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April 5th, 2016:

We precinct chairs will have at least one more nomination to fill

Alyssa Lemkuil

As everyone knows, Democratic precinct chairs in Commissioners Court Precinct 1 will be selecting a nominee to replace the late El Franco Lee on the November ballot. If we wind up selecting someone who is also on the November ballot for this slot – Sen. Rodney Ellis being the prime, possibly only, example of this – the precinct chairs in the affected entity (in that case, SD13) will have to then make another selection to fill his abandoned place on the ballot. We’ve been over this before, we know the drill.

What you may not know is that all Democratic precinct chairs will have the job of making a selection for another nomination elsewhere on the ballot. The reason for this is because the 2015 Legislature created a new judicial district, the 507th Family Court, here in Harris County. On December 28, Greg Abbott named Alyssa Lemkuil to be the first Judge of the 507th. Because that happened after the filing deadline was closed (*), there is no Democratic nominee for that bench. As such, by the same laws that give precinct chairs the power to replace El Franco Lee on the ballot, precinct chairs (in this case for the whole county) will pick a nominee for the 507th Family Court as well.

I bring this up because last week I started hearing from people who are interested in being that nominee. So far, Chip Wells (who ran for the 247th Family Court in 2010 and 2014), Sandra Peake (who ran for the 257th Family Court in 2010 and the 246th Family Court in 2014), and Shawn Thierry (who ran for the 157th Civil Court in 2010) have all made their interest known in one way or another. According to The Police News, Julia Maldonado (candidate for the 246th Family Court in 2014 and the 308th Family Court (for which Judge Lemhkuil had been an associate judge) in 2010) had applied to be appointed to the 507th and will presumably seek the nomination now. That site also mentioned Chip Wells and Jim Evans (candidate for the 308th Family Court in 2014) as others who would likely seek the nomination as well.

That’s what I know about this court and the candidates for it at this time. I’m sure that there are other people who have looked at this court, and I’m sure that by publishing this post, anyone who is interested and who isn’t named here will make his or her presence known to me one way or another. One more thing to note is that this court, like all the other Family courts, will be on a non-Presidential year cycle after this election, so whoever wins in November will have to run for re-election in 2018.

(*) Why was the appointment made after the filing deadline? The law that created the 507th Family Court specified that it was to begin operations on January 1, 2016, so Abbott was always going to appoint the first judge. Both the Police News site and a Greg Enos newsletter mentioned that Republican precinct chairs will also get to pick their November nominee, by the same process as us Dems. That doesn’t address the question of the timing of the appointment. Why not make it before the start of filing season in November, so that the eventual nominees could be chosen the normal way? It may be that there is some provision of the Elections code that mandates this, but I have no idea if that is the case or what it might say if so. Perhaps one of the attorneys in attendance could say something about in in the comments. Practically speaking, it doesn’t really make sense to name someone to a job more than six weeks before he or she can take the job, indeed more than six weeks before the job has even been created. Politically speaking, it would be embarrassing for the Abbott appointee to lose in a contested primary. This could still happen at the precinct chair level for Judge Lemkuil, though one would think that Abbott’s appointment would receive a fair amount of deference. Again, none of this directly answers the question, so if someone out there actually knows the answer, please do let us know.

SCOTUS upholds “one person, one vote”

Good news.

In a unanimous decision released Monday, the U.S. Supreme Court ruled to uphold Texas’ current system for drawing legislative districts so that they are roughly equal in population.

The Supreme Court’s ruling is a victory for legislators — mostly Democrats — who represent districts with significant populations of people who are not eligible to vote: primarily children and non-U.S. citizens.

[…]

The case brought together dozens of state legislators who signed on to briefs arguing in Texas’ favor. Members of the House of Representatives’ Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus argued that the legal challenge represented a direct attack on their constituents, many of whom are ineligible to vote because they do not hold citizenship status. In order to accommodate thousands of additional eligible voters necessary to achieve district parity under Evenwel and Pfenninger’s plan, their districts would soar in size so much that their ability to represent their constituents effectively would be diminished, they said.

The Supreme Court acknowledged that argument in the majority ruling.

“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote,” Ginsburg wrote. “Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public education — and in receiving constituent services, such as help navigating public-benefits bureaucracies.”

“By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation,” the ruling concluded.

See here, here, and here for the background. ThinkProgress celebrates the win, but notes that the battle has not been fully settled.

Yet, while [Edward Blum, the conservative activist behind this lawsuit] did not prevail today, some ominous signs for Latino communities in states like Texas can be found in Ginsburg’s opinion. Ginsburg repeatedly uses language suggesting that states have some discretion to decide how to divvy up representation within the state. She writes that “it is plainly permissible” to divide up districts as Texas has done, and that “states and localities may comply with the one-person, one-vote principle by designing districts with equal total populations.”

That leaves an open question — whether states also may comply with one person/one vote by designing districts in the way that Blum would prefer. Ginsburg’s opinion does not answer that question. Nor does a separate opinion by Justice Samuel Alito, which states that “whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”

Nevertheless, it is reasonably likely that Texas, or some other conservative state, will test this proposition in short order. Why wouldn’t the sort of lawmakers who embrace tactics like partisan gerrymandering and voter ID laws try to shift representation towards more conservative white communities if they can get away with it?

The practical effect of Evenwel, in other words, may simply be to shift Blum’s advocacy away from the Supreme Court and towards state legislatures.

Rick Hasen, however, is not very concerned about that.

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total population rule. In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

SCOTUSBlog sums up:

The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.

Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.

Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.

Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps.

I’m sure Blum and his ilk will never go away, but at least as far as this goes, they would appear to have a steep hill to climb to win in a subsequent attempt to do something like this. For that we can be glad. A statement from Sen. Sylvia Garcia, whose Senate district would have been greatly affected by this lawsuit, is here, and a statement from the Mexican American Legislative Caucus is here. Daily Kos, the Brennan Center, Trail Blazers, Kevin Drum, TPM, the Lone Star Project, ThinkProgress, the Chron, and the Current have more.

UPDATE: More from The Nation and The Atlantic.

Locke makes it official

He would like to continue being County Commissioner.

Gene Locke

Gene Locke

Harris County Precinct 1 Commissioner Gene Locke said Monday he has decided to seek the Democratic nomination — and thus another term — for the Precinct 1 seat.

Locke was initially appointed by county Judge Ed Emmett as a caretaker commissioner to fill out the term of longtime commissioner El Franco Lee, who died in January. Locke had previously said he intended to return to his job as a lawyer and spend time with his family after the end of the current term in December.

But Locke said Monday that a broad cross-section of supporters, including constituents and community leaders in Precinct 1, had swayed him. Locke said he has always maintained he would follow in Lee’s footsteps.

“I had mentioned early on in my consideration for this position that the continuation of his legacy would be one of the considerations that might make me change my mind,” Locke said.

See here for Locke’s official statement, here for my initial reporting on this, and here for a Chron story that resulted from that. I’ve seen a few negative reactions to Commissioner Locke’s initial statement of interest in the job, which at the time he took it was supposed to be just for this term, stuff that has accused him of not being true to his word. I’m not going to hold it against him – he never explicitly said he would not seek a full term, and as I’ve noted before, being a County Commissioner is a pretty damn sweet gig. I’m sure there have been people encouraging him to run, especially with the city-focused infrastructure work that’s he’s been pioneering, but as we know unless those folks include the 130 or so precinct chairs that will make a selection on June 25, it doesn’t much matter. For what it’s worth and speaking as one of those 130 people, I have had regular contact – phone, email, and/or snail mail – from three candidates regarding this nomination: Gene Locke, Rodney Ellis, and Dwight Boykins. I’ve not heard from anyone else since January, and have not heard from anyone else at all besides one other person. Whether that means this is just a three-person race, or that there are three candidates who are much better organized than the others, I couldn’t say. We will know for sure on June 25.

Paxton to get full court treatment

The full (sort of) 5th Court of Appeals will decide whether to dismiss or uphold the indictments against AG Ken Paxton.

Best mugshot ever

Best mugshot ever

The 5th Court of Appeals announced late Friday that instead of the typical three-judge panel, nine of its 13 justices will hear oral arguments in Paxton’s case on May 12. Four justices stepped aside without explaining why.

State rules discourage appeals courts from hearing cases en banc, as full court panels are called, favoring three-judge panels except as required by “extraordinary circumstances.”

Oral arguments in Paxton’s case were wedged into an already busy docket that had hearings scheduled into the second week of June, another sign that the state appeals court was treating the Paxton case as an unusual situation — perhaps not surprising in a matter involving criminal charges against a sitting attorney general.

[…]

During oral arguments, each side will have 20 minutes to present their cases, with Paxton’s lawyers having an additional five minutes for “rejoinder.”

The appeals court will then take time — several months is not unusual — to research, write and issue an opinion, which will undoubtedly be challenged by the losing side at the Court of Criminal Appeals, the state’s top criminal court.

If the charges against Paxton are upheld, it is unlikely that his trial could begin until sometime in 2017.

See here and here for the background. The story says that this initial en banc hearing is “highly unusual”, but it gives no context to or examples of that, so we’re left to guess what that means. I know that with federal appeals courts, after a three-judge panel makes its ruling the losing side can then ask for an en banc review. If the procedure is the same with the state’s appeals courts, then I would guess this is about expediency. We know the ruling will be appealed, so why not combine steps here and save a bit of time? If the procedure isn’t the same, then I hope one of the lawyers in the audience can set things straight. Regardless, mark June on your calendar for the next episode in this drama.