates, Kelly Stone led in Fort Bend, Brazoria, and McLennan Counties, while Mark Watson topped the field in Smith and Jefferson. There’s another similarity to the Senate race – everyone got to be a leader of the pack. I have no idea how their voters might go in the runoff – neither has made any endorsement, as far as I can tell, and in all honesty that likely would be just a marginal factor. Turnout always drops quite a bit in primary runoffs, and with the coronavirus situation happening now, who knows what effect that may have. I see Castaneda as the solid favorite in this race, but Alonzo can pull it off if he can get his own message out.