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Urgent Updates
Can you give us a recap of where cities are in relation to key
pandemic-related issues?
Sure. Information overload is a real thing, especially
right now. Here’re the basics as of today (September 14):
Governor’s Orders: Executive Order GA-28, as modified by proclamation, still controls. These together state
that a mayor must approve any outdoor gathering in excess of 10, with several
exceptions. The order isn’t really a “stay home, work home”
directive any longer. Instead, it provides for what’s open and has this
general limitation: “Except as provided in this executive order or in
the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus,
people should not be in groups larger than ten and should maintain six feet
of social distancing from those not in their group.” Trying to figure
out which businesses are open and must do what? Go to www.open.texas.gov to see them all listed with links to
relevant protocols.
Lawsuits and Demand Letters: Many have been filed. They mostly
focus on voting issues (see, e.g., next Q&A) and the authority of state
and/or political subdivision leaders to impose various virus-related
restrictions. We created a web page with the status of all of the virus-related
lawsuits and letters.
Open Meetings Act: The governor’s suspension of various parts of the Act, along with guidance, is still in place. They continue to
authorize city officials to meet more easily by using virtual options.
Federal Stimulus Legislation: Both
the House and Senate have passed various versions of additional stimulus
bills, but partisan gridlock has prevented anything from passing.
CARES Act Coronavirus Relief Funds: Cities
over 500,000 population received a direct allocation of CRF funds, and cities
in a county with over 500,000 population should have received their CRF
allocation directly from that county. The expenditure of the funds is
governed by U.S. Treasury Department FAQs and guidelines. Cities in a county of 500,000
or less population apply for their CRF funds from the Texas Division of
Emergency Management, which imposed spending restrictions on top of those imposed by the
Treasury Department.
Pandemic Data: The Texas Department of State Health
Services COVID-19 dashboard has all the data in one place. As
of September 12, it shows an 8.11 percent statewide positivity rate.
The November Election: The election will take place on
November 3, 2020, and will include city general elections that were postponed due to the pandemic. The Secretary of State’s
Elections Division has archived their advisories and other useful
information. Of particular interest, city officials should be aware that
all political subdivisions, including cities, must use county election
precincts for elections held on the November uniform election date. City
officials in cities holding elections this November should work closely with
county election officials to make sure voters know that some traditional city
polling places used in May might not be available for the November election.
Texas Municipal League: We are open for business! TML’s
Coronavirus web page archives what we’ve prepared to date. If you
have a virus-related (or any other subject for that matter) question, email
the TML attorneys at legalinfo@tml.org. The
virtual TML Annual Conference and Exhibition is up and running, and the
presentations and exhibits are going to be very cool. Register here if you haven’t already. We look forward to
seeing you!
2021 Legislative Session: Pre-filing of bills begins on November
9, 2020. Our Grassroots and Legislative staff are busy preparing for the
upcoming session, and we’ve submitted written testimony in response to the
two city-related committee requests thus far (House Land and Resource Management Committee and House Ways and Means Committee). No one is really
sure at this point what the session will look like, especially committee hearings. We
will keep you posted on new developments. At the virtual TML Annual
Conference and Exhibition, each city is entitled to one delegate at the TML
Business Meeting, at which the membership will consider several resolutions related to legislative
issues. The meeting takes place using Zoom on October 14, 2020, at 3:30
p.m. Each city’s delegate must sign up electronically prior to 5:00 p.m. on October 9,
2020, for planning purposes.
Update Editor: All things considered, I feel
pretty good. You know what makes it all tolerable? The
dog. She isn’t worried about the pandemic in the least. Or about
anything really. Other than sleeping, at which she excels.
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If you’d like an update on anything pandemic-related, email
Scott Houston at gencounsel@tml.org.
What’s the latest decision in the long list of voting rights
lawsuits related to the pandemic?
It’s getting hard to keep up, but at least three cases have
new developments.
Last Thursday (September 10), the U.S. Court of Appeals for
the Fifth Circuit rejected a claim that Texas’ vote-by-mail conditions for
younger voters are unconstitutional. In Texas Democratic Party v.
Greg Abbott, the court held that a Texas statute allowing mail-in voting
for those over 65, but placing additional conditions on younger voters (such
as being absent from the county on election day or having a qualifying
disability), doesn’t violate the Twenty-Sixth Amendment. (The amendment
prohibits the government from denying or abridging the right to vote because
of age.) The Fifth Circuit sent the case back to the district court to make
further rulings on the plaintiffs’ other claim, an equal protection
challenge.
According to the opinion, “an election law abridges a person’s
right to vote for the purposes of the Twenty-Sixth Amendment only if it makes
voting more difficult for that person than it was before the law was enacted
or enforced. . . . On the other hand, a law that makes it easier for others
to vote does not abridge any person’s right to vote for the purposes of the
Twenty-Sixth Amendment. . . . [T]he right to vote under the Twenty-Sixth
Amendment is not abridged unless the challenged law creates a barrier to
voting that makes it more difficult for the challenger to exercise her right
to vote relative to the status quo, or unless the status quo itself is
unconstitutional.”
In State of Texas v. Chris Hollins, the attorney
general attempted to block the Harris County Clerk from sending every
registered voter in the county a mail-in ballot application. According to The Texas Tribune, the judge didn’t think the plan would confuse voters. On
September 11, the attorney general appealed the ruling.
Finally, we reported last week on Richardson v. Texas
Secretary of State. The trial judge in that case held that the
state’s process for determining whether there is a mismatch between a voter’s
signature on their ballot envelope, and the signature on their application to
vote by mail, “plainly violates certain voters’ constitutional rights.” The
attorney general has appealed this decision as well, and the court of appeals
stayed enforcement of the ruling pending the outcome of
the appeal.
The League will continue to report on developments in these
and other cases. Don’t forget: We created a web page with the status of all of the virus-related
lawsuits.
Further Updates
What’s going on with nursing homes?
According to KXAN (Austin’s NBC affiliate), two families
have sued the governor, Texas Health and Human Services Commission, and
individual nursing homes housing their loved ones. The lawsuit claims
the defendants are “violating constitutional and statutory rights” of the
residents and their loved ones by “prohibiting essential family visitors,
damaging the health of residents in these facilities, and costing precious
time to the residents and their families.”
The lawsuit seeks to modify the governor’s disaster
declarations limiting nursing home access, and the HHSC restrictions that
followed. No pleadings are available at this time.
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 virtual TML 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 wants to challenge Texans to “think about
resiliency as a place’s 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 presentation, and view
more than 30 other TML Annual Conference sessions related to disaster
recovery and resilience.
Where can I find archived issues of the TML Coronavirus
Updates?
TML Coronavirus Updates are archived by date here and by subject here
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