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Sep 10

September 10, 2020 TML Coronavirus Update #118

Posted on September 10, 2020 at 4:07 PM by TML Staff

Urgent Updates


Will you have an update manana?


Not if it is humanly possible to avoid it. We can’t believe this information just keeps on coming, and we know everyone (including Ed.) needs a break from it. Stay safe and enjoy some cooler weather. (Isn’t it nice when the Texas summer heat breaks, even just for a while?  Fall and Spring weather in Texas seem to make all the other nonsense way more palatable. Love this state and her cities.)


What’s the latest virus-related cautionary letter from the attorney general to a local government?


The attorney general couldn’t let a county get all his attention, so he also sent a letter to a city to close out the week. According to a press release from the attorney general yesterday (September 9):


“Attorney General Ken Paxton today warned the City of Brownsville against its invalid order limiting all restaurant capacity to less than 25 percent of total listed occupancy. As it stands, the city’s order directly contradicts Governor Greg Abbott’s orders and exceeds the city’s lawful authority. Executive Order GA-28 expressly allows certain restaurants to “operate at up to 50 percent” and allows restaurants, and not cities, to decide whether to operate at a capacity at or below this limitation.


‘The City of Brownsville’s order clearly conflicts with Governor Abbott’s order. It is imperative that we remain consistent in our application of limitations, and that the restaurants operating within the state’s limitations are allowed to do so,’ said Attorney General Paxton. ‘The city should immediately review and revise this unlawful order.’


Here’s our usual disclaimer that you’ve seen many times now: The press release above is pasted in verbatim. We are not saying that the attorney general’s informal letters are binding. To the contrary, we aren’t even acknowledging that they are correctly reasoned. But a city enacting regulations contradicting them could get sued by the attorney general or others.


What’s the latest in the long list of voting rights lawsuits?


Two judges issued orders in two separate lawsuits on Tuesday (September 8), but only one of them was originally-filed due to the pandemic. According to The Texas Tribune, a federal judge dismissed the Mi Familia Vote v. Greg Abbott lawsuit based on the separation of powers doctrine. In this pandemic-related lawsuit, on which we first reported in July, the plaintiffs are voters who claimed the state’s current polling place procedures – including rules for early voting, the likelihood of long lines, and the governor’s decision to not require voters to wear masks – place unconstitutional burdens on voters during the pandemic.


According to the dismissal order, “the Elections Clause of the Constitution specifically commits the administration and management of federal legislative elections to the Texas legislative branch.” Even so, the order states that “the requests for relief do not appear unreasonable and can easily be implemented to ensure all citizens in the State of Texas feel safe and are provided the opportunity to cast their vote in the 2020 election.”


Also on Tuesday, a different federal judge in a separate lawsuit penned a 103-page memorandum opinion and order. (Editor’s note: Reading a 103-page court document is like something else that proverbially tends to roll downhill. So thanks to our newest TML attorney for taking on that task!) The order in Richardson v. Texas Secretary of State concludes that the state’s process for determining whether there is a mismatch between a voter’s signature on their ballot envelope, and the signature the voter used on their application to vote by mail “plainly violates certain voters’ constitutional rights.” This order will impact mail-in ballots in the upcoming election, which are expected to greatly increase because of Coronavirus.


According to The Texas Tribune, two voters filed the lawsuit last year after local election officials rejected their mail-in ballots because the election officials decided the signatures on the envelopes in which their ballots were returned did not match. In the lawsuit, the plaintiffs claimed that at least 1,873 mail-in ballots were rejected based on mismatched signatures during the state’s 2018 general election, and at least 1,567 were rejected in 2016.


To ensure the issue is addressed prior to the November election, the judge ordered the Texas secretary of state to inform local election officials within 10 days of the order that it is unconstitutional to reject a ballot based on a “perceived signature mismatch” without first notifying the voter about the mismatch and giving the voter a “meaningful opportunity” to correct the issue. The secretary of state’s Elections Division attorneys, who are doing an amazing job in a tough situation, will likely issue guidance soon. 


Don’t forget that we created a web page with all of the virus-related lawsuits. 


How do we approach the challenge of recovery from COVID-19?


The way we approach recovery will likely define Texas going forward. Our ultimate challenge is to make our cities and state stronger than we’ve been in the past. In his TML virtual Annual Conference session on October 14, Steven Pedigo, LBJ Urban Lab director, will outline a Playbook for Resiliency, and offer strategies and actions we can adopt now for a more prosperous future. Pedigo is challenging Texans to “think about resiliency as a places capacity to weather threats to its economy and its residents’ health, and even more broadly, as the capacity of residents, communities, institutions, businesses, and systems to survive, adapt, and grow, no matter what kinds of chronic stresses and acute shocks they experience. The more resiliency a community has, the less likely it is to break under pressure – and the faster it is to rebound.”


Register here to hear Pedigo’s October 14 presentation, and view more than 30 other TML Annual Conference sessions related to disaster recovery and resilience.


Further Updates


What’s the latest with regard to the President’s executive order extending the federal unemployment benefit subsidy?


The Federal Emergency Management Agency notified the Texas Workforce Commission that federal funding for the additional $300 weekly benefit program (announced last month) has already run dry. Recipients should continue to receive their “normal” state unemployment benefits.


What’s going on in Congress with regard to additional stimulus legislation?


The U.S. Senate voted down what’s being called a "skinny" stimulus package (S. 178 (116)) today. The bill had provisions relating to – among many others – liability protections for businesses (and cities), clawing back unspent CARES Act funding, additional unemployment benefits, additional Paycheck Protection Program funding, U.S. Postal Service funding, health response, and education/child support funding. The bill wouldn’t have provided any additional funding or CRF flexibility for cities, although it would have extended the deadline to spend current funds to September 30, 2021.


What’s the latest with sales tax distributions?


According to today’s press release:


“Texas Comptroller Glenn Hegar announced today he will send cities, counties, transit systems and special purpose taxing districts $765.3 million in local sales tax allocations for September, 4.5 percent less than in September 2019. These allocations are based on sales made in July by businesses that report tax monthly.


Rising COVID-19 infection rates in July likely suppressed economic activity.