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Ken Paxton couldn’t be more on brand if he tried

News item: Texas laws protecting whistleblowers don’t apply to Attorney General Ken Paxton, his agency argues in bid to quash lawsuit. Who among us didn’t already know that Ken Paxton doesn’t think the law applies to him?

Best mugshot ever

The Texas Attorney General’s Office is attempting to fight off efforts by four former aides to take depositions and issue subpoenas in their lawsuit claiming they were illegally fired after telling authorities they believed Attorney General Ken Paxton was breaking the law.

The agency is arguing that Paxton is “not a public employee” and thus the office cannot be sued under the Texas Whistleblower Act, which aims to protect government workers from retaliation when they report superiors for breaking the law.

Four former Paxton aides claim they were fired in retaliation for telling authorities they believed Paxton had done illegal favors for a political donor, Austin real estate investor Nate Paul. The whistleblowers’ allegations have reportedly sparked an FBI investigation.

In seeking reinstatement and other financial damages, the whistleblowers want to question Paxton himself under oath, as well as Brent Webster, his top deputy at the attorney general’s office, and Brandon Cammack, a Houston lawyer Paxton hired to investigate complaints made by Paul in what aides say was a favor to the donor. They also issued subpoenas to Paul’s company and a woman alleged to have been Paxton’s mistress.

[…]

The whistleblowers sought to question Paxton, Webster and Cammack under oath as soon as next week. Michael Wynne, an attorney for Paul, accepted the subpoenas for both World Class and the woman, court documents show. She could not be reached for comment and Wynne did not return a request for comment.

But in a filing last week, the attorney general’s office asked the judge to quash the depositions and the subpoenas, and prevent the whistleblowers from conducting any discovery.

“The OAG is doing everything they can muster to avoid having Ken Paxton answer basic questions under oath about the facts,” said Carlos Soltero, an attorney for one of the whistleblowers.

Instead, the agency said, the Travis County judge should dismiss the case entirely on procedural grounds.

The Texas Whistleblower Act — the basis for the lawsuit — is designed to provide protection for public employees who, in good faith, tell authorities they believe their superiors are breaking the law. But the attorney general’s office claims the agency cannot be sued under the law because Paxton is an elected official.

“The Attorney General is neither a governmental entity nor a public employee and, thus, the Whistleblower Act does not extend protection to reports of unlawful conduct made against the Attorney General personally,” the agency argued. “The Act does not apply… for reports made about actions taken personally by the elected Attorney General.”

Comparing Paxton’s authority to that of the president of the United States, the agency claimed that the attorney general had the right to fire the employees, despite their claims of retaliation.

Under that theory, “he’s saying that elected officials aren’t accountable” for violating the Whistleblower Act, said Jason Smith, a North Texas employment attorney who has handled whistleblower cases.

“It appears that General Paxton is trying to get off on a technicality that doesn’t exist,” he added.

See here and here for the background. I don’t have anything clever to add here, just that I hope this defense is as successful as his lawsuit to overturn the Presidential election was.

Another way Ken Paxton is costing you money

He’s something else, this guy.

Best mugshot ever

Texas may pay tens of millions of dollars to outside attorneys hired to handle a major lawsuit against Google — money the state did not plan to spend before a scandal enveloped Texas Attorney General Ken Paxton this fall.

That’s under agreements signed last month with outside lawyers based in Chicago, Houston and Washington, D.C., including high-profile plaintiffs’ attorney Mark Lanier and the law firm Keller Lenkner, who will lead Texas’ multi-state antitrust lawsuit against Google.

The lawsuit came out of a Texas-led investigation launched more than a year ago. But until fall 2020, top agency staff intended to handle the case internally, instead of paying costly outside lawyers, a former senior Paxton aide told The Texas Tribune. The Associated Press first reported the timeline on Tuesday.

Jeff Mateer, who led the attorney general’s office for years as Paxton’s top deputy, said that when he resigned in October, the agency had no intention of hiring outside lawyers. Darren McCarty, another senior attorney, was leading an internal team on the case.

“Darren was more than able to do it,” Mateer told the AP.

But Mateer and McCarty were among the eight whistleblowers who left the agency after telling law enforcement they believed Paxton broke the law by doing favors for a political donor. Both resigned last fall, part of a notable exodus of the agency’s top staff.

The whistleblowers’ allegations have reportedly sparked an FBI investigation, but Paxton has insisted that the agency’s work has not been interrupted by the criminal investigation of him. Still, the contracts for the Google lawyers are an early indication of what cost taxpayers may bear for the latest drama surrounding Texas’ embattled attorney general.

The attorney general’s office will ask the Legislature for $43 million to pay the outside lawyers, according to a contract obtained by The Texas Tribune. If lawmakers do not grant that money — which may be a tall order during what’s expected to be a tight budget debate — the outside attorneys will be paid solely out of whatever monetary damages are recovered from Google, dollars that would have otherwise flowed into state coffers.

[…]

The expensive outside counsel contracts were inked in December, the same day the case was filed in federal court. The law firms were brought on only after the agency staff leading the probe fled the attorney general’s office in the wake of a fresh Paxton scandal.

Lanier told the Tribune he met with Paxton in Austin in November to discuss the possibility of working on the case, and emphasized that his team’s work was not intended to be “a big financial bonanza for the Lanier firm,” but rather to force a major restructuring of Google.

Lanier has given political contributions to Paxton, among a number of other top Texas officials.

The case, which comes alongside a number of other major government lawsuits against Google and other tech giants, takes aim at the company’s advertising practices.

Though it’s not yet clear exactly how much Texas could end up losing to the outside attorneys, it could be a massive figure. The outside lawyers’ contingency fee will either be based on an hourly rate equation — which could net the most senior attorneys as much as $3780 per hour — or be calculated as a percentage of the total Google settlement, whichever is less.

See here for the last update on the latest Paxton scandal. I will try, at least for a moment, to be as objective as I can about this. Paying the fee up front is a hedge against having to cough up a much larger amount of a hypothetical future award or settlement agreement, not to mention the time and effort it will surely take to haggle over the proper cut of said award. Lawyers cost money, this is going to run into some bucks no matter how you slice it, may as well get some certainty.

On the other hand:

1) The plaintiffs may lose this lawsuit, or have it overturned or any award reduced on appeal. We’d also be splitting any award a couple dozen ways, so it would have to be pretty freaking big for the attorneys’ cut to be more than $43 million.

2) Any future award is just that, in the future, likely years in the future. $43 million bucks now is worth more than an equivalent amount in, say, 2027. This is why Lottery winners who get the up-front payout instead of the over-20-years payout get a lot less than the stated prize amount.

3) Not to put too fine a point on it, but we don’t have an extra $43 million lying around right now. Yeah, sure, Rainy Day Fund yadda yadda yadda, but we know how that works. And yeah, $43 million is couch money compared to the real budget, but what would you rather spend it on this biennium – Ken Paxton’s fancy outside attorneys, or vaccines and the people to administer them? I know where my money would go.

4) Again not to nitpick, but if Ken Paxton hadn’t been a fucking awful Attorney General, we wouldn’t be in this predicament right now. He drove off the senior staff who could have handled this in house. Every dollar that Texas loses out on as a result of this, either up front or down the line, is his fault.

So yeah, I’m a big No on paying the outside attorneys at this time. I’ll roll the dice on the future award being either sufficiently small that the contingency fee is a bargain compared to the $43 million, or so freaking enormous that who cares if the Lanier firm makes out like bandits. And maybe, just maybe, we can get a new Attorney General in 2022 and we can hire another good senior staff, and maybe take the case back from the outsiders. I’ll be very, very interested to see what the Republicans in the Legislature make of this.

Fifth Circuit bats aside Gohmert appeal

In case you were wondering…

See here for the background. That’s two Reagan appointees and one Trump appointee, by the way. I suppose they could try their luck with SCOTUS, but you’d have to be Gohmert-level stupid to think they’d have a chance.

I saw this while scrolling Twitter and watching the Orange Bowl. There may be a news story out there, but it’s Saturday night and I’m not looking for it. Really, this is all there is to know.

Gohmert lawsuit tossed

As expected.

A judge dismissed a lawsuit from Rep. Louie Gohmert, R-Texas, that was aimed at Vice President Mike Pence, seeking to put the authority to overturn President-elect Joe Biden’s election win in the vice president’s hands.

U.S. District Court Judge Jeremy Kernodle, who is a Trump appointee, said Gohmert and a group of other Republicans on the lawsuit “lack standing.”

Gohmert “alleges at most an institutional inquiry to the House of Representatives,” Kernodle wrote.

Gohmert and the group of Republicans filed the suit against Pence this week, arguing that the vice president has the constitutional authority to decide which states’ Electoral College votes to count.

Kernodle continued, “The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona (the ‘Nominee-Electors’), allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.”

“Accordingly, as explained below, the Court lacks subject matter jurisdiction over this case and must dismiss the action,” the judge stated.

See here and here for the background, and here for a copy of the judge’s order. I’d like to say that this is the last desperate and seditious thing that a stupid and malevolent officeholder will do to try to overturn the election, but I said that about the Paxton lawsuit and the objections to the Electoral College certification, so I’m just gonna keep my piehole closed this time. Raffi Melkonian and Steve Vladeck have more.

Pence asks for deranged Gohmert lawsuit to be dismissed

Here we go.

Vice President Mike Pence has asked a federal judge to throw out a lawsuit brought against him by Republicans seeking to empower him to overturn the results of the 2020 presidential election.

The suit, brought by Rep. Louie Gohmert (R-Texas) and 11 Arizonans who would have been electors for President Donald Trump, was aimed at throwing out the rules of a Jan. 6 session of Congress — with Pence presiding — intended to certify President-elect Joe Biden’s victory.

Gohmert’s suit contends that the rules Congress has followed for more than a century are unconstitutional because they override the vice president’s power to unilaterally decide which electoral votes to count. Trump allies have urged Pence to assert control and refuse to introduce Biden’s electors in key states that handed him the presidency.

But Pence, in a 14-page filing brought by Justice Department attorneys, said the suit shouldn’t be aimed at him, since he is who Gohmert is trying to empower.

“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence’s brief said.

U.S. District Court Judge Jeremy Kernolde, a Trump appointee who sits in Tyler, Texas, has not scheduled a hearing in the case. Gohmert is due to file a reply to Pence’s brief on Friday morning.

See here for the background. “Friday” is today, so we may get a ruling as quickly as this afternoon, given how bonkers (and yes, seditious) this action is.

In a 26-page brief calling on the court to reject Gohmert’s suit, House General Counsel Doug Letter described the effort as baseless and argued that both Gohmert and the Arizona electors lacked standing to bring it.

“At bottom, this litigation seeks to enlist the federal courts in a belated and meritless assault on longstanding constitutional processes for confirming the results of a national election for President,” Letter said.

Letter also says that Gohmert’s argument lacks substantive logic: It would make no sense for the framers to empower the sitting vice president to unilaterally control who becomes the next president, particularly when that sitting vice president is a candidate on the ticket. He also notes it would upend the accepted process for counting electoral votes that has been in practice for more than 130 years.

“Granting plaintiffs this extraordinary relief just days before the Joint Session would not only reward their inexcusably delayed filing,” Letter says, “it would also risk upending the orderly rules that have governed Congressional counting of electoral votes for more than a century and undermining the public’s confidence in the constitutionally prescribed processes for confirming—not overturning—the results of the election.”

I mean yes, if you’re going to rely on such stolid concepts as “logic” or “consistency” or “the rule of law”, then Gohmert’s suit should not only be laughed out of court, everyone associated with it should be removed from society so as not to taint the rest of us with the accompanying stink. Putting the attorneys in stocks and allowing the general public to hurl cream pies at them would also be an acceptable outcome, but alas, the law is limited in its menu of responses. We’ll have to settle for a swift dismissal, and work on winning some more elections.

TEA still barred from taking over HISD

Still in a state of limbo.

Texas is still temporarily barred from taking over Houston Independent School District, a state appellate court ruled Wednesday, upholding a lower court’s order.

In a 2-1 ruling, the Texas Third Court of Appeals upheld a temporary injunction that stops the Texas Education Agency from replacing the elected school board of its largest district with an appointed board of managers. The appeals court ruling sends the case back to the lower court that in January blocked the state’s takeover effort.

The appellate judges said Houston ISD had a “probable right to relief” since the TEA did not follow proper procedure and acted outside its authority as it moved to sanction the district. It also ordered the state to “pay all costs related to this appeal.”

The TEA plans to appeal the ruling to the Texas Supreme Court. “While the Agency is disappointed with the split ruling from the 3rd Court of Appeals, this is only a temporary setback,” the agency said in a statement. “We are confident that the Texas Supreme Court will uphold the Commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”

[…]

[T]he appellate court’s ruling Wednesday said Texas’ “proposed actions are not authorized by the Education Code.” The opinion stated that the state did not have the right to appoint a conservator to oversee the entire school district in 2019, force Houston ISD to suspend its search for a new superintendent, or impose sanctions based on an investigation, among other things.

The opinion was written by Judge Gisela Triana, who was joined by Judge Jeff Rose in the ruling. In a dissenting opinion, Judge Thomas Baker wrote that Texas is authorized to take over Houston ISD, the injunction should be removed and the district’s claims should be dismissed.

See here and here for the background, and here for a copy of the opinion. The Chron story goes into the opinion in some more detail.

To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019. While the law is intended to punish districts with campuses receiving failing grades in multiple consecutive years, the justices found that the TEA failed to take a technical step — ordering HISD to submit a campus turnaround plan for Wheatley — that it says was required under the statute.

The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.

State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which thus hasn’t yet been met.

Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation, which Morath cited as a third reason for replacing HISD’s board.

For what it’s worth, the “affirm” opinion came from a Democratic justice (Triana) and a Republican justice (Rose), while it was a Democratic justice (Baker) who voted to overturn the district court opinion. I don’t know when this might be resolved – the appeal to the Supreme Court is of the injunction, while the case itself was sent back to the district court – but until there is a final ruling that says the TEA can install its Board of Managers, I’m going to operate on the assumption that there will be HISD Trustee elections this year. I guess there would be regardless, but at least for now those elections mean a bit more, since the Board of Trustees is still running things. The Press has more.

Okay, so *this* is the last pointless gesture

You can always count on Louie Gohmert to find the stupidest thing possible to do.

Vice President Pence was sued Sunday by Rep. Louie Gohmert (R-Texas) and several other Republicans in a far-fetched bid that appeared aimed at overturning President-elect Joe Biden’s election win.

The lawsuit focuses on Pence’s role in an upcoming Jan. 6 meeting of Congress to count states’ electoral votes and finalize Biden’s victory over President Trump. Typically, the vice president’s role in presiding over the meeting is a largely ceremonial one governed by an 1887 federal law known as the Electoral Count Act.

But the Republican lawsuit, which was filed against Pence in his official capacity as vice president, asks a federal judge in Texas to strike down the law as unconstitutional. The GOP plaintiffs go further: They ask the court to grant Pence the authority on Jan. 6 to effectively overturn Trump’s defeat in key battleground states.

Election law experts were dismissive of the lawsuit’s prospects for success.

“The idea that the Vice President has sole authority to determine whether or not to count electoral votes submitted by a state, or which of competing submissions to count, is inconsistent with a proper understanding of the Constitution,” said Edward Foley, a law professor at the Ohio State University.

[…]

Election law experts said there’s a strong possibility that U.S. District Judge Jeremy Kernodle, a Trump appointee, would find that Gohmert, Ward and the other Republican litigants lacked a legal right to sue.

“I’m not at all sure that the court will get to the merits of this lawsuit, given questions about the plaintiffs’ standing to bring this kind of claim, as well as other procedural obstacles,” Foley said.

Take that, Lance Gooden! Louie will show you what true fealty to Dear Leader looks like. In the spirit of not wasting your time any more than I already have, I will as tradition demands quote a couple of tweets from people who have some knowledge of the law and the constitution.

Rick Hasen has a copy of the complaint if for some reason you want to read it. Otherwise, you may safely resume ignoring Louie Gohmert, at least until the next time he unleashes some Kraken-level stupidity. Daily Kos has more.

Ken Paxton’s attempted jihad against Harris County

Wow.

Best mugshot ever

Attorney General Ken Paxton tried to get the Trump administration to revoke millions in federal COVID relief funding that Harris County budgeted for expanding mail-in voting earlier this year, newly revealed records show.

Paxton wrote in a May 21 letter to Treasury Secretary Steven Mnuchin that Harris County’s plan was an “abuse” of the county’s authority and an “egregious” violation of state law. The letter was obtained and published by the Citizens For Responsibility and Ethics in Washington.

“We respectfully ask the department to scrutinize its award of CARES Act funding to Harris County in light of the county’s stated intent to use federal funding in violation of state law, and to the extent possible, seek return of any amounts improperly spent on efforts to promote illegal mail-in voting,” Paxton wrote. “Without implementing adequate protections against unlawful abuse of mail-in ballots, the department could be cast in a position of involuntarily facilitating election fraud.”

The letter to Mnuchin illustrates the lengths Paxton went in his efforts to stop Harris and other counties from making it easier to vote by mail during the pandemic, which included suing Harris County as it tried to send mail ballots applications to all 2.4 million of its registered voters. The mail-ballot application push was part of the county’s $27.2 million plan to expand voting options, funded in large part through CARES Act money.

[…]

The Treasury Department did not immediately respond to a request for comment on whether Mnuchin heeded Paxton’s request to investigate how Harris County used the funding.

In a written statement, County Judge Lina Hidalgo said that the loss of the funds “would have knocked the floor out of our citizens’ ability to vote safely” during an important election held in the middle of a global pandemic.

“This attempt to cut off emergency federal funding for fellow Texans is indefensible,” she said. “To do so in secret is truly a shame and I’m relieved this is now out in the open.”

Members of the Texas Democratic Party accused the attorney general of “picking fights” to distract from his personal life.

“In the middle of the biggest pandemic in American history, every Texan should have been afforded the opportunity to vote as safely as possible. Indicted Texas Republican Attorney General Ken Paxton continues to try to pick fights to distract away from his personal life and his abuse of office. Paxton is a carnival barker who has made Texas a laughingstock with his ridiculous inquiries and lawsuits. To restore trust in the Attorney General’s office, we must all band together to vote him and his abuse of power out in 2022.”

I suppose if there’s one thing that the year 2020 has been good for, it’s to serve as a reminder to me that I am still capable of being shocked. I can’t say that I’m surprised, because it was clear from the beginning that then-County Clerk Chris Hollins’ aggressive efforts to make voting easier, ably funded by Commissioners Court, were going to draw a heated response. I guess I had just assumed that the lawsuits filed by Paxton and others against the various things that Hollins pioneered were the response, with bills filed in the 2021 Legislature the culmination, but I had not expected this.

It is interesting that Paxton chose to fire this particular shot in secret. We would have found out about it at the time if he had succeeded, of course, but it’s strangely out of character for Paxton to do something like this under cover of darkness. Say what you will about Ken Paxton, the man does not lack confidence in the correctness of his positions. I don’t know what his motivation was for not being front and center about this – I mean, we saw the lawsuit he filed to overturn the election. Shame, or fear of being publicly dragged, are not inhibitions for him. Maybe he was afraid of spooking Secretary Mnuchin, who is generally less cartoon-y in his villainy. I’m open to suggestion on this point.

The story mentions that this letter came from the Citizens for Responsibility and Ethics in Washington (CREW), which led me to this:

CREW obtained Paxton’s letter to Mnuchin as part of a Freedom of Information Act lawsuit against the Treasury Department, which remains ongoing.

The lawsuit in question is over the appointment of Louis DeJoy as Postmaster General. We might never have found out about this scurrilous and cowardly action otherwise.

I was going to spend more time in this post pointing out that Paxton’s allegations were 1) essentially baseless, and 2) should have been made in a lawsuit, as this would have fallen squarely under his law enforcement authority if Harris County were indeed breaking the law as he claimed, but honestly that CREW article laid it out thoroughly, so go read that for those details. The main takeaway here is that this wasn’t just a partisan dispute, which could and should have been carried out in public as so many other mostly ginned-up voting “controversies” this year were, it was 100% unadulterated bullshit from our despicable Attorney General. He’s not feeling any pressure to step down from his fellow Republicans, and do brace yourself for a pardon from our Felon in Chief, so it really is up to us to vote his sorry ass out in 2022. The Texas Tribune has more.

SCOTUS mostly punts on Census apportionment shenanigans

They seem to be hoping that the problem will solve itself, while applying a partisan litmus test to when it is appropriate for them to step in.

The Supreme Court dismissed a challenge to Donald Trump’s final sabotage of the census on Friday, deeming it premature. Trump seeks to exclude an estimated 10.5 million people from the data used to divide up congressional seats among the states because they are undocumented immigrants. This policy, if successful, would strip seats in the House of Representatives from diverse states with large immigrant communities. Because it has not been implemented, however, the Supreme Court determined, by a 6–3 vote, that the case is not yet ripe for resolution. All three liberal justices dissented.

Friday’s decision in Trump v. New York does not come as a surprise: At oral arguments, several conservative justices seemed to be looking for a way out of deciding whether the president has the power to manipulate the census this way. A few, including Justices Brett Kavanaugh and Amy Coney Barrett, even appeared to recognize that Trump’s policy is unlawful. The Constitution requires the apportionment of House seats based on “the whole number of persons in each state,” and the government has never before in history sought to exclude undocumented immigrants. By declaring that an entire class of immigrants are not “persons” who reside in the United States, Trump is trying to pass a modern three-fifths clause—except his policy reduces millions of immigrants to zero-fifths of a person.

Still, the Supreme Court’s conservative majority decided that this threat was insufficient to create a live controversy due to the uncertainty that plagues this case. (It did so in an unsigned opinion apparently joined by all six conservatives.) The federal government does not actually know how many undocumented immigrants live in each state. Trump has directed the Census Bureau to use existing administrative records to obtain these figures. But this process is ongoing, and the bureau has warned that it may not produce the data for weeks—possibly not until Trump has left office. (Joe Biden will undoubtedly retract the policy if it has not yet been executed.) The administration has speculated that it may narrow its goal by excluding only subsets of immigrants, like those in detention. (There are more than 50,000 people in ICE detention today, so even that exclusion could affect apportionment and funding.)

In light of this uncertainty, the majority found that the plaintiffs—which include states that may lose representation and local governments that may lose funding—lacked standing to attack the policy in court. Trump’s policy “may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here,” the majority asserted. In other words, Trump might fail to carry out his scheme, which would spare the plaintiffs any injury. Moreover, if the president only excludes a subset of immigrants, like ICE detainees, the plan might not “impact interstate apportionment.”

The court also found that the case “is riddled with contingencies and speculation,” declaring that “any prediction how the Executive Branch might eventually implement” Trump’s policy is “no more than conjecture.” As a result, “the case is not ripe,” and the plaintiffs must come back when they can contest a more explicit policy. The court clarified that “we express no view on the merits of the constitutional and related statutory claims presented.”

[…]

Friday’s ruling also entrenches a new rule that emerged after Barrett replaced Justice Ruth Bader Ginsburg: Plaintiffs only have standing when they are challenging a policy that the conservatives do not like. In November, by a 5–4 vote, the ultraconservatives blocked a COVID-19 restriction on New York City churches that was no longer in effect. As Roberts explained in his dissent, the restrictions were not in force when the court issued its decision. Yet the court blocked them anyway, reasoning that the governor might enforce them again in the future.

It is difficult to square that decision with Friday’s census punt. Trump has stated his policy in stark terms and directed the government to execute it as soon as possible. There is a serious, looming threat that his administration will carry it out in the near future. No one actually knows whether Biden or Congress can reverse the policy after it has been implemented. Yet the conservative justices still considered the case premature. This inconsistent approach gives the impression that at least five conservative justices are manipulating the rules to roll back blue states’ COVID orders while giving Trump leeway to test out illegal policies. Friday’s decision is not the end of this litigation, and the administration may ultimately fail to rig the apportionment of House seats. It is framed as a modest, narrow, technical decision. But the court has revealed its priorities, and they have nothing to do with restraint.

See here and here for the background. Texas would also likely lose a seat or two if this went into effect, not that you’d know it from the total radio silence of our state leaders. My hope is of course that the Census does not deliver this data before January 20, in which case the Biden administration could just drop the subject and proceed as we have always done. It’s not great that we have to rely on that hope, of course. Daily Kos and TPM have more.

TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

Can Ken Paxton be sanctioned for his seditious lawsuit?

One group is going to try. I wish them luck.

Felons for autocracy!

A national lawyers group on Monday called for professional licensing bodies to investigate what it called a “breach of ethical rules” by Texas Attorney General Ken Paxton and 17 of his counterparts in red states who sued in the Supreme Court last week in a vain attempt to overturn President-elect Joe Biden’s win in four states in the Nov. 3 presidential election.

Lawyers Defending American Democracy, a nonpartisan group that says it has the support of 5,000 lawyers across the country, said in a statement that Paxton and his fellow Republican state attorneys general filed an “abusive lawsuit” that pushed groundless theories that erode confidence in vital institutions.

“The historically unprecedented attack on our democracy needs to be met by historically unprecedented state bar investigations,” said the group.

It called for the state bar of Texas, and its lawyer-licensing counterparts in other states, to investigate unprofessional conduct by not only the state attorneys general but any lawyers among the 126 GOP members of Congress who supported the suit.

“We call on state licensing authorities to promptly investigate the breach of ethical rules by these public officials and all lawyers participating in the filing of this Supreme Court petition,” the group said.

“They must not shrink from applying established ethical rules to discipline those officials.”

See here for the background, and here for the statement. I completely agree, and there were calls for sanctions a few weeks ago against Trump’s lawyers for their obviously dishonest filings. The case for bringing sanctions against Paxton as well is based on the American Bar Association’s Model Rules of Professional Conduct, which are adapted in some form in every state, which states that a lawyer shall not bring a suit “unless there is a basis in law and fact for doing so that is not frivolous.” But to even get to the State Bar of Texas with your complaint, first you need someone to file it, and then you have a difficult task getting them to agree with you.

“If history is any guide, it’s extremely unlikely that any of these lawyers are going to face disciplinary sanctions,” says Deborah Rhode, an ethics scholar at Stanford Law School and another co-author of Legal Ethics. “The bar is just, historically, extremely reluctant to take on anything that isn’t a clear, easily provable violation of disciplinary rules, and that has any kind of political overtones.” Moreover, she notes that bar disciplinary processes are underfunded and overworked. This issue came up in multiple conversations with experts: a lack of funding, expertise, and political will to investigate established or high-profile lawyers. “I think if you had a more robust disciplinary process with the likelihood that there would be professional consequences, that would be significant, that would be a deterrent,” she says. “But we’re a long way from that process.”

“This has been a persistent complaint that a lot of people in the legal ethics world have made about our discipline systems for years, which is that they don’t work that well,” says Luban. Most bar complaints do not lead to public sanctions, and that’s particularly true for the well-connected. It’s easier for underfunded committees to sanction solo practitioners, but they leave the big fish largely untouched.

Much as I’d like to see Ken Paxton suffer some professional consequences for his anti-American actions, the best we’re likely to get is to vote his sorry ass out of office. And to root for the various prosecutors and plaintiffs lining up against him. No one ever said life was fair.

Paxton denies whistleblower allegations

Pretty standard response.

Best mugshot ever

The Texas attorney general’s office will pay outside counsel $540 an hour to defend the state agency against accusations that it was retaliating against top aides when it fired them just weeks after they reported their boss, Ken Paxton, to authorities for possibly breaking the law.

William Helfand, a Houston attorney with Lewis Brisbois Bisgaard & Smith LLP, will make $540 per hour for his work on the case while an associate attorney and a paralegal will make $350 and $215 per hour, respectively, according to a contract with the agency.

They filed the agency’s first official response Monday to a lawsuit filed by four of eight whistleblowers who left the agency after leveling the accusations. Paxton’s attorneys roundly rejected pages and pages of allegations of wrongdoing and retaliation in just a few brief sentences.

The agency “generally denies each and every claim and allegation” made by the whistleblowers, attorneys for the state wrote in the brief filing.

“Any action Plaintiffs allege to be an adverse employment action was the result of each Plaintiff’s own misconduct, lack of competence, and/or disloyalty to the Office,” the outside attorneys for the agency wrote.

Paxton is reportedly being investigated by the FBI over the allegations raised by the aides.

Separately, he has been under indictment since 2015 on felony securities fraud charges but has yet to stand trial amid side issues over venue and prosecutor pay. Notably, his defense team and political allies have loudly objected to the special prosecutors in the case making $300 per hour — far lower than the pay scale for the outside attorneys in the whistleblower case.

That point was not lost on Brian Wice, one of the special prosecutors, who said it was “ludicrous for Paxton to believe that a seven-year attorney, not to mention a paralegal, should be paid more for defending him than two lawyers with over 80 years of combined experience should be paid for prosecuting him.”

“And it is outrageous that the taxpayers of Texas will be obligated to pay the legal fees for defending Paxton’s alleged misconduct that has reportedly triggered an FBI investigation,” Wice added.

See here and here for some background. Even I recognize this as Basic Lawyering 101, nothing new or unusual to see here. Where it gets exciting is in discovery, where Paxton will have to start coughing up some documents. As for how much the defense attorneys are being paid, as a theoretical matter the office of Attorney General deserves competent representation in matters like this. But the same is very much true for the special prosecutors, who have had to deal with a huge amount of political interference on Paxton’s behalf just to get paid. Surely if Paxton’s defense attorneys are worth that kind of fee, then we ought to see Brian Wice and Kent Schaffer as relative bargains. At least if Paxton does eventually get busted by the FBI, it’ll be the feds paying for that trial. In this case, we know Ken Paxton is going to raise money off of his latest legal travails. If the plaintiffs win, he can damn well kick in some of that loot to pay for the defense of his misdeeds.

Now we wait on SCOTUS

The state of Texas filed its reply to the defendants’ responses to its democracykilling lawsuit, and, well, it’s something.

Best mugshot ever

This brings us the Texas AG Ken Paxton’s reply–or, rather, replies, as there are multiple filings, including a motion to enlarge the word-count limit, a supplemental declaration dated today from Charles Cicchetti, and a new affidavit prepared yesterday from one Lisa Gage.

The first reply brief focuses on rebutting the factual and legal claims made by the four defendant states. The brief starts with the facts, and AG Paxton’s choice of emphasis here is quite interesting, as the brief leads with an extended defense of statistical stupidity contained in the initial filing and the Cicchetti declaration (hence the newly drafted supplemental declaration which is attached). Here, the Paxton brief argues “Dr. Cicchetti did take into account the possibility that votes were not randomly drawn in the later time period but, as stated in his original Declaration, he is not aware of any data that would support such an assertion.” In other words, because he does not know anything about the two sets of voters, it was okay to assume they were identical for purposes of assessing the statistical likelihood that they would vote differently. That this is the lead argument in the reply tells you most of what you need to know. (Well, perhaps not, as other parts of the factual discussion misrepresent claims made by defendant states or repeat claims that were considered and rejected in other suits over the past month.)

On the law, the Texas reply essentially argues that the handful of attorneys in the Texas AG’s office who were willing to sign on to the brief know more about the election laws of Georgia, Michigan, Wisconsin, and Pennsylvania than do the Attorneys General and Secretaries of State of those various states. It further argues that although state legislatures have “plenary” authority to set the manner in which states select electors, this somehow does not include the authority to authorize the involvement of courts and election agencies, and that the U.S. Supreme Court, not the supreme courts of the respective states, should be the final authority on the meaning of relevant state laws and constitutional provisions. (Yay federalism!)

The other Texas filing, styled as a reply in support of Texas’s plea for emergency injunctive relief, is not much better. It does, however, deploy a powerful use of capitalization in the Table of Contents (“Texas IS likely to prevail”). Note that Texas does not have to worry about any of the defendant states responding in kind (“Texas IS NOT likely to prevail”) because this is the last brief to be filed.

In this brief, Texas argues that it is not seeking to disenfranchise voters. Rather, Texas argues, “Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes.” Of course, to the extent this were true, Supreme Court intervention would not be necessary. If the relevant state legislatures concluded that the results of the elections within their states were indeterminate–that the voters had failed to select electors on election day–they could act, but they have not. Here Texas repeats its arguments that federalism requires the Supreme Court ordering state legislatures to act and possibly even hold new elections because Texas does not like how other states have run their elections.

It’s already time for some tweets.

One possible way to avoid that outcome is for SCOTUS to shut this shit down hard.

The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

I’m not so sure I share the optimism, but I agree it would be the best thing that SCOTUS could do.

More Republicans have lined up to join Paxton on his lemming suicide bomber dive, including some who are seemingly claiming their own elections are also tainted.

Maybe the most ridiculous thing about this ridiculous moment, is that among the 126 Republican House members who have signed on to a document that they know to be not just false in its content, but malicious in its intent, are 19 from states that are the subject of the suit.

So Representatives like Doug Collins and Barry Loudermilk in Georgia are arguing that their own elections were fraudulent. Except, of course, they’re not making that argument. They’re not making any argument. They’re just hoping to gain “street cred” from adding their signatures to a list of people who support Trump rather than America.

You know who else is on Team Dictatorship? Dan Crenshaw, that’s who. This Dan Crenshaw.

U.S. Rep. Dan Crenshaw told Veterans Affairs Secretary Robert Wilkie that a woman who reported sexual assault at a VA hospital had filed frivolous complaints when she and Crenshaw served in the same Navy command, according to testimony by several senior officials in a report by the agency’s watchdog.

Investigators said they were troubled by the way Wilkie and his agency handled the outcry of the woman, who is now a Democratic aide in the House of Representatives.

The Houston Republican’s link to matter, first reported by Newsweek magazine, was included in a report released by the agency’s inspector general on Thursday. The report details a number of apparent problems with the agency’s handling of complaints filed by the veteran, Andrea Goldstein, who alleged a VA hospital contractor “bumped his entire body against mine and told me I looked like I needed a smile and a good time.”

[…]

Senior VA officials told investigators that Crenshaw passed along information about Goldstein to Wilkie, the report says, which both Crenshaw and Wilkie have denied.

The report points to an email Wilkie sent Chief of Staff Pamela Powers and Brooks Tucker, assistant secretary congressional and legislative affairs, after a fundraiser that he and Crenshaw both attended. It said: “Ask me in the morning what Congressman Crenshaw said about the Takano staffer whose glamor (sic) shot was in the New York Times.”

While Wilkie told investigators that Crenshaw approached him at the December 2019 fundraiser and brought up the veteran, he claimed that Crenshaw merely told him they served together. When investigators asked Wilkie why that information was enough to merit the email he sent after the fundraiser, he responded, “Well, I don’t remember. I have no idea.”

Both Powers and Tucker, however, told investigators they recalled Wilkie making comments about the veteran’s reputation “based on information they understood he received from Congressman Crenshaw.”

The report also says Deputy VA Secretary Jim Byrne told investigators that Wilkie had “verified with Congressman Dan Crenshaw that the veteran had previously filed frivolous complaints when the two were serving in the same command in the Navy.”

Crenshaw and his staff refused to answer VA investigators’ questions about the matter, the report says. Crenshaw’s office did not respond Thursday to a request for comment.

The Newsweek story is here. Remember Crenshaw’s craven refusal to answer questions about this the next time he tweets some garbage about how “all cases should be heard, all investigations should be thorough”. As a reminder, the Chron endorsed Crenshaw for re-election. The Orlando Sentinel has apologized for endorsing Rep. Michael Waltz, one of Crenshaw’s fellow members of the Sedition Caucus. I await the Chron taking similar action; merely excoriating Ken Paxton and Ted Cruz, without even mentioning Crenshaw for his role in this debacle, is insufficient.

Montana Governor Steve Bullock has observed, as part of his own amicus filing against the Paxton mess, that Texas did not include his state as a defendant even though Montana made the same kind of changes that Georgia et al did that Paxton finds so objectionable. Of course, Trump carried Montana, so it’s totally different. Governor Bullock also knows how to bring the snark:

SCOTUS may act on the Texas case even before I finish drafting this post, so let me wrap up while the outcome is still unknown. First, a few words from Adam Serwer about why Trump has so many rats following behind his rancid Pied Piper act:

To Trump’s strongest supporters, Biden’s win is a fraud because his voters should not count to begin with, and because the Democratic Party is not a legitimate political institution that should be allowed to wield power even if they did.

This is why the authoritarian remedies festering in the Trump fever swamps—martial law, the usurpation of state electors, Supreme Court fiat—are so openly contemplated. Because the true will of the people is that Trump remain president, forcing that outcome, even in the face of defeat, is a fulfillment of democracy rather than its betrayal.

The Republican base’s fundamental belief, the one that Trump used to win them over in the first place, the one that ties the election conspiracy theory to birtherism and to Trump’s sneering attack on the Squad’s citizenship, is that Democratic victories do not count, because Democratic voters are not truly American. It’s no accident that the Trump campaign’s claims have focused almost entirely on jurisdictions with high Black populations.

From Elizabeth Dye at Above the Law:

But perhaps we shouldn’t get waylaid in Constitutional and procedural niceties, lest we distract ourselves from the point that THIS IS BATSHIT. The state of Texas has filed a facially nonsensical suit purporting to vindicate the rights of the Defendant states’ legislatures from unconstitutional usurpation by overweening governors and state courts, a usurpation which supposedly violates the Elections Clause. And the proposed solution is for the Supreme Court itself to violate the Elections Clause by postponing the electoral college vote, thus usurping Congress’s power to “determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

And instead of saying, “Slow your roll, Ken Paxton! We’ve been banging the drum about states’ rights for two hundred years now. It’s kind of our thing, you know?” the intervenor states are all in on this Frankenstein hybrid of vote dilution and anti-federalism. Rather than acknowledging the reality of Trump’s loss, these attorneys general would rather attach their names to a complaint which claims that it’s just mathematically impossible for Biden to have won those four Defendant states because, ummm, Clinton lost them. Don’t ask how Trump was able to flip Pennsylvania, Wisconsin, and Michigan after Obama won them in 2012 and 2008 — that formula is still being calculated.

Never mind that Texas’s governor Greg Abbott extended early voting by a week, the same dastardly usurpation of legislative prerogative which supposedly voids the election in the Defendant states. Pay no attention to the fact that Mississippi also allows votes to be counted if they arrive within three days of the election, which Paxton argues is patently illegal. Or that Utah conducted this election entirely by mail, which is, according to the complaint anyway, prima facie evidence of intent to allow vote fraud. IOKYAR.

The Trump motion to intervene is little more than a cleaned up version of the president’s Twitter feed, drafted by John Eastman, a law professor at Chapman University who is nonetheless confused about birthright citizenship and recently penned a racist Newsweek editorial wondering if Kamala Harris was eligible to run for president.

Mentioning this John Eastman character brings us to the final tweets, because all good blog posts about election theft end with tweets. These two are embedded in that ATL article:

As noted before, Lawrence Joseph is the outside counsel Ken Paxton hired for his lawsuit, since the Solicitor General declined to come on board. Wheels within wheels, y’all.

And finally, nothing could sum up this entire experience better than this:

From the neighborhood of New Heights in the city of New Houston and the state of New Texas, I wish you all a happy weekend. CNN has more.

UPDATE: Didn’t have to wait long, as it turns out.

The US Supreme Court on Friday rejected Texas’s unprecedented last-ditch effort to challenge President-elect Joe Biden’s win in Pennsylvania, Michigan, Georgia, and Wisconsin by suing those four states in the high court.

At least a majority of the justices concluded that Texas lacked standing to bring the case at all, a threshold the state had to clear before the case could go any further.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in the brief order.

No justice noted that they had dissented from the decision to knock out Texas’s case from the start. It would have taken at least five justices to agree to hear the case, but the justices don’t have to individually indicate how they voted, so there’s no way to know the vote breakdown for certain. Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote that they believed the court had to allow Texas to file its lawsuit, but they wouldn’t have granted any other relief that the state requested.

It was a significant loss not only for Texas, but for President Donald Trump, who had asked to intervene in the case and spent the the past two days tweeting about why the justices should effectively hand him an election that Biden won. The court denied all of the other motions filed in the case as moot once it decided Texas couldn’t bring the case at all, which ended Trump’s bid to get before the justices.

There’s plenty more stories out there – go to Google News or Trending on Twitter if you haven’t come across any others. The Electoral College meets on Monday, and after that it really is over, though one presumes the delusions will continue. I’m going to finish with some more tweets. You should go outside and enjoy the day.

Not sure how I feel about this. It’s right there in the Constitution, but it’s also overturning the will of the voters, which is what the Sedition Caucus was trying to do. I am happy to have a discussion about this, however. Let these bastards explain why they haven’t violated the Constitution.

Speaking of bastards and being in opposition to the Constitution:

Yeah, I don’t even know what to say to that. But I would very much like to know what every elected Republican thinks about it. Let’s get them all on record, shall we? Rick Hasen has more.

The states respond to Paxton

Now we wait for SCOTUS. I sure hope they’re quick about it.

Best mugshot ever

Each of the four battleground states targeted by a Texas lawsuit seeking to overturn President Donald Trump’s election defeat issued blistering briefs at the Supreme Court on Thursday, with Pennsylvania officials going so far as to call the effort a “seditious abuse of the judicial process.”

The court filings from Georgia, Michigan, Pennsylvania and Wisconsin come a day after Trump asked the Supreme Court to intervene in the lawsuit brought by Texas Attorney General Ken Paxton seeking to invalidate millions of votes in their states. The lawsuit amounts to an unprecedented request for legal intervention in an election despite there being no evidence of widespread fraud.

“Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” wrote Pennsylvania Attorney General Josh Shapiro.

The Texas lawsuit, Shapiro said, rested on a “surreal alternate reality.”

[…]

Despite the slate of inaccurate claims driving the lawsuit, more than 100 House Republicans signed on to an amicus brief in support of Paxton’s motion.

Notable Republican leadership names on this list include House Minority Whip Steve Scalise and Republican Policy Committee Chairman Gary Palmer.

“The unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections,” the brief said without evidence.

“Amici respectfully aver that the broad scope and impact of the various irregularities in the Defendant states necessitate careful and timely review by this Court.”

Beyond the four states subject to the Texas lawsuit, more than 20 other states and Washington, DC, also submitted an amicus brief deriding the effort and urging the high court to deny Texas’ motion.

“The Amici States have a critical interest in allowing state courts and local actors to interpret and implement state election law, and in ensuring that states retain their sovereign ability to safely and securely accommodate voters in light of emergencies such as COVID-19,” the brief said.

Shapiro’s particularly fiery brief assessed that the Texas lawsuit is “legally indefensible and is an affront to principles of constitutional democracy.”

“Nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four sister States run their elections, and Texas suffered no harm because it dislikes the results in those elections.”

See here and here for the background. A copy of the court filings are at the CNN story, but the best part of the Pennsylvania filing, which uses the word “seditious”, is here. Despite the sound and fury, there’s some suggestion that even the sedition-committers know that it all signals nothing.

Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today’s filing. First and foremost, it is notable than only six of the states that joined yesterday’s amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today’s motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court’s attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday’s filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

It gets into the legal weeds from there, so read the rest if you’re so inclined. In the meantime, there may still be a couple of respectable voices here in Texas.

The state’s Big Three — Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen — have all supported the suit, and Texas Sen. Ted Cruz has reportedly even agreed to argue the case before the U.S. Supreme Court if it advances, which legal experts say is extremely unlikely.

More than half of the Texas Republican congressional delegation — 12 members including Reps. Dan Crenshaw, Kevin Brady and Randy Weber — were among the 106 House members to sign onto a brief in support of the suit.

[…]

Still, in what is shaping to be yet another with-Trump or against-Trump moment for Republicans in Congress, the Texas delegation is splitting.

Texas Sen. John Cornyn doubts that Paxton even has grounds to sue. “It’s an interesting theory,” he said, “but I’m not convinced.”

On Thursday, Cornyn — a past Texas attorney general, as is Abbott — was joined by several more prominent Republicans in his dissent.

Rep. Kay Granger, who has represented North Texas for almost two decades, told CNN she did not see the suit going anywhere and called it a “distraction.”

“I’m not supporting it,” Granger said. “I’m just concerned with the process.”

Conservative firebrand Rep. Chip Roy excoriated the suit, saying he could not join colleagues in the House in writing a brief to support the suit because he believes it “represents a dangerous violation of federalism and sets a precedent to have one state asking federal courts to police the voting procedures of other states.”

“I strongly support the continued pursuit of litigation where most likely to succeed — such as Georgia — to bring to light any illegal votes and encourage, if necessary, state legislatures to alter their electors accordingly,” Roy tweeted. “But, I cannot support an effort that will almost certainly fail on grounds of standing and is inconsistent with my beliefs about protecting Texas’ sovereignty from the meddling of other states.”

I give Kay Granger a B+, Cornyn a C, and Roy a D – he was perfectly happy to throw manure on the concept of voting by mail, so his disagreement was entirely about tactics, not principles. I remind you, as recently as 2016, Republicans in Harris County cast more votes by mail than Democrats did. As for Dan Crenshaw, I hope that the next time we try to tell the voters in his district that he’s nothing more than a faithful foot soldier for Donald Trump, they believe us.

Not that Ken Paxton cares, but I appreciate what the DMN editorial board says to him.

Your lawsuit, as you should know, will fail on the merits. Every piece of evidence shows the same result. Donald Trump lost this election. This is why the high court will turn you away, as courts have repeatedly turned away suits seeking to reverse the election’s outcome.

That is not to say that your decisions are without consequence. As the state’s attorney general, you chose to mislead the public by acting as if there were a legal case to defy the will of the voters as expressed through legally administered elections, and this will cause lasting damage to our political system and to faith in our elections. Much like crying wolf when there is no animal in sight, your lawsuit will undermine legitimate complaints in the future about voter fraud and undercut legitimate work in the future to ensure ballot integrity.

Your leadership is also fueling cynicism, empowering conspiracy theorists who operate on accusation rather than fact, and enabling those who seek election confusion rather than clear, compelling and accurate election results. This is leadership unbecoming of your office. It is a disservice to Texans who deserve a well-run office of the attorney general and who depend on a fair administration of justice.

We really need to vote him out in 2022. I’ll wrap up with some tweets.

I’ll blog about that more fully when I see a story. It just sure is hard to separate the timing, and the cravenness, of this lawsuit from Paxton’s immediate needs. We’ll see what SCOTUS has to say, and when they have to say it. Daily Kos and NBCNews have more.

We still have to talk about Paxton’s ridiculous and anti-democratic lawsuit

At least for one more day.

Best mugshot ever

President Donald Trump on Wednesday latched on to a longshot Texas lawsuit seeking to overturn a presidential election that handed the White House to Joe Biden.

Legal experts say Texas Attorney General Ken Paxton’s effort to contest election results of four key battleground states is all but certain to fail. But it has drawn support from the Republican attorneys general of 17 other states.

As the president’s legal team loses case after improbable case in federal district and appellate courts, the Texas lawsuit offers a major advantage: It goes straight to the top. Under a special legal avenue unique to states, Paxton filed the case directly with the U.S. Supreme Court, a body Trump has suggested could deliver him the victory that voters did not.

[…]

The Texas lawsuit takes issue with changes to election procedures in four battleground states: Georgia, Pennsylvania, Michigan and Wisconsin. Paxton argues those changes were unlawful and call into question Biden’s victories in those states. He is asking the high court to block the critical battlegrounds from participating in the Electoral College.

Though the Supreme Court has a six-member conservative majority, including three justices appointed by Trump himself, it has so far shown no interest in siding with him in the election cases his campaign has lobbed. On Tuesday, it decisively rejected Pennsylvania Republicans’ effort to overturn Biden’s victory there in a one-sentence order with no dissents.

Legal experts and court watchers expect a similar outcome in the Texas case. The court has asked for a response from the four battleground states Texas is suing, setting a Thursday deadline, but has given no indication about how it will decide the matter.

“This is the Hail Mary with time running out the clock kind of play here,” said David Coale, an appellate attorney in Dallas. “This is really the last little window to sort of sneak in there and try to get a court involved.”

States have a special legal ability to take cases directly to the Supreme Court, though such cases are rare, and more typically involve boundary disputes like water rights. If the high court accepts Texas’ argument that it can sue the four battlegrounds in this case, Coale said, “then any state can sue any other state about just about anything.”

Even if the court gets past tricky procedural issues, Texas’ case faces an uphill battle.

Officials in the battleground states have roundly rejected Paxton’s argument, calling it “false,” “irresponsible,” “a publicity stunt,” “genuinely embarrassing,” “beyond reckless” and “beneath the dignity of the office of attorney general.”

They also point out that many of the claims Paxton makes about election irregularities in their states have already been litigated and roundly rejected. Experts, state election officials and U.S. Attorney General Bill Barr have all said there is no evidence of voter fraud on a scale that could have affected the outcome of the election.

“Texas alleges that there are 80,000 forged signatures on absentee ballots in Georgia, but they don’t bring forward a single person who this happened to. That’s because it didn’t happen,” said Jordan Fuchs, Georgia’s deputy secretary of state.

See here for the background, and please put aside any concerns you may have for Ken Paxton’s dignity. He sure isn’t concerned about it.

Honestly, the best way to deal with this kind of pure bullshit is through Twitter.

For more responses from people who are smarter and way more honest than Ken Paxton, Texas Lawyer collected a bunch more responses, a sample of which is here:

>> Raffi Melkonian, appellate lawyer at Wright, Close & Barger: “The new Paxton lawsuit is not worth a lot of your time, but I mean, it doesn’t make any sense and is bad and has no chance of success at all. Just want to be clear on that.” [Twitter]

>> Jonathan Adler, Case Western Reserve University law professor: “Here, Texas is not only asking the Supreme Court to hear the case, it is also asking for expedited consideration and extraordinary emergency relief, in the form of injunctions barring the defendant states from relying upon the election results to appoint electors and authorizing ‘pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.’ In effect, the suit is asking the U.S. Supreme Court to supervise the Presidential election in the four defendant states.” [Reason.com]

>> J. Scott Key, Georgia appellate attorney and Mercer University law professor: “This pleading is our book club’s next selection. Over wine, we will discuss whether the text is a coded love letter subtle to a jealous suitor with pardon power.” [Twitter]

>> U.S. Sen. Ted CruzR-Texas:  “Petitioners’ legal team has asked me whether I would be willing to argue the case before #SCOTUS, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument.” [Twitter]

>> John Q. Barrett, law professor at St. John’s University School of Law: “Kudos to Sen. Cruz for giving the Court another major reason, just in case it needed any more, to deny cert.” [Twitter]

>> Philadelphia election lawyer Adam Bonin, who has represented the Democratic Party in recent election litigation in Pennsylvania: “It is embarrassing to see argument like this from a state attorney general to the Supreme Court of the United States.” [Twitter]

>> Andrew Fleischman, appellate attorney, Ross & Pines, Atlanta: “Gonna go ahead and sue the Supreme Court to enjoin them from taking up this Texas challenge. That way they’ll all have to recuse. When the Supreme court rejects the suit after dismissing my petition and ordering sanctions, I’ll go on Fox News and say they were scared of me.” [Twitter]  “Ok the absolute trolliest thing Michigan could do right now is move to recuse Paxton because his desire for a pardon is a conflict of interest. We’re not even really doing law any more so why not?” [Twitter]

>> Eric Greenberg, Seyfarth Shaw: “Would the @Nate_Cohn @nytimes needle predicting a Biden win in GA at 3 am in the morning be sufficient evidence to combat the claim as to GA?  Just kidding — but maybe not.” [Twitter]

>> Adam VanHo, Ohio attorney, former state assistant attorney general: “@KenPaxtonTX should be ashamed of himself for this frivolous filing. And if states get to sue other states over their treatment of voters, when will states like New York and Ohio sue southern states over their treatment of former felons’ voting rights.” [Twitter]

>> Pennsylvania Lt. Gov. John Fetterman: “Can the Texas AG *also* sue their Lieutenant Governor for the handsome reward of $2M he owes me for reporting voter fraud?”  [Twitter]

>> Chris Geidner, The Justice Collaborative: “As others have noted, Texas Solicitor General Kyle Hawkins is not on the SCOTUS filing—despite him being the state’s lead SCOTUS lawyer. There is, however, a ‘special counsel’ noted.” [Twitter]

>>Joyce White Vance, former U.S. attorney for the Northern District of Alabama: “This lawsuit alleges defendant states took advantage of the pandemic to expand vote by mail. It’s the ultimate expression of Trump’s view the GOP can’t win … if all eligible Americans can vote. Tx AG, himself under criminal investigation, appears to be a fan of cheat to win.” [Twitter]

>>Jocelyn Benson, Michigan Secretary of State: “This lawsuit seems to suggest that the voters of Michigan messed with Texas. They didn’t. Case closed.” [Twitter]

SCOTUS requested responses from the four targeted states by this afternoon. Everyone with integrity believes the case will be summarily dismissed shortly thereafter. Stay tuned. The Chron, Daily Kos, the Current, Political Animal, and Slate have more.

Ken Paxton sues other states to overturn their election results

It’s as stupid and pernicious as it sounds.

Best mugshot ever

Texas Attorney General Ken Paxton is suing four battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — whose election results handed the White House to President-elect Joe Biden.

In the suit, he claims that pandemic-era changes to election procedures in those states violated federal law, and asks the U.S. Supreme Court to block the states from voting in the Electoral College.

The last-minute bid, which legal experts have already characterized as a longshot, comes alongside dozens of similar attempts by President Donald Trump and his political allies. The majority of those lawsuits have already failed.

There is no evidence of widespread fraud in the 2020 election, officials in most states and U.S. Attorney General Bill Barr have said. Biden won in all four states where Paxton is challenging the results.

In a filing to the high court Tuesday, Paxton claims the four battleground states broke the law by instituting pandemic-related changes to election policies, whether “through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”

Paxton claimed that these changes allowed for voter fraud to occur — a conclusion experts and election officials have rejected — and said the court should push back a Dec. 14 deadline by which states must appoint their presidential electors.

“That deadline, however, should not cement a potentially illegitimate election result in the middle of this storm,” attorneys for Texas wrote.

[…]

Notably, Paxton himself is listed as the agency’s lead attorney on the case — a highly unusual role for the state official, who rarely plays a hands-on role even in the state’s major cases. Paxton’s new chief deputy, Brent Webster, signed onto the filing, but conspicuously absent is the agency’s top lawyer for appellate work, Solicitor General Kyle Hawkins, who typically argues the state’s cases before the Supreme Court and did so as recently as last month. None of Hawkins’ deputies is listed as contributing to the case, nor are any of the agency’s hundreds of other attorneys.

The agency instead appears to have hired an outside attorney, Lawrence Joseph, to contribute to the case.

The agency did not answer questions about its staffing choices for the lawsuit, nor did Hawkins himself.

Gov. Greg Abbott, a former Texas attorney general, signaled support for the lawsuit, telling a reporter the case “tries to accelerate the process, providing certainty and clarity about the entire election process. The United States of America needs that.”

We’ll discuss motives in a minute, but first, a few tweets.

You should also read this thread from Steve Vladeck, and this post from Rick Hasen, in which he calls this “a press release masquerading as a lawsuit” and “utter garbage”. And now you know all you need to know about the legal merits of this case, which by the way was filed on the legal deadline for states to certify the Presidential election.

Now then. Why would multiply-accused felon Ken Paxton do this? Two obvious reasons:

1. It’s a signal to George P. Bush and any other potential primary challengers that no one is going to out-wingnut him in 2022. We are at “drinking hemlock to own the libs” levels of depravity here. Maybe Solicitor General Kyle Hawkins will speak up and contradict the speculation about why Paxton was on his own for this, but the fact that Paxton did this on his own is surely a message to any wannabe kingslayers.

2. It’s also a message to Donald Trump, and that message is “PARDON ME! PAAAAAAAARDON MEEEEEEEEE!” Why fight an FBI investigation if you can be pre-emptively declared not guilty of any crimes you may have committed?

My guess is that Greg Abbott’s “well, we should just let the process play out” numbskullery is also an attempt to placate the seething hordes that now think he’s a liberal squish crossed with Joseph Stalin. I doubt it will work, but this is where Abbott is these days.

Anyway. On the one hand, we have already wasted too many brain cells on this. On the other, we should never forget that the official stance of way too many Republican officials is that they cannot lose elections and will do anything at all to prevent that from happening, law and decency and democracy be damned. I can only imagine the freakout they will have when Dems finally break through at the state level. For more reading than you should have time for, see the Chron, TPM, Daily Kos, Mother Jones, Reform Austin, and the Press.

Birds of a feather

Sweet.

A pro-Trump group that promised to challenge the Nov. 3 election results and expose fraud was sued by a North Carolina money manager who donated $2.5 million to the cause but says he didn’t get his money’s worth.

Fred Eshelman, founder of Eshelman Ventures LLC, wants his money back, saying he “regularly and repeatedly” asked for updates on the project but his “requests were consistently met with vague responses, platitudes, and empty promises,” according to the lawsuit filed Wednesday in Houston federal court.

Houston-based True the Vote Inc. had promised a multi-pronged plan to “investigate, litigate, and expose suspected illegal balloting and fraud in the 2020 general election,” according to the lawsuit.

In the weeks after the election, True the Vote filed four lawsuits, but it dropped them all last week. “While we stand by the voters’ testimony that was brought forth, barriers to advancing our arguments, coupled with constraints on time, made it necessary for us to pursue a different path,” the group announced on its website on Nov. 17.

[…]

True the Vote called its effort to reverse the election results Validate the Vote. The plan included filing lawsuits in seven swing states, collecting whistleblower complaints, galvanizing Republican legislative support in key states, and conducting “sophisticated data modeling and statistical analysis to identify potential illegal or fraudulent balloting,” according to Eshelman’s lawsuit.

The money manager said he agreed to support the plan and wired the group $2 million on Nov. 5 and $500,000 a week later after the group’s president told him that more money might be needed to achieve their goals, according to the suit.

When True the Vote failed to provide any reports on its progress and with certification deadlines approaching, Eshelman said it became obvious the group wouldn’t be able to execute the plan he agreed to support. So, he asked for his money back.

True the Vote had offered him $1 million if he would drop any plans for a lawsuit, he said in the complaint.

Hilarious. True the Vote oozed up from the local firmament a decade ago, and were involved in some highly questionable activities that centered around allegations of vote fraud, none of which ever came to pass. Juanita had some experience with them. I had honestly forgotten they were still a thing until I saw the stories of their aborted litigation a few days earlier. The little coda to that story is just delightful. Grifters gonna grift.

No Walmart liquor stores

Some non-election litigation news of interest.

Texans still won’t be able to purchase liquor at Walmart, after the U.S. Supreme Court rejected a bid by the retail giant that would have allowed the booze to be sold at stores in the state.

Texas is the only state in the nation that does not allow publicly traded companies, like Walmart Inc., to obtain liquor permits — but they are allowed to sell beer and wine.

Walmart claims the law is discriminatory and has argued that 98% of liquor stores in the state are owned by Texans.

Turned away by the nation’s highest court, Walmart will now have to prove intentional discrimination before a federal trial court.

Lawyers for the Texas Alcoholic Beverage Commission said the law is in place to make liquor less readily available and curb its consumption.

“The law precludes large corporations from using their economies of scale to lower liquor prices and increase the density of liquor outlets in the State. This approach has served Texas well — it has consistently ranked among the States with the lowest per capita liquor consumption,” lawyers for the commission stated.

Not sure I buy the cause-and-effect logic there, but whatever. Walmart, which at the time still had a hyphen in its name, originally sued in 2015 in federal court in Travis County. They got a favorable ruling in 2018, which was remanded back to the district court by the Fifth Circuit (opinion here). Walmart had appealed this ruling to SCOTUS, so the denial means they have to go back to the district court and try again under the tougher guidelines set out by the Fifth Circuit. We’ll see if they proceed, or if they decide it might be faster and cheaper to try to elect a bunch of legislators who will pass a bill to do what they want. I’m no fan of Walmart, but I really don’t see the point of this state regulation. Everything we do with alcohol in this state is weird and anachronistic.

Felony bail reform lawsuit moves forward

Pending the next appeal, anyway.

A federal judge ruled Tuesday that the case challenging Harris County’s felony bail system should proceed to trial. Nineteen felony judges represented by state Attorney General Ken Paxton immediately gave notice they planned to appeal to the 5th U.S. Circuit

[…]

The defendants include Sheriff Ed Gonzalez, who does not oppose the litigation, and 23 Harris County felony district judges, who have split into a larger group represented by Paxton, who opposes the lawsuit, and a smaller faction represented by attorney Allan Van Fleet, who represented the judges in the misdemeanor bail case.

In a 65-page opinion, Chief U.S. District Judge Lee H. Rosenthal denied the state and felony judges’ motions to dismiss the case, finding that the evidence involved “vigorously disputed factual allegations that must be developed further to resolve the legal issues the parties present.”

Lawyers for Abbott and 19 Democratic district judges argued in October the judges were protected by immunity, the federal courts do not have jurisdiction and the indigent arrestees do not have standing to sue.

Rosenthal found the court had standing and thousands of indigent arrestees, even though the individuals changed over time, had grounds, as a group, to sue.

See here, here, and here for the background. This was a motion to dismiss on largely procedural grounds, so there’s plenty of room for the Fifth Circuit to step in and throw this out without the merits of the case ever getting litigated. Obviously, I hope that does not happen.

This is the first I’d heard of the judicial plaintiffs being in two different groups; I need to understand what that means going forward. You know where I stand on this, and I plan to make a Big Deal out of which judges are on the right side of this issue, and which are actively obstructing it. So far, that standard hasn’t been met, but if the Fifth Circuit upholds this ruling then I will look very sideways at further appeals.

More on the Luhnow lawsuit

Because I now have the brain space to think about stuff like this again.

Did not age well

While baseball fans and courtroom voyeurs might long for a public legal showdown between Astros owner Jim Crane and former general manager Jeff Luhnow, attorneys say the more likely outcome of their contract dispute over Luhnow’s firing is a quiet, secretive resolution behind the protective wall of private arbitration.

Three Texas attorneys were united on that point of view Monday after examining the 18-page breach of contract lawsuit filed by Luhnow against the ballclub before Texas 125th District Judge Kyle Carter.

Luhnow alleges that Crane violated his contract by firing him in January after he was suspended for a year by Major League Baseball commissioner Rob Manfred. Crane’s decision, Luhnow says, denied him benefits that include $22 million of his $31 million contract plus bonuses and a guaranteed slice of the ballclub’s profits.

While the bulk of the complaint alleges a plot by the Astros and MLB to scapegoat Luhnow as the villain of the 2017-18 sign-stealing scandal, attorneys say its most critical point is in the 34th of 43 paragraphs, which says Luhnow is required to submit contract disputes to arbitration “by the commissioner or the commissioner’s designee.”

“Jeff Luhnow will have a very difficult time defeating the arbitration agreement clause,” said Rogge Dunn, a Dallas attorney who has represented former Orioles manager Buck Showalter, Texas Tech University and a former Baylor University Title IX oversight director in employment law cases.

Luhnow’s attorneys say it would be a “complete sham” for Manfred to have a key role in arbitrating disputes in which he is a central figure. The lawsuit asks Carter to submit the case to a jury or to appoint an arbitrator of his own choosing.

“His point is that this is an inside deal,” Dunn said. “The commissioner will protect the owner and scapegoat me, and he also gets to appoint the arbitrator, who will know on whose bread is being buttered.”

Mike Muskat, a partner with the Houston firm Muskat, Mahony & Devine, said Texas law is “very favorable toward enforcement provisions,” which decreases the prospect Luhnow can avoid an arbitration proceeding in which MLB gets to pick the arbitrator.

“I’ll give (Luhnow’s attorneys) credit for a creative argument, but the law is pretty solid,” Muskat said. “There’s a pretty high hurdle to avoid arbitration based on the selection of the arbitrator.”

See here for the background, and there’s a copy of the lawsuit embedded in the story. I’ll say this much, if Luhnow turns this into a crusade against mandatory arbitration clauses in employment agreements, even if it’s for the most self-interested of reasons (*), I will regain a modicum of respect for him. He’s right that this kind of forced arbitration is a scam that greatly benefits employers – and businesses in general when we’re talking about other types of service agreements – but the fight needs to be bigger than this. You can do it, Jeff!

(*) Money is very much the motivating factor here, as there’s over $30 million at stake. If the Astros can fire Luhnow for cause, instead of firing him for being a loser, as is the case most of the time when managers/GMs are canned, then they don’t owe him any of the money he was to be paid in his contract. Whatever else you may think of Luhnow, he’s not an idiot.

Luhnow sues Astros

This ought to be entertaining.

Did not age well

Jeff Luhnow sued the Houston Astros for breach of contract on Sunday, alleging that Astros owner Jim Crane and Major League Baseball Commissioner Rob Manfred negotiated penalties for the sign-stealing scandal that enabled the team to paint Luhnow as “the scapegoat for the organization” and fire its general manager “in order to save more than $22 million in guaranteed salary.”

In January, after a two-month investigation into how the Astros violated baseball rules by improperly deploying technology to decode signs in the 2017 and 2018 seasons, Manfred suspended Luhnow and Astros manager A.J. Hinch for the 2020 season. Crane then fired Luhnow and Hinch.

Luhnow’s lawsuit uses quotation marks around the word “investigation” and calls it “a negotiated resolution” between Crane and Manfred “that enabled the team to keep its World Series championship, went to great lengths to publicly exonerate Crane, and scapegoated Luhnow for a sign-stealing scandal that he had no knowledge of and played no part in.”

Manfred later suspended Alex Cora, who was the Astros’ bench coach in 2017 and then became manager of the Boston Red Sox, for the 2018 season. The Detroit Tigers hired Hinch as their manager last week, and the Red Sox re-hired Cora.

Luhnow has not found work in baseball. His suit, filed in Texas district court in Houston, alleges the Astros breached their contract with him because none of the conditions that would be considered as just cause for his dismissal actually occurred.

Yes, the first story appeared in the LA Times. Go figure. The Chron followed a little later with a copy of the lawsuit and some more details.

“The commissioner struck a deal with Crane to make Luhnow the scapegoat of the cheating scandal while absolving Crane, the players and others of responsibility,” the suit reads.

[…]

Luhnow’s lawsuit calls the league’s investigation “deeply flawed.” It paints Director of Advance Information Tom Koch-Weser as the scandal’s “actual ringleader” who, according to the suit, blamed Luhnow “to save his own job.”

Major League Baseball’s investigation included 22,000 text and chat messages to or from Koch-Weser that, according to the suit, Manfred “ignored … as part of the effort to scapegoat Luhnow.” Luhnow is not included in any of the messages, according to the petition.

The petition claims that Koch-Weser was the “only witness to claim that Luhnow mentioned electronic sign-stealing.” Luhnow’s lawsuit calls him a “biased source who has zero credibility.”

“The Astros told Koch-Weser that he could keep his job so long as his actions were sanctioned by his supervisors, including Luhnow,” the suit states.

Koch-Weser remained employed by the Astros throughout the 2020 season.

Luhnow’s lawsuit attempted to demonstrate his adherence to baseball’s crackdown on electronic sign-stealing during the 2017-19 seasons. In Major League Baseball’s report, Manfred excoriated Luhnow for “(failing) to take any adequate steps to ensure that his club was in compliance with the rules.”

You can add this to the season ticket holders’ lawsuit as part of your offseason things to watch. The suit was filed in the 125th Civil Court, so congratulations to Judge Kyle Carter for having this hot potato land on his bench. I have no idea if any of these allegations are true, but I can’t wait to find out more.

Federal judge denies Hotze petition

Hopefully, this will be the end of this particular nonsense.

A federal judge Monday rejected a request by a conservative activist and three Republican candidates to toss out nearly 127,000 votes cast at drive-thru polling sites in Texas’ most populous, and largely Democratic, county.

The ruling by U.S. District Judge Andrew Hanen, a George W. Bush appointee, follows two earlier decisions by the all-Republican Texas Supreme Court rejecting similar efforts by Republicans challenging the validity of drive-thru voting in Harris County. Although Hanen’s ruling is still expected to be appealed quickly, it appears to clear the way for counting the early voting drive-thru ballots on Election Day.

In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. He noted, however, that the U.S. 5th Circuit Court of Appeals could think differently if the cases reaches them.

If he had ruled on the larger issues in the case, Hanen said he would have rejected the request to toss out votes already cast. But Hanen said he would have shut down Harris County’s drive-thru polling places for Election Day, because the tents being used for the sites don’t qualify as “buildings” under state election law.

“If I were voting tomorrow … I would not vote in a drive-thru just out of my concern as to whether that’s illegal or not,” he said. “I am going to order the county to maintain all the drive-thru voting records … just in case the 5th Circuit disagrees.”

Ten percent of Harris County’s in-person early voters cast their ballots at the county’s 10 drive-thru locations. Dismissing the votes would have been a monumental disenfranchisement of voters in a presidential election besieged with fights over voter suppression and fraud.

The judge ruled from the bench after a hearing with plaintiffs, the county and numerous Texas and national voting rights and political groups joining Harris County to argue that the drive-thru program was legal under Texas election law.

See here, here, and here for the background. This is obviously a great relief, because as ridiculous as this lawsuit was, the cost of an adverse ruling was sky-high. There will be an appeal, but it looks like that will be to stop drive-through voting on Election Day, not to continue the pursuit of throwing these votes out. I think.

On that note: You saw Judge Hanen’s words about voting at a drive-through location today. Drive-through locations will be open today, and if you have the need to use one, then use it. I believe there’s form you can use to attest to your need to vote curbside, which is legally different than drive-through and which is expressly allowed under Texas law (the whole dispute here ultimately boils down to the allegation that drive-through voting is an illegal expansion of curbside voting). Otherwise, I agree with the lawyers who say just park and go inside to vote. Don’t take the chance that this could come up again after the election.

Statements from the ACLU and the Texas Civil Rights Project are beneath the fold, and a statement from the Texas Democratic Party is here. This Twitter thread by Raffi Melkonian is a terrific blow-by-blow account of the hearing and ruling, with some explanations thrown in for the non-lawyers. The Chron, Houston Public Media, the Press, Mother Jones, Politico, and Daily Kos have more.

UPDATE: And so the appeal is happening in the night. Here’s another Twitter thread to keep track. I hope like hell I don’t have to rewrite this whole damn post in the morning.

UPDATE: As of 9 PM, no actual filing yet.

UPDATE: OK, the petition has been filed. They are just asking for drive-through voting to be halted for Election Day. Stay tuned.

UPDATE: Hopefully, this is the final final update:

You can see the denial in its glory here. The remaining drive-through location will be at the Toyota Center, which no one can deny is a building; the reason that Judge Hanen would have halted drive-through voting on Election Day is because the law is actually different for Election Day than it is for early voting, specifying “buildings” instead of “structures”. At this point, there really isn’t anything left to litigate. Happy voting to whoever will be doing so today.

(more…)

SCOTX rejects Hotze petition to throw out drive through votes

One piece of good news.

A legal cloud hanging over nearly 127,000 votes already cast in Harris County was at least temporarily lifted Sunday when the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county.

The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs.

The Republican plaintiffs, however, are pursuing a similar lawsuit in federal court, hoping to get the votes thrown out by arguing that drive-thru voting violates the U.S. constitution. A hearing in that case is set for Monday morning in a Houston-based federal district court, one day before Election Day. A rejection of the votes would constitute a monumental disenfranchisement of voters — drive-thru ballots account for about 10% of all in-person ballots cast during early voting in Harris County.

[…]

Curbside voting, long available under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The Harris County Clerk’s Office argued that its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore can be available to all voters. The clerk’s filing with the Supreme Court in the earlier lawsuit also said the Texas secretary of state’s office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

Plus, the county argued in a Friday filing that Texas’s election code, along with court rulings, have determined that even if the drive-thru locations are violations, votes cast there are still valid.

“More than a century of Texas case law requires that votes be counted even if election official[s] violate directory election laws,” the filing said.

See here and here for the background. I’m glad to see SCOTX affirm my faith in them. They’re partisan, but I didn’t think they would want to set their reputations, and the court’s legitimacy, on fire for such a blatant and sloppy effort to disenfranchise thousands of people. So we’ve got that going for us, which is nice.

There’s still the matter of that federal lawsuit, for which there will be a hearing this morning at 10:30. I have no idea when there might be a ruling – it’s not out of the question that the judge could rule immediately upon the completion of the hearing – but it’s still looming out there. If you were one of the 126K+ drive-through voters, you can add yourself to the lawsuit as an intervenor, and put your experience on the record. Just fill out this form – quickly, the hearing is at 10:30 as noted – and you’ll have done your part. Here’s hoping. The Statesman has more.

UPDATE: From Twitter:

The attached brief is custom-made to convince a partisan Republican judge to throw out the plaintiffs’ petition. Let’s hope this helps.

Astros ticketholder lawsuit update

I share because I care.

Did not age well

The Astros have asked the state 14th Court of Appeals to dismiss a consolidated lawsuit filed by three groups of disgruntled ticketholders, repeating many of the same arguments in favor of dismissal that they presented to a Harris County district court earlier this year.

Along with repeating their claim that the suit should be tossed because the ballclub is protected by the Texas Citizens Participation Act, attorneys say a courtroom is not the proper venue to chasten the Astros for the decision of players in 2017-18 to use electronic means to steal signals in violation of Major League Baseball’s rules.

“No court in the United States has ever allowed fans or other members of the public to sue for how a sport is played, and Texas should not be the first jurisdiction that allows such claims,” the Astros said in their 78-page brief filed with the court this week.

If such claims were allowed, the ballclub added, “The courtroom would become the solace for any sports fan who has felt the pang of disappointment in a team’s strategy choices. In these divided times, appellate courts throughout the nation have united on one point: claim for disappointment in how a team played the game on the field – be it a rule violation or a performance fiasco – are not justiciable.”

The cases wound up before the 14th Court when state District Judge Robert Schaffer denied the Astros’ motion for summary judgment in proposed class action suits filed by ticketholders Adam Wallach, Roger Contreras and Kenneth Young, who allege they were defrauded into buying tickets by the Astros’ public relations campaign urging fans to buy tickets.

The Astros claim the ballclub is protected under the Texas Citizens Participation Act, which allows a judge to dismiss a case in which one of the parties is exercising the right of free speech, right to petition or right of association regarding discussions about a public figure or entity.

Schaffer suggested that the case go to the 14th Court to decide procedural matters before returning to his court for a potential rehearing on the summary judgment dismissal sought by the Astros, and the Astros then filed their appeal.

See here for the background. A copy of the appellate motion is in the Chron story. I believe this case is the consolidation of all of the Harris County lawsuits; there is still the California lawsuit that the Astros either want dismissed or moved to Texas, but I’ve lost track of it at this point. I still don’t believe any of this will go anywhere, but it will at least keep us occupied for the foreseeable future.

Hotze and Woodfill take their fight against drive-thru voting to federal court

Just another quiet Saturday…

Mark can be a bit of an alarmist, but that doesn’t mean he’s wrong. For what it’s worth, Rick Hasen thinks this suit is without merit, though again worth worrying about given the deranged nature of parts of the federal judiciary these days.

Mark Stern flagged this new lawsuit filed in federal court which seeks to throw out over 100,000 ballots cast by Harris County, Texas voters who voted using drive-thru voting in Texas. There was an earlier lawsuit in state court seeking to block this means of voting on grounds that it purportedly violated Texas law, but the Texas Supreme Court rejected that claim. This new lawsuit is making the same novel claims under the “independent state legislature” doctrine that any actions by any state court or state agency not specifically authorized by the legislature is an unconstitutional usurpation of the legislature’s power. It’s this same audacious and unproven theory that formed the background for the outrageous 8th Circuit order this week over segregating ballots in Minnesota. The lawsuit has been assigned to Judge Hanen (a judge who had struck down all of Obamacare at one point before being reversed), who has already scheduled a hearing.

On the merits, this case should be a sure loser, but given how crazy things are getting in the federal courts these days, I cannot be 100 percent confident in my predictions. Here are some of the reasons this suit should be thrown out decisively

You can click over and read Hasen’s reasons, and you can read these threads by law professor Michael Morley and Buzzfeed News reporter Molly Hensley-Clancy for more reasons. You should also remember that at the end of the day, Jared Woodfill is a complete moron, and anything that relies on his legal acumen is likely to fall well short of the mark. Again, that doesn’t mean that a pliant federal judge won’t give him what he wants. It just means that would be the only reason why he’d succeed. Democracy Docket has intervened, and Josh Marshall, whose post alerted me to Mark Joseph Stern’s tweets, has more.

In the meantime, the State Supreme Court will also be dealing with this tomorrow.

The Texas Supreme Court drew alarmed attention Friday after directing Harris County to respond to a petition that seeks to invalidate more than 117,000 votes cast in drive-thru lanes.

The court’s interest came as an unwelcome surprise to voting advocates and Harris County officials who were banking on a quick dismissal of the petition, filed by two GOP candidates and a Republican member of the Texas House.

[…]

The petition — filed by state Rep. Steve Toth, R-The Woodlands, GOP activist Steven Hotze and two Republican candidates in Harris County — argued that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who have an illness or disability that could put them at risk if forced to enter a polling place.

The court responded by giving Harris County until 4 p.m. Friday to file a legal brief responding to the petition, raising fears that the Supreme Court was giving consideration to tossing out tens of thousands of ballots.

However, it takes only one justice on the nine-member court to request a response to a petition, and there is no way of knowing how many justices were interested in Harris County’s response because the court does not disclose that information.

In addition, before tossing out the votes, the court would have to acknowledge that 117,000 Harris County voters had visited a drive-thru polling site by Thursday night, including more than 42,000 drive-thru votes that were cast since justices first had a chance to stop the practice a week earlier but did not.

In a memo prepared for Harris County on the issue, noted Austin lawyer C. Robert Heath said the bid to void drive-thru votes faces the daunting challenge of overcoming a key legal supposition — that state laws are to be interpreted in favor of preserving the right to vote.

“If a court or other authority were to decide to invalidate those votes, it would require ignoring or overruling more than a century of Texas law,” Heath concluded.

In the brief requested by the Supreme Court, Harris County lawyers argued that there is nothing illegal about drive-thru voting, nor can votes cast that way be considered illegal.

“Uncountable votes are those that resulted from clear fraudulent behavior,” they argued. “There is nothing about an eligible voter casting an in-person vote from their car that renders their vote illegal, fraudulent, or not countable.”

The brief argued that drive-thru voting is just another polling choice with a different structure. Vehicles enter the voting area, typically a large individual tent, one at a time. A clerk checks each voter’s photo ID and has them sign a roster before handing over a sanitized voting machine.

More importantly, the county said, drive-thru voting was approved by the Texas secretary of state’s office before being adopted and was used, without objection, in the July primary runoff election.

Reform Austin also covered this, with a focus on Harris County’s response, so go check that out. This is another reason why we need comprehensive legislation, at both the state and national levels, to clarify, affirm, and assert the right to vote, and to explicitly ratify different methods to expand voting access. If nothing else, that is needed to ward off future bullshit lawsuits like these.

As for this one, I maintain my belief that SCOTX is unlikely to do anything radical. You are free to freak out as you see fit over either of these.

UPDATE: Here’s the Chron story on this.

UPDATE: If you participated in drive-through voting and want to intervene in this federal lawsuit, fill out this form.

There’s still a lot of work to be done to make it easier to vote

The ease of access for disabled voters is still a huge unaddressed issue.

Val Vera finally cast his ballot after sitting for two hours in his van outside a Denton County polling place. He wasn’t waiting on people in line ahead of him, but for an elections clerk to respond to his phone calls.

Vera, 52, is disabled and decided to vote curbside this election, an option every county is required to offer any voter whose health would be harmed by entering the polls, or who is physically incapable of doing so.

“In an ideal world, curbside voting at your polling site, there’s the designated parking spot,” said Molly Broadway, voting rights specialist at Disability Rights Texas. “There’s a sign that lets you know that this is where curbside voting is going to happen, and there’s a call button, essentially, that one can access, which will alert the poll worker inside the building of your presence.”

For millions of disabled Texas voters, casting a ballot has long been challenging enough, even without a pandemic and explosive turnout in a high-octane election cycle. Using curbside voting, mail-in ballots and other aids, they must navigate a system that in some parts of Texas has been slow to accommodate their needs.

With fears of contracting COVID-19 compelling more voters to explore options to avoid setting foot in a polling place, disability rights advocates say the process has become an exercise in persistence for even more disabled voters.

In 2012, 30% of disabled voters nationwide reported difficulties at polling places, according to a Rutgers University study. In Texas, a newer Rutgers study estimates, about 15% of those eligible to vote in the general election are disabled — almost 3 million people.

Lisa Schur and Douglas Kruse, professors who helped conduct the study, said lack of accessibility causes disabled people to vote at lower rates than the general population. Without barriers, they estimate, 3 million more disabled Americans would have voted in 2012. Though it’s hard to determine the extent without solid data, the pandemic could limit people’s access even further.

[…]

Disability Rights Texas tries to help voters navigate hurdles they run into at the polls. This year, Broadway said, increased voter turnout, coupled with increasing visibility for disability rights over the past few years, has spawned more calls than usual, and not just for curbside voting.

Chase Bearden, deputy executive director of the Coalition of Texans with Disabilities, said his organization heard reports of long lines at one polling place that strayed into grassy patches difficult to navigate in a wheelchair. Matt Plummer, a wheelchair user, said when he went to vote in Tarrant County, his wife had to make selections for him because he couldn’t reach the touch screen at the back of the machine.

Disabled voters in Texas are also allowed to use mail-in ballots, which helps some voters, but those aren’t entirely accessible either.

Kenneth Semien Sr. said he considered voting by mail but decided to go in person. To submit a mail-in ballot, Semien would have to rely on someone else to mark it for him because he is blind. Not only would that strip away his independence, he said, but he also would have no assurance the person was actually marking his choices instead of their own. Semien is involved in an ongoing federal lawsuit against the Texas secretary of state that is seeking more accessible mail-in ballots, and he thought an alternative way to vote would be available by the time November rolled around.

Instead, Semien cast his ballot in person at the same polling location he’s used in Jefferson County for the past 15 years. Once he arrived, a security guard he knew helped guide him through the line, telling him where to walk so he could stop on the taped X’s on the floor.

As he stepped up to vote, he said, the poll worker took a long time finding where to plug his headphones in so his screen reader could read the ballot to him. Such technical issues sometimes leave people unable to vote, and this one almost made Semien miss his bus back home.

Each time before he goes to vote, Semien calls ahead to make sure the polling location will have someone on staff trained to use the accessible voting machine. Typically, he said, he’s told what he wants to hear, but problems crop up when he arrives.

“It is just terrible that you have to keep repeating these things, but every time we go to the polls we deal with some of the same issues, you know, if the equipment is not available for some reason, they hadn’t gotten set up yet, even though I called before,” Semien said.

I searched my archives but didn’t find a post about Kenneth Semien’s lawsuit – there’s been so many voting rights lawsuits this year I just can’t keep up with them all – but I found this story and a copy of the complaint via Google.

A big part of this is voting locations. Harris County settled a lawsuit last year about the accessibility of its voting locations. Our county, led by County Clerk Chris Hollins, did a tremendous amount to make it easier for everyone to vote – usually over the objections and legal obstacles thrown up by Republicans – but it would be good to review what worked and what still needs improvement. This is going to take a law – really, there should be both state and federal legislation to address this – and money, but most of all it will take commitment, both to listening to the community and their advocates, and following through on what they need. We can absolutely improve this experience for millions of Americans, including millions of Texans, but we have to do the work.

Paxton trial move back to Collin County on hold

Delay is the natural state of being in this saga. I don’t know why we’d ever expect anything else.

Best mugshot ever

A Houston appeals court has pressed pause on a ruling that would have allowed Texas Attorney General Ken Paxton to stand trial for felony securities fraud in his hometown of Collin County.

That Oct. 23 ruling came three years after the case was first sent to Harris County, with prosecutors arguing they could not get a fair trial prosecuting Paxton in a part of the state where he and his wife, state Sen. Angela Paxton, are deeply politically connected.

Paxton is accused of persuading investors to buy stock in a technology firm without disclosing he would be compensated for it. He has maintained his innocence and dismissed the charges as politically motivated.

The 1st Court of Appeals in Houston has, for now, blocked the case from resuming in Collin County — likely further delaying the five-year-old case — as it considers the issues.

See here for the previous update. The Chron adds a few details.

The case was moved to Harris County after a judge ruled in 2017 that Paxton’s Republican political connections in Collin County would give him an unfair advantage at trial. But that decision has been under judicial review now for three years as Paxton’s defense team and the special prosecutors appointed in the case battle over the venue.

The prosecutors applauded the latest decision by 1st Court of Appeals Judge Gordon Goodman, a Democrat elected in 2018 as his party swept judicial races.

“The ruling of the court was not unexpected as the law and facts are very straightforward,” said Kent Schaffer, one of the prosecutors. “We are optimistic that the Court of Appeals will do the right thing, and Ken Paxton will face justice in front of a Houston jury.”

[…]

Paxton’s lawyers had argued that the case should have never been moved in the first place, because the judge made the decision after his assignment to the case had expired.

In June, Harris County state District Judge Robert Johnson ruled in Paxton’s favor and moved the case to Collin County. But the 1st Court of Appeals struck that order about a month later, after Johnson recused himself from the case because Paxton’s office is representing him in a separate suit.

The case was then reassigned to Harris County Jason Luong, a Democrat and former prosecutor with the Harris County District Attorney’s office.

Luong agreed the case should be sent back to Collin County based on his interpretation Johnson’s ruling, and he did not discuss where he believed Paxton would receive a fair trial.

The prosecutors had argued in their appeal that Luong misinterpreted the law.

Just to recap, and I’m totally relying on this Chron story rather than spending an hour digging through my own archives, but the case was first moved from Collin County to Harris County because the judge at the time, a Tarrant County jurist who had been appointed as a visiting judge precisely because no Collin County judge could handle the initial hearings, agreed with the prosecutors’ argument that Paxton would get preferential treatment in his home county. All the arguments since then have been about technicalities. It’s surely a safe bet that this current dispute will wind up before the Court of Criminal Appeals, just as the previous ones did. It’s not at all far-fetched to think that Paxton’s more recent legal troubles will see the inside of courtroom before this case does.

Idle yet hilarious thought: How much do you think Paxton will want to move the case back to Collin County if it flips blue and votes for Joe Biden this year?

Anyway. Settle in, or stay settled in if you never bothered to settle out. This will take awhile.

One last, desperate attempt to kill drive-though voting

These guys really suck. Not much more can be said.

A new challenge to Harris County’s drive-thru voting sites, filed by two GOP candidates and a Republican member of the Texas House, asks the state Supreme Court to void ballots “illegally” cast by voters in cars.

That could put more than 100,000 ballots at risk, drawing sharp criticism from Democrats and raising fears among voters, including those with disabilities and others who were directed into drive-thru lanes as a faster method of voting.

[…]

One of the unsuccessful challenges was filed by the Republican Party of Texas. The second was from the Harris County GOP, activist Steven Hotze, and Sharen Hemphill, a GOP candidate for district judge in Harris County. Neither petition sought to void votes.

That changed with the latest petition filed shortly before 11 p.m. Tuesday by Hotze, Hemphill, GOP congressional candidate Wendell Champion, and state Rep. Steve Toth, R-The Woodlands.

The new petition asks the all-Republican Supreme Court to confiscate memory cards from voting machines at drive-thru locations and reject any votes cast in violation of state election laws.

The petition argues that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who submit a sworn application saying they have an illness or disability that could put them at risk if forced to enter a polling place.

“Hollins is allowing curbside/drive-thru voting for all 2.37 million registered voters in Harris County. This is a clear and direct violation of his duties,” the petition argued.

But Hollins has said drive-thru voting is just another polling place with a different layout and structure, and that it was approved by the Texas secretary of state’s office before being adopted.

Vehicles form lines and enter the voting area one at a time, where a clerk checks each voter’s photo ID, has them sign a roster and hands over a sanitized voting machine. Voting typically takes place in large individual tents, and poll watchers can observe the processing of voters no differently than in traditional voting locations, Hollins has argued.

See here for the previous entry. As I said yesterday, I just don’t believe the Supreme Court will do this. It’s such a drastic step to take, it’s punitive towards a lot of voters who had every reason to believe they were doing something legal, it would be an enormous partisan stain on the court and the justices, four of whom are on the ballot themselves, and as I said if the court felt such an outcome was in play, they could have clearly signaled it earlier to minimize the effect on the voters. Maybe I’m naive, or willfully blind. This just seems like a bridge way too far. I guess we’ll find out.

SCOTX upholds Abbott’s limit on mail ballot dropoff locations

I’m shocked, I tell you, shocked.

In what’s expected to be the final ruling on the matter, the Texas Supreme Court has upheld Gov. Greg Abbott’s order limiting Texas counties to only one drop-off location for voters to hand deliver their absentee ballots during the pandemic.

The ruling, issued Tuesday by the all-Republican court, is the final outcome in one of a handful of lawsuits in state and federal courts that challenged Abbott’s order from early this month. A federal appeals court also sided with the Republican governor in an earlier ruling, overturning a lower court’s decision.

The state lawsuit argued that the governor doesn’t have authority under state law to limit absentee ballot hand-delivery locations, and that his order violates voters’ equal protection rights under the state constitution. The suit was filed in Travis County by a Texas-based Anti-Defamation League, a voting rights advocacy group and a voter.

In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.”

See here for the previous update. In a narrow and technical sense, the Supreme Court is correct. Abbott did in fact expand voting options with his original order, which not only added that extra week to early voting but also allowed for mail ballots to be dropped off during the early voting period. State law only allows for that on Election Day, one of many problems that will need a legislative fix in the near future. But we all know that the purpose of his amended order, more than two months after Harris County Clerk Chris Hollins had announced his plan to have dropoff locations at all 12 County Clerk offices, and several days after people began using those locations, was to issue a rebuke to Hollins for having the nerve to innovate like that, and to throw a bone to the howling nihilists in his own party that were attacking him for taking any step to make voting easier. The limit served no legitimate purpose, and was done in haste and with politics in mind. It is what it is at this point, and as with every other ad hoc obstacle thrown in our path, the voters have adjusted. We’ll be coming for you soon, Greg. The Chron has more.

Try not to get sick before Election Day

If you suffer a late illness that prevents you from getting to a polling place, you will need a doctor’s note to get an absentee ballot.

Texas voters who get sick shortly before Election Day and can’t go to the polls will still need a doctor’s note before they can get an emergency absentee ballot, a state appeals court ruled Friday.

Voting rights group MOVE Texas will not appeal the temporary ruling further. Instead, as a fallback, the group has established a free telehealth service with volunteer physicians to provide the necessary documentation for sick voters seeking absentee ballots starting Saturday, the executive director said.

The Texas 3rd Court of Appeals’ ruling, overriding a state district court order, said implementing the lower court’s ruling “would change the longstanding requirements governing late mail-in ballots and risk voter confusion.” The case will still be reviewed further after the election.

MOVE Texas first challenged existing election law in a Travis County court after reports this summer detailed voters who tested positive for the coronavirus in the days before the primary runoff election struggling to cast ballots.

Unlike applications for absentee ballots received before the general deadline, which was Friday, Texas law dictates that voters submitting applications for emergency absentee ballots must provide certification from a doctor that the voter has developed an illness that would keep them from being able to vote in person.

In the July primary runoffs, two Austin voters tested positive for the new coronavirus and were put under self-quarantine orders shortly after the cutoff date for mail-in ballot applications. They asked a Travis County district judge to waive the requirement for a doctor’s note but lost their case.

On Oct. 2, MOVE Texas filed a challenge in court, arguing that the state’s criteria for applying for emergency absentee ballots is unconstitutional and imposes an undue burden on the right to vote. Travis County District Judge Tim Sulak agreed, ruling against the requirement for a doctor’s note last week.

[…]

Preparing for the loss in the 3rd Court of Appeals, Galloway said the group designed a fallback program to connect sick voters to volunteer physicians who will meet via videoconference.

“It’s completely up to the physician if they want to issue the waiver or not,” Galloway said. “If so, they can do it digitally. That voter is then set and it’s at no cost to them to be able to complete the application and turn it into the elections department.”

Probably for the best at this point. I remember the earlier story, but if I blogged about it at the time, I can’t find the post.

Let’s be clear about three things. One, this is likely to affect a tiny, tiny number of people. The set of circumstances under which someone would be affected by this are super specific. It’s always worth worrying about anyone who faces obstacles to voting, but you can probably count the number of these people on your fingers. That said, if you haven’t voted yet, you could be a person affected by this.

Two, the main reason for all of this is our state’s restrictive laws for voting by mail. In a world where getting a mail ballot is easy – or even the default – problems like this go away. This specific situation could have been addressed by the court, but the big picture needs to be handled by the Legislature.

Finally, this is the argument for voting at your first opportunity. Life is uncertain. I get wanting to vote on Election Day, out of a sense of tradition or because you want to make sure that nothing comes up that might change your mind in a given race, or because a voting location that has meaning for you is only available on Election Day. The risk you take is that the longer you take, the greater the chances that something could come up that will complicate your ability to vote. I’m a committed early voter, and have been for years. Your mileage may vary. Just be aware of the tradeoffs.

SCOTX reinstates Abbott’s mail ballot dropoff location limit

They can move fast when they want to, that’s for sure.

Gov. Greg Abbott’s controversial order to limit Texas counties to one mail-ballot drop-off site was allowed to remain in effect Saturday by the Texas Supreme Court.

The court blocked a previous appellate court ruling that had briefly struck down Abbott’s order, which was widely decried by voting rights groups as a voter-suppression tactic. The lawsuit to overturn Abbott’s order is still pending.

In Harris County, more than 1 million voters have cast ballots during early voting, shattering previous records. Multiple drop-off sites had been set up for voters until Abbott issued his order, which he said would “stop attempts at illegal voting.”

State District Judge Tim Sulak had previously ruled that Abbott’s order would “needlessly and unreasonably increase risks of exposure to COVID-19 infections” and undermine the constitutionally protected rights of residents to vote, “as a consequence of increased travel and delays, among other things.”

Less than 24 hours after the Third Court of Appeals reinstated the district court ruling that had halted Abbott’s order. Clearly, SCOTX does not have a “we close at 5” mentality. It should be noted that this is not the end of the line. From the Statesman:

Acting soon after receiving an emergency appeal on Gov. Greg Abbott’s behalf, the Texas Supreme Court issued an order Saturday that temporarily barred counties from opening more than one drop-off site for mail-in ballots.

The court order keeps in place Abbott’s 3½-week-old proclamation that barred multiple drop-off locations that had opened in several counties, including Travis County, until the Supreme Court can determine the legality of Abbott’s limit.

With an eye on the fast-approaching Nov. 3 election, the court also set tight deadlines, requiring legal briefs in the case to be filed before 5 p.m. Monday.

A ruling could come as soon as Monday night, though the Supreme Court gave no indication when it might act.

In theory, SCOTX could issue a ruling on the appeal on Tuesday or Wednesday, and we could get a few days of having multiple dropoff locations if the lower court order is upheld. Not great, but better than nothing. I think the odds of that happening are pretty slim, but it’s possible, and this is the best case scenario. At least you know what to hope for.

In practical terms, this means very little at this point. Very few people had ever used mail ballot dropoffs before. Existing law only allows for them to be used on Election Day – Abbott’s executive order extended that to all of early voting, which is an improvement even if his subsequent order limits it to a significant degree. Voting by mail is limited to begin with, and the vast majority of that small universe mailed their ballots in. Allowing people to drop them off at one of twelve locations instead of just one was an innovation, one of many that County Clerk Chris Hollins pioneered, and it was a welcome one in this year of COVID chaos, but losing it is more of an inconvenience than an impediment.

All that said, there is zero justification for Abbott’s order. People who wanted to drop off their mail ballots still had to go to an official County Clerk location, hand their ballot to an election judge, and show ID to have their ballot accepted. Fears of “fraud” and professions of “protecting election integrity” are empty shibboleths, the “thoughts and prayers” of vote suppression. Abbott imposed this limit as a sop to the extremists in his party who were already mad at him for adding an extra week to early voting. Hollins’ innovation made voting easier and more convenient. Abbott’s order made it harder and less convenient. That’s all there is to it.

I’ve said this before, but I firmly believe that a large majority of people like easier and more convenient voting, and support efforts to make it happen. There are lots of things the Democrats should un on in 2022. To me, this needs to be one of the big criticisms of Abbott – and Dan Patrick, and Ken Paxton, and every single member of the Supreme Court – in that election. Being on the side of “easier and more convenient” is the side to be on.

Abbott’s order limiting mail ballot dropoff sites blocked again

But that’s not the end of the story, so hang on.

A Texas appellate court on Friday stepped in to block Gov. Greg Abbott’s order limiting counties to just one mail-ballot dropoff site, but Harris County officials said they will wait until the case is resolved before reopening any additional sites.

A three-judge panel of the Third Court of Appeals in Austin ruled that there was “no reversible error” in a lower court’s ruling that put a hold on Abbott’s Oct. 1 order.

The Attorney General’s office said Friday that it planned to immediately appeal to the Texas Supreme Court.

The Republican governor had taken aim at Harris, Travis, Fort Bend and Dallas counties — all of which had either opened multiple dropoff sites or planned to do so in an effort to make mail-in voting more convenient and safer during the pandemic.

Abbott’s order, which triggered the back-and-forth legal battles, meant Harris County had to shut down 11 additional dropoff sites, adding to crowds at the main site at NRG Arena, just southwest of downtown Houston.

The appellate panel consisted of Republican Justice Melissa Goodwin and Democratic Justices Chari Kelly and Edward Smith; the latter two were elected in 2018 as part of a wave of 19 Democratic judicial wins that flipped the four major state appeals courts.

“We’re gratified that a bipartisan panel of the Third Court of Appeals agrees that Texans should have the right to return their absentee ballots easily and safely,” said Mark Toubin, regional director for the Anti Defamation-League Southwest, one of the groups that brought the suit.

See here for the background. Statesman reporter Chuck Lindell had tweeted yesterday morning that all the briefs had been filed, and a ruling was expected. Here’s more from his story.

The unsigned opinion by three justices on the 3rd Court — Democrats Chari Kelly and Edward Smith and Republican Melissa Goodwin — did not weigh the legality or constitutionality of Abbott’s order.

Instead, the panel determined that Sulak’s injunction should not be struck down because the judge did not abuse his discretion by issuing it.

“The trial court could have credited the evidence that decreasing the number of return locations leading up to election day would significantly increase congestion and wait times … which in turn would increase the risk of the voters utilizing this method of contracting COVID-19,” the panel said.

Friday afternoon, Paxton’s office told the all-Republican Texas Supreme Court to expect an appeal to be filed over the weekend.

You can see the opinion here. This is a nice ruling, and a bipartisan one, but as of today it means little because Harris County will not open any other dropoff locations until and unless the Supreme Court upholds the injunction. In practical terms, if this takes another week, it won’t mean much regardless. But maybe we’ll get a quicker ruling than that, you never know. The Trib has more.

Judge sends Paxton case back to Collin County

Pending appeal, of course.

Best mugshot ever

A Harris County judge on Friday moved Attorney General Ken Paxton’s criminal case to Collin County, handing Paxton a major win by placing the case in his hometown, where legal experts say he’s more likely to face a sympathetic judge or jury.

Judge Jason Luong ruled that he did not have the authority to move the case, deferring to an earlier order moving the case to Collin County.

Special prosecutors Brian Wice and Kent Schaffer said Friday that they plan to appeal. Paxton’s attorneys could not immediately be reached.

The decision adds yet another layer of complication — and likely more delays — to a case that has dragged on for more than five years over numerous issues unrelated to the substance of the accusations against Paxton.

I’m going to jump in here to remind everyone that Judge Robert Johnson had ordered the case back to Collin County in June, agreeing with Paxton’s defense team that the judge who had sent the case to Harris County in the first place did not have the authority to do so. Johnson then recused himself from the case, because the AG’s office is representing the criminal district court judges in the felony bail reform lawsuit, though it is not clear that he had to do so, since Paxton is not directly involved in that case and the judges who are defendants are being sued in their official capacity, not as plain old citizens. The First Court of Appeals set that order aside in July (the technical legal term is “abated”), on the grounds that the new judge, Jason Luong, needed to have an opportunity to review Judge Johnson’s order and either agree with it or vacate it. (Team Paxton later tried to get Judge Luong removed, but that motion was denied and subsequently mocked.)

In his ruling Friday, Luong added that even if a higher court rules that he does in fact have authority, he agrees with Paxton’s lawyers that the judge who allowed the case to move to Harris in the first place lacked authority as well, meaning the case would remain in Collin County.

As it was explained to me, the same mandamus that had been filed with the First Court of Appeals to challenge Judge Johnson’s ruling will now be taken up for Judge Luong’s ruling. I should note that the First Court’s abatement was supposed to be for 45 days, but as with everything related to this Paxton case, things took longer than that. Lord only knows when the next thing will happen. In the meantime, of course, there is now the Nate Paul shitshow, and if that does not have an effect on this case somehow at some point, I will be puzzled and very, very disappointed – like, Susan Collins clucking her tongue at Donald Trump-level disappointed. What the world needed now, when not much else is happening, is some more Ken Paxton news, am I right? The Trib has more.

SCOTX rejects challenges to drive-through voting

Halle-fricking-lujah.

Voters in the state’s most populous county can continue casting their ballots for the fall election at 10 drive-thru polling places after the Texas Supreme Court Thursday rejected a last-minute challenge by the Texas and Harris County Republican parties, one of many lawsuits in an election season ripe with litigation over voting access.

The court rejected the challenge without an order or opinion, though Justice John Devine dissented from the decision.

[…]

Though the program was publicized for months before the ongoing election, it was not until hours before early voting started last week that the Texas Republican Party and a voter challenged the move in a state appeals court, arguing that drive-thru votes would be illegal. They claimed drive-thru voting is an expansion of curbside voting, and therefore should only be available for disabled voters.

Curbside voting, a long-available option under Texas election law, requires workers at every polling place to deliver onsite curbside ballots to voters who are “physically unable to enter the polling place without personal assistance or likelihood of injuring the voter’s health.” Posted signs at polling sites notify voters to ring a bell, call a number or honk to request curbside assistance.

The lawsuit also asked the court to further restrict curbside voting by requiring that voters first fill out applications citing a disability. Such applications are required for mail-in ballots, but voting rights advocates and the Harris County Clerk said they have never been a part of curbside voting.

The Harris County clerk argued its drive-thru locations are separate polling places, distinct from attached curbside spots, and therefore available to all voters. The clerk’s filing to the Supreme Court also said the Texas secretary of state’s Office had approved of drive-thru voting. Keith Ingram, the state’s chief election official, said in a court hearing last month in another lawsuit that drive-thru voting is “a creative approach that is probably okay legally,” according to court transcripts.

See here, here, and here for the background, and here for County Clerk Chris Hollins’ attempt to get the Secretary of State on record about this. The decision came down a couple of hours after County Judge Lina Hidalgo (among others) called on Greg Abbott to do the same. This would have been a monumental middle finger to the voters of Harris County, and an utter disgrace for the Supreme Court, had they upheld the Republican challenge. I don’t know what took them so long, but if they’re going to be slow about it, they’d better get it right, and this time they did. Exhale, everyone.

We shouldn’t leave this item without giving Hollins the victory lap he deserves:

There’s a bit more on Hollins’ Twitter feed. When he says that every county should do it like this, he’s absolutely right. You can see all the SCOTX denials here, and the Chron has more.

(Oh, and let’s please do remember this when John Devine is up for election next. The rest of the court may have done the right thing, but that guy has truly got to go.)