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Appeals court appears skeptical about Paxton’s whistleblower defense

As well they should be.

Best mugshot ever

A panel of Texas 3rd Court of Appeals justices expressed skepticism of an argument from Attorney General Ken Paxton’s lawyers on Wednesday that he is exempt from the state’s whistleblower act because he’s not a public employee and a case against him should be thrown out.

Former Paxton deputies in the Office of the Attorney General claim in a whistleblower lawsuit that they were fired for reporting alleged crimes by Paxton to law enforcement. Paxton’s lawyers are trying to get the case dismissed and asked the appeals court to throw out the case on the grounds that Paxton is not subject to the whistleblower law. A lower court denied Paxton’s motion to dismiss the case in March.

Barely a minute into oral arguments, Justice Chari L. Kelly began questioning Solicitor General Judd E. Stone II, who is representing Paxton in the suit.

“Isn’t the action of every employer at the OAG’s office an action by the employee governmental agency?” Kelly said.

Justice Gisela D. Triana questioned Stone’s argument that all elected officials are exempt from the whistleblower law and Chief Justice Darlene Byrne asked whether his interpretation would give Texas Supreme Court justices immunity from sexual harassment claims from their employees.

Stone said employees filing sexual harassment claims would have other avenues for relief outside the whistleblower law, but argued that the attorney general as an elected official cannot be sued under the law, which covers public employees, appointed officials and governmental entities.

[…]

Stone argued that barring the attorney general from firing employees when they disagree with legal positions or have lost his trust would be an infringement on the elected official’s power.

But Kelly questioned that argument and nodded to claims by the whistleblowers’ lawyers that Paxton is a public employee because he receives checks from the state and participates in its retirement system, and that he acts as the entity because he is its titular head.

“If he can go in and change any decision internally … If he truly has the power to have the last say on anything that comes out of the agency. How is he not the agency?” she asked.

Stone said the justices should interpret the law as it was written, which did not include elected officials in the text of those who can be sued on whistleblower claims.

But Joe Knight, who argued for the whistleblowers’ lawyers, blasted the idea that the Legislature wrote a statute meant to ensure public employees complied with the law and then exempted elected officials without explicitly saying so. He said the drafting of the law in such a way would be “strange and unlikely,” and said the “Legislature does not hide elephants in mouseholes.”

In briefings to the court, the whistleblowers’ lawyers said when lawmakers intend to exempt elected officials from being labeled as public employees, they do so in the text of the law. The Texas Whistleblower Act does not.

The whistleblowers’ lawyers said exempting the attorney general would rob the law of its purpose to protect public employees reporting wrongdoing by government entities.

Stone also argued in briefs that the former officials did not make the reports to law enforcement authorities required to invoke whistleblower protection, and that even if they had, they reported only potential crimes, not crimes that had actually happened.

The whistleblowers’ lawyers attacked that argument, saying their clients reported their concerns to the Travis County District Attorney’s Office, the FBI, the Texas Rangers and the attorney general’s human resources office.

The lawyers also said their clients believed Paxton had already abused his office, tampered with government records, taken bribes and obstructed justice through his interactions with Paul when they brought their concerns to law enforcement.

See here, here, and here for some background. It must be noted that all three appellate court justices are Democrats, so their opinions will carry limited weight before the Court of Criminal Appeals, no matter how ridiculous Paxton’s arguments are. That’s just how it is, I don’t make the rules. No indication when the court may rule, but the initial suit was filed last November, the motion to dismiss was denied in March, and the appeal to the Third Court was made in June, so as far as that goes, we’re moving at a decent pace.

Texas takes its potty obsession to court

Oh, brother.

Texas Attorney General Ken Paxton is suing the Biden administration over recent federal guidance issued to protect LGBTQ people in the workplace, including a directive that says employees should be allowed to use the bathrooms, locker rooms and showers that correspond with their gender identity.

The guidance also clarifies that misuse of a person’s preferred pronouns could be considered harassment in certain circumstances.

The lawsuit, filed Monday in the Northern District of Texas federal court, Paxton claims that the U.S. Equal Employment Opportunity Commission violated Title VII of the Civil Rights Act of 1964 when it issued a technical assistance document outlining the impact of a landmark U.S. Supreme Court ruling last year. That ruling prohibited employer discrimination on the basis of sexual orientation and gender identity. Title VII prohibits discrimination against employees on the basis of sex.

Defendants in the lawsuit include the EEOC, commission Chair Charlotte A. Burrows and U.S. Attorney General Merrick Garland.

The EEOC guidance, released on June 15, specifies that employers must not prohibit transgender employees from dressing in correspondence with their gender identity or using bathrooms, locker rooms or showers that are consistent with their gender identity.

In a statement, Paxton called the guidance “illegal” and an “unacceptable” attempt “to force businesses, including the State of Texas, to align with their beliefs.”

“If the Biden Administration thinks they can force states to comply with their political agenda, my office will fight against their radical attempt at social change,” Paxton said.

In the lawsuit, Paxton also argued that the EEOC violated the First and Eleventh Amendments, as well as the Administrative Procedure Act, which specifies how government agencies issue regulations.

The EEOC said in an email on Monday that it does not comment on pending litigation, but that it will be represented by the Department of Justice, which declined to comment Monday.

For a variety of reasons, not the least of which being my searing contempt for the walking dirtbag that is Ken Paxton, it’s hard to take his nakedly political lawsuits seriously. We’ve certainly seen plenty of examples of shoddy lawyering on his part, not to mention him lying about court actions in a way that makes him look good to his knuckle-dragging base, and that always makes me think he’s in this more for the publicity (which he can get immediately) than the (often years-off) results. That said, if there’s one thing Ken Paxton is unquestionably good at, it’s picking federal judges who are likely to give him what he wants. As such, we have no choice but to take this seriously. Daily Kos has more.

First “heartbeat” lawsuit filed

Didn’t take long.

A San Antonio physician is facing a lawsuit after he admitted performing an abortion considered illegal under Texas’ new law.

Why it matters: The civil suit, filed by a convicted felon in Arkansas, against Alan Braid is the first such suit under the law that allows private citizens to sue anyone who helps a pregnant person obtain an abortion after six weeks.

What he’s saying: Braid said he acted “because she has a fundamental right to receive this care.”

  • “I fully understood that there could be legal consequences — but I wanted to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested,” he wrote in a column in the Washington Post.

Driving the news: Oscar Stilley, a former lawyer from Arkansas who was convicted of tax fraud in 2010, said he does not personally oppose abortion but decided to file the suit to test the Texas law’s constitutionality.

  • “If the law is no good, why should we have to go through a long, drawn-out process to find out if it’s garbage?” Stilley after filing the complaint in state court in Bexar County, Texas, according to the Post.

See here for the background, and here for a copy of the lawsuit. Oscar Stilley is certainly the plaintiff the forced birth crowd deserves. If I’m reading his comment correctly – the WaPo article is paywalled, so I’m somewhat limited in what I can see – it sounds like he wants to give SB8 opponents a chance to get it thrown out. There’s nothing funny about any of this, but for the first lawsuit under this atrocity to be an utter farce would be entirely fitting.

One other angle, which I noticed in the stamp of the Bexar County District Clerk. This lawsuit was assigned to the 438th Civil Court in Bexar County, whose judge is a Democrat. Judges are compelled to follow the law, of course, but to whatever extent she has discretion, I would think she might not be terribly inclined to give any such plaintiff the benefit of the doubt. Do keep in mind, this law enables the bounty hunters to file their garbage lawsuits in any state court in Texas. For sure, the reason for that was to allow all of the greedy little fortune seekers the opportunity to file in Republican counties, where they can expect a higher level of service. I don’t think any of this was according to the plan these jackals had in mind, but it’s still chaos and attention for them, and I’m sure they’ll take it. Best wishes, and I hope a good supply of Advil and Maalox, to the judge. CBS News and NBC News have more.

UPDATE: Per the Trib, there are actually now two lawsuits against Dr. Braid.

At least two lawsuits have been filed against Braid, both by disbarred attorneys. One was filed by Illinois resident Felipe N. Gomez, who identified himself as a “Pro Choice Plaintiff” and aligns himself with Braid in the lawsuit, KSAT reported. Gomez does not ask for monetary damages in the suit, but asks “the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade,” according to the TV station.

There’s more in there about Oscar Stilley, whose motivations are all over the place. Gomez’s lawsuit was also filed in Bexar County, but the copy that was included in that KSAT story did not indicate which court. The lawsuit is also one page long and it’s not clear to me it meets the legal definition of a “lawsuit”. I guess the lucky judge will get to make that call. As they say, play stupid games, win stupid prizes.

“Heartbeat” lawsuit bait

Something like this was going to happen sooner or later.

A Texas doctor stepped forward Saturday to say he had performed an abortion that is illegal under the state’s restrictive new law to force a test of its legality.

“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” Alan Braid, a San Antonio OB/GYN, said in an op-ed in The Washington Post. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. . . . I can’t just sit back and watch us return to 1972.”

Braid said he performed a first-trimester abortion on Sept. 6, just a few days after the law known as Senate Bill 8 went into effect in Texas, making nearly all abortions illegal after a woman is about six weeks pregnant ­— with no exceptions for incest or rape. The doctor said he acted because he had “a duty of care to this patient, as I do for all patients.”

[…]

John Seago, legislative director for Texas Right to Life said that group “is exploring all of our options to hold anyone accountable who breaks the (Texas) law.”

“This is obviously a stunt to move forward with other legal attacks on the law,” he said of Braid’s column. “This was always something that we expected — that someone would essentially try to bait a lawsuit. So we’re just moving into the next phase of Senate Bill 8 right now.”

But the leader of another Texas-based anti-abortion-rights group, said it has no plans to sue Braid at this time.

Braid “is willfully conducting illegal abortions right now,” said Chelsey Youman, national director of public policy for Human Coalition, which operates crisis pregnancy centers across the country. “He knows he’s currently incurring liability and he may face repercussions for that . . . but for the most part that’s a choice the larger abortion clinics have not made. They’re saying they’re going to comply. We should celebrate that lives are being saved in the interim.”

Abortion rights advocates, meanwhile, praised Braid for stepping forward.

“The situation has become untenable,” said Kristin Ford, acting vice president of communications for NARAL Pro-Choice America, an abortion rights advocacy group. “Roe v. Wade has been rendered meaningless in the second biggest state in the country, and we can’t continue in that limbo,” she said.

The op-ed is here, if you have access to it. This was in fact the scenario that was predicted after SB8 was passed, that to gain a legal foothold in court a provider would need to be sued to effectively challenge the law in court. It’s a common path for such action – the groundbreaking Lawrence v Texas case began as an arrest and conviction for sodomy, which was then appealed until SOCUTS invalidated Texas’ law banning gay sex. There are other paths being taken now, from the state lawsuits that have gained injunctions on behalf of specific plaintiffs and against particular groups to the initial federal lawsuit that named defendants other than Greg Abbott and Ken Paxton – you know, the one that the Fifth Circuit stopped before it could get a hearing and which SCOTUS punted on – and the lawsuit filed by the Justice Department that names the state of Texas as defendant. The first as noted is limited in scope while the other two have yet to be tested in court.

Any or all of these could work, or not. We don’t know yet, and the two federal cases are novel in their own way. The point is that this was the path that legal experts were able to visualize from the beginning. It too may not work – SCOTUS is still SCOTUS, after all – but no one would question the ability of the provider who was targeted by the action authorized by SB8 to fight it by challenging the legality and/or constitutionality of the law.

And here in this story, we see the limit of this approach, which is that it required someone to sue the doctor (or other “abetter”) in order to get it into court in the first place. The thing is, the pro-forced-birth advocates who pushed SB8 don’t need to sue Dr. Braid. Strategically, they don’t really care if there are individual doctors who do one-off abortions. That’s a small piece of the pie. Their goal was to shut off abortion access at the big clinics, the Planned Parenthoods and Whole Women’s Health and so on. And they’ve succeeded! The number of abortions being performed in Texas is near zero. People have already internalized the idea that abortion is functionally illegal, or at least nearly impossible to get, in Texas. Sure, they want that number to be zero, but this was such a huge step in that direction they can afford to coast.

To that extent, filing those $10,000 bounty lawsuit doesn’t serve their purposes at all. They just introduce the risk that SB8 could someday be thrown out, in the same way that the omnibus TRAP law of 2013 (it was HB2 in that session and often referred to as HB2 in stories of the lawsuit against it) was eventually tossed. The thing is, though, that long before HB2 was thrown out, it had caused half of all clinics that offered abortion services to quit doing so, and thus greatly reduce access in the state. They lost their big hammer, but by then they’d pounded in so many nails it hardly mattered.

I hadn’t really thought about it before writing this post, and I haven’t seen anyone else touch on this, but I think this explains the very laid-back reaction that Texas Right to Life has had to the state lawsuit Planned Parenthood filed against them, and why they’re basically shrugging their shoulders here. The status quo at this point suits them just fine. The bounty lawsuits were never the main point of SB8. They were a means to an end, and they have already achieved that end. Why mess with success?

Now, someone who hasn’t gotten this memo could still sue Dr. Braid, and that will kick all the legal machinery that people had expected into gear. Once there is a case for the courts to act on, all of the high-powered lawyers from all of the main players will get involved, and on to SCOTUS we will march. Similarly, if one of the big clinics decides to go back to business as usual, the forced birthers will take action, because they will have to. Until then, they’re happy to wait and see what happens with the existing lawsuits. They’re playing with house money, and they know it. Slate has more.

The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.

[…]

U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?

Galveston ISD mask mandate remains, Round Rock gets halted

Good.

A Galveston County judge Thursday denied an attempt by Attorney General Ken Paxton to stop Galveston ISD from requiring masks, according to a court document.

Judge Kerry Neves ruled against Texas’ request for a temporary restraining order on mask mandates in the district.

According to court documents, a hearing on the matter is set for Sept. 28.

See here for the background. That’s the whole Chron story – the Galveston County News covered this as well, but they’re behind a paywall so I can’t see it. Paxton scored an initial win against Paris ISD in his second round of lawsuits, though that happened without Paris ISD being in the courtroom. It would seem he used that same tactic in Round Rock.

A state district judge in Williamson County has temporarily blocked the Round Rock school district from enforcing its mask mandate, according to Texas Attorney General Ken Paxton, who sued the school district.

In a tweet Thursday night, Paxton’s office declared “Another WIN!” in its legal fight against school districts that have defied Gov. Greg Abbott’s executive orders banning schools from requiring masks. Paxton sued Round Rock along with Elgin and other school districts with mask mandates last Friday.

[…]

In a statement, Round Rock school district leaders said they had not been officially served or notified by Paxton’s office of the order. District officials also said they were not given the opportunity attend any court proceedings to oppose the order, but they said they would “comply with any lawfully issued court order.”

“We will also use all proper and available legal proceedings to challenge this order and vigorously defend its long-established lawful authority to provide a safe and healthy learning environment for Round Rock ISD students and staff, including during this pandemic,” the statement said. “The district continues to strongly encourage and recommend the use of masks in accordance with guidance from our local health authorities.”

I totally get Paxton playing dirty, but what is up with these judges letting it happen? Do they have no responsibility to at least inquire why there’s no opposing counsel? I’m puzzled, to say the least.

As for the other affected districts, I did a quick Google News search and didn’t see any news for them. I would assume there will be more rulings in the coming days, but for now as far as I can tell this is where we are.

Federal judge will fast-track mask mandate ban lawsuit

I’m ready.

Federal District Judge Lee Yeakel said Wednesday morning he intends to fast-track a lawsuit filed on behalf of 14 Texas schoolchildren with disabilities who allege that Gov. Greg Abbott’s ban on mask mandates breaks federal law by discriminating against them because they are particularly vulnerable to COVID-19.

In Wednesday’s hearing, Yeakel denied a request for a temporary restraining order that would have barred Texas from enforcing Abbott’s order until Oct. 6, when the case is scheduled for trial.

Yeakel said he needs more information about the case before he will be ready to make a ruling.

The delay will allow the judge to hear from witnesses and see other evidence in the case. No matter what his decision on the case, Yeakel said he expects it to be appealed to higher courts — possibly as far as the U.S. Supreme Court.

“I think the issues in this case are extremely important,” Yeakel said.

In legal filings and in court, lawyers for the 14 children argued that Texas’ mask mandate prevents school districts from making reasonable accommodations for children with disabilities, in violation of the federal Americans with Disabilities Act. They also said it preempts the federal American Rescue Plan, the COVID-19 relief package signed into law by the president earlier this year, which they said provides discretion for school districts to follow federal Centers for Disease Control and Prevention recommendations.

[…]

The lawsuit is against Attorney General Ken Paxton, Abbott and Abbott’s Texas Education Agency. The order was defended in court Wednesday by lawyers from Paxton’s office.

The crux of their defense was that the lawsuit was improper because none of the defendants are the right people to sue over Abbott’s mask order. They said the proper people to sue would be those who are enforcing the law, but no one is actually enforcing it, so there’s no one to sue.

“(Abbott’s order) doesn’t stop the plaintiffs from doing anything. They can say, think, do whatever they want. It does not regulate their conduct, it regulates the conduct of local officials,” said Todd Dickerson, an assistant attorney general, adding that there is “no credible threat of enforcement” from the local district attorneys who are supposed to enforce it.

See here and here for the background. The “you can’t sue me” dodge was a key component of Abbott’s claim/admission that he has no power to enforce the mask mandate ban, and has been a part of the defense that he and Ken Paxton have put forward in the various lawsuits against them over the ban. As such, it’s not a surprise to see it turn up here – this is becoming a foundational piece of their governance, which is that no one can hold them accountable for anything. But as the plaintiffs point out, for a guy who claims he can’t enforce Abbott’s mask mandate ban order, he sure is suing a lot of people to do just exactly that. So which one is true? We’ll see what the judge makes of it.

Planned Parenthood gets injunction against Texas Right to Life

It’s a start.

Right there with them

A district court in Travis County granted a temporary injunction on Monday, which will stop an anti-abortion group from being able to sue Planned Parenthood centers under SB 8, the so-called “heartbeat bill.”

Planned Parenthood affiliates in Texas filed a request for a temporary injunction on Sept. 2 against Texas Right to Life, an anti-abortion nonprofit and its associates. Planned Parenthood wanted to stop the group from suing abortion providers and health care workers at its centers in Texas.

The court ruled Monday that Texas Right to Life has “not shown that they will suffer any harm if a temporary injunction is granted” and that Planned Parenthood has “shown that they have a probable right to relief on their claims that SB 8 violates the Texas Constitution.” Planned Parenthood also has “no other adequate remedy at law,” the court said.

The court said the injunction will remain in effect until a final ruling; a trial on the merits of the case was set by the court for April 2022.

See here for the background. CNN has some more details.

This order applies only to Texas Right to Life and is part of a larger — and piecemeal — approach by abortion rights advocates to try to blunt the effect of the law. Other short-term temporary restraining orders are in place against other anti-abortion advocates, and more permanent injunctions are being sought in those cases.

[…]

In a court hearing Monday, Julie Murray, the attorney for Planned Parenthood Federation of America, told the judge that the organization is currently “complying with SB8 precisely because of the overwhelming threats of litigation” and that a temporary injunction “will not restore abortion services … but it will prevent and reduce the litigation exposure and constitutional harms that [Planned Parenthood] will experience.”

The parties spent nearly two hours coming to an agreement about the terms of the injunction.

I would like to know more about the “other short-term temporary restraining orders in place against other anti-abortion advocates”. I was going to suggest a massive wave of litigation by pretty much every provider, doctor, affiliate, advocate, and anyone else who felt threatened by SB8, but maybe that is already happening. Obviously, we want to get a sweeping federal injunction against this travesty, which would cover all of the contingencies, but who knows how long that could take, and it would be at the mercy of the Fifth Circuit, so fire away on all cylinders in the meantime. If these guys want to live by the lawsuit, let’s see how they like being on the other end of it. Axios has more.

Justice Department files its motion for an injunction against SB8

Let’s hope they get a quick win.

The Justice Department has asked a federal judge to grant a temporary restraining order or injunction that would prevent Texas from enacting a law that bans nearly all abortions in the state, heating up a battle between the Biden administration and Texas Republicans, led by Gov. Greg Abbott.

The department argued in a court filing late Tuesday that Texas had adopted the law, known as Senate Bill 8, “to prevent women from exercising their constitutional rights.”

The move comes less than a week after the Biden administration sued Texas to try to block the nation’s most restrictive abortion law, which bans the procedure as early as six weeks into pregnancy and allows private citizens to take legal action against anyone who helps someone terminate their pregnancy.

In Tuesday’s emergency filing, the department argued that even though the Supreme Court has ruled that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability,” Texas has banned abortions months before viability — at a time before many people even know they are pregnant.

The brief said Texas had devised “an unprecedented scheme that seeks to deny women and providers the ability to challenge S.B. 8 in federal court. This attempt to shield a plainly unconstitutional law from review cannot stand.”

See here for the background, and here for a copy of the motion. For those of you who’d like to get the highlights, here you go:

By all accounts, the arguments being made by the Justice Department are strong. We’ll just have to see what the courts – specifically, the Fifth Circuit and SCOTUS – make of it. There was no indication as of the time of those tweets when the court would hear arguments or issue a ruling, but now there is:

After the United States Department of Justice filed a preliminary injunction/restraining order against Texas in another attempt to halt Senate Bill 8, a federal judge granted the Biden administration a hearing on Oct. 1 to review temporarily banning the anti-abortion law.

In the signed statement, Judge Robert Pitman stated that Texas shall file in response to the motion no later than Sept. 29, 2021 and the U.S. shall file its reply in response no later than the morning of the hearing.

Mark your calendars. You can see a copy of the judge’s order here, and as Steve Vladeck notes doing it this way rather than granting a temporary restraining order prevents the state from running to the Fifth Circuit and getting the TRO halted. The Trib, the Chron, and the Current have more.

UPDATE: 24 Dem AGs File Amicus Brief Backing DOJ Challenge To Texas Abortion Ban. Good.

Paxton sues more school districts

Another rampage by the morally bankrupt felon in the AG’s office.

Best mugshot ever

Texas Attorney General Ken Paxton has unleashed another wave of lawsuits against school districts over their masking policies — but one of them says it doesn’t even require face coverings.

Midway Independent School District is a Waco-area district that sits on a list compiled by the attorney general’s office of school districts and counties that have flouted Gov. Greg Abbott’s ban and put in place their own mask-wearing orders.

The hitch? Midway ISD doesn’t mandate that students, teachers, school staff or visitors don masks while on school premises, a district spokesperson said Wednesday. Midway officials have tried to convince the attorney general’s office the district doesn’t have a mandate — but to no avail.

“We have not received information of why or how we are considered out of compliance or considered for a lawsuit,” district spokesperson Traci Marlin said in an email.

The Midway school district is among nine that Paxton announced on Tuesday that he is suing for allegedly defying Abbott’s executive order banning public schools and local governments from enacting local mask mandates.

Under Midway’s virus protocol, campuses can issue 10-day “mask directives” that encourage mask-wearing on the premises if virus transmission reaches a certain level — but doesn’t require it. The attorney general’s office pointed to that protocol as the basis of its lawsuit against the district but declined to answer other questions from The Texas Tribune.

Those directives are not the same as mandates, Marlin said — and in one case, such a directive successfully cut down the number of active cases on a campus.

“Directives are not enforced,” she said. “There are no punishments or repercussions.”

McGregor Independent School District, another district near Waco, did require mask-wearing if virus transmission became too severe but, at Paxton’s request, did not enforce the mandate, Superintendent James Lenamon said in a statement.

Nonetheless, Paxton sued the district.

“The district is disappointed that the AG has decided to sue anyway,” Lenamon said.

[…]

In addition to McGregor and Midway, Paxton announced lawsuits against seven other districts Tuesday: Diboll, Honey Grove, La Vega, Longview, Lufkin, Paris and Waco school districts.

See here for the previous story. The fact that neither Ken Paxton nor Greg Abbott has the power to enforce the mask mandate ban isn’t stopping him. Given that, we should not be surprised that he isn’t particularly concerned about the details in these districts. This is all about throwing his weight around. And by the way, for anyone who might have thought that P Bush or Eva Guzman would present a more moderate, less “burn the witch!” alternative to Paxton in the Republican primary, I’m not seeing any statements from them in which they question the wisdom of this effort. I’m just saying. (There is one candidate who has spoken about it.)

Ironically, the one win Paxton has chalked up so far has come against the one school district that appeared to have found a silver bullet.

Paris schools announced Tuesday they are no longer requiring masks on campus. This comes a month after the Texas Attorney General Ken Paxton sent the district a cease and desist letter telling them to stop requiring masks. Paxton listed Paris ISD, the school board and the superintendent in a lawsuit over the same mandate.

According to a temporary restraining order signed by a Lamar County district judge Monday, Paris Independent School District is no longer able to enforce their mask mandate and, they backed down. But despite the order Paris ISD says they will continue to strongly encourage everyone on campus to wear one.

“It was a rather cowardly act on the Attorney Generals office’s part,” said General Counsel for the district, Dennis Eichelbaum.

[…]

In August, the district included masks as a part of their dress code citing Chapter 11 of Texas Education Code, which states the school board has the right to set the dress code.

“There’s absolutely no reason why if we want to have a dress code, there’s no justification for the government office without having suspended the laws that give us the authority to run the district, to allow us to do our job,” said Eichelbaum.

According to court documents, a district judge signed a temporary restraining order against the district on Monday making it against the law for them to require masks on campus.

“We are still encouraging everyone to wear masks even if it’s not mandated, Paris ISD has seen a significant drop compared to other communities in the area with regard to children being sent home for COVID-19. we believe there’s a connection with the mask mandate., and we encourage everyone to continue to wear a mask to keep everyone safe,” Eichelbaum said. “We’re now set for a hearing next week in district court, and at that time, we will be defending our board policy which permits mask mandates.”

Eichelbaum says they will be defending the district’s right to enforce safety measures during the COVID-19 pandemic.

A hearing is set for Tuesday, September 21. This will determine whether the temporary restraining order will be overturned.

See here and here for the background. You got a raw deal, Paris. I’m rooting for you at the hearing. KVUE has more.

UPDATE: Wait, this detail wasn’t in that last story for some reason.

Dennis Eichelbaum, lawyer for Paris ISD, said Paxton’s office — despite the fact Paxton had sent multiple letters threatening lawsuits beforehand — didn’t notify the district of the lawsuit until after the hearing was over, and the restraining order had been granted. Paris ISD didn’t get to make its case against the restraining order as a result, Eichelbaum said, describing it as “a cowardly move” from Paxton.

“First, it’s against the rules of civil procedure. So he doesn’t care about the law when it applies to him,” Eichelbaum said. “He’s very brave to go to court when you’re not there to defend yourselves.”

“A lot of times attorneys will get sanctioned for it if they do something like this,” he added, saying he will ask the district’s trustees if they want to pursue the matter with the judge.

Emphasis mine, and wow. What a sniveling coward Ken Paxton is. Please, please, pursue this matter with the judge.

Paxton sues again over SAISD’s vaccine mandate

Yes, vaccine mandate. For teachers and staff.

Best mugshot ever

For the second time in a month, Texas Attorney General Ken Paxton sued San Antonio Independent School District and Superintendent Pedro Martinez for requiring all staff to be vaccinated against COVID-19.

Martinez issued a staff vaccine mandate and mask mandate Aug. 16 for everyone inside school buildings. Three days later, Paxton sued Martinez and SAISD over both mandates, stating in the lawsuit that the superintendent and the district were “deliberately violating state law,” as a July executive order from Gov. Greg Abbott prohibits any entity that receives public funds from mandating COVID-19 vaccines that had received only emergency approval from the federal government.

But the federal Food and Drug Administration granted full approval for the Pfizer COVID-19 vaccine on Aug. 23, and the lawsuit was dropped. Two days later, Abbott issued a new executive order, banning governmental entities from requiring any COVID-19 vaccine, regardless of FDA approval status.

Paxton filed the second lawsuit against SAISD in Bexar County on Sept. 9, seeking a temporary restraining order barring the school district from mandating vaccines. In the petition, Paxton claims SAISD and Martinez are again violating state law by “flouting” the August executive order.

“The decision to openly violate state law and devote district resources to defending Superintendent Martinez’s unlawful actions is irresponsible,” Paxton said in a statement. “But if school districts decide to use their limited funding to try to get away with breaking the law, my office will oppose them and uphold the rule of law in Texas.”

See here and here for some background. My reaction when Paxton filed the first lawsuit was that he was likely to prevail, and despite the FDA approval and Biden mandate (which has been announced but not yet fully implemented), I don’t see any reason why that would change. I will of course be happy to be wrong, and if it is the case that some people have gotten vaccinated as a result of the SAISD mandate then it’s a win no matter what happens in court. The main thing to remember here is that Ken Paxton, like Greg Abbott, is objectively pro-COVID, and we need to make them pay at the ballot box for it.

Once again with the religious objection to a Texas anti-abortion law

Stepping up again.

The Satanic Temple has joined the legal wrangling to block or overturn Texas’ severe new abortion law. That law, which the U.S. Supreme Court refused to block this week, bans the medical procedure after six weeks, including in cases of rape and incest.

The Salem, Massachusetts-based Temple filed a letter with the U.S. Food and Drug Administration arguing that its Texas members should have legal access to abortion pills. The group’s attorneys contend that its status as a non-theistic religious organization should ensure access to abortion as a faith-based right.

In the letter, the Temple argues that abortion pills Misoprostol and Mifepristone should be available for its use through the the Religious Freedom Restoration Act, which protects Native Americans’ use of peyote in religious rituals. The Temple says those the same rights should apply to the drugs it uses for its own rituals.

“I am sure Texas Attorney General Ken Paxton — who famously spends a good deal of his time composing press releases about Religious Liberty issues in other states — will be proud to see that Texas’s robust Religious Liberty laws, which he so vociferously champions, will prevent future Abortion Rituals from being interrupted by superfluous government restrictions meant only to shame and harass those seeking an abortion,” said Lucien Greaves, the Temple’s spokesman and co-founder, in an emailed statement.

“The battle for abortion rights is largely a battle of competing religious viewpoints, and our viewpoint that the nonviable fetus is part of the impregnated host is fortunately protected under Religous Liberty laws,” Greaves added.

The U.S. Supreme Court last year declined to hear a case brought by the the Temple to overturn Missouri abortion laws.

I can’t find a copy of the letter, so it’s not clear to me if this is an attempt to challenge SB8, the so-called “heartbeat” bill, or the bill restricting access to medical abortion that was passed during the second special session. The Temple’s own website has some general language about its actions, but not much more than that. They had previously objected to the “fetal remains” law, though I don’t know if they took any legal action about it, and earlier this year they filed a lawsuit over the sonogram law; you can see their statement about that here. I think it’s an overbid to call this the last hope to stop SB8, and I don’t know of any past successes by the Temple in stopping anti-abortion laws, but I applaud their efforts.

Paxton sues several school districts over mask mandates

Whatever, dude.

Best mugshot ever

Texas Attorney General Ken Paxton announced Friday that he filed a lawsuit against Richardson ISD, following through on his pledge to sue school districts who mandate masks.

The district defied Gov. Greg Abbott’s executive order prohibiting local entities from requiring masks. The RISD trustees voted last week to affirm Superintendent Jeannie Stone’s decision to require face coverings, after they were forced to close an elementary school because of a spike in COVID-19 cases and a sixth grader was admitted into the intensive care unit.

Paxton noted in a release that the office anticipates filing additional lawsuits against the districts flouting the governor’s order. This could include Dallas ISD — the first to openly defy Abbott.

“Not only are superintendents across Texas openly violating state law, but they are using district resources—that ought to be used for teacher merit raises or other educational benefits—to defend their unlawful political maneuvering,” Paxton said in a statement.

[…]

Richardson is among the first Texas districts to be sued by Paxton. Friday he also filed suit against the Galveston, Elgin, Spring and Sherman school districts, according to his office.

He has railed against the dozens of school districts and counties who stood firm on mask mandates, repeatedly posting on social media that he would sue them all. Paxton’s office maintains an ever-evolving list of local entities that are mandating masks.

Meanwhile, Abbott’s order is tied up in both state and federal courts as districts and advocates push for mask mandates to be local decisions.

Dallas County Judge Clay Jenkins is locked in a legal fight with the state over his decision to impose a local mask mandate for businesses and schools.

Disability Rights Texas recently escalated the legal battle, filing a federal lawsuit against Abbott, alleging his order unfairly harms children with disabilities.

Richardson trustees also recently voted to join an existing multi-district lawsuit challenging Abbott’s ban, which argues the governor’s executive order exceeds his authority and infringes on local control.

Paxton’s move could have federal implications, as well. The U.S. Department of Education’s Office for Civil Rights recently opened investigations into five states that prohibit mask mandates, saying such bans may violate the federal law meant to protect students with disabilities.

Department officials indicated they had not opened an investigation into Texas because its ban isn’t currently being enforced because of court orders.

Again, neither Ken Paxton nor Greg Abbott has the power to enforce mask mandate bans. Even if Paxton gets a judge to rule in his favor – the score so far is tilted pretty heavily against him – local DAs can and should thumb their noses at him. It’s not clear to me where these lawsuits have been filed – in this press release he said there were three of them, but didn’t get more specific than that. There may be more coming, so eventually we’ll sort it all out. In the meantime, Paxton can go pound sand. The Chron, Reform Austin, and KXAN have more.

UPDATE: Here’s the Trib story, which notes that the lawsuit against Galveston ISD was brought in Galveston County, as one might expect. That’s probably true of the others, each filed in their home county, but it would still be nice to have that confirmed.

Justice Department sues over “heartbeat” law

Good.

The Justice Department sued Texas on Thursday over its new abortion restrictions law, Attorney General Merrick Garland told reporters, a week after the U.S. Supreme Court refused to block the law.

Garland announced the lawsuit, filed in a federal district court in Austin, after abortion rights advocates, providers and Democratic lawmakers called for the Biden administration to act. Other legal challenges have been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

“This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear,” Garland said.

The Texas statute, which went into effect Sept. 1, is considered one of the most restrictive abortion laws in the nation. It prohibits abortions once a “fetal heartbeat” — a term medical and legal experts say is misleading — can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law prevents at least 85% of the procedures previously completed in the state.

Garland said Texas’ statute is “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Previous laws aimed at restricting or stopping abortions have been struck down over the years by the Supreme Court. But this law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, not state officials or law enforcement. This makes it especially difficult to strike down in court because there is not a specific defendant for the court to make an injunction against.

The law empowers any private citizen in the nation to sue someone found to be “aiding and abetting” an abortion, including providers, doctors and even Uber drivers.

The law has seemingly brought most abortions to a halt in the state. Major clinics canceled appointments, fearful of being inundated with lawsuits in which they’d have to pay a penalty of at least $10,000 if they are found to be in violation of the law. Some clinics have even stopped performing abortions allowed under the new restrictions — before fetal heart activity is detected — out of fear of getting hit with lawsuits.

“The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights,” the lawsuit stated. “The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.”

[…]

Abortion providers and advocates applauded the Justice Department joining the legal battle to overturn the statute.

“It’s a gamechanger that the Department of Justice has joined the legal battle to restore constitutionally protected abortion access in Texas,” Nancy Northup, president of Center for Reproductive Rights, said in a statement. “Right now, and every day this law is in effect, patients are being denied access to essential health care, and the hardest hit are people of color, those struggling to make ends meet, undocumented immigrants and others with pre-existing obstacles to access healthcare.”

Alexis McGill Johnson, Planned Parenthood Federation of America president, said in a statement the lawsuit was “a needed announcement” and thanked Biden and the federal government for the action.

Prior to Thursday’s announcement, legal experts expressed doubts as to how a federal lawsuit might work or how successful it might be. Because of the way the law is constructed, experts have been dubious about how the legal saga will play out in courts and those same challenges could impede efforts by the Justice Department. Federal lawmakers have also vowed to overturn the new restrictions by codifying Roe v. Wade in federal law, but those efforts likely face their own political challenges.

See here and here for some background, and here for a copy of the lawsuit. I am of course no legal expert, but I see this case in terms of two simple principles. One is that a state cannot abrogate a constitutional right. I think we all agree on that basic principle. Given that, and given that abortion is still a constitutional right under current law and precedent, this should be a slam dunk, despite SCOTUS’ cowardly and scurrilous hiding behind the “it’s too clever and complex for our wee little brains” dodge. And two, the targeting of completely unrelated people like Uber drivers is such an egregious overreach that it could be argued as an unconstitutional taking of their property. This law would still be unconstitutional if it didn’t put Uber drivers at risk, but their inclusion makes it extra special unconstitutional.

But really, we shouldn’t even be having this argument. This law is “clever” in the way that a grade schooler claiming that they can’t be made to do homework because it violates their religion is “clever”. It’s time that a court treated it with the contempt it deserves. The 19th, Mother Jones, Slate, Daily Kos, and the Chron have more.

First Court denies en banc hearing for Paxton trial move

We’re at a point in the Ken Paxton criminal case where it’s hard to adequately summarize the most recent development in a headline-sized bite.

Best mugshot ever

Attorney General Ken Paxton’s securities fraud case can be tried in his home county in North Texas, an appeals court affirmed Thursday when it denied the prosecution’s plea to reconsider the decision.

The 1st Court of Appeals in Houston denied a motion by prosecutors to hold a hearing of the full nine-justice court to review the decision made by a three-justice panel of the court in May to move the case from Harris County back to Collin County, where Paxton lives. The order could have avoided further delays in the six-year-old criminal case against the sitting attorney general and returned the case to what is seen as a friendlier venue to the two-term Republican incumbent. But on Thursday, the prosecution said it would continue its appeals.

“Because we agree with the dissenting justices that there are critical errors in the majority’s decision, we will seek further review of it in the Court of Criminal Appeals,” special prosecutor Brian Wice said in a statement.

Justices Gordon Goodman and Amparo Guerra dissented to the court’s majority opinion and Justice April Farris did not participate. Goodman, who was part of the three-justice panel that sent the case back to Collin, had dissented in part to the original decision.

[…]

In May, the panel of three Democratic justices allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are well-known political figures.

But prosecutors had accused Paxton’s legal team of “sandbagging” the courts, by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County. Wice argued that Paxton’s legal team had waited until the presiding judge, Gallagher, of Tarrant County, had moved the case out of Collin County to bring up his expired term with the appeals court. Wice asked the full appeals court to reconsider the panel’s decision and determine whether Paxton’s legal team knew of Gallagher’s expired term earlier in the case.

The court’s majority denied that request.

See here, here, here, and here for the background. I had previously said that the First Court had granted the request for an en banc hearing, but all they had done at the time was ask for a response from Team Paxton to that request. I’ve always said I was not a lawyer, now you know why. Now we wait once again for the CCA process to play out.

Three more lawsuits filed against the voter suppression law

It’s a law now, and the legal machines are humming to do something about it.

Though delayed by Democratic quorum breaks, Texas has officially joined the slate of Republican states that have enacted new voting restrictions following the 2020 election.

Gov. Greg Abbott on Tuesday signed into law Senate Bill 1, sweeping legislation that further tightens state election laws and constrains local control of elections by limiting counties’ ability to expand voting options. The governor’s signature ends months of legislative clashes and standoffs during which Democrats — propelled by concerns that the legislation raises new barriers for marginalized voters — forced Republicans into two extra legislative sessions.

SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. But it could still be caught up in the federal courts. Abbott’s signature was both preceded and followed by a flurry of legal challenges that generally argue that the law will disproportionately harm voters of color and voters with disabilities.

On top of two federal lawsuits filed last week, three new lawsuits, including one in state district court, were filed Tuesday shortly after it became law.

[…]

The law already faces two legal challenges from Harris County and a coalition of community and advocacy groups that argue SB 1’s rewrite of Texas voting laws creates new hurdles and restrictions that will suppress voters and violates the U.S. Constitution and numerous federal laws.

Abbott’s signature Tuesday drew three more lawsuits that also argue the changes to elections in SB 1 are unlawful because they will disproportionately burden voters of color and voters with disabilities.

“SB 1 is an arduous law designed to limit Tejanos’ ability to exercise their full citizenship,” said Maria Teresa Kumar, CEO of Voto Latino, which is a plaintiff in a federal lawsuit filed in Austin on Tuesday. “Not only are we filing suit to protect the right to vote for all people of color, and the additional 250,000 young Latino Tejanos who will reach voting age in 2022, but to protect every Texan’s right to vote.”

Another legal challenge was filed in state district court in Harris County and raises claims that the law runs afoul of the the Texas Constitution, including its protection against racial discrimination.

[…]

As it worked toward getting the legislation across the finish line, the House also made changes Democrats had been pushing for, including requiring training for poll watchers. Republicans also ditched controversial provisions that would have restricted Sunday voting hours and made it easier for judges to overturn elections — both of which they tried to walk away from after Democrats first derailed the legislation in May during the regular legislative session.

Even with some of those changes, a group of plaintiffs in another federal lawsuit filed Tuesday in San Antonio, including Houston Justice and the Arc of Texas, say the legal intervention was needed to “ensure that the State does not continue to erect barriers” that have both the “intent and effect” of suppressing the votes of marginalized Texans.

“These provisions will harm all Texas voters, but consistent with Jim Crow era tradition, the burdens will be disproportionately borne by Black and Latino voters and voters with disabilities,” the plaintiffs said in their complaint. “S.B. 1 intentionally targets and burdens methods and opportunities of voting used by and responsive to the needs of voters of color, particularly Black and Latino voters, and other vulnerable voters, as evidenced by the 2020 elections.”

There are also questions on whether the U.S. Department of Justice will sue Texas over the new law, as it did Georgia earlier this year after lawmakers there passed a new law to tighten elections.

It remains unclear what, if any, Congressional action could affect the new law.

See here for more on the first two lawsuits. Before I get to the others, let me just say that if the John Lewis Act doesn’t have any effect on the new law, then either the authors of the bill are incompetent or the federal courts really have it in for us. But that assumes the damn thing can overcome the stupid filibuster, so let’s put that question off for later.

For the other lawsuits, here are the basics:

– The first lawsuit referenced is here, and it’s probably best just to print the announcement about it for the relevant details.

Minutes after Gov. Greg Abbott (R) signed voter suppression bill Senate Bill 1 into law on Tuesday, voting and civil rights groups sued to challenge the bill’s most disenfranchising provisions. The complaint, filed by LULAC Texas, Voto Latino, Texas Alliance for Retired Americans and Texas AFT, alleges that the new law imposes an undue burden on the right to vote in violation of the First and 14th Amendments, purposely intends to limit minority voters’ access to the ballot box in violation of Section 2 of the Voting Rights Act (VRA) and disproportionately impacts voters with disabilities and limited language proficiencies in violation of Section 208 of the VRA. The suit asks the court to prohibit the suppressive provisions from being enforced. This is the third lawsuit challenging S.B. 1, as two cases were filed last Friday before the bill was even signed into law.

The provisions challenged in this lawsuit include: criminalizing public officials’ efforts to encourage the submission of absentee ballot applications; additional ID requirements for absentee voting; the effective elimination of drop boxes, drive-thru voting and 24-hour early voting; new obstacles for voters to receive assistance to vote absentee or in person; and the empowerment of partisan poll watchers.

The complaint argues that the passage of S.B. 1 is in direct response to increased voter turnout in the 2020 election, particularly among voters of color, and is meant to “stem the growing tide of minority voter participation.” The lawsuit argues that “by surgically targeting election practices employed in Texas’s largest and most diverse jurisdictions—methods on which the State’s Black and Hispanic populations disproportionately rely—the [challenged provisions] were intended to disproportionately restrict access to the franchise for Black and Hispanic voters.” Furthermore, the suit alleges that certain provisions place an undue burden on the right to vote for elderly voters, voters with disabilities and voters with limited language proficiencies.

Read the complaint here.

All that is courtesy of Democracy Docket, which had promised litigation the minute that SB1 passed in the House.

– The other federal lawsuit comes from the NAACP Legal Defense and Educational Fund:

Today, the NAACP Legal Defense and Educational Fund, Inc. (LDF)Reed Smith LLP, and The Arc filed a federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Inc., and The Arc of Texas challenging S.B. 1, a new Texas law targeting voting rights.  S.B. 1 includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether, particularly Black and Latino voters and voters with disabilities.The lawsuit, which was filed in the United States District Court for the Southern District of Texas, argues that S.B. 1 violates the First, Fourteenth, and Fifteenth Amendments of the United States Constitution and Section 2 of the Voting Rights Act by intentionally targeting and burdening methods and means of voting used by voters of color.

The Plaintiffs also claim that the law violates the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and Section 208 of the Voting Rights Act by imposing voting barriers that will discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s voting programs.

The lawsuit challenges multiple provisions in SB 1, including:

  • Limitations on early voting hours and a ban on 24-hour voting.
  • The elimination of drive-thru voting centers.
  • The prohibition of mail-in ballot drop-boxes.
  • Limitations on the distribution of mail-in ballot applications.
  • Limitations and possible penalties for voter assistants, including criminal felonies.

Read the lawsuit challenging S.B. 1.

You can read the press release for statements from the plaintiffs.

– The state lawsuit comes from another group we’ve heard from before.

The Texas State Legislature’s SB 1 legislation violates provisions of the Texas Constitution that protect the right to vote, the right to freedom of speech and expression, the right to due process, and the right to equal protection under law, according to a lawsuit filed Tuesday by civil rights advocates against Gov. Greg Abbott, Attorney General Kevin Paxton, Deputy Secretary of State Joe Esparza, and the future secretary of state, once that position is filled.

Despite the hardships of voting during a global pandemic, during the 2020 general election, Texas saw one of its highest voter turnouts in decades, particularly among Black voters and other voters of color.  SB 1 was passed on the heels of the successful 2020 election, with the intent to suppress these votes. The legislation includes provisions that expand the power of partisan poll watchers, limit county election officials’ discretion to adopt safe and secure methods of voting, make it more difficult for voters to receive assistance, and place restrictions on absentee ballots, ballot drop boxes, and early voting.

The lawsuit, Texas State Conference of the NAACP et al. v. Abbott et al., was filed in state district court in Harris County, Texas. The Lawyers’ Committee for Civil Rights Under Law and Dechert LLP are representing the Texas State Conference of the NAACP, Common Cause Texas, three election judges, one voter assistant, and one registered voter in Harris County.

“The scourge of state-sanctioned voter suppression is alive and well, and Texas just became the most recent state to prove it,” said Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “With the passage of this bill, Texas legislators know exactly what they are trying to do – use brazen tactics to disenfranchise Black voters, Latinx voters, and other voters of color who are a growing part of the electorate and who turned out and made their voices heard in 2020. This bill violates Texas’ own state constitution and does not advance any legitimate state interests that would justify this wide-ranging attack on the right to vote.”

SB 1 expands the power of partisan poll watchers by instituting criminal penalties for election officials who obstruct their actions, stripping local election officials of the power to take executive action in emergency situations, and exposing voter assistants to increased surveillance and administrative complexities. Furthermore, the legislation restricts nearly every method of voting overwhelmingly used by voters of color in 2020: It limits early voting and ballot drop boxes, curbs how absentee ballots can be distributed and who can vote by mail, and bans drive-thru voting. While the provisions of SB 1 will hinder the ability of all Texans to vote, these new restrictions intentionally and disproportionately impact communities of color.

“Texas’s new voting restrictions targeting voters of color are an affront to our democracy,” said Neil Steiner, partner with Dechert LLP. “We remain committed to ensuring that all eligible voters have a true opportunity to participate in our elections by casting a ballot safely, securely and conveniently, with confidence that their votes will be counted.”

I have only given a brief glance to each of these lawsuits – as you know, I Am Not A Lawyer, I just occasionally try to interpret lawyer-y things on the Internet for other non-lawyers. All of them are quite long and will take me some time to try to understand. I do not offhand know why this one was filed in state court, or why that might be a more promising avenue for redress. That has been a successful tactic in some other states, mostly but not entirely for the battle against partisan gerrymandering, but as far as I know it has not been used in this context here before, other than the unsuccessful challenges to Texas’ age restrictions for voting by mail in the runup to the 2020 election. It’s worth a shot – let a thousand flowers bloom and all that – but I cannot articulate a reason why this way and not that way. If someone else can, I’d love to hear it. I will make an effort to read through these documents and try to answer that myself, but you know how that goes. The Current, the Texas Signal, and the Chron have more.

The tab for voter ID

Impressive.

Still the only voter ID anyone should need

Texas remains responsible for nearly $6.8 million in legal fees and costs owed to the collection of parties who sued over its voter ID law.

Though the state ultimately won the long-winding fight to keep the voter ID law on the books, a panel of the U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling that found the state is on the hook for that sum — the last vestige of the legal battle over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls.

The Texas attorney general’s office had appealed that lower court ruling, which found the plaintiffs in the litigation — Democratic U.S. Rep. Marc Veasey of Fort Worth, individual voters, voting and civil rights groups, the NAACP-Texas and the Texas House’s Mexican American Legislative Caucus, among others — were the “prevailing parties.”

“It seems obvious that they are,” the 5th Circuit judges on Friday. “Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017.”

Just a quick recap, the original voter ID law that was passed in 2011 was ruled to have had discriminatory intent by a district court judge in 2014, but the Fifth Circuit allowed it to stand while the appeal was made. Both the three-judge panel and the full Fifth Circuit ultimately upheld the district court ruling, but as it was close to the 2016 election by then, a modified version of the law that mitigated some of the harm was implemented. After the 2017 Lege codified those changes, the law was challenged again, and despite another ruling by the same district court judge that the law was still discriminatory, this time the Fifth Circuit ruled in favor of the state, and here we are now. (Yes, SCOTUS was involved in both of these cases, but this has gone on long enough.) The state may press on again with this appeal, but at this point it would seem unlikely they’d win. Perhaps by now we have had more than enough money spent on this cursed thing.

Plaintiff in Constable Precinct 1 lawsuit responds

She’s not having it with the dismissal of Constable Alan Rosen as a defendant from the lawsuit.

Constable Alan Rosen

The booze-fueled undercover hotel operations were bad. Felecia McKinney’s worst moment at the Precinct 1 Constable’s Office, however, came two years ago, during an undercover sting at a Massage Heights near the Texas Medical Center.

Another Precinct 1 employee had been assaulted at the business. Her bosses wanted her to pose as a customer, wait to see if he acted again, and then give a signal to bust him and take him down.

When she emerged from the spa, a superior told her to drive herself to the hospital to get a sexual assault examination while Constable Alan Rosen held a celebratory news conference in the business’ parking lot, she said at a press conference Friday.

[…]

After the spa sting, McKinney and Erica Davis — the Precinct 1 employee whose assault led to the investigation of Massage Heights — sued the establishment, saying the budget spa chain, its employee, owner and franchisor were negligent in training and supervision. Davis agreed to a monetary settlement in the case but McKinney’s complaint is still pending. Criminal charges against Wenjin Zhu, the massage therapist accused of sexually assaulting Davis and McKinney on the massage table two days apart, are also still pending. Zhu is detained in the county jail.

Though her lawyers have described her experience in court filings, McKinney had never addressed the public about her sexual assault in August 2019 until her brief remarks to reporters at her attorney’s office Friday morning.

“He knows what happened to me,” McKinney said of Rosen. “He intended it. He ordered it. And to hear him claim victory — and that he wouldn’t be held personally accountable for something he’s admitted to doing makes me feel attacked, unheard, and very alone.”

What angered her the most, she said, was reading comments from Rosen’s defenders that the constable should never have been included in the lawsuit in the first place.

“This case was never about money for me. It was about exposing the truth and holding people accountable,” she said, her voice catching. “When I read his comments and his attorney’s comments, I felt really victimized in ways I never expected. …When I saw the claim that he never should have been in the lawsuit, after ordering an operation that I go in to be sexually assaulted, I broke down.”

See here for the previous entry. I don’t know if the decision to remove Rosen as a defendant was a good one or not – I presume it can be appealed, but regardless of that the lawsuit itself if still ongoing. The allegations still refer to things that happened under Constable Rosen’s watch. I’m still far from convinced that any of the undercover actions were a good use of law enforcement resources, whether or not the deputies in question were put in needless danger. I don’t know what will come of this case, but we need to hear what Ms. McKinney and her fellow plaintiffs have to say.

First two lawsuits filed against the voter suppression bill

No time wasted.

The top elections official in Harris County and a host of organizations that serve Texans of color and Texans with disabilities have fired the opening salvos in what’s expected to be an extensive legal battle over Texas’ new voting rules.

In separate federal lawsuits filed in Austin and San Antonio, the coalition of groups and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote.

The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, Fourteenth and Fifteenth Amendments.

“Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint.

The plaintiffs in the San Antonio lawsuit,, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation.

[…]

The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections.

In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.”

“Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint.

The claims raised collectively in both lawsuits are as expansive as the legislation is far-ranging.

They include claims on SB 1’s new restrictions on voter assistance, including the help voters with disabilities and those with limited English proficiency are entitled to receive. The plaintiffs point to the reworked oath that a person assisting a voter must recite, now under penalty of perjury, that no longer explicitly includes answering the voter’s questions. Instead, they must pledge to limit their assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.”

As part of its claims of intentional discrimination, the lawsuit that includes Harris County as a plaintiff also calls out SB 1’s prohibition on the drive-thru and 24-hour voting initiatives used by the diverse, Democratic county in the 2020 election — both of which county officials said were disproportionately used by voters of color.

SB1 also makes it a state jail felony for local election officials to send unsolicited applications to request a mail-in ballot. Several counties proactively sent applications to voters 65 and older who automatically qualify to vote by mail, but Harris County attempted to send them to all 2.4 million registered voters last year with specific instructions on how to determine if they were eligible.

In outlawing those voting initiatives, Republican lawmakers made it clear they were targeting the state’s most populous county, even though other counties employed similar voting methods.

“My first and only priority is to educate and help voters to lawfully cast their ballots,” Harris County Elections Administrator Isabel Longoria said in a statement. “Voting by mail is not simply another method to vote — for many senior voters and voters with disabilities, it’s their only option to vote. SB1 makes it a crime for me to encourage those who are eligible to vote by mail to do so, effectively making it impossible to fulfill my sworn duty as Elections Administrator.”

Both lawsuits also argue the constitutionality of a section of SB 1 that creates new a “vote harvesting” criminal offense, which it defines as in-person interactions with voters “in the physical presence of an official ballot or a ballot voted by mail, intended to deliver votes for a specific candidate or measure.” The lawsuits argue the language in that section — and the criminal penalties attached to it — are unconstitutionally overbroad and vague and could serve to quash legitimate voter turnout initiatives.

The lawsuits also challenge provisions of SB1 that bolster protections for partisan poll watchers inside polling places, and new ID requirements for voting by mail.

You can see copies of the lawsuits here for Austin and here for San Antonio. I note that Isabel Longoria, the Harris County elections administrator, is a defendant in her official capacity in the Austin lawsuit and a plaintiff in the San Antonio lawsuit. I assume there’s a technical reason why a county elections administrator is named as a defendant in these actions, but I have no idea what algorithm is used to decide which county and administrator. (The Austin lawsuit also includes Dana DeBeauvoir from the Travis County elections office as a defendant, while the San Antonio lawsuit picks the Medina County admin. Go figure.)

I’m not going to speculate on the merits or chances of these lawsuits, which I assume will eventually get combined into a single action. I expect that they have a strong case, and we know from past performance that the Republicans in the Lege tend to be shoddy and indifferent in their work when they pass bills like these, but none of that really matters. What matters is what if anything the Fifth Circuit and SCOTUS deign to find objectionable. For obvious reasons, I’m not going to get my hopes up. I expect the Justice Department to get involved on the side of the plaintiffs, and there’s always the specter of passing the John Lewis Act and making this way easier on everyone. In the meantime, settle in for the long haul, because we know this will take years to come to a resolution. Look to see what happens when (I feel confident saying “when” and not “if”) a temporary restraining order is granted.

No Roe roundup

I don’t have a good title for this post, but I do have a collection of stories.

Planned Parenthood files restraining order against Texas Right to Life.

Right there with them

Planned Parenthood of Greater Texas and its affiliates filed a temporary restraining order with a Texas district court Thursday night against Texas Right to Life to stop the anti-abortion organization from suing abortion providers under a new law that all but bans abortions in the state.

[…]

Planned Parenthood, which has stopped providing abortion services in San Antonio but continues elsewhere in the state, refers to SB 8 as the “sue thy neighbor law.”

“Anti-abortion activists are already staking out our health centers, surveilling our providers, and threatening our patients,” said Helene Krasnoff, vice president for public policy litigation and law for Planned Parenthood Federation of America, in a news release. “The physicians, nurses, and clinic staff at Planned Parenthood health centers in Texas — and at abortion providers statewide — deserve to come to work without fear of harassment or frivolous lawsuits.”

This unprecedented enforcement framework essentially circumvents traditional judicial review. Typically, individuals or groups would legally challenge the state as the enforcer — but this law removes the state from the equation. In order for the Supreme Court to review the law, someone will have to sue someone who performed or assisted an illegal abortion; only then it can be challenged.

If the district court grants the restraining order, it would only apply to Planned Parenthood, its affiliates, and an individual Planned Parenthood Houston physician, Dr. Bhavik Kumar, who joined the order. This means other providers would likely still be subject to the law.

Texas Right to Life, which helped write the bill, set up a “whistleblower” tip line so people can report violations to the anti-abortion organization. An email seeking the organization’s comment on the restraining order was not returned Friday morning.

The Refugee and Immigrant Center for Education and Legal Services (RAICES) said on Twitter that it will defy the law.

“The ban on abortion in Texas is an abomination,” the nonprofit tweeted. “We want to send a very clear message: RAICES will not obey this archaic and sexist law. We’ve funded & supported access to abortions for immigrants in Texas for years and will continue to do so. Some laws are meant to be broken.”

You can see a copy of the lawsuit, which asks for a temporary restraining order as well as temporary and permanent injunctions against the defendants, “>here. The suit includes 100 “John Doe” defendants as “those individuals or entities who have expressed to other Defendants, whether by words or actions, their intention to enforce S.B. 8 against Plaintiffs”. I’m not exactly sure how that works, but I guess we’ll find out. It seems to me that in addition to the federal lawsuit, which is still ongoing despite the Supreme Court’s cowardly and corrupt ruling that allowed SB8 to take effect in the interim, every stakeholder who could reasonably foresee themselves as being on the wrong side of one of these nuisance vigilante actions should do the same thing and file their own pre-emptive lawsuit. We’ve already established that anyone can sue anyone over this, so who needs standing? KVUE has more.

On the subject of that federal litigation, it’s hard to say what comes next.

“This is all uncharted territory,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “So it’s really hard to say definitively what’s going to happen.”

What makes the law so unusual is its private enforcement, allowing nearly anyone to sue a doctor or other person who helps provide an abortion after six weeks, a point at which many women don’t yet realize they’re pregnant. Because the ban is not enforced by state officials, it’s difficult to know who abortion clinics can sue to challenge the law’s constitutionality.

The court’s conservative majority did not rule Wednesday on the law itself, and in fact acknowledged that abortion providers had raised “serious questions” about its constitutionality.

But the justices also expressed doubt about their ability to intervene in a privately enforced law such as the Texas law, Senate Bill 8, and experts said abortion proponents may have to think through other ways to get the issue before the court.

“The federal route is not dead, but the problem with it is it’s going to take some creativity on the part of federal courts to figure out why SB 8 and laws that may be like it are a real problem,” said Seth Chandler, a professor at the University of Houston School of Law.

“If SB 8 is OK, there’s nothing to stop Texas from passing a law that creates $10,000 private bounties for newspaper reporters who write things that are critical of the governor,” Chandler said. “Or for California to pass laws that may create a private bounty against people who own handguns in their home.”

Maya Manian, a visiting professor at the American University Washington College of Law, said the court could have at least temporarily intervened to allow for more time to review the claims.

“There is no question the Supreme Court could have found a way to overcome these procedural hurdles,” Manian said. “Yet they’re using this procedural cover to covertly overrule Roe v. Wade,” referring to the 1973 decision that established a constitutional right to abortion.

There’s no question that SCOTUS’ refusal to issue a stay against SB8 was an appalling and wholly political abandonment of their duty. Maybe the outcry that is now occurring will be enough to actually spur some federal action, both in terms of passing a law to enshrine Roe as the standard, and also to put some restraints on the increasingly overreaching Supreme Court. Just its abuse of the shadow docket is sufficient cause to reel them in. I’ll believe it when I see it happen, unfortunately. Beyond that, SB8 is so vague as well as unprecedented that no one really knows what its scope is. I suspect that was a feature of this abomination.

Back to the Chron story:

Several legal experts said the fastest way to challenge the law may be to openly defy it, a move Planned Parenthood and other providers have so far been reluctant to do.

“There will be someone mad enough to violate the law and happily serve as a test subject,” Mala Corbin said. “Because the women of Texas are not going to take this without a fight. This is their right to control their body at stake.”

Miriam Camero, vice president of social programs at RAICES, a group that gives legal aid to immigrants, said it was prepared to help women access abortion regardless of the law. Camero noted that the ban especially harms immigrants who already have a difficult time traveling to abortion clinics or out of state given their legal status.

“We will continue to assist clients, whether it be in Texas or Louisiana or Arkansas, Oklahoma, New Mexico,” Camero said.

It appears RAICES has already taken that step. We’ll see if they get hit with one of those lawsuits, in which case perhaps there will be a route to swifter action.

Doctors are also very unhappy with this new law.

The Texas Medical Association slammed the state Legislature on Friday, calling its passage of two anti-abortion bills “unconstitutional” and an interference with the fundamental patient-physician relationship.

“Enough,” the organization wrote in a statement. “The Texas Medical Association supports our physicians specializing in women’s health and opposes legislation in Senate Bill 8 of Texas’ 87th legislative session and Senate Bill 4 of this special session. SB 4 contains language that criminalizes the practice of medicine. Both bills interfere with the patient-physician relationship.”

[…]

On Wednesday, SB 8, which bans abortion after six weeks, including in instances of rape and incest, went into effect. The new law is a near-total ban on abortion and one of the strictest such measures in the country.

Hours before that, the Texas House passed Senate Bill 4, which would reduce access to abortion-inducing pills, the most common method for patients terminating a pregnancy. As sent to Gov. Greg Abbott’s desk, the bill would prevent physicians or providers from prescribing these medications to patients more than seven weeks pregnant.

Current Texas laws allow, and FDA guidelines suggest, practitioners to give these pills to patients who are up to 10 weeks pregnant.

“SB 8 and SB 4 go too far. Clearly these provisions are unconstitutional, in our opinion. TMA stands for the health care of all Texans and our profession. Enough is enough,” the statement continued.

[…]

“SB 8 allows for a bounty that encourages practically any citizen to file a cause of action against physicians, other health care professionals, and anyone who ‘aids or abets,’ based on a suspicion. If permitted to proceed, this law will be precedent-setting and could normalize vigilante interference in the patient-physician relationship in other complex, controversial medical or ethical situations.”

Meanwhile, the bill that was passed in the Texas House this week, SB 4, which limits access to abortion-inducing pills, would make it a criminal act for physicians to give these medications to patients more than seven weeks into a pregnancy.

“The physicians of Texas never thought the day would come when the performance of our oath would create a private cause of action for persons not connected to or harmed by the action. Yet, that day has sadly arrived in the state we love,” the TMA wrote.

Very heartfelt, and it’s easy to understand their outrage, but last I checked the TMA has been pretty supportive of Republican politicians, mostly because of tort “reform”. You want to convince me that you’re actually mad and not just having a minor snit, there’s an easy way to put your literal money where your figurative mouths are.

Finally, I mentioned the Texas Right to Life snitch site. As you may have heard, it has attracted some attention from folks who intend to disrupt it.

The Texas Right to Life organization created a website for those reports. But instead of citizens reporting on, say, the Uber driver who brought a woman to a clinic, critics of the law are spamming it with a barrage of fake information. Gov. Greg Abbott and Marvel’s Avengers are among those being reported receiving abortions, according to the New York Times.

Part of the flood of false info sent to the website appears to be aided by an activist and developer who posts under the social media alias Sean Black. In a viral TikTok first reported by Motherboard at Vice, Black explained that he wrote a script that anyone can access, which automates the process of letting them file fake reports. Each time they access Black’s script, new information is generated, theoretically making it harder for the Right to Life group to parse and ban people who are submitting fake reports.

As of September 2, not even 24 hours after the Supreme Court refused to halt the implementation of the law, Black told Vice the script had been clicked over 4,000 times.

Go get ’em, Sean Black.

UPDATE: One more story to add: Uber And Lyft Have Pledged To Cover Their Drivers’ Legal Fees If They Get Sued Under The Texas Abortion Law. Kudos to them for that.

UPDATE: TRO granted to Planned Parenthood. A hearing for an injunction will be September 13. No word yet about an appeal of the TRO.

Constable Rosen removed from sexual harassment lawsuit

Good news for him, but the suit continues.

Constable Alan Rosen

Harris County Precinct 1 Constable Alan Rosen has prevailed in a legal effort to be removed from a lawsuit accusing department supervisors of sexual misconduct against female subordinates in an undercover anti-prostitution unit.

In a five-page ruling, U.S. District Judge Kenneth M. Hoyt on Monday ruled Rosen could not be personally sued for the misconduct allegations that several current and former deputies and another employee had made about conduct within the unit. Plaintiffs can continue to pursue their lawsuit against Harris County and Assistant Chief Deputy Chris Gore and Lt. Shane Rigdon, the judge ruled.

Hoyt explained his ruling by saying he’d concluded that the plaintiffs’ allegations against Gore and Rigdon were “enough to raise a right to relief” but that the plaintiffs had not made any claims that would support Rosen’s individual liability under civil rights law.

Rosen touted the ruling in a news release in which he said he had “full faith in the Court’s review” of the motion.

“I thank the court for its considered review of the law as it pertains the motion to dismiss me from this matter,” he said, “and for granting that dismissal such that my full focus can remain on the needs of the residents of Precinct 1.”

Lawyers for the female deputies said they were undeterred, pointing to Hoyt’s decision to allow the suit to proceed against Harris County and against Gore and Rigdon.

“While Alan Rosen has been able to protect his personal financial interests, his conduct is still very much a part of the lawsuit,” attorneys Cordt Akers and Bill Ogden said, in a written statement.

See here, here, here, and here for the background. You can see a copy of the ruling in the story. While this is good news for Constable Rosen personally, the lawsuit is still active – this was a motion to dismiss, and it was denied for the other two defendants. For that reason, ignore this:

Rosen attorney Ben Hall said Wednesday that his client “should never have been in the lawsuit in the first place.”

He said believed Rosen was added to the lawsuit to tarnish his political viability.

“I think the fact the judge dispensed (with this matter) so quickly will at least remove this stain,” Hall said, “So he can move down the road. And if it is his fate to be sheriff, I think he’d be a fabulous sheriff.”

Sorry, but this still happened on his watch. He may not be legally liable for damages, but he’s still responsible. Maybe if the remaining defendants are cleared we can talk about his future ambitions, but until then let’s cool our jets. This is far from over.

Killing Roe softly

Right there with them

Honestly, there’s not a whole lot to add here from yesterday. As of this writing, SCOTUS has still not acted on the emergency petition from Texas abortion providers over SB8. SCOTUS will issue a response to that request, but they can take their time about it if they want to. That right there tells you something.

Most of the stories out there that I’m seeing are further explainers of SB8 and how it works and what the current legal status is, some with a side helping of justified rage. They mention the state court injunction in passing, as it has a very limited effect. There are stories about the effect this law has already had on providers and patients, and stories about what SCOTUS has done by doing nothing and what we can do about it (nothing easy, unfortunately). There are reactions from politicians, with Democrats promising to fight, and calls to action from folks who understand that if you’re not ditching the filibuster, you really can’t fight effectively. And on and on.

And so we wait, and we try to figure out how to move forward, and we really better internalize the idea that 1) we need to win more elections, and 2) we need to effectively wield the power we have when we have it. This is what happens otherwise.

UPDATE: Welp.

A deeply divided Supreme Court is allowing a Texas law that bans most abortions to remain in force, for now stripping most women of the right to an abortion in the nation’s second-largest state.

The court voted 5-4 to deny an emergency appeal from abortion providers and others that sought to block enforcement of the law that went into effect Wednesday. But the justices also suggested that their order likely isn’t the last word on whether the law can stand because other challenges to it can still be brought.

The Texas law, signed by Republican Gov. Greg Abbott in May, prohibits abortions once medical professionals can detect cardiac activity, usually around six weeks and before many women know they’re pregnant.

It is the strictest law against abortion rights in the United States since the high court’s landmark Roe v. Wade decision in 1973 and part of a broader push by Republicans nationwide to impose new restrictions on abortion. At least 12 other states have enacted bans early in pregnancy, but all have been blocked from going into effect.

The high court’s order declining to halt the Texas law came just before midnight Wednesday. The majority said those bringing the case had not met the high burden required for a stay of the law.

“In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,” the unsigned order said.

Chief Justice John Roberts dissented along with the court’s three liberal justices. Each of the four dissenting justices wrote separate statements expressing their disagreement with the majority.

Roberts noted that while the majority denied the request for emergency relief “the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

The vote in the case underscores the impact of the death of the liberal Justice Ruth Bader Ginsburg last year and then-president Donald Trump’s replacement of her with conservative Justice Amy Coney Barrett. Had Ginsburg remained on the court there would have been five votes to halt the Texas law.

Justice Sonia Sotomayor called her conservative colleagues’ decision “stunning.” “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand,” she wrote.

I’m just sick.

First redistricting lawsuit

Faster than a speeding bullet

The first volley in what is expected to be a fierce war over Texas redistricting kicked off Wednesday in the form of a federal lawsuit filed by two Democratic state senators who argue that state lawmakers cannot legally redraw the state’s legislative maps this fall.

State Sens. Roland Gutierrez of San Antonio and Sarah Eckhardt of Austin are asking a federal district court in Austin to take over the work of drawing up new political maps for the Texas House and Senate to reflect the state’s growth in the last decade. Joined in their lawsuit by the Tejano Democrats, a political organization, the senators argue the Legislature cannot constitutionally carry out that work in a special legislative session.

The Texas Constitution states the Legislature “shall” redraw the state’s legislative maps “at its first regular session after the publication” of each decennial census. But significant holdups in finalizing the 2020 census delayed the release of the detailed population numbers needed to redraw those districts for several months — far past the end of the regular legislative session in May.

Having a court redraw legislative maps could help Democratic chances for a more favorable map compared with what the Legislature’s Republican majority might draw up in a bid to hold power for the next decade in a state that is demographically moving away from the party.

Congressional and state House and Senate districts need to be reconfigured before the 2022 elections to account for the state’s explosive growth in the last 10 years. The census’ August data delivery showed people of color accounted for 95% of the state’s population growth of nearly 4 million residents since 2010. The suit does not challenge the Legislature’s ability to draw a new Congressional district map in special session. Lawmakers must rework that map to add the two additional districts Texas earned because of its fast growth.

Because the Legislature lacks the authority to redraw the legislative districts now, the lawsuit argues, that obligation falls to the court to ensure the maps won’t violate the 14th Amendment’s “one person, one vote” principle for the 2022 elections. The Legislature’s next regular legislative session won’t take place until January 2023.

State legislative districts are meant to be close to equal in population, but the state’s booming — and uneven — growth in the last decade means that population counts in the districts are significantly out of balance.

It’s an interesting argument, and one that has been a part of the discussion of how Greg Abbott’s defunding of Article X in the budget could screw with the redistricting process in this fashion. I have no idea what the odds of success are, but there’s one very interesting tidbit in this that Michael Li highlights:

That’s Republican Former Chief Justice of the Texas Supreme Court Wallace B. Jefferson acting as co-counsel for the plaintiffs. Lawyers have to make a living and all that, but this is nonetheless a very interesting choice of case for him to take. Given the likelihood that he’s set some bridges aflame, and given the level of esteem in which he is generally held, I have to think there’s some merit to this. We’ll see. The Chron has more.

The legal situation with the heartbeat bill

I’m writing this at eight PM, and will very likely be asleep before SCOTUS takes any action, if they do take action. So let’s start with what we have as of now:

That was in reply to this:

See here for the previous entry. If I see that SCOTUS has taken action when I get up in the morning, I’ll update this post. If not, you can assume that there’s basically no such thing as abortion in Texas until further notice. And that will include medical abortion.

Two days before one of the strictest abortion laws in the country is set to go into effect in Texas, the state Legislature tentatively approved another bill Monday evening that would restrict the procedure during the first term of pregnancy.

Senate Bill 4 remains identical to the version of the bill passed by the Texas Senate. Texas Democrats were unable to attach amendments to the bill, despite more than a dozen attempts, which means the bill will head straight to Gov. Greg Abbott’s desk if it is finally approved with no changes.

The legislation would limit patients’ access to abortion-inducing pills, preventing physicians or providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant. Current law allows practitioners to give these pills to patients who are up to 10 weeks pregnant.

Notably, the U.S. Food and Drug Administration set its guidelines in 2016 advising that abortion-inducing pills are safe to use up to 70 days, or 10 weeks, after initial conception.

These pills have increasingly become the most common method for women to terminate a pregnancy if they are aware of their pregnancy early enough. According to the Guttmacher Institute, a reproductive health research institute that supports abortion rights, 60% of women elect to take a pill over having surgery.

It’s grim. This bill might have a chance of being knocked down by litigation, but who can even say at this point.

It should be noted that there is some state litigation happening, but that will not have the effect of blocking SB8.

Travis County District Judge Amy Clark Meachum issued a temporary restraining order barring the anti-abortion organization Texas Right To Life; John Seago, its legislative director, and others from “instituting any private enforcement lawsuits” under SB 8 against the plaintiff, a Dallas attorney, according to the order.

But the full scope of the order was narrow, and does not apply to a majority of providers or Texans.

“While the temporary restraining order issued by the Texas state court in Austin provides some relief to the two individuals and one nonprofit organization against lawsuits from the Texas Right to Life, it does not provide the full relief needed to ensure all Texans can access their constitutional right to an abortion,” said Julie Murray, staff attorney for Planned Parenthood Federation of America.

Here’s a bit more on that litigation from KXAN:

District Judge Amy Clark Meachum considered three cases on Tuesday morning: one, brought by an attorney and sexual assault victim’s advocate named Michelle Tuegel; another brought by Bridge Collective, a resource group for people seeking an abortion; and another brought by Allie Van Stean, a woman who regularly donates to women’s health clinics.

On Tuesday morning, the judge granted temporary restraining orders (TROs) in all three instances, against the group Texas Right to Life. According to attorneys for these three plaintiffs, the TRO’s prevent Texas Right to Life from filing lawsuits under the new fetal heartbeat law, until the court can conduct a full-scale temporary injunction hearing later in September.

Their attorneys say the ruling is significant for their clients because they had to prove “probable right to relief” to get the TRO — meaning they were able to show the judge evidence supporting their challenge to the law’s constitutionality.

KXAN spoke to Van Stean earlier this month, who explained, “Simply donating to places like Planned Parenthood count as aiding and abetting an abortion… If I’m donating to Planned Parenthood, I’m not necessarily giving with the intent to assist women in getting an abortion. Planned Parenthood and other places provide necessary and needed services like birth control at a lower cost, affordable option for women who can’t afford it.”

A spokesperson for Texas Right to Life told KXAN on Tuesday, the judge’s ruling was “narrow” and does not block the Texas Heartbeat Act from being broadly enforced at midnight.

Rewire wrote a story about Michelle Tuegel, who had filed a lawsuit in Dallas. In that one she sued a whole lot of people, mostly legislators. I don’t know what happened to that suit or if it is related in some way to this one. You should read that story, which links to this one about how Tuegel won a big judgment against US Gymnastics over the Larry Nassar case. If nothing else, I’m glad to have someone like that fighting the good fight.

And that’s all I know right now. If there’s any news in the morning, I’ll include it here. Daily Kos has more.

UPDATE: No word from SCOTUS, so SB8 officially became law at midnight last night. They can – and some people think they will – still act today. But SB8 is in effect until and unless they do.

The “heartbeat” bill is about to become law

There’s nothing standing in the way.

Right there with them

A Texas law that would ban abortions after as early as six weeks is poised to take effect Wednesday, after a federal appellate court’s rulings stymied efforts to block the law.

On Friday night, the 5th U.S. Circuit Court of Appeals canceled a hearing planned for Monday, at which more than 20 abortion providers had hoped to persuade a federal district court in Austin to block the law from taking effect.

Providers have sued to overturn the law, which they say is the nation’s strictest and would create what they call a “bounty hunting scheme” in allowing members of the general public to sue those who might have violated the law. The law, Senate Bill 8, would prohibit abortions after a fetal heartbeat can be detected without specifying a time frame, before many women know they are pregnant.

Late on Saturday, provider groups, including Planned Parenthood Center for Choice and Whole Woman’s Health Alliance, filed emergency motions with the 5th Circuit, essentially asking it to send the case back to district court or for the appellate court itself to issue a stay that would temporarily block the law’s enforcement.

The 5th Circuit denied the emergency motions Sunday afternoon.

“If this law is not blocked by September 1, abortion access in Texas will come to an abrupt stop,” Marc Hearron, senior counsel at the Center for Reproductive Rights, which represents providers, said in a statement. The state’s strategy, he said, has been to “circumvent the court system and the constitution itself,” he said, in order to “push abortion out of reach for as many Texans as possible.”

[…]

Abortion providers and supporters have braced for SB 8 for months. Texas women could completely lose access to abortions for a time, warned Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America.

“It’s quite possible that it could create chaos and problems on the ground, including the closing of health centers,” Krasnoff said.

Even if clinics stay open, the law could affect most of the abortions now being performed in Texas. Whole Woman’s Health, which also provides gynecological care for women, said in a press release that 90% of the abortions they perform are after the six-week mark.

“To be clear: our health centers remain open, and Planned Parenthood providers will see as many patients as they can, as long as they can within the law. But without the courts stepping in, on Wednesday, Texans will be denied their constitutional right to abortion in violation of fifty years of precedent,” said Julie Murray, senior staff attorney for Planned Parenthood Federation of America.

Marva Sadler, one of the named plaintiffs in the abortion providers’ lawsuit and senior director of clinical services for Whole Woman’s Health, said the appellate decisions make it much more likely SB 8 will go into effect Sept. 1.

On Sunday, she said she was rushing to her organization’s clinic in Fort Worth, where at least eight patients were seeking abortions before they become illegal.

Cancellation of the hearing “was definitely a surprise,” Sadler said.

“I’ve been really focused on how things will look on Wednesday, when we have to start turning most patients away,” she said.

See here and here for the background. I confess, I don’t understand the machinations of the appellate court canceling a district court hearing. I figured we’d get the usual procession of the lower court issuing a restraining order and then the Fifth Circuit tossing it aside. The plaintiffs have now petitioned SCOTUS to step in on the grounds that the Fifth Circuit canceling the hearing was an abuse of their discretion. It’s the only card they have to play, but I would not get my hopes up. I wish I had something optimistic to say here, but I don’t. We need to vote these people out, there’s no other way forward at this time. The Chron, the 19th, and Slate have more.

UPDATE: Here’s a Trib story about the SCOTUS appeal. Let’s see if I have to update this draft again before it publishes in the morning…

UPDATE:

In other words, we won’t hear anything from SCOTUS until the last minute tonight at the earliest.

More injunctions against the mask mandate bans

Keep ’em coming.

Concluding that Gov. Greg Abbott exceeded his authority by banning mask mandates in Texas, an Austin judge ruled Friday that school districts in Travis County can enforce face coverings as a COVID-19 precaution.

State District Judge Catherine Mauzy’s order also applied to 19 school districts that represent about 1 million students — including Austin, Dallas, El Paso, Fort Worth and Houston — as well as Austin Community College, which also sued Abbott.

However, Texas Attorney General Ken Paxton quickly appealed, automatically blocking enforcement of Mauzy’s temporary injunction — though the Austin-based 3rd Court of Appeals can be asked to reinstate the judge’s order while Paxton’s challenge proceeds.

In her ruling, Mauzy concluded Abbott’s ban on mandatory masks — contained in a July 29 executive order — was unlawful and exceeded his authority in violation of the Texas Constitution.

Mauzy found that the school officials and parents who challenged Abbott’s order made “a sufficient showing” to establish that Abbott was not authorized to declare “by executive fiat” that school districts are prohibited from requiring masks to be worn.

Without court intervention, Mauzy added, Abbott’s ban leaves school officials unable to mandate masks to control the spread of COVID-19, “which threatens to overwhelm public schools and could result in more extreme measures such as the school closures that have already begun in several Texas school districts.”

In a separate ruling, Mauzy also granted an injunction sought by Harris County to allow a mask mandate to continue for Houston-area school districts, said Christian Menefee, county attorney.

“Gov. Abbott is misusing the Texas Disaster Act to make this pandemic worse,” Menefee said, calling the ruling an important step in reining in the governor.

But in a third challenge, the judge declined to issue a statewide injunction, requested by the Southern Center for Child Advocacy, that would have allowed mask mandates in all Texas school districts. Mauzy’s one-page order gave no reason for the denial.

It’s hard to keep track of all of these, but see here for the original ruling in the Harris County case, and here for the original ruling in the SCCA case; the filing of their lawsuit was noted here. I have so many of these posts, some of which combine stories from multiple lawsuits, so I can’t find (and may not have) a post about the original Austin lawsuit, but the famous SCOTx demurral of the emergency request by Paxton and Abbott to block a TRO was related to the Austin/Travis County lawsuit. I note that the Harris County case and the SCCA case were originally in Judge Jan Soifer’s courtroom, so I am assuming that a bunch of similar lawsuits were combined into one and that’s how they all wound up before Judge Mauzy.

The injunction may be on hold because of the appeal (there’s some fancy legal term for this that I have encountered before but forgotten by now), but the plaintiffs can and surely will ask for it to be reinstated by the Third Court of Appeals. That will force another reckoning with the Supreme Court, thanks to the recent order in the Bexar County case. In a sense all of this is just sound and fury since Abbott and Paxton can’t enforce the mask mandate bans anyway, but the ritual must be observed. I feel like I should get a CLE credit for all of this blogging. HISD Superintendent Millard House’s statement about the ruling is here, and KXAN and the Trib have more.

Abbott admits he can’t enforce his mask mandate ban

So what are we even doing here? Just make your mandate and move on.

Gov. Greg Abbott has been embroiled in court battles with Texas cities, counties and public schools that have defied his ban on local mask mandates. But in the urban areas where those battles are being waged, the local officials Abbott needs to enforce his ban aren’t playing ball.

Even as Abbott and Attorney General Ken Paxton vow to punish local government and school district officials who flout the governor’s executive order, they conceded in court documents that they actually have no power to enforce the ban.

“Neither Governor Abbott nor Attorney General Paxton will be enforcing” the order, Paxton argued in a Monday court filing in Dallas.

Since the pandemic began, Abbott has issued a flurry of executive orders, the most prominent of which have limited cities and counties from enacting measures intended to slow the spread of COVID-19, like mask mandates and occupancy restrictions on businesses like restaurants and retailers.

Cities, counties and school districts in the state’s major urban areas have responded with a flood of lawsuits challenging Abbott’s executive order prohibiting them from enacting mask mandates amid a surge of COVID-19 cases and hospitalizations.

In a bid to convince judges to toss out those legal challenges, Abbott and Paxton claim in recent court filings that they’re not the right target because it’s up to local prosecutors to enforce Abbott’s orders.

“The Governor’s executive orders, having the full force and effect of law, are enforceable by state and local law enforcement,” spokesperson Renae Eze said in a statement.

But in the state’s urban counties, those district attorneys are mostly Democrats who are unlikely to sue fellow local officials for violating Abbott’s order banning mask mandates.

“[Abbott is] saying, ‘Well, it’s not enforceable, only the DA can do it,” said Randall Erben, an adjunct law professor at the University of Texas at Austin. “Well, the DAs in Travis, Harris and Dallas are not going to prosecute anybody for violation of the executive order.”

In the state’s most populous county, Harris County District Attorney Kim Ogg doesn’t anticipate enforcing Abbott’s executive order because it’s not a criminal matter, a spokesperson said.

Abbott’s legal argument — tucked into court documents in at least five lawsuits challenging his order — has prompted some lawyers representing local governments and public schools to call out the governor and Paxton for saying one thing in public and another in the courtroom.

Yeah, Harris County Attorney Christian Menefee was one of those people. This is, as the article notes later on, one hundred percent Abbott and Paxton beating their chests for the rubes. Again, never believe a word Ken Paxton says.

Two points to consider. One is that while those of us fortunate enough to live in a sufficiently enlightened county can now put whatever pressure we want on our mayors and county judges and school boards to move forward with their mask mandates, since there won’t be any criminal consequences for them and in that sense all of the ongoing litigation doesn’t really matter. But if your city or school district is not in such a place, then you really do care about what the Supreme Court will ultimately say, because your Mayor or Superintendent will be in the crosshairs otherwise. Even with a favorable SCOTx ruling, Abbott has ratcheted up the political pressure enough that it may not be worth it to them regardless. The harm they’re doing for the sake of winning the support of a depraved bunch of Republican primary voters is incalculable.

And two, this is now another example of Abbott and Paxton making “you can’t sue me” a key point of their governance. The “heartbeat” abortion ban atrocity is perhaps the highest-profile example, but Paxton’s claims that he’s exempt from the state’s whistleblower laws because he’s not a “public employee” are another, and it’s just as pernicious. It’s all about wielding power without responsibility or constraint. If trends hold to form, look for bills introduced by Republicans in the next Lege to include clauses about why the state can’t be sued by anyone who claims to have been harmed. At least, that will be the case until we have Democrats in the executive offices. At that point, it will be game on for limiting what they can do. But for now, we’re not supposed to sue them for anything because…well, just because.

January 6 committee seeks answers from Paxton

Good. Play hardball and do not let him get away with anything.

Best mugshot ever

The U.S. House committee investigating the Jan. 6 attack on the Capitol has requested communications between Texas Attorney General Ken Paxton and Trump White House officials in the months leading up to the insurrection.

The request was issued this week as a part of a series of letters seeking materials from the National Archives and Records Administration, the Federal Bureau of Investigation, the Department of Homeland Security and other executive agencies.

Committee chair Rep. Bennie Thompson, D-Mississippi, demanded that the National Archives hand over “all documents and communications referring or relating to the 2020 election results between White House officials and officials of State Governments.” The document then listed Paxton specifically, along with seven officials from other states.

In the letter, Thompson emphasized the urgency of the request and gave a deadline of no later than Sept. 9 to comply.

“This is our first request for materials, and we anticipate additional requests as our investigation continues,” Thompson wrote.

This demand comes after Paxton spoke at the pro-Trump rally in Washington, D.C., before the insurrection began, touting his unsuccessful legal effort to overturn the 2020 election.

“We will not quit fighting. We’re Texans, we’re Americans, and the fight will go on,” Paxton told the crowd.

As others have documented, the January 6 committee is asking for a lot, and they’re not fooling around. Paxton was there in DC inciting the crowd, he filed the kind of seditious lawsuit to overturn the election that recently got the Kraken lawyers sanctioned and for which there have been two complaints filed against him, and he’s generally been a remora on Trump’s shark from the beginning. If he doesn’t have something to hide, that will be an upset. All I want from the committee is to not take any bullshit from him. Hit him hard, hit him with subpoenas, and do not let up until you’ve gotten everything there is to be gotten from him.

Bexar mask mandate put on hold again

SCOTx has entered the chat, again.

The Texas Supreme Court has temporarily blocked San Antonio and Bexar County’s mask mandate, marking the latest update in a flurry of court battles over mask requirements statewide.

The decision comes after an appellate court earlier this month allowed the local mask mandate to stand, despite Gov. Greg Abbott’s executive order barring public entities from instituting such requirements. The new ruling is a win for the governor and Attorney General Ken Paxton, who had asked the high court earlier this week to step in and stop local officials.

[…]

In the order, the high court noted that the lawsuit does not consider whether people should wear masks or whether government officials should compel them to do so. Rather, the justices said, the case concerns which levels of government can make those decisions.

“The status quo, for many months, has been gubernatorial oversight of such decisions at both the state and local levels,” they wrote. “That status quo should remain in place while the court of appeals, and potentially this court, examine the parties’ merits arguments to determine whether plaintiffs have demonstrated a probable right to the relief sought.”

The court has yet to make a final decision on the matter, which could take weeks or months. Several similar but separate lawsuits, including two in Dallas and Houston, are also currently being litigated.

See here, here, and here for some background. This only affects the Bexar County case – the litigation in Harris and Dallas and other places have not yet been taken to the Supreme Court. It seems likely that they would go the same way, but as noted so far SCOTx is not inclined to let Abbott and Paxton jump the line on this, so they have to go through the process first. Also, this is a stay of the temporary restraining order, which means that if and when the judge in Bexar County issues a temporary injunction, as the judge in Dallas County just did, the SCOTx stay will become moot and Abbott and Paxton will have to go through the process again, to get another stay while that ruling is appealed. Isn’t this fun?

Also, as a friendly reminder, never believe a thing Ken Paxton says:

I know you didn’t need to be told that, but it never hurts to say. The Trib and the Current have more.

Dallas County gets its injunction

Another big win.

Clay Jenkins

A district court judge has sided with Dallas County Judge Clay Jenkins in his dispute with Gov. Greg Abbott over the county’s mask mandate, allowing the mandate to stay in place.

Judge Tonya Parker issued a temporary injunction Wednesday on Abbott’s order that public entities such as cities, counties and schools can’t issue mask requirements or mandates. The injunction allows Jenkins’ mask order — and the mask requirements of local school districts — to continue, for now.

Parker in her ruling said that Jenkins has shown that Dallas County residents “will suffer probable imminent and irreparable injury through County Judge Jenkins being precluded from exercising his authority” to require masks in public.

The judge noted that the highly transmissible delta variant threatens to overwhelm the healthcare system and has increased hospitalizations and death in Dallas County.

“Each of these bases for probable imminent and irreparable injury independently supports the issuance of the requested temporary injunction,” the ruling said.

The temporary injunction will return Jenkins to “the position he was in” before Abbott’s executive order that barred face mask requirements, the ruling said.

Parker set a hearing for Jan. 10 to review the temporary injunction, though attorneys for the state could file an appeal to Parker’s ruling sooner than that.

See here for the background. A copy of the ruling is here, and you can see Judge Jenkins doing a media call about this here. This will be appealed, of course – one presumes that Paxton and Abbott have learned their lesson and will go through the appellate courts first – and we’ll see how long that takes. It may be that at the least SCOTx is less inclined to grant emergency relief. We’ll know when it gets to them. For now, a win for the good guys.

On a related note, Harris County Attorney Christian Menefee sent out an interesting press release that notes some differences between what Ken Paxton says in public about mask mandate bans and what he’s been saying in court about them.

In GA-38, the Governor banned school districts and local officials from mandating masks, and stated local officials who issue such safety measures would be subject to a “fine up to $1,000.” In response to recent mask mandates imposed by local officials, Attorney General Ken Paxton has stated publicly—and repeatedly—that his office will enforce Governor Abbott’s mask mandate ban. He and Governor Abbott joined together in stating that “any school district, public university, or local government official that decides to defy [the Governor’s mask mandate ban] will be taken to court.”[1] His office has compiled a list of “government entities unlawfully imposing mask mandates,” designed to intimidate those entities into compliance.[2] He has sent letters to many on that list, threatening them with enforcement.[3] He has tweeted several times he intends to sue these entities, most recently saying “I will defend TX Law & sue every entity that violates it. We will win!”[4]

Despite these public statements, the Attorney General admitted to the courts hearing the lawsuits brought by local officials and school districts that his office does not and cannot enforce GA-38, nor can he seek the $1,000 fine provided in the order. His office has stated plainly that “[n]either Governor Abbott nor Attorney General Paxton will be enforcing GA-38.”[5] Instead, the Attorney General acknowledges that only local district attorneys can enforce GA-38—he has claimed that entities like Harris County, other counties/cities, and certain independent school districts cannot sue the Governor and the Attorney General because they have “alleged no credible threat of prosecution by local district attorneys, who would be the ones enforcing GA-38.”[6]

Menefee added: “I presume the Attorney General is telling the truth in his court filings. He should be telling everyone else the same thing and letting local governments and school districts continue doing what they can to stop the spread of COVID-19, especially among our children.”

Go view the document to see the footnotes; the last two refer to the AG’s own filings in the cases involving Harris County and others. I mean, it’s not like anyone should have expected the truth from Ken Paxton, but it’s still bracing to see it laid out like that.

Back to SCOTx for the mask mandate ban

Brace yourselves.

Following an unfavorable outcome at an appellate court, Gov. Greg Abbott asked the Texas Supreme Court to block the mask mandate in San Antonio and Bexar County.

A Bexar County district judge issued a temporary order on Aug. 16 allowing the city and county to require masks in city and county buildings and public schools. That order keeps the mask mandates in place until December, when a trial is set for the case. Attorney General Ken Paxton, on behalf of the state, appealed that order immediately to the 4th Court of Appeals, but a panel of judges upheld the local mask mandate last Thursday.

Paxton took that decision to the Texas Supreme Court on Monday, arguing in the filing that the 4th Court of Appeals’ ruling adds to the confusion over mask requirements in Texas, and asked for “urgent” action.

Paxton wrote that the 4th Court’s action “upends, rather than preserves, the status quo. The court of appeals’ decision thereby compounds the widespread confusion over mask mandates in Texas and frustrates the state’s ability to cohesively address the pandemic.”

The 4th Court of Appeals had judged keeping a local mask mandate maintains the status quo, as a previous temporary restraining order granted on Aug. 10 first put the mandates in place in San Antonio and Bexar County.

Paxton also argued that the state’s high court must take quick action because other cities and counties are being granted their own temporary orders allowing them to require masks despite the governor’s executive order prohibiting that.

See here and here for some background. The 4th Court of Appeals issued its order denying the request for a stay on the same day that the Supreme Court batted back the request it had received in the Harris County case. They could act quickly or they could sit on this and wait for action from other courts, because Lord knows there’s a ton of litigation out there.

Speaking of other litigation

A Dallas County judge today will decide whether Texas Gov. Greg Abbott has the authority to prevent local officials from imposing public health measures like mask mandates. It’s the latest in a dramatic and fast-moving court battle over the issue in the state.

At today’s hearing, the judge will likely hear evidence and testimony about the pandemic’s impact and the efficacy of mask-wearing to stop the spread of the COVID-19 delta variant as well as legal arguments about the Texas Disaster Act.

Dallas County Judge Clay Jenkins and his legal team, who are requesting a temporary injunction against Abbott’s order, say mask-wearing is the best way to save lives and slow the pandemic while they wait for people to get the vaccine. They’ll also argue that Jenkins, the county’s chief administrator who has emergency management powers, has the legal authority to issue executive orders to mandate such rules.

“We need protection for citizens in Dallas County, we need protection for the economy of Dallas County,” Charla Aldous, one of Jenkins’ attorneys, said at the hearing Tuesday morning. “The bottom line: We are here because Judge Jenkins wants to do his job.”

Abbott and Texas Attorney General Ken Paxton say the governor’s executive order, GA-38 — which bans mask mandates — is legal because the Texas Disaster Act gives him the power to ban Jenkins and other local officials like school districts from requiring masks.

Benjamin Dower, a lawyer with the Texas Attorney General’s Office, said the state would produce no witnesses and that the testimony from Jenkins’ witnesses weren’t relevant to temporary injunction hearing.

“None of this is actually relevant to the matter the court has to decide,” Dower said. “This is really a question of law, not fact.”

Judge Tonya Parker, of the 116th Civil District Court, will decide today whether to grant a temporary injunction barring the governor’s order. She previously granted a temporary restraining order doing just that.

The restraining order hearing was to prove whether there would be harm if Abbott’s ban were enforced. The temporary injunction hearing scheduled for this morning is to decide whether the decision should be more permanent. The judge will hear evidence on the matter, but Jenkins’ legal team must still prove immediate harm from Abbott’s order.

See here and here for some background; yes, all of this litigation is hard to keep track of. This post is likely to be already out of date by the time it publishes in the morning. I’ll update it then. Hold onto your butts in the meantime.

UPDATE: No news on the Dallas case yet. Maybe by this time tomorrow.

The status of the mask mandate lawsuits

The Chron does a roundup.

Texas courtrooms have become a busy place this August, with Attorney General Ken Paxton battling school districts, cities, counties and nonprofits to defend Gov. Greg Abbott’s ban on local mask mandates aimed at preventing the spread of COVID-19.

Tracking the status of lawsuits can be dizzying.

“The way I like to think about it is there are four big buckets of cases and then there are some little minor cases out there,” said Harris County Attorney Christian Menefee, whose county has sued both Paxton and Abbott over the ban on mask orders.

Those buckets include Harris County’s lawsuit; one brought by a group of school districts; one from Bexar County and San Antonio; and one from Dallas County. Those cases are the furthest along in the legal process, Menefee said, and he expects a final decision on Abbott’s mask order rules to come from one of those cases.

Harris County’s lawsuit and the school districts’ are proceeding along the same track, Menefee said. Local officials cheered a ruling late Thursday by the state Supreme Court, on a procedural question, that allowed the county’s mask mandate to stay in place for now.

The all-Republican high court could have ruled on the merits of the question, but chose not to, instead punting it to a lower court. This signals that the court isn’t yet prepared to offer a final decision on whether or not mask mandates across the state will be allowed to remain in place, he said.

“They could rule whenever. The fact that they haven’t issued a ruling I think is encouraging because I think that means they’re thinking about it,” Menefee said. “If they do that, that’s going to be the law of the land for Texas,” applying to all cases.

[…]

In Bexar County and San Antonio’s case, local officials won a temporary injunction from an appeal, allowing their mask mandates to remain in place while their case is pending. A trial is scheduled for December. Paxton’s office is likely to appeal that to the state Supreme Court.

Meanwhile, Dallas County is fighting for a temporary restraining order to allow it to keep the mask mandate in place for the short term, a step that precedes arguments over a temporary injunction. That decision would last longer, months rather than weeks.

The stragglers, as Menefee described them, include a Fort Bend County case and a lawsuit from the Southern Center for Child Advocacy over many of the same issues.

A Fort Bend County district judge on Thursday granted the county a temporary injunction it its legal challenge to Abbott’s ban on mask mandates. County Judge KP George said it “removed the hurdles that have prevented our municipalities and school districts from taking the same action to protect their communities and the children…”

Thursday’s ruling should remain in place until the issue goes to trial in at least 45 days. Or Paxton could appeal the lower court’s decision to the state Supreme Court, as he has others, leaving it up to them to decide.

Hope that helps a little. And as a reminder of the legal questions, Erica Greider talks to an expert.

Steve Vladeck, a professor at the University of Texas School at Law, reckons that local officials still face an uphill battle in their legal battles.

The Supreme Court of Texas, he explained, didn’t side against the state on the substantive question. It simply concluded that Paxton had skipped a step in the legal process, meaning that the statewide restraining order against Abbott’s executive order remains in effect while Paxton retraces his steps.

The TEA guidance on masks, similarly, isn’t a policy change on the agency’s part; rather, it’s a recognition that a temporary restraining order issued by Travis County District Judge Jan Soife blocking the enforcement of Abbott’s latest executive order remains in effect, while litigation is pending.

“The real bottom line is that Judge Soifer’s TROs are still in effect today, but they may not be tomorrow,” Vladeck said.

Vladeck thinks it’s more likely than not that the state’s highest court will eventually side with Abbott; after all, he noted, it previously issued stays against local mask mandates issued in Dallas and Bexar County — that’s “more than nothing, when it comes to reading tea leaves.”

At the heart of the case, Vladeck continued, are genuine substantive questions about the scope of the governor’s powers under the Texas Disaster Act of 1975.

“I think we can safely say they’re broad,” Vladeck said. “The problem is they’re surely not limitless.”

Judge Soifer, you may recall, ruled in both the Harris County case and the Southern Center for Child Advocacy case. As we have seen, there is a range of opinion on this litigation from the legal community. I tend to think Vladeck is right about what will happen – however subtle some of the legal questions are, there’s also the politics of it, and the Supreme Court is much more likely to give Greg Abbott what he wants than not – but it’s not an obvious question to answer. We should know more pretty quickly.

Spring Branch ISD lawsuit

I’m late to this, but better late than never/

A former candidate for the Spring Branch ISD school board has filed a lawsuit alleging the district’s election policies are in violation of national laws against voting discrimination.

In her complaint, Virginia Elizondo, a Spring Branch ISD parent who ran for a position on the board in 2015 and 2021, claims that the district’s system of at-large elections violates the Voting Rights Act of 1965. The complaint was filed by attorney Barry Abrams of Blank Rome LLP with the U.S. District Court’s Southern District of Texas, Houston Division on June 18.

Specifically, it cites the clause in the Voting Rights Act that “prohibits enforcement of any voting qualification, prerequisite to voting, standard, practice, or procedure that results in the denial or abridgement of the right to vote on account of race, color, or language minority status.”

Unlike nearby Houston ISD, which uses zoned elections where each of the nine trustees are elected from a geographic zone, Spring Branch ISD uses at-large elections for each of its seven trustees are elected by the entire district and represent the entire district. Several local districts, such as Humble ISD, use at-large elections.

Elizondo’s lawsuit seeks a court injunction prohibiting Spring Branch ISD from using its at-large system of voting.

The complaint states that “Dr. Elizondo (who has a Doctorate in Education from the University of Houston) has standing to seek relief in this suit as a minority district voter who is experiencing vote dilution because of the SBISD at-large system for electing its Board of Trustees.”

It also cites the fact that, according to demographic information from the Texas Education Agency, of the 33,288 that were enrolled in Spring Branch ISD, 19,335, or about 58 percent were Latino or Hispanic whereas white students made up about 27 percent of the student body.

The complaint claims that the current at-large method of electing trustees “results in the district’s Latino and minority citizens having less opportunity than other members to participate in the electoral process and to elect representatives of their choice.”

I have a copy of the lawsuit here; it was filed in June, and as far as I can tell there has been no action relating to it since. I touched on some of these issues when I wrote about Elizondo’s candidacy in the May election. The SBISD Board of Trustees has posted this response, and a recent school board meeting featured some very rowdy residents who wanted something more forceful. Note the featured photo at the top of the story, with the sign from the protesters that says “Don’t HISD My SBISD”, which says quite a bit more than perhaps the sign holders intended.

I’ve written quite a bit in the past decade or so about single member districts and the places where litigation has been waged to implement them as a way of getting any kind of representation for communities of color. Since I’ve been following this issue, cities like Irving and Farmers Branch and most recently Pasadena were ordered to switch to single member districts or a hybrid system; in all cases, the change has resulted in more people of color being elected, often the first ever people of color elected to the respective City Councils. That’s what is at stake in Spring Branch, though the complaint and the SMD proponents are also advocating for more early voting locations on the north side of I-10 where more than 50% of SBISD students reside, and a robust voter registration program in all SBISD high schools. I expect this will take a couple of years to get to a final resolution, but in the meantime there’s a lot that local activists can do to persuade the existing Board to take action on those other items.

Texas gets its Medicaid 1115 waiver back

Hrmph.

It’s constitutional – deal with it

A federal district judge on Friday temporarily reinstated a 10-year extension of a federal health care program that Texas uses to help pay for health care for uninsured Texans and is worth billions of dollars annually.

The agreement was set to expire next year after federal health officials in April rescinded the Trump-era extension to the 1115 waiver agreement — which Texas has had with the U.S. Centers for Medicare and Medicaid Services since 2011 and is up for review every few years — and ordered Texas to collect public input, as the agreement requires, while it renegotiates a new extension beyond its original October 2022 expiration date.

The decision did not stop the funding for the current waiver, which provides $3.87 billion in annual funding to partly offset free care provided by Texas hospitals to the uninsured, and to pay for innovative health care projects that serve low-income Texans, often for mental health services.

In his order on Friday, the U.S. District Judge J. Campbell Parker granted a preliminary injunction sought by Texas to block the federal government from rescinding the original Trump-era agreement. The decision removes the requirement, at least for now, for Texas to negotiate its deal with CMS if it wants 1115 funding beyond October 2022.

The decision by CMS was “likely unlawful” and resulted in “turmoil in the state’s Medicaid program,” in part because the state had already begun “reassigning staff, making plans, appropriating money, passing regulations, and engaging stakeholders to work towards implementing the necessary changes” allowed by the original deal, which was confirmed in January before it was rescinded by the Biden administration in April, Barker said in the order.

[…]

The 1115 waiver was meant to be temporary while Texas transitioned to an expanded Medicaid program under the Affordable Care Act of 2010, but that never happened because the U.S. Supreme Court ruled in 2012 that states couldn’t be forced to expand Medicaid.

Since then, the state has relied on the waiver for various programs to care for Texas’ uninsured, with Republican state leaders frequently leaning on it in their arguments against Medicaid expansion.

See here, here, and here for some background. I don’t know the technical details well enough to know if this is a reasonable decision on the merits or if Paxton once again found himself a super friendly judge. I’m not even sure if this means that the entire Trump-approved ten-year extension is back in play, or if there will be another opportunity for the Biden administration to force the issue, perhaps next year when the previous agreement was to expire. Perhaps if one of the alternate means of allowing/forcing Medicaid expansion is part of the reconciliation package, the issue can be revisited, or perhaps largely rendered moot. It does seem likely to me that Congress could change the terms of the 1115 waiver, as the issue here was over the executive action, I just don’t know who would be pushing that in the legislative process. All in all, a deeply unsatisfying state of affairs at this time.