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Texas

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.

State ordered to pay plaintiffs’ fees in voter ID case

Pending appeal, of course.

Still the only voter ID anyone should need

Texas ultimately won the long-winding fight to keep its voter ID law on the books, but a federal judge has ruled the state is on the hook for nearly $6.8 million in legal fees and costs.

In a Wednesday order, federal District Judge Nelva Gonzales Ramos of Corpus Christi found the state must pay that sum to the collection of parties who sued over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls. A spokesperson for the Texas attorney general indicated the state will appeal the ruling.

The voter ID case ricocheted through the federal courts for nearly seven years and over several elections, with Ramos first ruling in 2014 that lawmakers discriminated against Hispanic and black voters when they crafted one of the nation’s strictest voter ID laws.

Lawmakers eventually revised the voter ID law in 2017 to match temporary rules Ramos had put in place for the 2016 election in an effort to ease the state’s requirements as the litigation moved forward. After the state faced multiple losses in the courts, the U.S. 5th Circuit Court of Appeals ultimately upheld Texas’ revised law.

But left intact were findings that the original law produced discriminatory results.

It is what it is, and the appeals process will take many more months. No one should be making detailed plans for the money, because even if it survives appeal it’s going to be awhile before any checks get cut. This is a consolation prize, and not that much of one, but it’s what we’ve got. Until we can take back the Lege and more and repeal this stupid law.

RIP, Engage Texas

We hardly knew ye.

Still the only voter ID anyone should need

Engage Texas, the massive Republican super PAC focused on voter registration, is shutting down, citing challenges created by the coronavirus pandemic.

The group began last year with the support of some of the biggest Texas GOP donors and raised $12.7 million while building a staff in the hundreds. Yet the group says that the months-long pandemic has made clear that “person-to-person contact voter registration is going to be challenging for an indeterminate amount of time.”

“Leadership has determined that the highest and best use of supporter and donor energies at this point is to phase out person-to-person voter registration, close Engage Texas and encourage our supporters to engage with candidate and party activities ahead of the November election,” Engage Texas said in a statement to The Texas Tribune on Friday. “Engage Texas is proud of our highly successful voter registration efforts and believes that conservative voter registration will successfully continue through the Republican Party of Texas Volunteer Engagement Project.”

Engage Texas, which had $6 million cash on hand at the end of March, is in the process of redistributing its remaining funds to other GOP groups with similar goals. The reallocations are expected to be detailed on its next quarterly report to the Federal Election Commission, which is due July 15.

The shuttering of Engage Texas leaves the Texas GOP’s Volunteer Engagement Project as Republicans’ chief registration effort this election cycle at the state level. The project is aiming to register 100,000 likely Republicans by Oct. 5, the registration deadline for the November election. Party chairman James Dickey said Thursday the project has surpassed 85,000 registrations.

“Republicans are finally paying major attention again to voter registration,” Dickey said during a tele-town hall about the party’s 2020 convention. “It’s back in our DNA, and we are ceding no turf.”

Still, the shutdown of Engage Texas is a major blow to one of the lessons that state Republicans took from their setbacks in the 2018 election — that they needed to grow their pool of voters and hone in on registration after years of neglect.

[…]

In shutting down, Engage Texas pointed to data that it said showed that for the first time in a decade, “Republican registrations have outpaced Democrat registrations in Texas, and have done so for nine consecutive months.” As of today, the group said, Republicans have registered 18,677 more new voters this year in Texas than Democrats have.

I would not take their claims very seriously. I’m sure they registered some voters, but without knowing their exact metrics it’s hard to take any such claims, especially such specific claims, as anything more than self-aggrandizement. (How would they know how many voters Democratic-aligned organizations have registered, for example?) I would also note that if this mission was that critical, this would be a funny time to abandon it. I’m sure the rest of that money will go to only the most deserving consultants and operatives. See you on the other side, Engage Texas.

A bipartisan equality bill

I appreciate the effort, but we can’t expect too much to come of this.

Five Democratic and two Republican state legislators announced plans Wednesday to file a bill next legislative session that would bar discrimination against LGBTQ Texans in housing, employment and public spaces.

The bill, which has the early support of state Reps. Sarah Davis, R-West University Place, and Todd Hunter, R-Corpus Christi, would extend protections based on sexual orientation and gender identity. There are 21 states that already have enacted such policies.

“Quite frankly, we are already behind the curve on this issue,” Davis said. “Nondiscrimination is not just good for LGBTQ community, but it’s good for all Texans.”

Lawmakers rolled out the bill during a virtual news conference where they touted an economic study that found a statewide nondiscrimination policy would generate $738 million in state revenue and $531 million in local government revenue next biennium. It also would add 180,000 new jobs in technology and tourism by 2025, the study found. The benefits, the authors said, largely would come from Texas’ greater ability to attract talent and heightened opportunity for tourism and conventions.

“We should want to treat people fairly because it’s the right thing to do, whether it has economic effects or not,” said Ray Perryman, a Waco-based economist who led the study. “This shouldn’t be the reason to do it, but it is a very important aspect of it in today’s society, and there are very significant economic costs associated with discrimination.”

The legislation likely will face strong headwinds in the Republican-controlled Senate. Lt. Gov. Dan Patrick, who presides over the upper chamber, prominently opposed a similar measure that was rejected by Houston voters in 2015, and later backed the so-called bathroom bill opposed by LGBTQ advocates that would have required people to use facilities matching the gender identity on their birth certificates.

The lawmakers largely dismissed political concerns Wednesday, arguing instead that their early push for the bill — more than seven months before the session is slated to begin — heightens their odds of passing it.

“I think a lot of this is going to take talking to our colleagues and explaining the results of this study,” said Rep. Jessica González, D-Dallas, a member of the House LGBTQ Caucus and author of the bill. “It’s going to take a lot of groundwork.”

[…]

The bill faces good odds of passing the lower chamber, where Democrats have gained ground and some Republicans have moderated their positions, said Brandon Rottinghaus, a political science professor at the University of Houston. He was less bullish on the bill’s chances in the Senate.

“It’s a different animal on that side of the chamber,” Rottinghaus said. “You do all the political calculations and it’s a tall order to get it passed. But, in some ways it’s a marker: these members see the future of Texas as one where the economy needs to be put front and center, and if that theory can get some grip among the members, then there’s hope for it in the future. But as it is now, it’s a pretty tough sell.”

That’s really about all there is to it. This bill may pass the House, but if so then Dan Patrick will stick it in a shredder, have the shredder blown up by the bomb squad, and then have the debris shipped to Oklahoma. We ain’t getting a bill like this passed while he’s Lite Guv, and that’s even before we consider getting it signed and then having it reasonably enforced by the Attorney General. It’s nice that there are two House Republicans willing to sign on to this – no, really, that is important and could very well matter if we oust Patrick in 2022 but still have a Republican-controlled Senate – but it will take either more of them than that to get this passed, or fewer Republicans in the House overall. I don’t know who our next Speaker will be, but I like the odds of this passing with a Democrat appointing committee chairs than with pretty much any Republican that could inherit the gavel. Needless to say, one way of getting the requisite number of Dems in the House is to oust Sarah Davis, as her seat is high on the list of pickup possibilities. Todd Hunter’s HD32 is on that list as well, but farther down; if he loses in November, Dems have had a very, very good day.

Let’s be clear that lots of substantive bills take more than one session to get passed, so bringing this up now even without any assurance that it could get out of committee is the right call. Start talking about this now – the real benefits a true equality bill would bring, the ridiculous arguments that opponents will throw at it, and very importantly the potential legal pitfalls that the true wingnuts and their sympathetic judges will try to exploit – and we’ll be better positioned when the timing is better. I can’t say when that might be – elections have consequences, I’m told – but it’s best to be prepared.

Hurricanes and pandemics

Summertime in the Gulf Coast, y’all.

Dealing with multiple disaster threats at the same time is nothing new for Francisco Sanchez.

As a 15-year emergency management veteran for Harris County, Sanchez understands the anxiety tugging at local officials wary of preparing for possible hurricanes while also dealing with the everyday reality of the coronavirus pandemic.

Sanchez also appreciates the instinct that some emergency management officials have to be as detailed as possible in anticipating all sorts of disaster scenarios when social distancing may still be recommended. But as counterintuitive as it might seem, details, he said, can be the enemy of the good when it comes to hurricane preparation.

“Whether you’ve done one disaster or dozens, you know that no plan fully survives its encounter with reality,” said Sanchez, the deputy coordinator for the Harris County Office of Emergency Management. “Develop concepts of operations that allow you to be flexible and scalable. It will allow you to cover more ground at a time where time is scarce, planning resources are scarce and response resources are scarce.”

The 2020 hurricane season, which [started] Monday, is poised to be significantly different than prior years given how the coronavirus outbreak has altered everyday life, including basic disaster planning. The stay-at-home orders that were in place prior to May 1 as well as current social distancing guidelines have forced many emergency management officials to scale back and adjust their typical hurricane season outreach.

Cities and counties that held annual town-hall meetings dispensing advice on evacuation planning and hurricane kits are now planning to do so virtually. First response agencies are adapting rescue protocols to include personal protective equipment. Medical centers and hospitals have to grapple with the possibility of having to evacuate coronavirus patients from hospitals. And residents are being advised to put together hurricane kits now so as not to inundate retail stores with large crowds in the days ahead of a storm.

“Restock that hurricane kit — now is the time to do it when we can maintain that social distancing very easily,” said Jeff Lindner, a meteorologist with the Harris County Flood Control District.

As a reminder, NOAA is predicting a busy hurricane season. Indeed, there is already a tropical depression in the Gulf that could possibly develop into a big rainmaking event in our area. What we all know is that it only takes one storm to make it a bad year. Do restock your bottled water and batteries, and as always pay attention to what the folks who know what they’re talking about have to say. Unless of course that interferes with your god-given constitutional right of FREEDOM, in which case go right ahead and drive on into the storm and show us that you can’t be pushed around – well, not by anything less than 100 MPH winds, anyway. Hope that works out for you.

Interview with Sarah Eckhardt

Sarah Eckhardt

I have one more interview to present for the July 14 special election in SD14. As noted, there are six candidates running to succeed Kirk Watson, but really just two that merit your attention. Today I have a conversation with Sarah Eckhardt, who just stepped down as Travis County Judge to file for this race. Eckhardt has an LBJ School Master of Public Affairs and law degree from UT. She served six years as Travis County Judge, following two terms on Commissioners Court and eight years before that in the Travis County Attorney’s office. She has served on many boards and commissions, including the Capital Area Metropolitan Planning Organization, the Texas Conference of Urban Counties, the Clean Air Coalition, the Texas Freedom Networ, and the LBJ School Dean’s Advisory Council. Here’s what we talked about:

My interview with Rep. Eddie Rodriguez is here. I will be reviewing the primary runoffs of interest going forward.

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.

Abbott issues disaster declaration following protests

Where we are now.

Gov. Greg Abbott announced Sunday afternoon that the entire state of Texas will be placed under a disaster declaration in response to demonstrators in several Texas cities protesting the death of George Floyd, a black man who was killed Monday in Minneapolis police custody.

The declaration allowed Abbott to designate federal law enforcement officers to perform the duties of peace officers in Texas.

Thousands of protesters marched in Texas cities on Friday and Saturday, outraged after Floyd was filmed crying out for help as a white police officer pinned him to the ground with a knee to his neck. The officer, Derek Chauvin, was later arrested and charged with third-degree murder and manslaughter.

“Every Texan and every American has the right to protest and I encourage all Texans to exercise their First Amendment rights,” Abbott said in a statement. “However, violence against others and the destruction of property is unacceptable and counterproductive.”

His announcement comes a day after he activated the Texas National Guard “in response to protest violence” across the state. In several of the state’s large metropolitan areas — including Houston, Austin, Dallas and San Antonio — protesters clashed with police who sometimes used rubber bullets and tear gas.

Abbott also sent state resources to Houston, Austin, Dallas and San Antonio on Saturday afternoon and said he’s spoken to the mayors of all four cities, as well as law enforcement officials. He said Sunday that he also increased those resources for cities throughout Texas and that the Federal Bureau of Investigation has deployed tactical teams to assist state and local law enforcement.

[…]

Prior to Abbott’s announcement, several Texas cities took measures into their own hands. On Saturday evening, the mayor of San Antonio imposed a curfew as a result of escalating tensions due to the protests.

In Dallas, where officials defended the use of tear gas at protests for Floyd, Dallas Police Chief Reneé Hall said Sunday afternoon that a 7 p.m. curfew will go into effect Sunday and end at 6 a.m. “for the next several days,” The Dallas Morning News reported. In Austin, meanwhile, organizers canceled a protest planned for Sunday afternoon out of fear that “white agitators and other agitators of color” would co-opt the event and put black Texans in harm’s way.

The single best thing that can happen right now is for law enforcement agencies around the country to stand down and stop being violent themselves. After that we’ll see, but people have been pushing for moderate and incremental police reforms for a long time now with little success. What are people supposed to do now?

Hotze and pals still crying to the Supreme Court

It’s hard to keep track of it all.

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

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

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

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

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

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

[…]

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

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

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

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

RNC sues to halt California mail ballot expansion

Put a pin in this.

The Republican National Committee and other Republican groups have filed a lawsuit against California to stop the state from mailing absentee ballots to all voters ahead of the 2020 general election, a move that was made in response to the coronavirus pandemic.

The suit comes after California Gov. Gavin Newsom, a Democrat, announced this month that the state would move to encourage all voters to cast their ballots by mail in November — the most widespread expansion of vote-by-mail that has been announced as a result of the pandemic and in the nation’s most populous state.

The RNC’s lawsuit challenges that step, marking a significant escalation in the legal battles between Republicans and Democrats that are currently being waged in more than a dozen states.

[…]

Sunday’s suit — filed on behalf of the RNC, the National Republican Congressional Committee and the California Republican Party — seeks to halt Newsom’s order, arguing that it “violates eligible citizens’ right to vote.”

The groups argue that Newsom’s order will lead to fraud because the state plans to mail ballots to inactive voters automatically, which “invites fraud, coercion, theft, and otherwise illegitimate voting.”

Studies have found no evidence of widespread voter fraud as a result of in-person or mail-in voting.

Rick Hasen has a copy of the complaint here. Part of it is specific to California law and whether or not Governor Newsom has the authority to issue this executive order, and part of it is the claim that mailing a ballot to all eligible voters will result in an unconstitutional “dilution” of the vote because of the likelihood that more “fraudulent” votes will be cast. I can’t speak to the former, but the latter is a claim that bears watching. It’s ridiculous on its face, especially given the utter lack of evidence to bolster any claim about significant “vote fraud”, but that doesn’t mean that SCOTUS couldn’t eventually find a way to justify a limit to voting rights down the line.

None of this directly impacts Texas – we’re in a different judicial district, and there’s not a chance on earth that we would mail a ballot to every registered voter, no matter the outcome of the various federal lawsuits. But we need to keep an eye on this because it could eventually have an effect here.

Please wear a mask

Don’t be that person. Seriously.

Kara McIntyre remembers the day she likely contracted COVID-19 — she wasn’t wearing a face mask.

She was at Target and began to feel dizzy. Later she checked her temperature and had a fever. So she got tested for the novel coronavirus, and a few days later her results came back positive.

The 39-year-old radio deejay did not wear a face mask before she was infected in March, something she said she feels guilty about now.

“I know I came in contact with a person who tested positive for it,” McIntyre said. “I wasn’t going out much, but I put gas in my car, went to the grocery store. Knowing I went through that and may have gotten other people sick, that’s terrifying.”

As the state reopens restaurants, shopping malls, gyms and salons, whether or not to wear a mask has become a hot-button issue. To some, it’s a way to signal one has their neighbor’s health and well-being in mind. To others, it’s an inconvenience or an attack on American freedoms.

[…]

The Centers for Disease Control and Prevention recommends everyone wear a face mask in public, in addition to practicing social distancing and frequent hand washing. But the president and vice president are often photographed without them.

Face masks have become a divisive issue even in Houston, where residents are known for coming together during times of crisis like Hurricane Harvey, said Cathy Power, 51.

“What I gather is that there is a narrative out there that masks are for the weak. This is wrong — masks are worn to protect others; they are not for protecting yourself,” said Power, who lives in the East End, and suffers chronic health issues. “They reduce the risk by keeping droplets from traveling as far as they would if you were not wearing a mask. It works best if we all wear them.”

People wear masks to protect others around them as studies have shown it has little to do with our own ability to not be infected, said Dr. David Persse, Houston’s health authority.

“Take a mirror, breathe on it and see the mist that forms. If you’re ill, the mist is full of virus,” Persse said. “Do the same thing with the mask in front of you; you’ll see far less of any mist on that mirror at all. That’s how it works.”

This is the sort of assumption that drives post-reopening models that predict a large increase in COVID-19 infections. If people are literally and figuratively letting their guard down, we’re going to be right back where we were in early March before all the shutdowns. We don’t want that, right?

So that leaves two viable options. One is to continue to stay home as much as possible and be relentless about social distancing and avoiding crowds. If you’re doing that, then for the most part you don’t need to wear a mask. But when you are out in public, in places where you are interacting with or just in close contact with other people, then you really do need to wear one. Grocery shopping? Wear a mask. Getting your hair cut? Wear a mask. They do make a difference.

More to the point, if we all agree that the cost of keeping the economy on ice is very high, the key to reopening is to find ways to reduce risk while out in public. Wearing a mask is a low-cost method of risk mitigation. The more we do it, the more free we can be with our movements and interactions.

That’s really all there is to it. If we do this together, we can get that curve down to zero, which is the best-case scenario short of a vaccine. (Which an astonishingly large percentage of people say they won’t take, but that’s a rant for a different day.) Remember, lots of people have no choice about this – health care workers and people in all kids of retail and service jobs have been wearing masks all day every day for a long time now. It’s not that often that you can do a fairly small thing and make a big difference. This is one of those times. Wear your mask. Thank you.

Justice for George Floyd

I stand with the people who are rightfully demanding justice for George Floyd and the many many (far too many) other black men and women like George Lloyd who have been killed by police officers. I join those in being shocked and disappointed (though sadly not surprised) at how different the police response to these protests were to the armed idiots that stormed and terrorized the Michigan legislature a couple of weeks ago because they couldn’t get a haircut or go to the mall. I fear the next wave of armed idiots who are now showing up at protests to wreak havoc, destroy property, and in their wildest dreams incite racial violence. I am thankful that our police chief recognizes this. I will do everything I can to elect a President – and a Senate, and a Congress, and a Legislature – whose first instinct in these times is to work to make things better, and not worse. I will listen to and follow the people who have been leading on this issue for years. I hope you will join me in this.

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.

Reopening 3.0

Who wants to go to a water park?

Gov. Greg Abbott issued a proclamation Tuesday announcing additional services and activities that can resume under his second wave of reopenings, allowing food courts in shopping malls to reopen immediately and giving the green light for water parks to begin operations with limited capacity starting Friday.

Recreational sports programs for adults can restart Sunday, though games and similar competitions may not recommence until June 15. Abbott also permitted driver education programs to resume operations immediately.

For food court dining areas that choose to reopen, Abbott is encouraging malls to designate one or more people who are responsible for enforcing social distancing and ensuring tables are cleaned and disinfected between uses.

[…]

While indoor and outdoor pools can operate at 25% occupancy, the governor’s previous directives have specifically said people should continue to avoid interactive amusement venues like water parks. Abbott was facing pressure, however, from a Houston-area water park that initially said last week that it would defy Abbott’s orders and reopen Saturday for Memorial Day weekend. Asked about that last week, Abbott told an Austin television station that his office was talking with operators to make sure they complied.

“They subject themselves to potential litigation as well as potential licensing-based issues if they fail to comply, and so it’s a potentially business-dangerous process for them to proceed forward knowing that they are subjecting themselves to litigation if they open up and anybody contracts COVID-19,” he said to KXAN.

The park ultimately decided not to open early, Community Impact Newspaper reported.

If you can maintain social distancing, swimming is fairly low risk. My experience at water parks is that you’d be fine on most of the rides, but the lines to get to the rides will be what puts you in jeopardy. I’m also not sure how financially viable a 25%-capacity water park is, but that’s their problem, and if Schlitterbahn thinks they can make it work, they’re in a better position than I am to judge. I don’t expect to be paying them a visit this year, that much I do know.

Also, too, outdoor sporting events are back on the menu.

In a new proclamation, Gov. Greg Abbott announced that fans will be allowed at outdoor professional sporting events in most Texas counties with limited occupancy, under a new expansion of his most recent wave of economic reopenings.

Starting Friday, all Texans counties — excluding Deaf Smith, El Paso, Moore, Potter and Randall counties — will be able to host in-person spectators for outdoor sports in venues as long as visitors are capped at 25% capacity. Leagues will first have to apply to — and receive approval from — the Texas Department of State Health Services.

Under the revised rule, fans are still banned from attending indoor sporting events in person. The rule does not address college or high school athletics.

[…]

The health agency’s protocols for adult recreational sports participants include a recommendation of wearing face masks during sporting events and practices, screening individuals for symptoms of COVID-19, and using and carrying hand sanitizers.

Spectators, meanwhile, are encouraged to avoid being in groups larger than 10, maintain a 6-foot distance from others when possible and wear cloth face coverings.

Regular COVID-19 testing is also recommended throughout the professional sports season.

I’d say the main effect of this is allowing recreational sports leagues to start up. High school and college sports are exempted, the NWSL will be playing only in Utah, and MLB is still a work in progress. I guess auto racing would be open to fans now as well. I will have a decision to make when the college football season starts, but I wasn’t expecting to see an Astros game any time soon except on TV. Do any of these new options appeal to you? Leave a comment and let us know.

Sharing is CARES-ing

I’m still trying to understand this.

The state of Texas and its 12 largest counties are in a tug-of-war over who is responsible for handing out federal coronavirus relief funding for some small cities.

The Coronavirus Aid, Relief, and Economic Security Act signed into law by President Donald Trump in late March sent $11.24 billion in aid to the state. Of that, six Texas cities and 12 counties with a population more than 500,000 received more than $3.2 billion.

The other 242 counties and cities within those counties were allowed to apply for per capita funding allocations from the state out of the remaining $1.85 billion earmarked for local governments.

With an apparent gray area in the legislation, the CARES Act did not specify which entity — the state or the dozen large counties — should cover the small cities within the dozen counties that received direct funding. State leaders including Gov. Greg Abbott want the counties to pay; the counties want the state to share more of its cut.

The skirmish has meant that months after the major relief package was passed, funding for some Texas cities is in limbo, including for Houston-area suburbs such as Pasadena that have been hit with major outbreaks.

[…]

Abbott — as well as Lt. Gov. Dan Patrick, House Speaker Dennis Bonnen and the state Senate Finance Committee and House Appropriations committee chairs and vice-chairs — in a May 11 letter placed the responsibility on the counties.

Two days later, the counties wrote to state leadership to ask for their reconsideration. While the counties account for about 69 percent of all COVID-19 cases, they received just about 29 percent of the relief funds, they wrote in a letter shared with Hearst Newspapers.

“We ask you to address this shortfall,” they wrote. “Counties are your frontline partners in fighting the COVID-19 pandemic. Help us help Texans stay in their homes, keep their jobs, and have food on their table.”

I guess I need to know more about what the priorities are here. It seems clear to me that the funds should be distributed based primarily on need, with any other considerations coming after that. By “need” I mean testing and support for frontline responders and hospitals, food and housing for those in financial distress, buying supplies like hand sanitizer and PPEs, that sort of thing. Whether that should come from the money allocated to the state or the money allocated to the larger counties, I don’t care. It should come from both, depending on their capacity. Maybe there is a good objective case for it to come from one source or the other – I can’t tell from this story – but even if that’s so, I’d want the state and counties to be working together to maximize the return on these federal dollars. That’s what really matters, doesn’t it?

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.

How about some antibody tests?

That would be good.

After months of emphasis on diagnostic screening, contact tracing and research into possible treatments, Houston is about to deploy a new tool in the effort to contain COVID-19: antibody testing.

Baylor College of Medicine researchers last week presented evidence to school leadership that the blood test it developed to detect whether an individual has been infected with the coronavirus is highly accurate and ready for use in studies assessing the virus’ reach in the area. Such studies would provide the answer that hasn’t been ascertainable because of the shortage of diagnostic testing.

“This will tell us the severity of the disease based on prevalence, the number of people who have had the virus but do not show up in case counts because they were asymptomatic and weren’t tested,” said Dr. Paul Klotman, president of Baylor. “That’s needed to better understand how infections impact different Houston communities, the variations in those communities and the numbers in certain high-risk environments, like prisons and nursing homes.”

Klotman said he anticipates Baylor will partner with local health departments to determine optimal resource allocation — such as where to focus testing and contact tracing — based on the prevalence the studies find in communities.

A Baylor prevalence study based on antibody testing would put the Houston region among a handful of U.S. communities to conduct such research, which has found that more than 20 percent of people in New York City but only 4 percent of those in Los Angeles County have been infected. Klotman said he thinks Houston’s rate will be closer to the California number.

Such antibody testing, repeated over time, also would show the area’s progress toward herd immunity, the protection from a contagious disease that occurs when a high percentage of the population has either had the infection or been vaccinated. Experts say that percentage — there is no vaccine for the coronavirus yet — needs to reach at least 60 to 70.

There’s more, and you should read the rest. As a reminder, viral tests are to see who has the virus now, and antibody tests are to see who has had it in the past. Do not mix the two if you want to know the current case count. I would note that the Texas Tribune case tracker showed 10,921 infections in Harris County as of May 25. If that four percent guess is accurate, then given a county population of 4.7 million, the actual number of cases would be more like 188,000. That’s consistent, even a bit under, the typical antibody test experience, which winds up estimating the real infection count at about ten times the “official” count. And note that we’d have to have more than ten times that number to get close to the minimum threshold for herd immunity.

Anyway. I look forward to seeing what this can tell us. In conjunction with the wastewater testing, maybe we can finally get a clear local picture of this pandemic.

A note about voter ID and vote by mail

See if you can detect the same theme I’m detecting.

From Houston Public Media:

Rice University recently surveyed Harris County voters. And nearly 70 percent of respondents preferred voting by mail if that’s an option.

“We found that a large number of voters – particularly Democrats, women, and persons over 65 – were reluctant to vote in person at a polling location on or before Election Day,” said Rice political scientist Bob Stein.

[…]

But the Rice survey shows Republicans are far less likely to want to vote by mail, let alone to support others doing so for fear of catching COVID-19. One reason: potential voter fraud.

Clay Mills of Humble has been a Republican poll judge for the past 10 years.

“In my opinion, based on all those years of experience, by far the easiest way to commit fraud is vote by mail,” Mills said. “I think we should always be concerned about health and do the best we can, but we also can’t destroy the purity of the vote based on health reasons.”

Such fraud is extremely rare, according to studies conducted by the Brennan Center for Justice at New York University School of Law.

Michael Palmquist is also a Republican poll judge and army veteran from Spring. As for concerns about voting in person during the pandemic? “None whatsoever.”

“I mean, if I can go to the grocery store, and I can go to Sam’s, and I can go to Walmart, there’s no reason I can’t stand in line and vote,” Palmquist said.

And Joanne Thomas, an Alabama native and a teacher from West Houston, is battling cancer. But she’s still determined to vote in person, not by mail.

“I will wear my gloves, I will wear my mask, and I will go in and vote,” Thomas said. “I have family members who have died for the right for me to vote.”

Like Mills, Thomas is concerned about potential vote fraud.

“I have heard the term ballot harvesting, and I totally disagree with it because you can’t prove who you are,” Thomas said, “I am a firm believer that you should carry some form of ID to have the privilege to vote in the United States of America. You should be an American citizen and pay taxes. If you don’t, you don’t have the right to have the say on who will govern us.”

See here for more on the poll in question, but that’s not what I want to focus on.

From the DMN:

Still the only voter ID anyone should need

Lewis Sessions, a Dallas lawyer who is not involved in the case, agrees with Paxton. Sessions, who has represented the county Republican Party in voter fraud cases, said he opposes expanded mail voting because the system can be exploited by fraudsters.

If mail voting is opened up to a larger portion of the population, he said, election officials will be unprepared to handle such an increase and unable to verify each ballot.

David Thomas, 72, of Oak Cliff said he was similarly concerned that officials would not be able to use the state’s voter identification law to verify ballots cast by mail.

“Somebody else can vote for you,” he said.

Sessions, 67, said the courts should stay out of the legal battle and let local officials determine the best way to hold elections during the pandemic.

“This can be done, it’s just a question of working through the logistics,” he said.

But not all Republicans are opposed to expanding mail voting. Kathaleen Wall, a GOP candidate in a runoff to replace Sugar Land Rep. Pete Olson, has urged her voters to vote by mail, saying in mailers that they have the “green light” if they are worried about contracting or spreading the virus.

John Pudner, executive director of Take Back Our Republic, a national conservative nonprofit that works on campaign finance reform, said he supports expanding mail voting during the pandemic — with some caveats.

Pudner, a longtime Republican consultant who worked for President George W. Bush’s campaign in 2000, said mail ballot applications should be sent to all voters as long as the process includes a form of verification, like a signature, a witness match or a thumbprint.

His group does not support sending ballots to all registered voters or conducting the elections entirely by mail, as Nevada has announced. Pudner said he also thinks the changes should be temporary and not extend beyond the pandemic.

Did you notice the reference to voter ID in each of the two stories? I’ve previously discussed this, but it seems this is the sort of thing that will need to be repeated over and over again. The reason that the odious voter ID law does not apply to mail ballots is because the Republicans that passed the voter ID law chose to exempt mail ballots from any voter ID requirement. The reason they chose to exempt mail ballots is because mail ballots, at least at the time that the voter ID law was passed, strongly favored Republicans, and Republican legislators did not want to make it harder for their voters to vote. (Also, too, voters over the age of 65 are disproportionately white, as noted by LULAC when they intervened in the first federal lawsuit over expanding vote by mail.)

Now, I am not calling for voter ID to be extended to include mail ballots. The voter ID law is trash and needs to be thrown out. My point is simply that if you are going to trot out the creaky old talking points about “vote fraud”, you should at least be made to reckon with the fact that the Republican legislators who passed the voter ID law in 2011 specifically and deliberately chose to exempt mail ballots from its requirement. It was convenient for them to claim that “vote fraud” was not an issue for mail ballots then, just as it is convenient for them to claim that it is an issue now. You might want to ask yourself why that is.

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.

The COVID models remain pessimistic about Texas

Make of this what you will.

The coronavirus may still be spreading at epidemic rates in 24 states, particularly in the South and Midwest, according to new research that highlights the risk of a second wave of infections in places that reopen too quickly or without sufficient precautions.

Researchers at Imperial College London created a model that incorporates cellphone data showing that people sharply reduced their movements after stay-at-home orders were broadly imposed in March. With restrictions now easing and mobility increasing with the approach of Memorial Day and the unofficial start of summer, the researchers developed an estimate of viral spread as of May 17.

It is a snapshot of a transitional moment in the pandemic and captures the patchwork nature across the country of covid-19, the disease caused by the virus. Some states have had little viral spread or “crushed the curve” to a great degree and have some wiggle room to reopen their economies without generating a new epidemic-level surge in cases. Others are nowhere near containing the virus.

The model, which has not been peer reviewed, shows that in the majority of states, a second wave looms if people abandon efforts to mitigate the viral spread.

“There’s evidence that the U.S. is not under control, as an entire country,” said Samir Bhatt, a senior lecturer in geostatistics at Imperial College.

[…]

The Imperial College researchers estimated the virus’s reproduction number, known as R0, or R naught. This is the average number of infections generated by each infected person in a vulnerable population. The researchers found the reproduction number has dropped below 1 in 26 states and the District. In those places, as of May 17, the epidemic was waning.

In 24 states, however, the model shows a reproduction number over 1. Texas tops the list, followed by Arizona, Illinois, Colorado, Ohio, Minnesota, Indiana, Iowa, Alabama and Wisconsin.

When the R naught is below 1, it means the virus is hitting a lot of dead ends as it infects people. Someone who is infected but who follows social distancing rules or stays quarantined until recovering has a good chance of not infecting anyone else. The challenge is finding a way to reopen the economy with sufficient care to prevent the reproduction number from going over 1.

[…]

In Texas, Dallas County Judge Clay Jenkins said he consults with doctors and experts from area hospitals, “and what they tell us is that we’re reopening too fast, and we’re reopening in the wrong order.”

Local jurisdictions in Texas do not have the authority to issue more stringent restrictions than the state, which began aggressively reopening this month. So Dallas has focused on messaging. The county has a daily “covid-19 risk level” that is currently red, for “stay home, stay safe.” Officials are working on seals that businesses can display to indicate they are meeting local public health guidelines, not just state mandates.

The Imperial College estimates for Texas are in line with internal modeling conducted by university experts advising state leaders.

Rebecca Fischer, an epidemiologist at Texas A&M University and part of a team partnering with the governor’s office, said the daily caseload was fluctuating, but “it looks like we’re not cresting a peak and coming down the other side.”

The embedded graphic shows the probability (according to the model) that R naught is less than one in the given state. For Texas, that probability is close to zero, which means that the virus is still spreading at an increasing rate. This is consistent with the PolicyLab study, which uses county-level data. You can see the Imperial College study here, and a brief analysis of it by Josh Marshall here. There’s still a lot we don’t know, and if loosening restrictions is going to have a bad effect on the pandemic it’ll still be a couple of weeks before we really begin to feel it. Staying at home, social distancing, and wearing masks are still your best bet, but I doubt I will convince you of that if you’re certain you know better.

By the way, it’s hurricane season again

Just FYI.

An above-normal Atlantic hurricane season is expected this year, including three to six major storms with winds over 111 mph, according to a forecast released Thursday by the National Oceanic and Atmospheric Administration.

This would make 2020 the fifth consecutive above-normal hurricane season.

And this year has already seen a named storm: Tropical Storm Arthur. The earlier appearance of hurricanes in recent years has led to some calls for an earlier official start to the season, which now is defined as running from June 1 through Nov. 30.

The outlook predicts a 60 percent chance of an above-normal season, a 30 percent chance of a near-normal season and only a 10 percent chance of a below-normal season.

NOAA’s Climate Prediction Center is forecasting a likely range of 13 to 19 named storms (winds of 39 mph or higher), of which 6 to 10 could become hurricanes (winds of 74 mph or higher), including 3 to 6 major hurricanes (category 3, 4 or 5; with winds of 111 mph or higher). NOAA provides these ranges with a 70% confidence. An average hurricane season produces 12 major named storms, of which six become hurricanes, including 3 major hurricanes.

There were 18 named storms last year, if you can remember anything from the Before Times. Of those, six were hurricanes and three were major. So, you know. You can see a captioned video of the NOAA’s 2020 Atlantic Hurricane Season Outlook here. Remember to buy some bottled water next time you venture out on a shopping run.

Interview with Rep. Eddie Rodriguez

Rep. Eddie Rodriguez

We’re about a month out from the start of early voting for the July 14 elections, which are the primary runoffs and at least one special election, to fill the vacancy in the State Senate left by Kirk Watson’s resignation. There’s a field of six set to compete in the heavily Democratic SD14, but really only two candidates that matter. I’ve done interviews with both and will be presenting them to you here. First up is State Rep. Eddie Rodriguez, who has represented HD51 in Travis County since 2002. A native of the Rio Grande Valley and an alum of UT (both undergrad and the law school), Rep. Rodriguez serves on the House Committees on Calendars, State Affairs and Ways & Means in the 86th Legislative Session. He is co-founder and Chair of the Texas House Farm-to-Table Caucus, Policy Chair of the Mexican American Legislative Caucus and an active member of the House Women’s Caucus, the House Democratic Caucus and the Legislative Study Group. Here’s the interview:

I will have an interview with former Travis County Judge Sarah Eckhardt on Monday. I’m going to review the primary runoffs of interest in the coming weeks as well.

School districts set to get financial relief for coronavirus

Good.

Texas will distribute the vast majority of a $1.29 billion federal stimulus package to school districts this summer, using it to deliver on a promise that schools will remain fully funded this school year despite statewide closures due to the coronavirus pandemic, Texas Education Commissioner Mike Morath told school officials on a call Thursday.

State officials told school districts in March there would be no financial penalties for attendance declines, as COVID-19 fears spread and school districts were required to close their buildings. Now, Texas has decided to use its share of the federal stimulus package to fund that promise, distributing 90% directly to districts based on their student poverty rates, aiming to forestall layoffs and budget cuts.

Texas school districts can see how much they can expect to receive on the Texas Education Agency’s website. Houston Independent School District, the state’s most populous, will receive the highest award of $81.7 million.

On top of that stimulus package, Gov. Greg Abbott and state lawmakers agreed to reimburse all school districts for up to 75% of their pandemic-related expenses to date, using money from a federal grant awarded to Gov. Greg Abbott’s office. School districts have spent a state total of about $392 million on COVID-19 expenses.

School districts in Texas are funded based on student attendance, meaning the statewide school closures could have been a major financial hit. “With school closed to in-person attendance for nearly a third of the school year, generating the remainder of that entitlement would be impossible without us stepping in and making some changes,” Morath said Thursday.

States are allowed to use the federal stimulus funding to offset budget holes. “Federal guidance explicitly authorizes it as a way for states to sustain their school finance system, as long as net state funding remains above prior years,” Morath said.

From the description in the story, I don’t have any specific concerns. It sounds like the districts are going to have their COVID expenses mostly covered, which is what should happen in times like these. Now we just need the same thing for cities and states.

Nothing but gray skies ahead

You want a small sign that things are returning to “normal”, here you go.

Houston’s air pollution is returning to normal levels, following a period of cleaner skies during the stay-at-home orders put in place to slow the spread the coronavirus.

As Gov. Greg Abbott moves to reopen Texas’ economy, vehicles are back on the roads and with them come emissions from the burning of gasoline and diesel.

Ozone levels have now surpassed legal limits five times since April 20 after staying unusually low for more than a month. Nitrogen oxide emissions — a key contributor to smog — are back near where they were before the coronavirus shutdowns began, said Daniel Cohan, an environmental engineering professor at Rice University.

“It looks like most of the reduction in nitrogen dioxide over Houston has now faded,” he said. “There appears to be a partial bounce back in travel.”

Hope you enjoyed the breathable air while it lasted.

Abbott expects there to be college football this fall

Pretty optimistic, if you ask me.

Gov. Greg Abbott said he believes college football will begin on schedule in Texas with some fans in the stands, he told KXAN during an interview Friday.

“My prediction is yes we’re going to have college football beginning as scheduled, on schedule, with at least some level of fans in the stands,” the governor said.

Abbott said what is unclear at the moment is what the capacity level would be.

“Would it be strategic and limited to ensure that we have safe distancing practices, there are factors we simply do not know at this time,” Abbott explained about the potential health risks of reopening UT football in the fall.

Abbott stated that the University of Texas at Austin’s athletic director needs a decision by early August. He said the state thinks it should be able to make a decision by then.

This isn’t out of the blue. In April, the chancellors of Texas A&M and Texas Tech said they expect there will be football when they reopen in the fall, though that story didn’t address the question of fans. ESPN quoted Abbott referring to the reopening plans of MLB and the NBA, though those sports and others like MLS are all talking about fan-free games, possibly at a single location. It’s one thing to imagine the games happening, especially if the campuses are open anyway. It’s another to imagine sixty thousand people or more packed into a stadium screaming their lungs out, especially if the pro sports leagues are still playing before nothing but empty seats. Texas A&M at least is thinking about what this might mean.

“We have not gone down the path of examining every section,” A&M athletic director Ross Bjork said of exactly how many fans Kyle Field will hold with mandated social distancing in place. “There are a lot of scenarios being discussed.”

Like that proverbial glass, Bjork prefers to envision a stadium as half full, not half empty, should restrictions be in place this season.

“We want a full experience, and we’re staying positive — that’s the approach we’re taking right now,” Bjork said. “We know we can pivot quickly if we have to, but we have not mapped that out.”

[…]

Texas Gov. Greg Abbott has gradually reopened the state in the past month, but he has held off on potentially crowded events such as county fairs. With that in mind, what exactly would Kyle Field look like at, say, 25 percent capacity?

Roughly 25,000 fans would be spread throughout the stadium, and which fans would be allowed in would be determined in a potentially convoluted process.

“You’ve got 102,733 seats,” Bjork said. “Last year we sold about 85,000 season tickets, including right around 35,000 student tickets. That leaves you about 18,000 empty seats. The great thing about Kyle Field is we have a lot of space. So you would start with your infrastructure and analyze it from there, but we would not (ideally) want to decrease our season ticket base. …

“We have a huge footprint, and we just haven’t had to go down that (downsizing) path yet.”

Should social distancing be required at Kyle Field this fall, not only would fans be spaced at least 6 feet apart throughout the stadium, but multiple measures would be in place to try to prevent the spread of the new coronavirus.

That might mean everyone but the players and those on the sideline would be required to wear masks (further muffling touchdown celebrations and the Aggies’ tradition of kissing after a score); an abundance of hand sanitizers spread throughout the stadium; and scheduled times for different sections to enter the stadium so there is no squeeze at the gates, where body temperatures might also be checked.

Bjork added that it might be helpful for fans to bring their own beverage containers to limit the number of hands on a cup, making last year’s new policy of selling alcohol throughout the stadium a bit trickier. A&M and its concessions cohort made more than $1 million off alcohol sales at Kyle Field in 2019, according to the university.

“One of the things that we’ve had to do with the alcohol policy is have (employees) pour the bottle or can of beer into a cup (for fans); that’s an SEC policy,” Bjork said. “Does that need to change so you limit as many contacts as possible? Those approaches are being studied right now.”

So are the possibilities of limiting the university-sanctioned tailgating scene around Kyle Field, and the myriad activities in the Aggie Fan Zone on the plaza north of the stadium that create a festival-like atmosphere in the hours before kickoff.

“There’s nothing you can really put in writing right now or have a ‘backup’ plan yet, because there’s too much uncertainty, and it’s way too early,” Bjork said of the Aggies’ plans for Kyle Field starting with the Sept. 5 opener against Abilene Christian.

Which fans would get to attend would also present a knotty question for them. I do expect there to be a lot of pressure for playing college football, for various financial and social reasons. How that manifests remains an open question, and that’s before we take into account the possibility of a resurgence, in which case all of this will seem extremely stupid.

This is an issue that has more than the usual amount of resonance for me. As you know if you’ve been reading this site for awhile or know me in Real Life, I’ve been a member of the Rice Marching Owl Band (MOB) for many years. I don’t know at this point what Rice plans to go regarding its sports teams, nor do I know at this point what the MOB plans to do. (They’ve been busy with the usual end-of-semester activities, saying goodbye to graduating seniors and installing the new drum major and drum minor, that sort of thing.) I really don’t know what I plan to do just yet if everyone is going ahead like normal. On the one hand, we’ll be outside and there will be a reasonable amount of space for us all in the stands. On the other hand, there’s only so much social distancing a band can do and still sound like a band, the deep breathing that playing a wind instrument requires is an extra risk factor for COVID transmission, and everything else about the stadium experience will involve a lot of closer-than-I’m-comfortable-with contact with other people. Maybe if we’ve really got infection rates under control, or there’s true universal testing, I’d be willing to trot out there for another season like it was the Before Times. I’m not feeling that right now. Ask me again in August and we’ll see. The Chron has more.

Dan Patrick gets all hysterical about voting by mail

Poor Dan. You know how emotional he gets. Could someone get him a nice cup of chamomile tea, to help him calm down a bit? Thanks.

Lt. Gov. Dan Patrick on Friday said that efforts to expand mail-in voting during the coronavirus amount to a “scam by Democrats to steal the election” and claimed that people under 65 are at more risk of dying in a car wreck on the way to vote than they are from dying from the coronavirus because they voted in person.

“There is no reason — capital N, capital O — no reason that anyone under 65 should be able to say I am afraid to go vote,” Patrick, a Republican, said in an interview with Fox News. “Have they been to a grocery store? Have they been to Walmart? Have they been to Lowe’s? Have they been to Home Depot? Have they been anywhere? Have they been afraid to go out of their house? This is a scam by the Democrats to steal the election.”

Texas has been locked in a legal fight over whether it has to expand who is eligible to vote by mail during the coronavirus pandemic. Multiple groups have sued the state, saying it’s dangerous to require people to wait in line and cast ballots on machines shared with other voters while the virus is spreading. GOP state officials have opposed the effort, however, saying that mail-in voting is vulnerable to fraud.

Patrick repeated those worries about fraud on Friday, while also dismissing any fears people might have about going to the polls if they aren’t eligible for a mail-in ballot. Patrick noted that the vast majority of people dying from the virus are older. Currently in Texas, anyone 65 or older or with a disability is eligible for a ballot.

“This idea that we want to give you a disability claim because I am afraid to go vote — if you are under 65 — is laughable,” Patrick said. “You have more chance of being in a serious auto accident if you are under 65 on the way to vote than you do from catching the virus and dying from it on the way to voting. This is the greatest scam ever.”

Texas does not have complete data for the ages of the 1,440 people who have died in the state from the virus. But the state has completed fatality investigations for 489 of those deaths, and about 29% of those were people confirmed to be under 65.

In addition, public health experts are encouraging people of all ages to limit their social interactions. While older people are generally at more risk of dying from the virus, young people can transmit it and endanger people of all ages.

You may recall, Dan Patrick said there were more important things than living and that senior citizens should be willing to die for the economy. So maybe he’s not the best judge of what one’s risk appetite should be.

It’s easy to mock Dan “Menace II Grandma” Patrick, and we all should do it on a regular basis because he is ridiculous. But we should also look at his words and try to understand what he’s really saying. Whether he meant to or not, there are three things that he made clear from this little outburst.

First, there’s no actual justification for the 65-and-over qualification. It’s completely arbitrary, and Patrick doesn’t even try to defend it. It’s there because that’s the number lawmakers picked when they wrote the law. If someone did press Patrick on this point, I’m sure he’d have little to offer beyond some form of “that’s just the way it is”. The federal age-discrimination lawsuit hasn’t had a response from the state yet, and I’ll be very interested to see what justification they come up with. My guess is they won’t bother to try to justify it, they’ll instead simply claim that having an age limit isn’t discriminatory. My point here is that Dan Patrick can’t defend this provision in the law, he can only hide behind it.

Second, there’s the “vote fraud” shibboleth. Forget for a minute that there’s a trivially small amount of actual vote fraud in the system, since statistics and logic mean nothing in this context. I’m old enough to remember when the voter ID bill was passed and the litigation was filed against it. One of the many points of contention over this odious law was the fact that it only applied to in person voting. Voting by mail, which was a smaller component of turnout than it is now and which was much more Republican than it is now (look at the absentee ballot totals for Harris County from 2008 and 2012, for example), was exempted in part because the Republicans who passed the law did not want to burden their own voters, but also because they professed no concerns at all vote vote by mail fraud, even as Democratic legislators and people who testified at the hearings pointed out that most of the handful of vote fraud examples we had centered on mail ballots. The only reason why Republicans are trotting out their “vote fraud!” wolf cries now is because Democrats have gotten better at using vote by mail. That’s what they’re actually afraid of.

And that brings us to point three. The Republicans know they are losing the argument. There was a time when Republicans didn’t care about who was showing up to vote, because they were confident they were going to win all of the elections they wanted to win. They had the lion’s share of the vote – George W. Bush won re-election as Governor in 1998 with 68% of the vote, and he got 62% of the vote as President in 2004 – and they knew it. They have no such assurance today, and they know that, too. All of the big urban counties (save for Tarrant, which is headed that way) are hopelessly Democratic, and now the big suburban counties are slipping away from them. They see their lack of popularity with younger voters and people of color. They’re not going to change what they stand for, so Plan B is to make it harder on all the people they don’t like to vote. This isn’t a revelation, and yes I know what Paul Weyrich was saying back in the 1980s. The difference now is that they really are saying it out loud. They don’t want to make it easier for people to vote, because they fear – with justification – they will lose too many elections if they do. They know people aren’t buying what they’re selling, so they’re trying to restrict the marketplace.

So yes, please do continue mocking Dan “Triggered By Sandra Bullock” Patrick. It’s fun, and he deserves it. But listen to what he’s saying, because he’s telling us what he’s afraid of. Let’s make sure we’re paying close attention to that.

That’s not how you test

Oops.

Texas health officials made a key change Thursday to how they report data about the coronavirus, distinguishing antibody tests from standard viral tests and prompting slight increases in the state’s oft-cited daily statistic known as the positivity rate.

The positivity rate is the ratio of the confirmed cases to total tests, presented by the state as a seven-day rolling average. The Texas Department State of Health Services disclosed for the first time Thursday that as of a day earlier, it had counted 49,313 antibody tests as as part of its “total tests” tally. That represents 6.4% of the 770,241 total tests that the state had reported through Wednesday.

Health experts have warned against conflating the tests because they are distinctly different. Antibody tests detect whether someone was previously infected, while standard viral tests determine whether someone currently has the virus.

Now that DSHS is reporting the number of antibody tests, it has recalculated its daily positivity rates starting Tuesday to exclude such tests. That led to a 0.41 percentage-point increase in Tuesday’s rate and a 0.55 point increase in Wednesday’s rate, according to DSHS calculations.

DSHS acknowledged last week that it was reporting an unknown quantity of antibody tests as part of the “total tests” figure. Despite that, Gov. Greg Abbott incorrectly claimed Monday that the state was not “commingling” the numbers while promising the state would soon break out the antibody test count.

[…]

When public health agencies combine antibody testing figures with viral testing figures, “I want to scream,” said Seema Yasmin, an epidemiologist and director of the Stanford Health Communications Initiative.

Viral tests, usually taken from nasal swabs, can detect an active coronavirus infection. If a person’s biological sample is found to have traces of the virus’s genetic material, public health workers can order them to self-isolate and track down any of their contacts who may have been exposed.

Antibody tests “are like looking in the rearview mirror,” Yasmin said, because they may show if a person has recovered from a coronavirus infection. That can be useful for public health surveillance, but it does not offer much insight about where the virus is currently spreading. Another issue is that many antibody tests have been shown to have high rates of inaccuracy, she said.

“As an epidemiologist, this level of messiness in the data makes your job so much more difficult, and it misleads the public about what’s really happening,” Yasmin said. “We’ve been talking about the capacity for testing increasing over the last few weeks, but now we might have to tell the public that might not be true.”

And dumping antibody testing data into the pool of viral testing data brings the overall positivity rate down, reflecting “a deceptive misuse of the data,” analysts for the COVID Tracking Project wrote last week. That’s because the numbers may make it seem like the state has grown its testing capacity even if a state’s viral testing capacity remains flat.

“This is crucial as we need increased capacity for viral testing before reopening to identify active infections even in the pre-symptomatic or asymptomatic stages,” the analysts wrote.

To be fair, Texas is not the only state to have done this. Florida and Georgia have been accused of manipulating their data in other ways as well. The bottom line here is that we’ll never get our arms around this pandemic if we don’t have good data. The data is messy enough as it is, we surely don’t need to be making it worse.

The NBA inches closer to a return

We’ll know more soon.

NBA teams are expecting the league office will issue guidelines around June 1 that will allow franchises to start recalling players who’ve left their markets as a first step toward a formal ramp-up for the season’s resumption, sources told ESPN.

Teams expect a similar timeline from the league on when they’ll be allowed to expand individual workouts already underway with in-market players to include more team personnel, sources said.

The NBA suspended the 2019-20 season on March 11 because of the coronavirus pandemic. The league is discussing a step-by-step plan for a resumption of the season that includes an initial two-week recall of players into team marketplaces for a period of quarantine, one to two weeks of individual workouts at team facilities, and a two- to three-week formal training camp, sources told ESPN.

Barring an unforeseen turn of events, many NBA owners, executives and National Basketball Players Association elders believe commissioner Adam Silver will green-light the return to play in June — with games expected to resume sometime before the end of July, sources said.

The NBA is still considering a two-site format for the return of the season, including Orlando’s Walt Disney World and Las Vegas, sources said.

See here for some background. That story was from Thursday. As of Saturday, things had progressed a bit further.

The NBA is going to Disneyworld. Or at least, it hopes to save its season and declare a champion in a single-site scenario outside of Orlando.

In the most public sign yet that the NBA is hopeful that it can resume its 2019-20 season amid the coronavirus pandemic, NBA spokesman Mike Bass said the league has begun exploratory talks with the Walt Disney Company about using its venue in central Florida to hold practices and games without fans present.

“The NBA, in conjunction with the National Basketball Players Association, is engaged in exploratory conversations with The Walt Disney Company about restarting the 2019-20 NBA season in late July at Disney’s ESPN Wide World of Sports Complex in Florida as a single site for an NBA campus for games, practices and housing,” Bass said in a statement.

“Our priority continues to be the health and safety of all involved, and we are working with public health experts and government officials on a comprehensive set of guidelines to ensure that appropriate medical protocols and protections are in place.”

The MLS is also looking at Orlando, at the ESPN Wide World of Sports facility. I don’t know how much that might complicate the logistics, but one presumes they will figure it out. The Chron had reported earlier in the week that the Toyota Center in Houston had been in the discussion as a potential venue, but that is apparently no longer in play. It’s possible the NBA will go straight into a playoff system, or it may play some more regular season games but eliminate the teams with the worst records to limit the number of people required to be there. I guess we’ll find out soon enough.

As you know, Major League Baseball has also been working on a season-starting proposal, though in typical fashion the owners are making up claims about financial losses in an attempt to back out of the previous agreement with the players and squeeze them on salaries. I suspect this will get resolved at some point, in which case we may suddenly have a lot of sports coming back to us. Assuming, of course, that there isn’t a big post-reopening spike in infections or other insurmountable obstacle. But if things go as the optimists hope, we could go from no sports to a fairly full slate in a hurry. We’ll see.

Hidalgo extends stay-at-home order

Well, sort of.

Judge Lina Hidalgo

Harris County Judge Lina Hidalgo on Thursday issued new guidelines urging residents to stay home when possible, even as Gov. Greg Abbott reopens most businesses.

The extended Stay Home, Work Safe order is in effect through June 10, though it bears little resemblance to the original directive in March that closed most businesses and ordered residents to remain at home.

San Antonio and Bexar County extended their own stay-home guidelines through June 4.

Abbott’s orders reopening Texas businesses override any rules from local officials. The governor also barred cities and counties from enforcing facemask requirements, as Hidalgo had attempted.

The county judge said her order reminds residents to keep practicing social distancing.

“I don’t want the community to get the message that we’re done,” Hidalgo said. “We may well be in the eye of the hurricane. There’s still no cure, no vaccine.”

[…]

Hidalgo on Thursday also unveiled a series of guidelines meant to protect employees returning to their jobs and help businesses create safe workplaces. They include staggering shifts to avoid congregating workers, taking employees’ temperatures, providing face coverings and never requiring anyone to come to work if they feel ill.

Retail firms should clean and disinfect shops before reopening and give employees a break every hour so they may wash their hands or take other safety precautions, she said. Employers also should keep attendance of all workers on-site each day, so contract tracing can easily occur in the event of an outbreak.

State Rep. Armando Walle, whom Hidalgo appointed the county’s coronavirus recovery czar, said it is hoped the worker guidelines will prevent outbreaks like those discovered at meatpacking plants in the Texas Panhandle.

You can see the amended order here. It heavily references the most recent gubernatorial executive order, and encourages everyone to continue social distancing. The fact of the matter is that while the daily new case average is holding steady, that means it isn’t decreasing. We’re not getting any closer to having no new cases. That means that another increase in the new case rate could still happen, because the disease hasn’t gone away. If we don’t want a spike to happen and we do want to reopen, we have to keep being careful and keep exercising caution. We’re not past this, we’re choosing to live with it. It’s up to us to make sure we don’t regret that choice.

Are we headed towards a coronavirus spike?

One set of researchers thinks we may be.

Houston is one of several cities in the South that could see spikes in COVID-19 cases over the next four weeks as restrictions are eased, according to new research that uses cellphone data to track how well people are social distancing.

The updated projection, from PolicyLab at Children’s Hospital of Philadelphia, found that traffic to non-essential businesses has jumped especially in Texas and Florida, which have moved aggressively to reopen.

In Harris County, the model predicts the outbreak will grow from about 200 new cases per day to more than 2,000 over the next month.

“Some areas—particularly in the south—that have moved more quickly to reopen are showing a higher risk for resurgence,” the researchers wrote in a blog post. “If people in Houston and Palm Beach, Fla., for example, aren’t being cautious with masking in indoor crowded locations and with hygiene and disinfection, local governments may need to intervene again should they lose control of the epidemic.”

[…]

The PolicyLab research is tracking 389 large counties across the country with active outbreaks. It found that projections are best in places that are relaxing restrictions selectively in areas with fewer cases and less transmission.

“Given these cautious actions by our governments, we have already seen that the predicted resurgence has not occurred in most places that are beginning to reopen—rather, daily cases are either plateauing or falling,” the researchers wrote. “But the picture our models are painting for Texas and Florida provide ample evidence to others who would choose to move too quickly. We see these concerns even as we adjust for additional testing capacity that might have inflated our forecasts.”

See here and here for more on the predictions, and here for an earlier press release about their model. As far as I can tell, their model depends on “social distancing measures, defined by travel to non-essential businesses”. They say their data comes from a variety of publicly-available sources, but that’s about as much detail as I can find. I’m not an expert in any way, so I’m in no position to critique this. Fortunately, Dr. Peter Hotez is an expert, and he shared some thoughts about this in Friday’s Chron.

I understand the importance of opening up the economy. The worry that I have is that we haven’t put in place a public health system — the testing, the contact tracing — that’s commensurate to sustain the economy.

Some models show fairly dire predictions for Houston. I’m referring to the Children’s Hospital of Philadelphia model that shows that by the summer, if we’re only at about 50% of the social distancing, we’re doing now, Harris County could see a steep surge in the number of patients coming into the hospitals and intensive care units.

It’s a model. It’s only as good as the assumptions that it’s based on, and we know the assumptions are not robust. But it gives me pause for concern that unless we have that health system in place, we could be looking at an epidemic that’s far greater than the one we’ve gone through.

Let’s say we’re opening up as as we are now. The way a surge works is, it’s not as if we’re going to see a gradual increase in cases. The models say things will look good for weeks. At first, it’s a flat curve, then it’s flat, it’s flat, and only after all that do you start seeing a steep, steep increase.

That’s what worries me. In those flat weeks we’ll get this sense of complacency, and then people are going to start going into the bars. Forget about one quarter occupancy in the bars. Poison Girl, on Westheimer, is going to be full. And so are all the other places all across Houston.

So: How do we fix that? I think it’s having a health system that’s larger and more extensive than what’s being proposed. We’re going to have to do extensive testing in the workplace so that you’d know if your colleagues have COVID-19 — especially asymptomatic COVID-19.

The number of contact tracers has to be far greater than the numbers that I’m seeing. Gov. Abbott says that Texas has around 2,000 and plans to hire 2,000 more. But consider that Gov. Cuomo in New York State is hiring 17,000 contact tracers. A state that’s quite a bit smaller is hiring a much larger number.

We also still don’t have that syndromic-monitoring system in place that you and I have talked about — an app that would allow Houstonians to report how they’re feeling, or that would track temperatures, like the Kinsa electronic thermometer app.

We should be bringing in our best engineering minds out of the oil and gas industry, out of NASA, out of the Texas Medical Center to put in place an app-based system — maybe make a hybrid between the kinds of things being put out there by Apple or Google or Kinsa, or the kinds of things they’re doing in Australia. We can design one that works for our culture, works for our system. But we’re not assembling the engineers to put that in place.

We don’t even have an epidemiological model for the city of Houston. There’s one for Dallas, put out by UT Southwestern and the University of Texas. Austin’s put out one. But I haven’t seen one for Houston.

So I’m worried that if people are going to start piling into bars and restaurants, and we don’t see the numbers going up, within a couple of weeks from now, it’ll be business as usual. Everybody will feel good, will be saying, “Hey, I’m not seeing the cases go up.”

And it’s going to really accelerate starting in the fall. This is not only true of Houston; it’s true of cities across the U.S. It would happen right before the 2020 election, so I worry about a lot of instability and how we mitigate that.

So there you have it. Keep it up with the social distancing and staying at home, avoid crowds, and wear a mask. We all have a role to play.

Another profile of Judge Hidalgo

It’s good, and she deserves the attention she’s getting, but there’s something about this that bugs me a little, and I’m trying to put my finger on it.

Judge Lina Hidalgo

On March 1, before Harris County reported its first confirmed case of the coronavirus but as the disease was already infiltrating America’s biggest cities, Harris County Judge Lina Hidalgo made a call to ground zero.

It was Dow Constantine, her counterpart in Washington state’s King County, who picked up. At the time, he was responding to what was believed to be the first coronavirus death in the United States.

Hidalgo believed Texas had the benefit of precious time, and she wanted Constantine’s advice to make sure she didn’t squander it. What did he wish he had known two weeks ago? How could Washington have been more prepared?

“I sat down with my team and said, ‘Guys, this is coming.’ It’s a bit like a hurricane in that we see it coming, but with this one we had more time,” Hidalgo said in an interview with The Texas Tribune. “There was no excuse to be caught flat-footed.” (Constantine told the Tribune that Hidalgo was the only county official who took the initiative to reach out for advice in the early days of the crisis.)

Harris County, the state’s largest, leads Texas in coronavirus cases and deaths, but the area has largely avoided the fates of the hardest-hit regions like Washington state, New York and Louisiana, where a surge of patients overwhelmed hospital systems. While the daily number of new cases reported in Texas continues to climb, the Houston area’s numbers have plateaued at a number far below their peak last month. The result is that Hidalgo, a first-term political figure, has been thrust into the spotlight.

Hidalgo, who took office in the aftermath of Hurricane Harvey, came into the job knowing she would have to prepare for disasters. “This is a huge county, and when you have landmass the size of Rhode Island and around 5 million people, things are bound to happen,” she said.

What she was not prepared for was the acrid backlash that would follow.

It goes from there, and it’s a good recap of what has happened so far and who (Republicans) has been vocally (and often insultingly) critical of Hidalgo, along with some biography that we should be reasonably familiar with by now. Like I said, there’s something about this that nags at me, and I have a hard time pinning it down. Part of me wishes that the main loudmouth critics in this story, like State Sen. Paul Bettencourt, would be made to answer just exactly what they would have done in her position. That can be satisfying to consider, but in reality they’d just come up with their own alternate history where everything they did turned out even better, and that accomplishes nothing. We can run a gazillion simulations of the pandemic based on whatever conditions we want to apply, but we only get to live it once, and we can never say for sure what might have been.

Perhaps another way to do this kind of story is to ignore the political critics and focus instead on the people who are front and center at dealing with the pandemic and its effects, and get their view on how various decisions and policies have helped or hindered them. The problem there is that people often don’t know or can’t isolate a particular action taken by one branch of government, and so what you get is a mix of their own interpretations and competing factors. How exactly do you distinguish between the feds, the state, and the locals have done if you’re a critical care doctor or nurse, or a grocery story employee? So I don’t know what that accomplishes, either.

So I don’t know that there’s a better way to tell this story than what we have here, which perhaps frustrates a close observer like myself but is more useful to someone who doesn’t spend as much time on this kind of minutia. I at least can always talk to my fellow nerds and get the unreported gossip, which is as much what I want as anything else. What do you want from stories like this?

Coronavirus and the State Supreme Court

Just a reminder, nearly half of the State Supreme Court is up for election this November. You know, in case you had opinions about their recent opinions.

Typically not top of mind for voters, the nine Republican justices of the Texas Supreme Court have come under the spotlight during the coronavirus pandemic with a slate of high-profile and controversy-generating moves.

Actions on bailevictions, debt collections, vote-by-mail and a Dallas salon owner named Shelley Luther have foregrounded the court in a year when four incumbent justices face reelection — making it easier, Democratic challengers say, to make the case against them.

Last week, the high court lifted its coronavirus ban on evictions and debt collections, put in place in March as the economy shut down and hundreds of thousands were added to the unemployment rolls. And the justices temporarily put on hold a lower court ruling that expanded vote-by-mail access during the pandemic. Both decisions have infuriated some voters and energized the Democratic Party.

This month, the court ordered the release of Luther, who was jailed for contempt of court after refusing to shutter her salon under coronavirus orders; earlier this spring, it sided with state officials in limiting how many inmates could be released from county jails, which have become hotspots for disease.

Democrats, who have not won a seat on the state’s highest civil court in more than two decades, have reclassified the typically sleepy races as a “top-tier priority,” a designation party officials said comes with digital ad spending. And some candidates have already begun to speak out publicly against high court decisions they say disenfranchise voters and risk their safety.

“I think people’s eyes are opening up,” said 3rd Court of Appeals Justice Gisela Triana, one of the four women running for Supreme Court on the Democratic ticket this year. “What has been the sleepy branch of government … has woken up.”

There’s more and you should read the rest. For obvious reasons, these races are largely going to be determined by the Presidential race – if Joe Biden can run even with or ahead of Donald Trump, one or more of the Democratic candidates can break through. It surely wouldn’t hurt for their to be some money spent on these races, in part just to make sure voters are aware of them and in part to highlight some of the decisions that are not exactly in line with public preferences, but there’s only so much the individual candidates can do about that. In case you’re wondering, I have one Q&A from a Democratic candidate for Supreme Court from the primaries, from Judge Amy Clark Meachum.

On a more sobering note:

Justice Debra Lehrmann

One day after presiding over a hearing on the state’s mail-in ballot controversy via videoconference, Texas Supreme Court Justice Debra Lehrmann says she and her husband have tested positive for COVID-19.

“We began to exhibit symptoms last week, despite diligently complying with stay-at-home rules,” Lehrmann wrote on Twitter on Thursday. “Thankfully, this has not interfered with #SCOTX work, as the Court is working remotely. We are grateful for your thoughts & prayers.”

Her diagnosis marks the first known coronavirus case of a top state official. The justice did not immediately respond to requests for an interview but told the Dallas Morning News that she and her husband Greg had fevers and body aches early last week before getting tested at an Austin drive-thru testing center.

She also told The News that their Houston lawyer son, Jonathan, his wife Sarah and their six-month-old son Jack, who had been visiting them every other week, stopped and are believed to also be infected.

Her tweet is here. I wish Justice Lehrmann and her husband all the best for a swift recovery. (She is not on the 2020 ballot, in case you were wondering.)

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.