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Paxton accused of violating open records law

Put it on his tab.

Best mugshot ever

The Travis County district attorney has determined that Attorney General Ken Paxton violated the state’s open records law by not turning over his communications from last January, when he appeared at the pro-Trump rally that preceded the attack on the U.S. Capitol.

The district attorney gave Paxton four days to remedy the issue or face a lawsuit. The probe was prompted by a complaint filed by top editors at several of the state’s largest newspapers: the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News.

In a letter hand delivered to Paxton on Thursday, the head of the district attorney’s public integrity unit said her investigation showed the attorney general’s office broke state law by withholding or failing to retain his own communications that should be subject to public release.

“After a thorough review of the complaint, the (district attorney’s) office has determined that Paxton and (his office) violated Chapter 552 of the Texas Government Code,” wrote Jackie Wood, director of the district attorney’s public integrity and complex crimes unit, referring to the open records statute.

The district attorney’s office will take Paxton and his agency to court if they do not “cure this violation” within four days, Wood warned. For open-records complaints against state agencies, the law says the Travis County district attorney or the attorney general must handle them. The newspapers filed the complaint with the district attorney.

[…]

Jim Hemphill, the immediate past president of the Freedom of Information Foundation of Texas, said Paxton may take issue with the DA’s investigations — or he could voluntarily choose to release this and other records to the public.

“It’s a rare occurrence where a requestor actually has tangible evidence,” Hemphill said. “It will be interesting to see how the attorney general responds to this.”

The Texas Public Information Act guarantees the public’s right to government records, even if those records are stored on personal devices or public officials’ online accounts. The attorney general’s office enforces this law, determining which records are public and which are private.

On March 25, six news outlets jointly published a story that raised questions about whether Paxton was breaking open records laws.

On Jan. 4, five newspaper editors filed a complaint asking the district attorney to investigate the alleged violations. Anyone can file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Public Information Act.

Wood’s notice to Paxton said the district attorney’s office concurred with the allegations in the editors’ complaint.

First, the editors raised concerns that Paxton’s office was using attorney-client privilege to withhold every single email and text message sent to or received by him around the time of the Jan. 6 rally, which preceded the attack on the U.S. Capitol. Paxton and his wife were in Washington that day and appeared at the rally.

Wood said withholding all of Paxton’s communications during that week violated the law. As evidence, she noted the attorney general’s office released nearly 500 pages of communications sent to or received by First Assistant Attorney General Brent Webster — including some emails that included Paxton as a recipient.

The newspaper editors also said the attorney general’s office had no policy for handling work-related records kept on personal devices or accounts.

When a Morning News reporter sent Paxton a work-related text message and another reporter requested all his messages that day, Paxton’s office responded that no responsive messages existed. A spokesman for Paxton later said the attorney general doesn’t have to retain “unsolicited and unwelcome text messages to personal phones.”

Wood noted that the attorney general’s office stated in the past that the communications of government officials were subject to retention policies and the open records law.

Finally, the editors raised concerns that Paxton was turning over other people’s communications in response to requests for his own text messages.

The DA’s investigation agreed that Paxton had not provided his own text messages with officials at the attorney general’s office in Utah — where Paxton and his wife traveled during the February freeze — and instead turned over a copy of another person’s text to Paxton. The attorney general’s office did not explain why Paxton didn’t provide his own version of the text exchange.

See here for some background. The answer to how Paxton will respond is obvious: He’ll denounce the Travis DA’s actions as unfair, biased, and partisan, and he’ll not only not comply he’ll do everything in his power to delay a court decision that might force him to comply. Honestly, even then I doubt he’ll actually comply – I’d bet he destroys records first, and dares everyone to do something about it. I don’t think anything short of handcuffs and a jail cell will move him. What in his past record suggests otherwise? As the Trib notes, the January 6 commission in Congress is also seeking records relating to communications between Paxton and Donald Trump at that time. What do you think are the odds he’ll comply with them?

We know who and what Ken Paxton is. He’s shown us, every day. I commend the newspapers for pursuing this, and the Travis County DA for taking action. It’s just that it will take more than a lawsuit to make him budge. He’s going to require a consequence he fears. We’re nowhere close to that. The DMN and the Statesman have more.

Former Railroad Commissioner Ryan Sitton sues a blogger

Obviously, a story like this is going to attract my attention.

Ryan Sitton

A former Texas oil and gas regulator has accused a blogger of helping derail his 2020 reelection campaign by falsely claiming he had an extramarital affair.

In a lawsuit filed last month in Galveston, Ryan Sitton said the blogger, Joshua Matthew Pierce, had claimed in two online posts that Sitton sought to engage in “racial fantasies” with an unnamed Jamaican woman. The piece also included a supposed picture of them together, though the photo was later shown to be a generic, unrelated image used on several websites, according to the suit.

The second post alleged that Sitton had referred to fellow Texas Railroad Commissioner Christi Craddick with an ethnic slur. Both were published during early voting in the 2020 primary, which Sitton lost in a huge upset to fellow Republican Jim Wright.

“He published a hit piece, containing salacious lies about an upstanding businessman and public official,” the lawsuit says. “Unfortunately, his silly and false story gained some traction, and influenced an election.”

The complaint also suggests Pierce may have been working for Wright’s campaign at the time, though it does not present any clear evidence.

Pierce responded to the lawsuit over the weekend in a series of tweets, saying, “And to think that little old blogger down here in #CorpusChristi, #Texas could influence an election.”

“Lets get this right out of the way—you can deny, deny but the proof of the “infactual basis” is on plaintiff,” he wrote.

Sitton is seeking $10 million in damages. I went looking on Twitter to see if there was any commentary on this. Didn’t find anything, but I did come across this Yahoo News story that added a couple of details as well as a link to the lawsuit. The main thing I learned there is that Sitton is represented by Tony Buzbee, because of course he is.

My very basic take on all this is as follows: I have no trouble believing that this “blogger” printed false information. I have no idea whether someone who was a public figure has a chance at collecting from a person who while probably not a “journalist” from a legal perspective was nonetheless engaging in political speech, however crappy it was. I also have some real doubts about how much this “blogger” might have affected the election. How big an audience did that guy have? How much were his claims being amplified and repeated, in a way that Texas GOP primary voters might have seen or heard it? I’m not exactly plugged into that world, but if it had gotten real traction there might have been some reporting or even gossip about it in places I could have seen. Maybe it was there for me to see and I just missed it. All I’m saying is, you’re going to need to show me some data to convince me that this effort moved votes, especially enough votes to knock Sitton out. Not saying that can’t be done, just that extraordinary claims require extraordinary evidence. If that exists, I can’t wait to see it. I just won’t be expecting to see it.

Supreme Court rejects mandamus over Commissioners Court redistricting

The primary will proceed as scheduled, but the issue could be revisited sometime after the 2022 election.

The Texas Supreme Court rejected an effort by Republican commissioners and voters to block Harris County’s recent redistricting plan on Friday, suggesting another challenge still in the works will meet a similar fate.

In their challenge, the petitioners argued that the new maps amounted to illegal Democratic gerrymandering. The new precincts approved by Harris County leaders last year resulted in dramatic shifts that the challengers argued would disenfranchise voters in the upcoming primaries.

But in a narrow ruling, the justices found that they likely couldn’t provide any relief to the challengers because the wheels of the election were already in motion.

“(N)o amount of expedited briefing or judicial expediency at this point can change the fact that the primary election for 2022 is already in its early stages,” their opinion read. “This Court and other Texas courts are duty-bound to respond quickly to urgent cases that warrant expedited proceedings, but even with utmost judicial speed, any relief that we theoretically could provide here would necessarily disrupt the ongoing election process.”

The result is that the new precinct maps will be allowed to stand. The Democratic majority on commissioners court adopted the maps on a 3-2 party line vote in October.

See here and here for the background, and here for a copy of the opinion, which is also embedded in the story. It’s fairly brief and pretty straightforward, so let me summarize:

– The current map violates federal law because of population differences among the four precincts. It was not an option for the court to order that the current map be used while the appeals played out.

– The court ruled that their role in redistricting is limited, and that they did not have nearly enough facts to go on, as many of the plaintiffs’ claims remain in dispute. The burden required to make them step in and halt or change the election, which is already underway, was far too high for them to take action on such a short notice.

– Regarding the (ridiculous) claim about people being disenfranchised because they would have to wait until 2024 to vote when they had been expecting to vote in 2022, the court noted that some number of people will always be in that position when redistricting occurs. The Constitution requires the State Senate (which like Commissioners Court has staggered four-year terms) to have everyone run after redistricting, but there’s no such requirement for Commissioners Courts, which moved to four-year terms by an amendment in 1954. Ordering all four precincts to be on the ballot in 2022 was rejected because of the limited time for anyone who might run in the other precincts to get going. The court also noted that any short-term remedy for Harris County might cause problems with other counties, if people could make similar claims about being disenfranchised.

– Given all that, the court said it had no choice but to reject the writ of mandamus and allow the 2022 election to go forward as planned. The court did not make any claims or judgments about the merits of the plaintiffs’ arguments, and said that if the matter comes back to them after going through the lower courts, they can evaluate them at that time.

So there you have it. There is still the Radack lawsuit out there, but as the story notes it seems extremely unlikely that will succeed at affecting this election based on this ruling. The Cagle/Ramsey lawsuit was dismissed in Harris County district court, so I presume the next step would be for the dismissal, which was made on the grounds that the plaintiffs lacked jurisdiction (this is what the story said, perhaps this should be standing), to be appealed. Success for the plaintiffs would mean sending the case back to a district court, hopefully (for them) to get a hearing and ruling on the merits, which would naturally be appealed by whoever lost. My guess is that this whole process would take a few years if everything proceeds at its normal pace. While the Supreme Court allowed for the possibility of an all-precinct election (under another new map) in 2024, or even a special election presumably before then, I wouldn’t hold my breath on it. Same thing for the Radack lawsuit, which as far as I know has not had an initial hearing yet.

Finally, while this story does not mention it, I wonder if this may also signal the death knell for the two state court redistricting challenges, on the same grounds of not having enough time to do something before people begin voting. That last update suggested the possibility of a trial this week, but I am not aware of any news to that effect. The cases are in Travis County district court, if anyone wants to try to figure that out.

Paxton asks Supreme Court to toss that pesky whistleblower lawsuit

Same argument, different court. Either Ken Paxton can be held accountable, or he gets a free pass to do whatever he wants.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the Texas Supreme Court to toss out a whistleblower lawsuit by four former officials who say they were improperly fired after accusing Paxton of accepting bribes and taking other improper acts.

Paxton told the court that his agency “enjoys … the right to fire its employees — especially employees whose political appointments require they act on behalf of the duly elected Attorney General — at will.”

Paxton also argued that he can’t be sued because the Texas Whistleblower Act was intended to protect government employees from on-the-job retaliation by another public employee.

“The Attorney General is not a ‘public employee,'” said the appeal, filed Wednesday and made public Thursday. “Like the Governor, the Lieutenant Governor, and members of this Court, he is an elected officer, chosen by the people of Texas to exercise sovereign authority on their behalf.”

Paxton made similar arguments before the Austin-based 3rd Court of Appeals, but that court allowed the lawsuit to continue, ruling in October that the whistleblower act protects government workers from being fired for making “a good-faith report of illegal conduct … by the employer.”

Interpreting the act to exclude elected officials as employers would create a substantial loophole that runs counter to the law’s purpose of improving transparency and accountability, the 3rd Court ruled.

[…]

In his appeal to the Texas Supreme Court, Paxton characterized the complaints as matters involving policy disagreements — not a good-faith report of potential crimes as required by the whistleblower act.

“Plaintiffs were political appointees of the Attorney General who were dismissed from their posts following several policy disagreements. These disagreements each regarded duties well within the Attorney General’s authority, such as whether to retain outside counsel, issue a legal opinion, investigate potentially criminal acts and intervene in pending litigation,” the appeal said.

Paxton urged the all-Republican Supreme Court to reject the whistleblowers’ “vague, conclusory and speculative allegations,” saying they do not constitute a good-faith report of wrongdoing.

Lawyers for the whistleblowers will have the opportunity to respond to Paxton’s appeal in the coming weeks.

See here for the previous update. Paxton made the same argument to the Third Court, while also arguing that none of the whistleblowers had actually accused him of a crime, which meant they weren’t really blowing the whistle. I’m sure the plaintiffs will mostly repeat their earlier arguments as well. As for what the Supreme Court will do, or when they might do it – I for one will not be shocked if they wait until after the election – your guess is as good as mine. Reform Austin and KVUE have more.

It would seem that the San Marcos Police Department has some major problems

Geez.

The city of San Marcos admits in new court documents to text exchanges among its police officers about the Joe Biden bus incident in October 2020.

But it denies what it calls a “characterization” of the exchanges by the original complainants.

In documents filed in federal court Dec. 30, attorneys for the defendants denied almost all of the 173 allegations laid out in the original complaint. The defendants include the city’s public safety director, Chase Stapp; an assistant police chief, Brandon Winkenwerder; a police corporal, Matthew Daenzer; and the City of San Marcos.

In the lawsuit, which originally was filed in June 2021 by campaign staffers and volunteers for then-presidential candidate Joe Biden, the plaintiffs say the Police Department refused to provide a police escort or assistance for their campaign bus after it was surrounded by a pro-Trump caravan on Interstate 35 in October 2020.

The lawsuit alleges that Biden staffers called 911 and “begged” for help from police, but the police “privately laughed and joked about the victims and their distress, including by calling them ‘tards,’ making fun of a campaign staffer’s ‘hard’ breathing, and retorting that they should just ‘drive defensively’ or ‘leave the train.’”

Attorneys for the campaign staffers and volunteers obtained text messages via a public records request between Stapp, Winkenwerder, Daenzer and other police officers that they said showed the officials mocking and laughing at the bus occupants.

In the defendants’ response to the complaint filed last week, attorneys for Stapp, Winkenwerder, Daenzer and the city denied almost all the allegations in the lawsuit or said that they did not have enough “knowledge or information sufficient to form a belief” about them.

They did admit that the text exchanges occurred, but they denied the “characterization of the communication” contained in the complaint.

In one text exchange, an officer asked “did Kamala show?” — a reference to Biden’s vice presidential running mate, Kamala Harris — and another officer answered, “no, just a couple other yards,” which the plaintiffs’ lawyers claim was a misspelling of his intended word, “tards.” Lawyers for the city denied that characterization.

In another text, Stapp said: “from what I gather, the Biden bus never even exited I-35 thanks to the Trump escort.” Lawyers for Stapp and the city admitted that text was factual.

See here and here for the background. I have nothing against the city of San Marcos, but they have a real problem on their hands, and they need to do something about it. The trial is scheduled for November. I’ll be rooting very hard for the plaintiffs. The Current has more.

Fifth Circuit gets set to put the final nail in SB8 legal challenges

The fix was always in.

In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state supreme court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

See here and here for the background. There’s nothing I can say that I haven’t already said. The only way forward is winning more elections, both to change the laws in Texas and to get some court reform at the federal level. I wish I had something more hopeful, but this is all I’ve got. The 19th and the Chron have more.

Third Court of Appeals upholds Harris County mask mandate

Savor the win, for it’s off to SCOTx next.

A state appeals court on Thursday upheld a lower-court injunction that allowed Harris County to impose mask requirements despite Gov. Greg Abbott’s executive order banning such mandates.

The Austin-based 3rd Court of Appeals rejected arguments by Abbott and Texas Attorney General Ken Paxton, who claimed state law lets the governor overturn local health mandates imposed to mitigate the spread of a dangerous virus.

Abbott hasn’t budged:Texas parents pleaded for Gov. Abbott to allow mask mandates in schools

“The Governor does not possess absolute authority under the Texas Disaster Act to preempt orders issued by local governmental entities or officials that contradict his executive orders,” said the opinion, written by Justice Chari Kelly.

The appeals court also said the disaster act does not allow, as Abbott and Paxton argued, the governor to suspend state public health laws that give local leaders the power to impose safety rules during declared emergencies.

“(The disaster act) does not give the governor carte blanche to issue executive orders empowering him to rule the state in any way he wishes during a disaster,” Kelly said in an opinion joined by Chief Justice Darlene Byrne and Justice Gisela Triana. All three justices are Democrats.

[…]

The appeal before the 3rd Court hinged on whether language in the Texas Disaster Act empowered Abbott to ban local rules enacted to protect public health.

Paxton and Abbott argued that the act:

• Designates the governor as “commander in chief” when addressing statewide disasters.

• Says local officials act as the governor’s designated agents during emergencies.

• States that executive orders issued under the act have the “force and effect of law.”

The appeals court, however, said Paxton and Abbott took the act’s provisions out of context.

The disaster law designates the governor as commander in chief of “state agencies, boards and commissions having emergency responsibilities” — not counties, Kelly wrote. In addition, nothing in the law limits the authority of county and local officials to respond to local disasters or public health crises, Kelly said.

“Even a statewide disaster may have distinct and disproportionate impacts in each of the state’s 254 counties and that, as a result, some measures for addressing a disaster in some counties may not be necessary or even appropriate in other counties,” Kelly wrote.

What’s more, she wrote, the disaster act lets the governor suspend “regulatory” laws that pertain to conducting state business. But Abbott sought to suspend a state law that lets local officials set public health rules in emergencies, and that law is not regulatory, the appeals court concluded.

“The Act empowers and recognizes that the Governor may issue statewide disaster declarations and that certain local officials may also issue local disaster declarations,” Kelly wrote.

“Nothing in the Act, however, suggests that these authorities are mutually exclusive,” she added.

As noted, the Third Court upheld a ruling issued in August by a Travis County district court. Note that there’s a second case, involving HISD and some other school districts, that was not part of this appeal. In this case, the three justices made the same points in the opinion that plenty of people, myself included, have been making all along about the Governor’s powers. Those judges are Democrats, and the judges on the Supreme Court are not, so we can’t just expect them to employ such thinking. Maybe they will, you never know, but you sure can’t assume it. For now, at least, the good guys have won. And even if SCOTx reverses this opinion, it’s still the case that Abbott and Paxton, by their own admission, don’t have the power to enforce Abbott’s no-mask mandate. Let’s not forget that.

Paxton still wants to be supreme prosecutor

Please hold firm, CCA.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the state’s highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.

The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general’s office the authority to pursue criminal violations of the Election Code.

That 1985 law, the all-Republican court determined, violated the Texas Constitution’s separation of powers doctrine by granting Paxton’s executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature’s ability to delegate power to his agency.

[…]

In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton’s agency if needed.

On the other hand, the court ruled, the constitution limits the attorney general’s powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.

“Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings,” said the ruling, written by Judge Jesse McClure III.

“In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” McClure wrote.

Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors — including some who, he said, can’t be trusted with the job.

“Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” he said.

See here for the background. We all know what it is that Paxton wants to do, and I’m sure the CCA is aware as well. Their ruling was clear and it wasn’t close, and given Paxton’s plainly stated motivations, the only possible explanation for a reversal at this point – again, a reversal of their own 8-1 ruling, handed down less than a month ago – would be pure partisan politics. Is the CCA able to withstand that kind of pressure? I sure hope so.

Another lawsuit filed over Commissioners Court redistricting

What a bunch of crybabies.

A former county commissioner is suing Harris County Judge Lina Hidalgo, claiming Hidalgo and the county violated state law when they met to approve redistricting maps.

Former Commissioner Steve Radack argues the commissioners violated the Open Meetings Act because they did not make public the map that ultimately was approved within 72 hours of the meeting.

The lawsuit seeks to invalidate the court’s adoption of the new maps.

County Attorney Christian Menefee dismissed the suit as “meritless.” The Open Meetings Act requires governments to post public notices about meetings at least three days before they occur. Courts and attorneys general have said the notices have to be sufficiently specific to let the public know what will be addressed. It does not require them to post supporting documents, although governments sometimes do.

The county posted a timely notice of the meeting and met on Oct. 28 to take up redistricting. The lone item on the agenda said: “Request to receive public input regarding Harris County Commissioners Court redistricting plans, and consider and possibly adopt an order approving a new district/precinct plan for Harris County Commissioners Court, including any amendments thereto.”

This lawsuit was filed on December 31, just a few days after the first lawsuit was dismissed. Funny how this wasn’t an issue before then. This is another Andy Taylor joint, and how sweet it must be for him to get another ride on the ol’ gravy train. But seriously, cry me a river, fellas.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

SB8 plaintiffs want their lawsuit moved back to district court

As is usually the case, the lawless Fifth Circuit is the problem, with a generous assist from SCOTUS.

With the 5th U.S. Circuit Court of Appeals set to hear arguments about Texas’ restrictive new abortion law Friday, abortion providers have asked the U.S. Supreme Court to again intervene and instead send the case to a lower court.

Abortion providers filed the request Monday, along with a motion to expedite the high court’s ruling on the matter ahead of Friday’s hearing. Lawyers for the providers argue that the 5th Circuit should send the case to district court, which in October temporarily blocked enforcement of the law.

[…]

In December, the Supreme Court threw out most of the providers’ challenges to the law and allowed only one narrow challenge, against medical licensing officials, to proceed. The court also allowed the restrictions on the procedure to remain in place.

Then, in an additional blow to abortion providers, the Supreme Court sent that one remaining challenge to be reargued before the 5th Circuit, considered one of the most politically conservative circuit courts in the nation. Providers had been expecting it to be sent to the district court, which was seen as a more favorable venue. They argued in Monday’s filing that district court is the proper venue for the case to proceed.

“It’s unconscionable that the Fifth Circuit Court of Appeals is defying the Supreme Court’s ruling last month by refusing to send our case back to the district court so that we can continue fighting Texas’ six-week abortion ban,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “The Supreme Court must step in to prevent the appeals court from needlessly delaying our lawsuit against Texas’ bounty-hunting scheme and compounding the harm this ban has already inflicted on Texans.”

Rather than remanding the case to the district court, though, the 5th Circuit decided in a split decision to hear arguments in the case on Friday and will consider whether the case should be sent to the Texas Supreme Court to proceed. Legal experts say certifying a case to the state supreme court can extend the appeals process by months, if not years.

Circuit Judge Stephen A. Higginson dissented from the majority, arguing that the Supreme Court’s ruling does not require reargument before the 5th Circuit and should not be sent to the Texas Supreme Court. Higginson also wrote that he believes the Supreme Court ruling indicates that the medical licensing officials should be blocked from enforcing the law.

But Higginson noted that he had been “unpersuasive,” and unless the Supreme Court weighs in before Friday, the case is likely to proceed at the 5th Circuit. Abortion providers argue that this delay is harming women seeking abortions.

See here for the background. The plaintiffs had also asked the Fifth Circuit to just send this back to the district court, but they declined and instead scheduled this hearing, which is not a thing that appellate courts normally do. It’s clear that the purpose of this is to just flat-out delay if not deny sending the case back to the district court judge, who will surely enjoin it for the duration of the lawsuit, and wait for SCOTUS to officially throw out Roe v Wade in the Mississippi case. The Fifth Circuit is rogue and lawless and needs to be gutted. Simply calling it some variation of “very conservative” does not accurately describe it. The news media needs to wake up and get with the program. The 19th has more.

Law firm representing Spring Branch ISD withdraws from redistricting lawsuit

Interesting.

The law firm Thompson & Horton LLP has represented Spring Branch ISD in multiple legal matters since 2005.

While Thompson & Horton were originally representing SBISD in the Voting Rights Act lawsuit that Virginia Elizondo filed against the district and its trustees, the firm announced earlier this month that it would be withdrawing as counsel on the case.

“All I can really say is that Thompson & Horton requested to withdraw because we believe it to be in the best interest of the school district,” said lead attorney Chris Gilbert. “And that we believe the issues in the lawsuit are too important for the focus to be on who is legal counsel as opposed to the lawsuit itself.”

Gilbert would not give more details, citing attorney-client privilege.

The only statement from the district expressed similar ideas, saying, “On December 3, 2021, Thompson & Horton informed the Spring Branch ISD Board of Trustees of their desire to withdraw as counsel in Elizondo v. SBISD. Thompson & Horton believes this request is in the district’s best interests. The firm also believes the issues surrounding this lawsuit are very important and should be the focus of the community rather than who is legal counsel. SBISD is grateful to Thompson & Horton for their legal representation and their integrity in ensuring SBISD’s interests are best represented.”

As of Dec. 22, the district had not announced new counsel.

See here and here for some background. As the story notes, attorney Gilbert filed a response to the lawsuit on August 20, so whatever has come up to cause this change likely happened after that. I don’t want to speculate because I have no basis for it, but this feels a little weird to me. Maybe it’s nothing, maybe it has no practical effect even if it’s not nothing. Maybe we’ll find out more at a later date. For now, noting it for the record.

Lawsuit over Harris County Commissioners Court redistricting tossed

Missed this over the holidays.

A Harris County Judge on Wednesday tossed a lawsuit from Republican commissioners and voters over new county maps that favor Democrats.

Judge Dedra Davis ruled in favor of Harris County, finding that Republican commissioners Jack Cagle and Tom Ramsey and three voters did not have jurisdiction to sue.

The Republicans’ attorney, Andy Taylor, indicated that he planned to appeal the ruling.

Cagle, Ramsey and the three voters filed the lawsuit against Democratic County Judge Lina Hidalgo and against Harris County last month. The suit alleged that the redistricting map proposed by Democratic Commissioner Rodney Ellis, known as the Ellis 3 plan, amounts to an unconstitutional gerrymander that would deprive more than 1.1 million voters of their right to vote.

Texas election law staggers county precinct elections every two years. All county commissioners serve four-year terms, but commissioners in even-numbered precincts and those in odd-numbered precincts take place at two-year intervals.

The next election for even-numbered precincts is in 2022. The lawsuit alleges that the Ellis 3 plan shifts more than 1.1 million voters from even-numbered precincts to odd-numbered precincts, depriving them of their right to vote until 2024.

“Plaintiffs submit that there is a very simple explanation for why this occurred,” the lawsuit reads. “Commissioner Ellis wanted to do whatever it would take to draw a new map that would create three…Democratic seats. Thus, the Ellis 3 Plan does just that.”

See here for the background. The lawsuit seemed pretty flimsy on its face, and it was dismissed without comment by District Court Judge Dedra Davis. The plaintiffs, which include Commissioners Cagle and Ramsey, and fan favorite attorney Andy Taylor, have filed a writ of mandamus with the Supreme Court in a last ditch effort to stop the new map from taking effect. The mandamus, which you can see here, makes the following claims:

  • The 2020 census revealed population changes among districts that required redistricting.
  • It was possible to comply with the “one man, one vote” rule by transferring 4% of the county’s population.
  • But Hidalgo, Ellis and Garcia chose a plan that moved 48% and overstepped their authority.
  • That plan will deprive 1.1 million people of their right to vote for commissioner in the next election and likely tip the result from Republican to Democrat in one precinct, creating a 4-1 supermajority for Democrats.

As soon as I saw that “moved 48%” of voters claim, I said to myself, where have I seen a statistic like that before? Right here:

The initial Republican proposal for redrawing Texas congressional maps calls for Harris County to once again be split into nine districts, but with major alterations to protect the region’s endangered GOP incumbents.

The shifts mean more than a million voters who live west of downtown Houston would have a different member of Congress representing them.

Ultimately, Democratic-held districts now represented by U.S. Reps. Sylvia Garcia, Sheila Jackson Lee, Al Green and Lizzie Fletcher would all become more heavily blue under the proposed map released Monday by the Texas Senate. Under the proposal, Republican U.S. Reps. Dan Crenshaw and Troy Nehls would get more like-minded voters in their districts, too.

The proposal adds a completely new congressional district in west Harris County — District 38 — designed to favor a Republican, stitched together by cutting into four existing districts.

A little back of the envelope math here, we have “more than” a million voters, in a county with just under 2.5 million registered voters, that’s over 40% of voters being put into new districts, for the express purpose of creating a new Republican district in the county and bolstering the Republican caucus in Washington. So, yeah. Cry me a river, fellas.

Preliminary injunction sought against mail ballot restrictions

Of interest.

Today in U.S. District Court for the Western District of Texas, the Brennan Center for Justice at NYU Law, Weil, Gotshal & Manges, and the Harris County Attorney’s Office moved for a preliminary injunction in Longoria v. Paxton, their challenge to the provision in Texas’s restrictive voting law (S.B. 1) that makes it a crime for election officials and election workers to encourage voters to vote by mail, whether or not those voters are eligible under Texas law to do so. The Brennan Center, Weil, and the Harris County Attorney’s Office are seeking the injunction on behalf of Isabel Longoria, the Election Administrator for Harris County, Texas; and the Brennan Center and Weil are also representing Cathy Morgan, a volunteer election worker in Texas.

The motion filed today requests a preliminary injunction against the S.B. 1 provision no later than February 14, 2022. Texas has a primary election on March 1, 2022. To vote by mail in the primary, Texas voters must request mail ballot applications between January 1, 2022, and February 18, 2022.

“S.B. 1 makes it a crime for me to do a critical part of my job, and it hurts the most vulnerable voters,” said Isabel Longoria, Harris County Election Administrator. “As the highest-ranking election official in Harris County, I’m responsible for enabling the county’s millions of voters to exercise their right to cast a lawful ballot, many of whom face obstacles to voting in person due to illness, disability, or age. S.B. 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy –an option they have under Texas law.”

Under S.B. 1, Longoria, Morgan, and other election officials and election workers across Texas can be imprisoned for a minimum of six months and fined up to $10,000 if they encourage a voter to apply for a mail ballot application. As the motion filed today argues, this provision violates the First Amendment and undermines election officials’ and election workers’ ability to perform their duties.

“The right to free speech and the right to vote are vital to democracy, and S.B. 1 takes direct aim at both,” said Sean Morales-Doyle, acting director of the Voting Rights and Elections Program at the Brennan Center for Justice at NYU Law. “Texas should be encouraging election officials to provide voters all the information they need to participate in elections. Instead, the legislature and the Governor have made it a crime to do so.”

Texas law allows voting by mail in certain circumstances, including when a voter is 65 years old or older, sick, or disabled, out of the country on election day, or confined in jail.

“This law was created to combat alleged voter fraud that we know does not exist, and instead hinders the ability to properly encourage seniors and voters with disabilities to exercise their right to vote by mail,” said Christian Menefee, the County Attorney for Harris County, Texas. “This anti-solicitation provision of SB 1 not only makes it harder for these folks vote, but it criminalizes the constitutionally protected free speech of the Harris County Elections Administrator and violates the First Amendment.”

“S.B. 1 makes it a crime for public officials or election officials to encourage voters to request a mail ballot application, even if the person would be eligible to vote by mail. By contrast, under Texas law, it is not a crime for a public official or election official to discourage eligible voters to vote by mail,” said Liz Ryan, partner at Weil, Gotshal & Manges. “There is no valid justification for such a one-sided restriction on speech.”

S.B. 1 went into effect on December 2, 2021. It is an omnibus law, containing the provision challenged in Longoria v. Paxton as well as restrictions on other aspects of voting and elections. The law has drawn multiple lawsuits in addition to Longoria v. Paxton. The Department of Justice has challenged S.B. 1 and, many other entities, including the Brennan Center (in LUPE v. Abbott), have also filed suit against various parts of the law.

The motion for a preliminary injunction in Longoria v. Paxton is here.

The complaint, and more background on Longoria v Paxton, is here.

The first lawsuits filed against SB1 were filed in September, with Isabel Longoria a plaintiff in a complaint filed by MALDEF on behalf of a large group. The Justice Department lawsuit was filed in November, and there were three others filed in between. This one was filed on December 10, and if there was any news coverage of it I am not able to find it. The amended complaint was filed on Monday, December 27. It’s the motion for preliminary injunction, filed on Tuesday the 28th, for which I received a press release from the Harris County Attorney’s office, which in turn led me to find the linked article from the Brennan Center (and this Twitter thread), that is trying to make something happen more quickly.

My read on this – I’ve sent some questions to the Harris County Attorney’s office to get clarification – is that Elections Admin Longoria would like a ruling from the court to settle the question of what exactly she is and is not allowed to do, given that as things stand right now saying the wrong thing could get her arrested. We have the primaries coming up real soon, which means mail ballots are going to be getting requested, and people will have questions about them. Raising this as a First Amendment issue makes sense to me, and maybe it will make sense to the courts as well. Hopefully, we’ll find out soon.

UPDATE: Later in the day I found this Statesman story, which added a few details.

The ban on sending unsolicited mail-voting applications was one of many provisions contained in Senate Bill 1, the sweeping GOP voting law that was passed Sept. 1 during the Legislature’s second special session.

Several other provisions of SB 1 have been challenged in a half-dozen lawsuits by civil rights groups and the Biden administration’s Justice Department, including bans on 24-hour and drive-thru voting, ID requirements for mail-in ballots and protections for partisan poll watchers.

Those challenges are awaiting a summer trial.

Longoria and Morgan, however, told U.S. District Judge Fred Biery of San Antonio that waiting until summer is not an option for a prohibition that will handcuff them in the weeks leading up to the March 1 Texas primaries.

“Longoria has planned to engage in speeches and hold voter-outreach events but has been unable to do so for fear of criminal prosecution and civil penalties,” said Tuesday’s filing, adding that Longoria also halted plans to promote mail-in voting with fliers and on social media.

Similarly, Morgan argued in the filing that her work as a voter registrar — particularly around the University of Texas in Austin — will be hampered if she “can no longer proactively suggest that eligible but unaware voters request an application to vote by mail … as she has in the past.”

They asked Biery to rule no later than Feb. 14, noting that to cast a mail-in ballot in the primaries, voters must fill out and return an application between Jan. 1 and Feb. 18.

Texas Attorney General Ken Paxton has not yet filed a response to the lawsuit, though his office opposes the request for an injunction and will respond to that in the future, as well.

So there you have it. My guess is that the state’s response will be some combination of “you can’t sue us” and “neener neener neener”, secure in the belief that the Fifth Circuit will undo anything Judge Biery does. I will of course keep an eye on it.

Another look at the Aguirre/Hotze debacle

Man, do I ever want this to be the end of Steven Hotze as a political force.

A well-funded far-right group—that made inroads with Stop The Steal organizations, paid a former police captain more than $200,000 to hunt ballots, and became entangled in a roadside stickup—was making war plans for Election Day 2020 months ahead of time, documents reveal.

The fringe group, the Liberty Center for God and Country (LCGC), led a lucrative fundraising blitz in the run-up to the election and quietly networked with now-notorious election denialists. Their work came to light in October of that year when former Houston Police captain Mark Aguirre allegedly rammed his SUV into a man’s truck, forced the man onto the ground at gunpoint, and accused him of transporting 750,000 fraudulent ballots. Aguirre’s claims were baseless—his victim was an innocent air conditioner technician—and no widespread voter fraud has been found in the 2020 election. Aguirre was indicted this week for aggravated assault with a deadly weapon.

The criminal charges outed the LCGC, which had quietly moved hundreds of thousands of dollars in the name of preventing voter fraud in the months before the election, launching a website and fundraisers in the months before Nov. 3.

In the fall of 2020, as Donald Trump trailed Joe Biden in the polls, Republican activists sought ways to sow doubt in the event of a possible Trump loss. Aguirre and LCGC were among them.

Aguirre’s description of himself as a “retired” police captain (he’d actually been fired for a disastrous raid) was the least of the fundraiser’s lies. Although the fundraiser shed little light on Aguirre’s “team,” the fundraiser was launched one day after Aguirre signed an affidavit in a lawsuit accusing Houston-area Democrats of widespread voter fraud.

The lawsuit, filed by Republican activist Steven Hotze, accused Texas Democrats of a plot to defraud voters, in part by offering early voting and more voting locations. Some of its claims rested on supposed evidence collected by Aguirre and a former FBI agent who, like Aguirre, later became a private investigator.

“Based on interviews, review of documents, and other information, I have identified the individuals in charge of the ballot harvesting scheme,” Aguirre wrote. Aguirre’s involvement with Hotze went deeper than the lawsuit suggested. In late August, according to business records, Hotze formed the LCGC. The group’s earliest web presence called on Trump to designate three days “for national repentance, fasting, and prayer.”

[…]

In order to crack down on alleged fraud pre-election, the LCGC allegedly hired Aguirre to investigate people it suspected of running fake ballot rings. According to charging documents, Aguirre admitted to surveilling the home of air-conditioning technician David Lopez-Zuniga, on the suspicion that the Houston man was running a scheme to force children to sign 750,000 fraudulent ballots. Aguirre allegedly rammed Lopez-Zuniga’s car off the road, forced him onto the ground at gunpoint, and knelt on his back before an actual police officer was able to intervene. The day after the incident, the LCGC sent $211,400 to Aguirre’s bank account.

The LCGC was pulling in big money, its fundraisers suggest. In addition to Aguirre’s GoFundMe, which earned at least $2,600, the group operated its own GoFundMe, which raised nearly $70,000 from mid-October to mid-December.

The LCGC also registered as a nonprofit—a status that would be useful when networking with a burgeoning movement of voter fraud hoaxers.

See here, here, and here for a bit of background; there’s more if you go looking for the bogus and universally losing lawsuits Hotze filed in 2020. The Washington Post did a deep dive on this about a year ago, and I’m glad to see others are continuing that quest. The possible key to ending this little piece of madness is the lawsuit filed by AC repairman David Lopez, which has survived a motion to dismiss and will surely provide a lot more evidence of wrongdoings as it proceeds. All I want for Christmas for the next 20 years or so is for a verdict to come down that absolutely bankrupts Steven Hotze. Link via Daily Kos.

The state of the state redistricting lawsuits

A good update, and a reminder that not all of the action is in federal court.

In two cases heard [December 14 and 15], a group of mostly Democratic, Hispanic lawmakers from both chambers challenged the legality of when and how Republicans drew the boundaries.

“All we’re asking is for Republicans, who claim to be constitutionalists, to start acting like it, and follow the plain meaning and reading of the Constitution,” said Roland Gutierrez, one of two Democratic state senators who are suing Texas.

Focusing on the timing are Gutierrez and Sen. Sarah Eckhardt, who sued to block the Legislature from redistricting in a special session this year. Also at issue are rules for keeping counties intact when drawing Texas House districts.

Similar to a suit they filed in federal court before redrawing began, the senators’ attorneys argued the Texas Constitution requires that redistricting be done in a regular session that won’t happen until 2023.

That makes the newly drawn state House and state Senate plans invalid, argued the legal team for Gutierrez and Eckhardt, of San Antonio and Austin, respectively.

The senators’ lawyers pointed to a provision in the state Constitution that requires the redistricting process to start in the first regular session after the decennial Census has been published, asking the court to block the new plans from being used.

State lawyers argued the provision does not prohibit apportionment at other times, and warned that blocking the map will disrupt the 2022 election process that is already in motion.

“The Legislature … is perfectly free to redistrict whenever it wants,” Will Thompson, the attorney general’s deputy chief for special litigation, said at the Dec. 15 hearing in district court in Travis County.

[…]

The senators’ legal team also argued the new state House map violated the “county line rule” of the Texas Constitution, which requires that counties with sufficient population be kept intact in drawing Texas House districts.

The second challenge, mounted by the Mexican American Legislative Caucus in the Texas House, made a similar case that the rule was broken, arguing it was designed to ensure people have local representation.

As lawmakers this fall debated the new House lines late into the night, they narrowly adopted a major change in South Texas. House District 37 was redrawn from a seat President Joe Biden won by 17 percentage points, to a seat the president won by only two points over former President Donald Trump in the 2020 election.

That amendment, developed by Kingsville Republican Rep. J.M. Lozano, was denounced by some Valley lawmakers. State Rep. Eddie Lucio III, D-Brownsville, called the change a “disingenuous, last-minute attempt to do a grab.”

The plaintiffs’ legal team argued the county line rule requires that two districts be wholly contained within Cameron County. Yet Lozano’s tweaks give Cameron County just one wholly contained district, with two that connect to adjoining counties.

The state’s lawyers argued the new boundaries do not dilute votes in Cameron County, and that Cameron got the number of districts it was constitutionally entitled to. The plaintiffs’ attorney rejected that interpretation of the rules.

“There is no doubt that to whatever extent Cameron County voters are a cohesive group … they get to elect the candidates of their choice,” said Thompson, one of the state’s lawyers.

District 37 Democratic candidate Ruben Cortez Jr. joined the senators’ suit, along with political organization Tejano Democrats. The new version of the district was joined with adjacent Willacy County.

“This Republican redistricting scheme is robbing the voice of Cameron County voters,” Cortez, also a member of the Texas State Board of Education, said in a news release.

The caucus’ complaint asked the court to block the Texas House map from being used in upcoming elections and allow for the creation of alternative boundaries.

Both sides discussed a full trial beginning Jan. 10.

It’s unclear, if the judges rule in favor of the plaintiffs on the county line rule, whether they would delay Texas House primary elections just for South Texas, or the entire state. The plaintiffs’ legal team asked the court to delay the primary to May 24.

Thompson, the state lawyer, said he expects the 2023 Legislature to have to revisit the maps.

The Gutierrez/Eckhardt lawsuit was originally filed in federal court, but at a hearing in October it was agreed that the plaintiffs would first pursue the matter in state court. The state lawsuit was filed on November 22, judging from the stamp on the document. The lawsuit over HD37 and Cameron County was one of two lawsuits filed by MALC, with the other being a broader federal lawsuit. I was not aware until this story that they had been combined, as the federal lawsuits (with the exception of the federal version of the Gutierrez/Eckhardt lawsuit) have been.

The cases are being heard by an interesting three-judge panel: Karin Crump, a Democrat and district court judge in Travis County, who is presiding; Ken Wise, a Republican was was re-elected to the 14th Court of Appeals in 2020; and Emily Miskel, a Republican district court judge from Collin County who is running for the 5th Court of Appeals in 2022. I assume this is the work of the Texas Multidistrict Litigation Panel, though that name is not mentioned in the story. Funny how once you become aware of something new you begin to see it everywhere.

As for the cases, with the standard I Am Not A Lawyer proviso, both of them seem pretty straightforward. Either the Lege is only allowed to embark on the decennial redistricting process in a regular session that follows the Census or it’s not, and either the county line rule means that a county with sufficient population to have more than one State House district in it has only one partial district in it, with the other(s) being fully within that county. Looking at the district viewer, I don’t see any other example of a county that has one complete district and more than one partial districts in it. There are no such examples in the current map, either – Cameron has all of HDs 37 and 38 and part of 35. It seems likely to me that previous legislatures didn’t think this was something they could do. And as for whether Cameron County voters get to elect the candidate of their choice, that’s nice and all but it’s not the question that was asked, nor is it relevant to the county line rule.

As for the claim that the Lege is free to redistrict whenever it wants, then it could in theory redraw new lines after every election. (The 2003 DeLay re-redistricting was only for Congress, which is outside the scope of the Gutierrez/Eckhardt lawsuit. That same claim was made about “mid-decade” Congressional redistricting, and I don’t believe there was ever a federal ruling on that question.) Surely there are some limits on what the majority party can do.

The weakness of the state’s arguments suggests to me the possibility the plaintiffs could prevail, but we are getting way ahead of ourselves. I do think the state can reasonably claim it wasn’t their fault that the Census data was late, and that it’s less disruptive to redistrict in a special session so new maps can be in place for the intended election than to wait an entire cycle. The counter to that would be that this is what the Legislative Redistricting Board is for, though here I would say it’s not clear to me that the outcome would be any more favorable to the plaintiffs unless the LRB is restricted to just tweaking districts to equalize population. In other words, can the LRB draw whole new maps, in which case I’d expect them to come up with something exactly like what was adopted by the Lege, or must they use the existing maps and make only the minimal changes necessary to fix population imbalances? The Gutierrez/Eckhardt plaintiffs might “win” but not achieve anything, depending on how the court views that question. Someone with real legal experience should probably step in at this point and stop me from digging this hole any deeper.

Anyway. We might at least get an initial answer to these questions before voting begins, which would be nice. We might also get a split primary for at least part of the state, which is more than a little chaotic. Isn’t this fun?

The “prison gerrymandering” lawsuit

Of the many lawsuits filed so far over Texas redistricting, this is the one I know the least about.

Nearly a quarter of a million people were incarcerated in Texas when the Census was taken last year. When lawmakers redrew the state’s voting maps this fall, these inmates were counted in the prison towns where they were locked up, rather than where they lived beforehand.

A Dallas Morning News analysis of Census and prison data found this practice, which opponents call “prison gerrymandering,” inflates the political power of Republican districts while draining clout from Democratic strongholds. It also makes more conservative, rural areas of the state look larger and more diverse than they truly are.

Republicans say the maps are legal and fair. They argue there isn’t a viable alternative for counting prisoners, and changing that won’t shift the balance of power in Texas to Democrats.

But The News found the state’s new legislative maps would look significantly different if Texas stopped this practice. Reallocating prisoners to the place where they were charged would cause nearly one in five counties — most of which went for Donald Trump last year — to lose population to more urban, liberal areas. Not counting prisoners at all would throw more than two dozen House districts out of population boundaries, making them subject to court challenge.

Experts say The News’ findings raise questions about diluting the minority vote, fair representation and the principle of “one person, one vote.” Incarcerated people in effect become ghost constituents, they said, unwittingly boosting the power of prison towns, and helping Republicans stay in power, while largely lacking the right to vote.

[…]

Including jails, federal and state prisons and detention centers, Texas incarcerated more people than any other state, last year’s Census data show.

Counting these people at their place of confinement helped Republicans, The News analysis found. It’s impossible to know how these incarcerated people would vote. But while many inmates in state prisons were charged in urban areas, and most are not white, the vast majority were drawn into GOP districts.

According to The News’ analysis, Republicans in the state Legislature will represent two-thirds of incarcerated people under the newly redrawn maps. The number is even higher for the U.S. Congress: 76% of people incarcerated at Census time were drawn into districts represented by a Republican in Washington.

Two state lawmakers saw their district numbers inflated most by the count of incarcerated people: Rep. Kyle Kacal of College Station and Cody Harris of Palestine, both Republicans. One in 10 people in Kacal’s district, where death row and the prisons department headquarters is located, is behind bars.

In Harris’ district, which includes Tennessee Colony in Anderson County and all or part of three other counties in East Texas, nearly 8% are incarcerated.

The News analyzed how the state’s new electoral maps would be affected if incarcerated people were counted differently. We used data on more than 140,000 inmates incarcerated in state-run jails and prisons when the Census was taken. This analysis does not include the effect of moving federal inmates or those housed in local jails or ICE detention centers.

Of the 232 counties that went for Donald Trump in the 2020 election, 46 would shrink in population if incarcerated people were counted in the county where they were charged. This is the best measure The News could use for previous residence, since state and federal prison agencies declined to release comprehensive data on inmates’ previous home addresses.

The 46 counties would lose more than 104,000 people, The News’ analysis shows. When added together, pro-Trump counties would lose nearly 52,000 people. Nearly all of them — 49,667 people — would be reallocated back to one of the state’s five largest counties, which all went for President Joe Biden last year, with more than 11,000 going to Dallas County.

The News analysis also found counting incarcerated people at their prison address hurts GOP counties without lockups. McLennan, Smith and Montgomery Counties, all of which went for Trump in 2020, would gain more than 2,500 people each if incarcerated people were moved back to the county where they were charged.

If prisoners were excluded from population counts altogether, The News found that 29 state House districts might need to be redrawn. This is because every Texas legislative district is meant to represent roughly the same amount of people, and there should be no more than a 10% difference in population between the smallest and largest districts.

Those that don’t meet this requirement could be challenged in court; they are about equally split between Democrats and Republicans.

[…]

Experts acknowledge that Texas won’t suddenly turn blue if “prison gerrymandering” is banned.

In a state of 29 million, incarcerated people account for less than 1% of the population. Plus, as the party in power, Republicans could simply tweak district boundary lines to make up for a few thousand prisoners here or there.

But critics note it’s one of several tools the GOP uses to maintain power in a rapidly changing state. While they are a fraction of the population, there are more incarcerated people than needed for an entire House district and nearly one-third of a congressional district.

“The dynamics just described obviously favor white, rural Texas,” said Rep. Chris Turner of Grand Prairie, chairman of the Texas House Democratic Caucus. “[It] real questions of fairness.”

Rory Kramer, an associate professor at Villanova University who is completing a nationwide analysis of incarceration and redistricting, said The News’ findings did not surprise him.

“As your analysis demonstrates, this harms equal representation for people who live in neighborhoods with high incarceration rates,” Kramer said. “There’s no reason why living near a prison should mean some Texans have greater voices in the state legislature than other Texans.”

Mike Wessler, communications director for criminal justice advocacy group the Prison Policy Initiative, echoed Kramer’s concern: “It distorts political representation at all levels of government.”

This is related to the lawsuit that I mentioned here filed by inmate Damon James Wilson. This Courthouse News story is still the only writeup I have found about it. The key factor here in terms of drawing legislative districts, especially State House districts where the county line rule makes it harder for rural areas to dip into urban counties for help filling out district populations, is that there would just be fewer people in rural counties, and the net effect might be to force one or more fewer districts that are entirely or mostly within those counties. Add enough people back into Harris County and maybe you have to give it a 25th district again, as it had up to the 2011 reapportionment. West Texas lost a legislative district at that same time because the region didn’t have enough people to justify the higher number. Counting prison inmates in their home counties instead of where they are incarcerated might change the partisan balance by a district or two – it’s really hard to say, and the story doesn’t try – but in the end it’s more a matter of counting them where they consider their home to be, which by the way is the standard for residency and voter registration.

The other point, which I didn’t include in my excerpt, is that while inmates like Wilson are counted in the rural counties where they are locked up for the purposes of drawing legislative maps, they are not counted as residents of those counties when it comes to county-level redistricting.

Just as state lawmakers are in charge of legislative and congressional maps, local officials draw new county districts for positions like commissioners court, justices of the peace and constables after each Census. Many smaller, conservative counties with large inmate populations have long chosen to exclude incarcerated people when redrawing local maps because prisoners would skew their demographics.

Anderson County Judge Robert Johnston said counting the local 13,344 prisoners as constituents would inflate his actual population and result in one of his four commissioners representing only a handful of people outside the prison walls.

“[Prisoners are] not out roaming the streets, spending money in my county,” he said.

Mighty convenient, no? Just for the sake of consistency, there ought to be one standard. Perhaps as a result of this lawsuit there will be. Daily Kos has more.

From the “Keeping track of all these lawsuits is hard” department

Spotted on Democracy Docket:

Still the only voter ID anyone should need

Today, a judge for the U.S. District Court for the Western District of Texas denied a motion to dismiss Vote.org v. Callanen. The case, filed earlier this summer, challenges Texas’ “wet signature” law that requires individuals who submit their registration applications electronically or through fax to also provide a copy of their application with their signature — meaning signed with pen on paper. The complaint argues that this law unduly burdens the right to vote and targets voting advocacy groups such as Vote.org in violation of the First and 14th Amendments and the Civil Rights Act of 1964 and asks the court to prohibit its enforcement. The court already rejected one attempt to dismiss the case earlier this fall.

The court also rejected a motion to dismiss the case filed by Texas Attorney General Ken Paxton (R) that was joined by two county elections administrators. The motion claimed that Vote.org did not have standing to bring this case and that its complaint was insufficient. The court held that Vote.org had sufficiently shown that the wet signature law would cause harm to the organization’s efforts to register voters and the court may be able to provide the requested relief. The court also rejected the defendants’ arguments that there was no private right of action to sue and the plaintiffs’ claim fails because they did not allege any racial discrimination, finding that neither argument was supported by precedent. The case will move forward and all claims will be litigated to determine if the wet signature law is constitutional and in line with federal law.

My first reaction when I see something like this is to search through my archives for any past blog posts about it. Usually there is something, even in cases where I don’t immediately recognize the issue. I know I’ve heard of this lawsuit before, and sure enough I land on this post, about a federal lawsuit filed in San Antonio by a group including Vote.org over the state of Texas’ rejection of voter registration applications that did not include an “original signature” but instead an electronic one. But that lawsuit was filed in January of 2020, and this one was filed earlier this summer, in response to a bill passed during the regular session. I can’t find any further posts about the January 2020 lawsuit, and I seem to not have blogged about the one from this July. Oops.

My best guess here is that the initial lawsuit was dismissed for some reason – I can’t find any reference to it on the Democracy Docket webpage – and the July one was filed partly in response to the reasons the original one was tossed. I note that the first lawsuit had several other plaintiffs (the DCCC, the DSCC, and the TDP), while this one just has Vote.org associated with it. Or maybe it was withdrawn for some reason, with the same logic behind Lawsuit #2. If somehow that first lawsuit were still in existence, I would assume that it has been or will be combined with this one. Since I don’t see that on the lawsuit webpage (where you can see the original complaint plus two followup documents), I go back to my first assumption, that the 2020 lawsuit is no more. If someone reading this knows how to search for these things in the federal court system, please let me know if I’m mistaken in that.

Anyway. The point here is that allowing electronic signatures, which are common in all kinds of other legal transactions, would make it a lot easier to do voter registration. Which, of course, the state of Texas does not want. Note that the bill in question was a large one that did a lot of things – the initial text is all about recounts, and at first I thought this must have been the wrong legislation – but the “original signature” provision is in there later on. It was passed with bipartisan support, and I will just have to ask someone about it, because there must have been some good things in there for that to have happened. Be that as it may, we’ll see where this lawsuit goes.

Apparently, we’re still litigating whether Texas Central is a railroad

I admit, I’m a bit confused by this.

The Texas attorney general’s office has put its weight behind a landowner’s case against the companies developing a controversial Dallas-Houston bullet train, arguing they can’t force people to sell parcels needed for the high-speed rail project.

Weighing in on the matter at the invitation of the Texas Supreme Court, the attorney general’s office offered the latest twist in the nearly decade-long fight over a 240-mile line that would connect Dallas and Houston. While the project has picked up support from leaders of urban areas, it’s encountered hard resistance from residents of the rural counties on its proposed path.

One of those residents, Leon County landowner James Miles, sued Texas Central after the private company sought permission to survey his 600-acre property in 2015 as part of its efforts to examine the land for the project. Miles asked the courts to declare that the company did not have the right to enter his property because it does not have the eminent domain authority granted to railroad companies.

He won at a trial court, but the legal dispute reached the Texas Supreme Court after a state appellate court in Corpus Christi sided with Texas Central and a related company.

In a legal brief filed with the Texas Supreme Court on Friday, deputies for Texas Attorney General Ken Paxton argued the high court should reverse that appellate decision and rule in Miles’ favor because the companies fall short of the Texas Constitution’s definition of a rail company.

“The [companies] may only make preliminary examinations and surveys of private landowners’ properties for the purpose of constructing and operating a bullet train if they are either railroad companies or interurban electric railway companies,” the state wrote in its brief. “In the State’s view, the [companies] are neither.”

That leaves them with “no authority to enter, examine, survey or condemn Miles’ land,” the state wrote.

I am confused because at last report, the Supreme Court had declined to review that 13th Court of Appeals’ verdict. I Am Not A Lawyer, but right there in the story that I blogged about was the clear suggestion that this was the end of the road for that case. However, now that I see this story, a bit of googling shows that the Supreme Court granted a motion for a rehearing, which you can see here. It doesn’t seem to me that any new issues were raised by the Miles plaintiff, but what do I know? In any event, this explains why the AG brief says it is in response to “the Court’s letter of October 15, 2021 inviting the Solicitor General to express the views of the State of Texas”. Oral arguments for this are set for January 11. If any of you lawyers out there want to shed some extra light on this, by all means please be my guest.

Rep. Martinez-Fischer sues over CD35

One more federal redistricting lawsuit to add to the pile.

Texas State Rep. Trey Martinez Fischer filed a lawsuit today challenging boundaries of the recently redrawn U.S. House District 35.

In the lawsuit, Fischer claims that the redrawn map violates Section 2 of the Voting Rights Act and that is discriminates against Latino voters.

“Redistricting is a political process, but it impacts the people who live in our community personally. Our representation in Congress determines not only the resources we receive, but also how quickly our needs are addressed and how they are prioritized,” Fischer said. “By denying Latinos in CD-35 the opportunity to elect a candidate of their choice, Texas has shortchanged our community of the representation it deserves and has willfully committed a Section 2 violation.

Congressional District 35 spans the I-35 corridor from Austin to San Antonio. The redrawn maps were approved by Governor Greg Abbott on October 25.

“The nature of redistricting is creating winners and losers. District lines change, incumbents gain new constituents, and communities are divided. This is inevitable. What should not be inevitable is the intentional discrimination against Latino, Black, and AAPI voters that we have come to expect from Texas Republicans in redistricting. That is why I am challenging the state of Texas over the loss of a Latino opportunity district in Texas Congressional District 35, in direct violation of Section 2 of the 1965 Voting Rights Act.

A copy of the lawsuit is here. It is focused entirely on CD35, with the main thrust being that this district went from one that was majority Latino and had more population in Bexar County to one that is not majority Latino and has more population in Travis County. The complaint is fairly straightforward and not too long, so go read it.

As noted by Democracy Docket, this lawsuit has been combined with the others, including the Justice Department lawsuit filed earlier this month. While TMF originally asked for there to be “a permanent injunction prohibiting Defendants implementing any future elections held pursuant to SB 6”, the combined plaintiffs have since agreed (with one exception) to not ask for preliminary injunctions that would prevent the 2022 primaries for taking place, per the Brennan Center. Per Michael Li, the plaintiffs are asking for an October 2022 trial date, with the state of Texas asking for November. The exception are the plaintiffs in the Sen. Powell lawsuit over SD10 (known as the “Brooks plaintiffs”, as the first person listed is Roy Charles Brooks), who are asking for a preliminary injunction that would at least delay the 2022 primaries, since Sen. Powell will almost certainly be voted out next year under the current lines. I think that covers everything for now. Texas Public Radio has more.

SCOTUS finds another way to screw abortion rights

Surely you’re not surprised.

The Supreme Court has formally returned a lawsuit over Texas’ six-week abortion ban to a federal appeals court that has twice allowed the law to stay in effect, rather than to a district judge who sought to block it.

Justice Neil Gorsuch on Thursday signed the court’s order that granted the request of abortion clinics for the court to act speedily. But the clinics wanted the case sent directly to U.S. Judge Robert Pitman, who had previously though briefly blocked enforcement of the Texas abortion ban known as S.B. 8.

When Pitman ordered the law blocked in early October, the appeals court countermanded his order two days later.

Texas has said it will seek to keep the case bottled up at the appeals court for the foreseeable future.

Marc Hearron, the Center for Reproductive Rights lawyer who represented the clinics at the high court, said, “The Supreme Court left only a small sliver of our case intact, and it’s clear that this part of the case will not block vigilante lawsuits from being filed. It’s also clear that Texas is determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

[…]

In last week’s majority opinion written by Gorsuch, the Supreme Court limited who can be sued by the clinics in their effort to win a court order preventing the law’s enforcement and allowing them to resume providing abortions without severe financial risks.

The court held that only state licensing officials can be sued, an outcome the clinics said would not stave off the filing of lawsuits against providers if abortions were to resume.

Gorsuch wrote that “it appears” the licensing officials can be sued. “Of course, Texas courts and not this one are the final arbiters of the meaning of state statutory directions,” he wrote.

The state told the justices it plans to ask the appeals court to, in turn, seek a definitive ruling from the Texas Supreme Court over the role the licensing officials play in enforcing the abortion ban.

The appeals court would decide whether to involve the state high court, which would put the case on hold.

See here for the background. I’m going to outsource the commentary, as it’s hard for me to form the right words here.

I suppose it’s possible that the Fifth Circuit will do the right thing and hand this back to the district court so the process can play out. And I suppose that if they try to hand it to SCOTx that they will refuse to take it, on the grounds that they don’t like having to deal with messy political questions. Or either the Fifth Circuit and/or SCOTx just sits on the ball until SCOTUS officially drives a spike through Roe v Wade and moots the whole thing. I’m going to go scream into a pillow now. The Trib has more.

Biden employer vaccine mandate back on

For now, at least.

A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.

The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

[…]

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.

“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.

Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.

The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.

The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.

Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.

Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.

CCA tells Ken Paxton he’s not the supreme prosecutor

Cry me a river, Kenny.

Best mugshot ever

Texas’ highest court for criminal cases on Wednesday struck down a law that allows the attorney general to unilaterally prosecute election cases.

The state’s Court of Criminal Appeals issued an 8-1 opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said.

Attorney General Ken Paxton, a Republican who has been aggressive in trying to root out voter fraud, bashed the opinion from the all-GOP court. He said in a tweet that the ruling “could be devastating for future elections in Texas.”

At stake was a part of the election code that says the attorney general, the state’s top law enforcement officer, “may prosecute a criminal offense prescribed by the election laws of this state.”

The provision was thrown into jeopardy by a long-winding case involving Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Paxton’s office stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.”

Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

I don’t have any posts about this, but from reading the opinion, Sheriff Stephens, who was elected in 2016, was charged with making false claims on her finance report, specifically claiming that some $5,000 contributions were actually under $50. I don’t know what her explanation was, or why the JeffCo DA declined to prosecute. The rest of the opinion is pretty dense and technical, but the summary of what is at stake is quite simple. Here’s the opening paragraph from the opinion:

Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.

And here’s the section of the law in question, which is now null and void. Interestingly, that law passed originally in 1985, and was last modified in 1997. Either no AG had ever tried this before, or there are some people that have been prosecuted and maybe convicted under this statute that deserve some relief.

Anyway. I for one will sleep better tonight knowing that Ken Paxton does not have unfettered discretion to bring vote “fraud” charges against anyone he feels like. (I’m also old enough to remember when the main function of the AG’s office was civil enforcement and collecting child support. My aunt worked in that office in the 80s and 90s, and that was what her department did.) I’ll give the last word to these gentlemen:

I’ll take my wins where I can get them.

Settlement in Larry Nassar abuse case

Good.

The legal wrangling between USA Gymnastics and the hundreds of victims of sexual abuse by former national team doctor Larry Nassar, among others, is over after a $380 million settlement was reached.

The fight for substantive change within the sport’s national governing body is just beginning.

A federal bankruptcy court in Indianapolis on Monday approved the agreement between USA Gymnastics and the U.S. Olympic and Paralympic Committee and the more than 500 victims, ending one aspect of the fallout of the largest sexual abuse scandal in the history of the U.S. Olympic movement.

Over 90% of the victims voted in favor of the tentative settlement reached in September. That agreement called for $425 million in damages, but a modified settlement of $380 million was conditionally approved by the court. More than 300 victims were abused by Nassar, with the remaining victims abused by individuals affiliated with USA Gymnastics in some capacity.

The financial reckoning is just one part of the equation. A series of nonmonetary provisions will make the victims stakeholders at USA Gymnastics going forward. The provisions include a dedicated seat on the organization’s Safe Sport Committee, Athlete Health and Wellness Council and board of directors, as well as a thorough look at the culture and practices within USA Gymnastics that allowed abusers like Nassar to run unchecked for years.

[…]

Rachael Denhollander, who in the fall of 2016 was the first woman to come forward to detail sexual abuse at the hands of Nassar, said the provisions were a pivotal part of the mediation process.

“It’s not about money, it’s about change,” Denhollander told The Associated Press in a phone interview. “It’s about an accurate assessment of what went wrong so that it is safer for the next generation.”

Denhollander has been one of the most outspoken Nassar victims from the outset of the scandal. She said it was important to move past the legal proceedings so women can move forward with their lives and get the help they need.

“The frank reality is the longer this goes on, the more difficult it is for survivors,” she said. “So many of these women, they can’t access medical care without a settlement. We had to balance that reality with the length of time it was taking. We felt it was in the best interest of everyone to accept this settlement … so that survivors would receive some semblance of justice.”

Denhollander pointed out some of the medical care required is not covered by certain types of insurance. The settlement will ease part of the financial burden.

The settlement comes nearly four years after an emotional sentencing hearing in Michigan in which hundreds of women detailed their experiences with Nassar and the toll it took on their lives.

This story has Texas connections, in part because Simone Biles is one of the plaintiffs, and in part because a lot of that abuse took place at the Karolyi Ranch. I’m glad these women will be getting the money, and I hope it helps them with whatever treatment and healing they need. I also hope those changes to the structure of USA Gymnastics brings about real change in that organization, and real accountability for it going forward. What happened here was horrible enough. Anything less than a full effort to make sure it never happens again is not enough.

Travis Scott speaks

Really not sure this was his best move.

Amid countless lawsuits against him, Travis Scott sat down with The Breakfast Club radio personality, Charlamagne tha God, for his first public interview since a dangerous crowd surge injured hundreds and left 10 people dead during his Astroworld Festival performance on Nov. 5.

In a one-hour discussion shared to Charlamagne’s YouTube channel on Thursday, Scott, whose real name is Jacques Berman Webster II, shared that he’s been experiencing a range of emotions, largely grief, trying to wrap his head around the tragedy and remained consistent to previous statements denying his knowledge of the severity of the mass casualty incident until the press conference that occurred after his set.

“Even after the show you’re just kind of hearing things, but I didn’t know the exact details until minutes before the press conference,” he said, adding, “And even at that moment you’re like, ‘Wait, what?’”

“People pass out, things happen at concerts, but something like that… it’s just like,” he added before trailing off.

[…]

In response to criticism that the event was poorly planned and understaffed, Scott pointed to the responsibilities for all involved. An artist is responsible for the creative side of the show, he said while he trusts the “professionals” to control what they can in the crowd and “make sure that people are taken care of and leaving safely.”

“You can only help what you can see and whatever you’re told,” Scott said responding to a question about the responsibility an artist has to help in that type of situation. “Whenever somebody tell you to stop you just stop.”

James Lassiter, a Houston attorney representing the family of Bharti Shahani, a 22-year-old Texas A&M University student who died, and other injured festival attendees, responded to Scott’s interview Thursday afternoon.

“Travis Scott’s attempt to escape responsibility for creating a deadly situation from which his fans could not escape is shameful and, sadly, true to form,” he said in a statement.

Houston’s NRG Park, where the festival was held, occupied up to 50,000 guests that night, a crowd size that Houston Police Chief Troy Finner said he had enough officers onsite to handle. But he also said he could not have abruptly ended the show for fear of sparking a riot his department could not control.

Finner said the “ultimate authority” to end the show resided with LiveNation and with Scott. The two parties have largely taken the hit for the continuation of the concert for an additional 37 minutes after local authorities declared the event a mass casualty.

But in the interview, Scott said that part was never communicated with him directly.

Scott also denied the tragedy having anything to do with the crowd size as there have been festivities “way bigger,” he said.

“It’s not about the maximum of it, I think it’s about the attention to what’s going on and how it’s going on, and as long as that’s handled then I think things will be okay,” he said. “But as you look at it through the history of festivals, this isn’t the first time happening. It’s been a long history of this.”

The Astroworld Festival tragedy already ranks among deadliest U.S. concerts ever.

Scott said he believes he did everything he could possibly do to help. While he’s not surprised to be at the epicenter of the blame since he’s the “face of the festival,” he said he thinks the responsibility should be a shared load for everybody collectively to “just figure out the bottom line solution” to the problem to make sure this never happens again.

I dunno, man. I Am Not A Lawyer, but I’m pretty sure the right move in this kind of situation is to keep your mouth shut and limit any public remarks to “I can’t comment on pending litigation”. I feel very confident that all of the lawyers suing him – as well as counsel for the various co-defendants – will be listening to this interview very closely, and will be ready to pounce on any inconsistency that arises from future statements given under oath. I understand where he’s coming from, and whatever else happens I have empathy for him, but I can feel his lawyers cringing from here.

Two Georgia election workers sue over post-election harassment

I am so rooting for them.

In the aftermath of the 2020 election, the Gateway Pundit—one of the country’s leading sources of pro-Trump misinformation—helped instigate a vicious harassment campaign against two Black Georgia election workers, according to a new lawsuit. As Republicans desperately tried to cast doubt on Joe Biden’s victory, the two women—Ruby Freeman and her daughter Wandrea “Shaye” Moss—were reportedly stalked by strangers, doxxed, inundated with death threats and racist taunts, and driven from their homes.

Now, Freeman and Moss are fighting back in court. [Last] Tuesday, they filed a defamation suit against the Gateway Pundit, its founding editor Jim Hoft, and contributor Joe Hoft, accusing them of spreading “false and endlessly repeated accusations” about the women’s conduct on election night. The two women seek “compensatory and punitive damages” from the defendants, the removal of the inaccurate articles accusing them of election fraud, and an acknowledgement that the site’s coverage was false.

The alleged harassment followed a December 2020 hearing before Georgia lawmakers, when a Trump campaign attorney named Jacki Pick falsely claimed that a surveillance video from a ballot-processing room in Atlanta showed Fulton County election workers pulling suitcases of “illegal” ballots from under a table. The Gateway Pundit quickly identified the two workers as Moss and Freeman and, according to the New York Times, published dozens of false stories about them, calling them “crooked Democrats” and claiming that they “pulled out suitcases full of ballots and began counting those ballots without election monitors in the room.”

The claims were swiftly debunked by both Georgia’s secretary of state and the Georgia Bureau of Investigation, which concluded that the “suitcases” were standard ballot containers with legitimate votes and that Freeman and Moss were simply doing their jobs.

But Donald Trump, his surrogates, and the far-right media ecosystem continued to spread falsehoods about them over the next few months. On December 10, 2020, Trump lawyer Rudy Giuliani appeared at another hearing with Georgia lawmakers, where he repeatedly identified Moss and Freeman by name and labeled them “crooks.” On December 22, Trump tweeted out a One America News Network segment featuring the Gateway Pundit’s “investigation” into the two women. And on January 2, 2021, during his infamous phone call with Brad Raffensberger, Georgia’s secretary of state, Trump called Freeman a “professional vote scammer and hustler” who had pulled out suitcases “stuffed with votes” and scanned each ballot “three times.” The Gateway Pundit itself continued to publish stories about the women through November 2021.

What happened to these women as a result of these reckless lies was horrifying, and I hope they ultimately take the people responsible for it for everything they have. There hasn’t been nearly enough accountability for the blatant attempts to overturn the election and overthrow the rightfully elected President, but the one place that has been forthcoming has been in the civil courts. It’s slow and painstaking, but the law is coming. It can’t come soon enough, or with enough righteous fury.

UPDATE: Daily Kos and TPM note a weird new development to this story involving a publicist for Kanye West. No, really.

SCOTUS allows providers’ lawsuit against SB8 to proceed

There’s a lot to unpack here.

The U.S. Supreme Court on Friday ruled that the legal challenge brought forward by abortion providers against Texas’ abortion restriction law may continue, bringing new life into what has become the most significant effort to overturn the statute so far.

The court allowed the suit to continue on an 8-1 decision but did not stop the law’s enforcement. Instead, the suit will continue in a lower federal court where abortion providers will resume seeking to block the law, commonly referred to as Senate Bill 8.

Justice Sonia Sotomayor agreed with allowing the suit to continue but condemned the high court’s decision to leave the law in effect, saying it has had “catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas.”

“The Court should have put an end to this madness months ago, before S. B. 8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

In a separate decision, the court dismissed a separate challenge from the Biden administration.

The justices also allowed the abortion providers to sue some state licensing officials, but not state court clerks, citing difficulties surrounding sovereign immunity. This could make it difficult for providers to get the law’s enforcement blocked overall in court.

“By blessing significant portions of the law’s effort to evade review, the Court comes far short of meeting the moment,” Sotomayor said. “By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree. This is no hypothetical. New permutations of S. B. 8 are coming.”

[…]

The providers’ suit returns to U.S. District Judge Robert Pitman, who previously blocked enforcement of the law for two days. It was resumed by the 5th U.S. Circuit Court of Appeals, which is known as perhaps the nation’s most conservative appellate court.

The suit could now follow a similar trajectory as before: If Pitman blocks the law again, abortion opponents will likely appeal to the 5th Circuit as well — and then the case could land before the Supreme Court once more.

[…]

Katherine Franke, a professor of law at Columbia University and director of the university’s Center of Gender and Sexuality Law, said she was pleased that the Supreme Court allowed the provider’s lawsuit to continue — but the court continues to make concessions over a person’s right to an abortion.

“What the [Supreme Court] has done is reiterate what their earlier ruling was, which is that a majority does not see a constitutional emergency in this case, even though SB 8 clearly and intentionally violates established Supreme Court law,” she said.

Franke said allowing the law to stay in effect while court proceedings continue proves that abortion rights are in jeopardy more than something like religious freedom. Although Friday’s decision allows the fight against Texas’ law to continue, she said more should have been done to protect abortion rights.

“The decision could have been much worse than it was … but this decision takes place within a larger legal landscape where the underlying right that’s at stake — that the court has not even addressed yet — could very well be eliminated and overruled,” she said. “It’s not a complete loss. I wouldn’t say it’s a partial victory, but it’s not a complete loss.”

See here for the previous entry, here for this ruling, and here for the dismissal of the Justice Department lawsuit. I’d like to see some more commentary on that ruling, because I don’t like it at all. The most thorough analysis I’ve seen of the main ruling so far comes from Slate’s Mark Joseph Stern.

The upshot of Friday’s decisions is this: Abortion providers can now ask U.S. District Judge Robert Pitman to block S.B. 8. Pitman will swiftly grant their request by issuing an injunction against “executive licensing officials” tasked with enforcing the law, a decision that should stand in the 5th U.S. Circuit Court of Appeals. Texas’ clinics will presumably begin providing abortions again, though they are not fully protected from civil suits.

In the meantime, all parties will await the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, due by June, which may overturn Roe v. Wade and permit Texas to implement a more straightforward abortion ban. And other states may still pass S.B. 8–style laws that empower vigilantes to sue abortion providers, as long as they tweak the language to comply with Friday’s decision.

[…]

Now the court has issued the narrowest possible decision to let the providers’ suit proceed. Justice Neil Gorsuch’s opinion for the court rejected their primary theory: that providers could sue state court judges and clerks to prevent the docketing of S.B. 8 cases. Gorsuch held that these agents of the state enjoy “sovereign immunity,” the doctrine that states are generally immune from private lawsuits. There is an exception from this rule called Ex parte Young that permits individuals to sue state officials, but Gorsuch held that it does not apply to state court judges and clerks. “Usually, those individuals do not enforce state laws as executive officials might,” he wrote; “instead, they work to resolve disputes between parties.”

Gorsuch identified other roadblocks, asserting that there is “no case or controversy” between providers and state courts and no remedy that “permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits.” He also rejected the plaintiffs’ attempt to sue Texas Attorney General Ken Paxton, writing that Paxton has no authority to enforce S.B. 8. And even if Paxton did have such power, Gorsuch concluded, federal courts cannot “parlay” an injunction against an attorney general “into an injunction against any and all unnamed private persons who might seek to bring their own S.B. 8 suits.”

This part of Gorsuch’s ruling is a victory for providers—albeit an extremely limited one, for two reasons. First, it’s not clear that an injunction against licensing officials would stop bounty hunters from filing lawsuits under S.B. 8; it would only restrict the state’s ability to punish those clinics found liable under the law. Similarly, an injunction against licensing officials may not stop citizens from suing “abettors” who facilitate an abortion. Second, Texas and other states can easily work around Friday’s decision. Wary of that outcome, Chief Justice John Roberts—along with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented from Gorsuch’s refusal to let providers sue state court clerks and the Texas attorney general. Roberts and Sotomayor wrote separate dissents, both focusing on Texas’ flagrant attempt to “nullify” rights protected by the federal Constitution.

Gorsuch did, however, identify one slim route around S.B. 8’s blockades: He allowed providers to sue the “executive licensing officials” who “may or must take enforcement actions against the petitioners if they violate” the law. These officials implement state law in a traditional manner, Gorsuch explained, and thus cannot claim sovereign immunity. They fall squarely into the Ex parte Young exception. And so there are no constitutional barriers stopping clinics from naming these parties as defendants in their federal lawsuit to freeze S.B. 8. Every justice except Clarence Thomas joined this part of Gorsuch’s decision; Thomas, alone, would have foreclosed all avenues of relief. So there are five votes to shield state court judges and clerks from federal suit, five votes to shield the attorney general from suit, and eight votes to let the suit against “executive licensing officials” proceed.

“Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review,” the chief justice wrote. “The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings.” And if legislatures can “annul the judgments of the courts of the United States,” then “the constitution itself becomes a solemn mockery.” He asserted that state court clerks and Paxton were “proper defendants” because both play a role in imposing “burdens on those sued under S.B. 8.” An injunction against such defendants, Roberts acknowledged, may be “novel.” But “any novelty in this remedy is a direct result of the novelty of Texas’s scheme.”

Sotomayor’s dissent was substantially fierier. She criticized the majority for failing to “put an end to this madness months ago, before S.B. 8 first went into effect.” By allowing for such limited relief, Sotomayor wrote, the majority “effectively invites other States to refine S. B. 8’s model for nullifying federal rights,” betraying “not only the citizens of Texas, but also our constitutional system of government.”

[…]

There is a vast chasm between the two blocs in this case. The five most conservative justices appear to view S.B. 8 as a one-off, a desperate attempt to evade a decision (Roe v. Wade) that they themselves probably view as illegitimate. The four other justices see S.B. 8 as a direct threat to the Supreme Court’s authority to “say what the law is” by shielding constitutional liberties from state infringement. It seems the majority is troubled just enough to carve a path around some of S.B. 8’s blockades—but its solution is a ticket good for one ride only. Texas can pass nearly identical legislation that eliminates the powers of “executive licensing officials” and, apparently, lock providers out of federal court once again. Copycat bills have already cropped up in four other states, and Gorsuch has given legislators a road map to ensure that they can fully insulate their legislation from federal court review. He and his hard-right colleagues appear to believe that blue states won’t have the spine to deploy these tricks against rights favored by conservatives, like the right to bear arms.

Not much I can add to that, though you should read Dahlia Lithwick’s companion piece about the pile of failure that is John Roberts as well. The state lawsuit has drawn some boundaries, and if we get another injunction from Judge Pitman that survives the chainsaw massacre of the Fifth Circuit, we’ll be in a somewhat better place than we are right now. But the damage has been done to the clinics, and even without the looming threat of the Dobbs ruling, they may never recover. Mother Jones, The 19th, The Nation, and the Observer have more.

State judge rules SB8 is unconstitutional

Sounds a little better than it actually is, but it’s still pretty good.

Right there with them

A Texas judge on Thursday ruled that the state’s controversial law restricting abortions after about six weeks of pregnancy violates the Texas Constitution, saying it should not be enforced in court.

Although Thursday’s ruling is a win for abortion rights advocates, the order only has direct consequences for the 14 lawsuits in the case that the judge oversaw. The judge did not issue an injunction to block cases from being filed, though experts say it would likely be used as precedent in those cases.

Jackie Dillworth, communications director at Whole Woman’s Health, said the group’s four clinics across the state will not resume full services but would be “eager” to do so if an injunction were issued.

“We are so grateful to Judge Peeples for his ruling today,” said Dillworth. “[The law is] depriving Texans of their rights, autonomy, quality of life, and health.”

[…]

State District Judge David Peeples’ ruling Thursday emphasized that he wasn’t ruling on abortion rights, but rather on the enforcement method that the law employs.

“This case is not about abortion; it is about civil procedure,” he wrote in his order.

Peeples echoed concerns on how a similar form of enforcement could be used to infringe on other constitutional rights, a view expressed by members of the U.S. Supreme Court during oral arguments last month in two other challenges to the law.

“In sum, if SB 8’s civil procedures are constitutional, a new and creative series of statutes could appear year after year, to be enforced by eager ideological claimants, who could bring suit in their home counties, where the judges would do their constitutional duty and enforce the law,” Peeples said in his order. “Pandora’s Box has already been opened a bit, and time will tell.”

[…]

The judge ruled that Texas Right to Life cannot file lawsuits against the 14 plaintiffs for helping others get an abortion disallowed by the Texas law. The plaintiffs include doctors, nonprofit organizations and Planned Parenthood. However, other parties or individuals can still sue the plaintiffs under the abortion law.

“This ruling is limited to the named parties. It does not apply to all other potential plaintiffs and defendants. John Doe could file suit tomorrow, without regard to this ruling,” Josh Blackman, a law professor at South Texas College of Law Houston, said in an email.

Blackman added that Peeples can only rule on the 14 cases before him — not on any other cases or the law overall.

“A judge can’t declare a statute unconstitutional in all contexts. Courts can only issue rulings with regard to particular parties in a particular case. But other courts can choose to treat this ruling as precedential (and likely would),” he said.

But even if Thursday’s ruling had stopped the law from being enforced, SB 8 is written with an unusual restriction that allows someone to later be sued if that ruling is overturned on appeal.

Joanna Grossman, a professor at SMU Dedman School of Law, said that means providers may not be comfortable resuming procedures until all the court battles are waged.

“It was just another thing to stack the deck against providers so that it just wasn’t possible for them to manage their risk,” she said. “I assume they’re all having conversations with their lawyers right now about [whether] this actually gives them any ability to reopen.”

See here for the background, and here for a copy of the judge’s order. The ruling will be appealed – since this was heard in Travis County, that means that the Third Court of Appeals will get it next, unless there’s some mechanism to have it go straight to the Supreme Court. There is of course the still-pending case before SCOTUS, which could generate a ruling as soon as today or sometime later or maybe never, who even knows. I suppose with the violence they plan to do to reproductive rights in the Mississippi case, the assassins on the high court could make a cynical nod towards “moderation” by putting the kibosh on Texas’ law. But again, who knows what they’ll do. In the meantime, now we wait for the next steps in this case. It’s a start.

Justice Department sues Texas over redistricting maps

Add it to the queue.

The Department of Justice is suing Texas over its new redistricting maps, alleging that lawmakers intentionally discriminated against Latino and Black voters while redrawing the state’s political districts this year.

The lawsuit, filed in federal court in El Paso, takes aim at Texas’ new maps for Congress and the state House of Representatives. The Biden administration alleges that several of the districts were drawn “with discriminatory intent” to increase the electoral power of the state’s white voters despite massive population growth among racial minorities.

“Our complaint today alleges that the redistricting plans approved by the Texas State Legislature and signed into law by the governor will deny Black and Latino voters an equal opportunity to participate in the voting process and to elect representatives of their choice, in violation of the Voting Rights Act,” Associate Attorney General Vanita Gupta said in a news conference.

Texas’ new maps, redrawn this year to reflect the state’s population increases since 2010, are already facing seven legal challenges in state courts. Critics have assailed them as attacks on Texas’ minority voters, noting that the state’s GOP-led Legislature declined to add any new majority-minority districts even as people of color drove 95 percent of the state’s 4 million-person population growth. Hispanic Texans comprised roughly half of that total.

“Our investigation determined that Texas’ redistricting plans will dilute the increased minority voting strength that should have developed from these significant demographic shifts,” Gupta said.

She added that the new maps were adopted through a “rushed process” that allowed for “minimum” public participation. The department is asking the court to prevent any elections from taking place using the new maps; the state’s primaries are scheduled for March 1.

Politico adds some details.

The suit notes that Texas’ past redistricting maps have repeatedly been smacked down by courts over the last several decades. But [Attorney General Merrick] Garland acknowledged during the press conference that this case presents more challenges than past decades because the so-called preclearance requirement, which mandated that jurisdictions with a history of discriminatory election laws get changes approved by either the Department of Justice or a D.C.-based federal court, was gutted by a mid-2010s Supreme Court decision.

“There are two problems: One, it means that we don’t get a chance to look at these things before they go into effect, which is a very significant aspect of our tools, and instead requires that we challenge every case individually,” Garland said. “And second, it flips the burden of proof.”

[…]

The suit takes particular issue with the 23rd Congressional District — a sprawling West Texas seat now held by GOP Rep. Tony Gonzales — accusing Texas Republicans of intentionally eliminating its status as a district where Latinos could elect their candidate of choice.

More than 50 percent of the voting age population in the new 23rd District is Latino, but the Department of Justice claims — as it has in previous litigation against other iterations of this seat — that GOP mapmakers swapped out Latinos who vote regularly with low-propensity Latino voters.

The end result, the suit says, is “an effort to strengthen the voting power of Anglo citizens while preserving the superficial appearance of Latino control.”

The suit also noted the lack of a new Latino opportunity seat in Houston’s Harris County and accused the legislature of having “surgically excised minority communities from the core of the Dallas-Fort Worth Metroplex (DFW) by attaching them to heavily Anglo rural counties, some more than a hundred miles away.”

The suit also singles out the new 24th Congressional District, held by freshman GOP Rep. Beth Van Duyne. By reducing the district’s swath of northwest Dallas County, the mapmakers dropped the Latino citizen voting age population from 40 percent to 23 percent. The suit says the map again strengthens the Anglo voting bloc.

GOP mapmakers created three new deep blue seats — in Austin, Houston and Dallas — to accommodate a growing number of left-leaning voters and keep them from overwhelming the red-leaning districts surrounding them. None of those seats have a Latino-majority. Republicans will likely control at least two dozen of the state’s 38 seats under this new map.

In the Houston area, the suit notes that the new 38th Congressional District was drawn “to give Harris County’s shrinking Anglo population control of yet another Congressional seat” even though “most of that population growth occurred within the Latino community.” That seat leans heavily Republican, and the current frontrunner in the GOP primary, Wesley Hunt, is Black.

Garland also urged Congress to restore those preclearance requirements that were effectively stripped out of the Voting Rights Act by the Supreme Court in Shelby County v. Holder, which was decided in 2013.

As noted before, there are multiple lawsuits that have already been filed, and with the exception of the Gutierrez/Eckhardt suit, which raises different questions, have been combined into one action. Michael Li expects this lawsuit to be assigned to the same three-judge panel as the others as well. He also says this:

Not really much else to say here – if the Senate can ever get around to passing one of the voting rights bills that the House has sent them, it could make the plaintiffs’ case even stronger, but unless that happens it’s hard for me to have a lot of optimism, despite the glimmer that Michael provides. It’s barely possible that the panel could put the March primary on hold, but to say the least I don’t expect that. A copy of the lawsuit is here, and the Trib and the Texas Signal have more.

A brief look at the winter storm litigation

This story is actually about the judge who will be presiding over winter storm cases, but it caught my eye for a reason that will be apparent.

Sylvia A. Matthews presided over more than 175 jury trials and 160 bench trials during her decade as a Harris County District Court judge. Lawyers for plaintiffs and defendants say she is smart, fair, well-prepared, hard-working, efficient and decisive.

Matthews will need all those qualities over the next several months as she oversees more than 150 highly complex civil lawsuits filed by victims seeking billions of dollars in damages as the result of last February’s winter storm, which was one of the deadliest and costliest disasters in Texas history.

The lawsuits filed across Texas include individuals suing for wrongful death, personal injury and property damages and companies complaining about breach of contracts, interruption of business and price-gouging.

Some of the largest power companies, such as the Houston utility CenterPoint Energy, the Chicago company Exelon and Vistra Energy of Irving, one of the state’s biggest generators and retail electricity providers.

While the lawsuits have been filed in more than a dozen Texas courts, the Texas Supreme Court has consolidated them into one docket, called multidistrict litigation.

The cases are consolidated for efficiency, allowing pretrial issues, such as production of evidence and admissibility of testimony, to be decided in a uniform matter. Once the pretrial issues are decided, the cases are usually sent back to the courts where the lawsuits were filed for trial.

For example, lawyers predict that the 200 lawsuits already filed in the Astroworld tragedy will also be consolidated into a single proceeding for pre-trial purposes.

[…]

The winter storm litigation is likely to take years to resolve, according to legal experts. In fact, the statute of limitations for more lawsuits does not expire for another year, meaning more cases may still be filed.

The stuff in between is about Judge Matthews, a Republican now serving as a visiting jurist following her electoral defeat in 2018. It’s fine, I’m glad she’s good at her job, but it was the stuff about the Texas Multidistrict Litigation Panel that I noticed. Here’s this thing I’d never heard of before October of this year, and now it’s turning up all over the place, including and not surprisingly in the AstroWorld cases. I feel like someone owes me a nice in-depth explainer about this body. How long has it been in existence, what are the rules that govern it, who serves and how do they get there, and is it just one of those things that it’s been a key player in such high profile and hot button matters as these cases plus SB8 or is it somehow a sign of the times? Oh, to be an assignment editor. Seriously, someone write me that story, I’d read the hell out of it.

Anyway. Litigation over the freeze and blackout and responsibility for the latter will no doubt go on for years, but hopefully it will help provide some answers. Lord knows, we’re not getting any from our state leaders. I’ll be keeping an eye out for further news.

It’s not looking good for Roe v Wade

Yesterday, it seemed like there was the possibility of a chance that SCOTUS could so something other than eviscerate abortion rights nationally. Today, not so much. I don’t have the energy to write a real post about it, so I’m just going to point you to coverage at The 19th, Slate (twice), TPM, Mother Jones, and Daily Kos. Or you could have spent five minutes on Twitter, or you could be like me and get a billion campaign/action/fundraising emails from a multitude of organizations, all with the same message.

Lots of people think that this will change the political dynamics, and indeed maybe it will. Anger is a strong motivator, and this has already made a lot of folks on my side angry. But winning is a big motivator, too, and the people that have been pushing for forced births for decades are within sight of getting what they want. Whatever happens with the politics, the real world effects of this are going to be very bad, very harmful, and not at all easy to undo. The one thing we can’t do is stop fighting, because the other guys sure aren’t going to.

Vaccine mandate for health care workers blocked

I’d say this is getting ridiculous, but we’re well past that point.

A federal judge on Monday blocked President Joe Biden’s administration from enforcing a coronavirus vaccine mandate on thousands of health care workers in 10 states that had brought the first legal challenge against the requirement.

The court order said that the federal Centers for Medicare & Medicaid had no clear authority from Congress to enact the vaccine mandate for providers participating in the two government health care programs for the elderly, disabled and poor.

The preliminary injunction by St. Louis-based U.S. District Judge Matthew Schelp applies to a coalition of suing states that includes Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. All those states have either a Republican attorney general or governor. Similar lawsuits also are pending in other states.

The federal rule requires COVID-19 vaccinations for more than 17 million workers nationwide in about 76,000 health care facilities and home health care providers that get funding from the government health programs. Workers are to receive their first dose by Dec. 6 and their second shot by Jan. 4.

The court order against the health care vaccine mandate comes after Biden’s administration suffered a similar setback for a broader policy. A federal court previously placed a hold on a separate rule requiring businesses with more than 100 employees to ensure their workers get vaccinated or else wear masks and get tested weekly for the coronavirus.

Biden’s administration contends federal rules supersede state policies prohibiting vaccine mandates and are essential to slowing the pandemic, which has killed more than 775,000 people in the U.S. About three-fifths of the U.S. population already is fully vaccinated.

But the judge in the health care provider case wrote that federal officials likely overstepped their legal powers.

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” Schelp wrote in his order.

That ruling doesn’t affect Texas, but this one does.

A federal judge on Tuesday blocked the Biden administration’s COVID-19 vaccination mandate for health care workers from going into effect nationwide next week after Texas and other states challenged the order.

Louisiana Western District U.S. Judge Terry Doughty’s ruling follows the same decision on Monday from Missouri U.S. District Judge Matthew Schelp. However, Schelp’s ruling applied for only 10 states.

Doughty wrote in his decision that the mandate exceeds the Biden administration’s authority.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” Doughty wrote.

I Am Not A Lawyer, and I couldn’t find any commentary out there about this, but just knowing that it was two Trump-appointed judges who made these rulings makes me look at them with extreme skepticism. (There are some other reasons for that, as the Daily Kos story indicates. I still want to see some serious lawyers weigh in on it.) The willingness of so many people to put the lives of so many other people in danger just boggles my mind.

On the moderately positive side, there was this.

A judge in Galveston has denied a bid from a group of federal workers seeking an injunction to halt enforcement of the White House’s COVID-19 vaccination mandate, saying they had natural immunity from having been infected with the virus.

John J. Vecchione, senior litigation counsel for the New Civil Liberties Alliance in Washington, D.C., said his team argued it was “arbitrary and capricious” to require vaccinations across the board for all federal employees, because this particular group of workers was not any more dangerous to others than people who have been fully vaccinated. Vecchione says in court documents his clients’ immunity is “at least as robust and durable as that attained through the most effective vaccines.”

[…]

The 11 litigants include a high ranking lawyer at U.S. Immigration and Customs Enforcement from Frisco, a Navy technician from Robstown, an air traffic controller from St. Cloud, Fla. , a Georgia-based veterinary specialist from the Department of Agriculture, a special agent with the Secret Service from Springfield, Va. and a supervisory air marshal with Transportation Security Administration in Palos Verdes, Calif. .

The suit is directed at Dr. Anthony Fauci, others on the COVID response task force and representatives of other federal agencies tasked with enforcement or supervision of the mandate. The deadline for vaccinations was Nov. 22 and enforcement was set to begin some time after Nov. 29.

U.S. District Judge Jeffrey V. Brown denied the workers request for a temporary injunction, saying they did not face irreparable harm if they complied with the mandate and they were unlikely to win their case on the merits. He noted that all but one of the plaintiffs were pursuing religious exemptions that would allow them to avoid the vaccine. The worker who did not seek an exemption works for ICE; the judge said the civil liberties lawyers had probably erred in failing to sue that agency.

Any win for sanity at the district court level feels like it’s written on sand these days, but I’ll take what I can get. Roy Edroso has more.

Social media censorship law blocked

For now. As long as the outlaw Fifth Circuit exists, we can’t say more than that.

A federal judge on Wednesday blocked a Texas law that seeks to restrict how social media companies moderate their content and was championed by Republicans who say the platforms are biased against conservatives.

The law, signed by Gov. Greg Abbott on Sept. 9, would ban platforms with more than 50 million monthly users in the U.S. from removing a user over a “viewpoint” and require them to publicly report information about content removal and account suspensions. It was set to take effect Dec. 2.

In his ruling, U.S. District Judge Robert Pitman wrote that the First Amendment protects social media platforms’ right to moderate content and rejected the defendants’ argument that such companies are “common carriers.” Pitman also ruled that some aspects of the law were “prohibitively vague.”

“This Court is convinced that social media platforms, or at least those covered by [House Bill] 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content,” Pitman wrote.

[…]

Supporters of the law say it ensures that users’ political views go uncensored. State Rep. Briscoe Cain, R-Deer Park — who authored the bill, known as House Bill 20 — compared tech companies to “common carriers” like phone companies or cable providers, which are barred from customer discrimination.

But a federal judge who blocked a similar Florida law in June said such comparisons aren’t accurate. Thomas Leatherbury, the director of the First Amendment Clinic at Southern Methodist University Dedman School of Law, told The Texas Tribune in September that the Texas law is “clearly unconstitutional,” with the same flaws as the Florida law “and then some.”

By targeting only the largest social media platforms, Leatherbury said the law violates the equal protection clause. The law largely prohibits electronic mail service providers from blocking messages based on their content, which Leatherbury said restricts email services’ First Amendment rights.

See here and here for the background. You can see the court order here, some commentary on it here, and NetChoice’s press release here. As with all things, Texas is sure to go running to the Fifth Circuit to get them to ratify their lawlessness, and the usual bet is that the Fifth Circuit will provide room service for them. Maybe this time it will be different since the law attacks businesses instead of just people, but conservatives have decided those particular businesses are Bad for them, so the usual bet is still probably the correct one. But for now, at least this is one terrible new law that won’t get a chance to be enforced. For now.

SCOTUS hears Mississippi abortion case today

Could be the beginning of the end for Roe v Wade, or it could be the beginning of a massive upheaval in the anti-abortion industry.

The U.S. Supreme Court will hear arguments on Wednesday in a Mississippi abortion case that has the potential to overturn Roe v. Wade. While the case, Dobbs v. Jackson Women’s Health Organization, stems from a challenge to a Mississippi law banning abortions after 15 weeks of pregnancy, the high court’s ruling could have seismic impacts for Texas.

Texas legislators have ensured the state is ready if Roe v. Wade is overturned by this case or any future ruling. Last June, Texas joined 11 other states by enacting a measure that automatically bans abortion after Roe is overturned without having to call a special legislative session.

[…]

This Supreme Court hearing comes at a precarious moment for abortion access in Texas, as the state and abortion providers await a ruling from the same court on Texas’ most recent efforts to limit abortion. Women have been unable to obtain abortions in Texas after about six weeks of pregnancy since Sept. 1, when the controversial abortion ban went into effect.

Texas’ law, known originally as Senate Bill 8, is unique in that private citizens, not state officials, can enforce it by suing anyone who “aids or abets” an abortion. This civil method of enforcing the law is intended to evade judicial review and is at the crux of the case that the Supreme Court was asked to consider.

Many experts expected the Supreme Court to rule on the Texas case ahead of the hearing in Dobbs v. Jackson, but a decision has not yet been issued.

Yeah, a lot of people thought that, didn’t they? SCOTUS gonna SCOTUS. Look, this is likely going to be Very Bad, but SCOTUS has surprised us before, and if they do so here, expect there to be a huge, world-shattering tantrum from the forced birth crowd. Which is not to say that any “compromise” ruling from SCOTUS would be a thing of beauty, but it could at least mean that abortion remains mostly available. We’ll see. The 19th and Jill Filipovic have more.