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April 13th, 2020:

And so we go to SCOTUS

Pardon me while I gird my loins for whatever happens next.

Right there with them

Texas abortion providers have taken a back-and-forth legal battle with the state of Texas over its temporary ban on the procedure to the U.S. Supreme Court.

The groups on Saturday requested an emergency stay from the high court, asking that it overturn a federal appeals court decision and allow medication-induced abortion services, and surgical abortions in limited circumstances, while the case proceeds.

The request comes amid the longest period that women in the state have ever been without access to abortion since the landmark 1973 Roe v. Wade case that legalized the procedure, as the more than two-weeklong legal saga continues.

The battle began when Gov. Greg Abbott on March 22 banned elective surgeries during the coronavirus state of disaster in a move intended to conserve personal protective equipment needed to fight the pandemic, and the groups quickly filed suit. The Texas Attorney General Ken Paxton, who is representing the state, did not immediately respond to a request for comment Saturday.

The state has argued that personal protective equipment would still be needed with medication abortions and that those could even require hospitalizations if complications followed. Paxton said in an interview with CBS on Wednesday that he figured that the case would rise to the nation’s highest court.

Legal battles are brewing in several other states where abortion rights groups have sued over similar bans, including Alabama, Ohio and Oklahoma, but Texas’ case is the first to reach the Supreme Court.

See here for the previous update. It’s possible that SCOTUS will react the way they did following the recent Louisiana case where that state passed an anti-abortion law nearly identical to the one SCOTUS had struck down from Texas in the Whole Women’s Health decision, with the message going to the Fifth Circuit that “you don’t get to overturn Roe v Wade, only we get to do that” (hat tip to Dahlia Lithwick for the concept). If that’s the case, they’ll allow the hold on the executive order to stay in place until they can rule on the issue, in which case they have whatever rein they want to restrict abortions. I mean, let’s be clear, if all it takes to shut down clinics across the state is for the governor to declare a state of emergency, then what’s stopping him from declaring a permanent state of emergency? Or at least saying that until there’s a broad-based coronavirus vaccine that meets whatever arbitrary standard of effectiveness that Texas would choose, all such restrictions must stay in place? A right is not a right if it can be revoked on a whim, and there has to be some clear and compelling reason for it to be restricted in the first place. We’ll see what SCOTUS makes of this, but we need to be prepared for some bad news.

Another view of the lawsuit over expanded voting by mail

From Ian Millhiser at Vox, who is decidedly more pessimistic about the plaintiffs’ chances. He starts by noting how restrictive Texas’ existing vote-by-mail law is.

The law only allows Texas voters to obtain an absentee ballot under a very limited list of circumstances. Voters may obtain an absentee ballot if they plan to be absent from their home county on Election Day, if they have a “sickness or physical condition” that prevents them from voting in person, if they are over the age of 65, or if they are jailed.

It is far from clear that a healthy person who remains at home to avoid contracting coronavirus may obtain an absentee ballot.

Texas Democratic Party v. Hughs, a lawsuit filed by the state Democratic Party, seeks to fix this law — or, at least, to interpret the law in a way that will ensure healthy people can still vote. But the lawsuit potentially faces an uphill battle in a state court system dominated by conservative judges.

All nine members of the state Supreme Court are Republicans, and Republican Attorney General Ken Paxton filed a motion seeking to intervene in the lawsuit — a sign that he intends to resist efforts to prevent this law from disenfranchising voters.

The stakes in this case are astoundingly high. As Texas Democrats note in their complaint, voters are “now heavily discouraged” from even leaving their homes “by various government orders and are being discouraged in an enormous public education campaign.”

Even if the pandemic were to end by July 14, when the state plans to hold several runoff elections, “certain populations will feel the need and/or be required to continue social distancing.” Millions of voters could potentially be forced to choose between losing their right to vote and risking contracting a deadly disease.

[…]

Whether these Texans can get an absentee ballot could end up depending on how the courts interpret the phrase “physical condition.”

On the one hand, the law explicitly labels this provision as an accommodation for people who have a “disability.” The words “physical condition” also appear in conjunction with the word “sickness,” which implies that those words should be interpreted to refer to some sort of disabling condition that only a subset of Texans possess. Often, when a law uses a general term in the context of other, more specific terms, courts will assume that the general term should be given a narrow reading — one similar to the specific terms.

On the other hand, the literal meaning of the words “physical condition” is much more expansive. As a team of civil rights lawyers, including several from the ACLU, argue in a motion suggesting that the state law should be read expansively, “everyone has a physical condition” that prevents them from appearing at their polling place during a pandemic — the physical condition of being susceptible to coronavirus.

Either one of these interpretations of the Texas law is plausible, and a judge could reach either conclusion using methods of statutory interpretation that are widely accepted as legitimate. One judge might argue that the words “physical condition” should be read expansively, because that is the ordinary meaning of those words. Another might argue that they must be read in context with words like “sickness.”

The problem facing the Texas Democratic Party is that, when a fair judge acting in good faith could legitimately read a law in two different ways, it is very easy for a partisan judge to choose the interpretation they prefer. And every one of the nine justices on the Texas Supreme Court is a Republican.

Because older voters tend to prefer the GOP, the Texas Republican Party has a clear interest in preserving a legal regime that allows voters over 65 to obtain an absentee ballot but makes it much harder for younger voters to do so.

That said, if Democrats lose this particular lawsuit, that does not necessarily mean millions of Texans will lose their right to vote. It’s possible a federal court could rescue Texas voters in a separate lawsuit — one that most likely has not even been filed yet — holding that the unique burden the coronavirus pandemic imposes on voters renders Texas’s strict absentee ballot law unconstitutional.

This was written before the TDP filed its federal lawsuit, so bear that in mind as you read. I appreciate the analysis, which is the first in-depth look at the crux of the issue that I’ve seen. It’s a little crazy that it all hangs on the interpretation of two words, but here we are. I agree that in normal times one could reasonably interpret this either way, but if there’s ever a time for a bit of leeway, this is it. It’s not terribly surprising to me that the AG’s office has petitioned to intervene in the case – this is standard procedure for when the state gets sued, though the SOS does have its own attorneys. I’m more keen to know what if anything Greg Abbott thinks – if there’s going to be some influence on the court, it’ll come from him. There are definitely plenty of Republican elected officials who are in denial about the situation, and that could lead to pressure on Abbott to take a line-in-the-sand stance. Hasn’t happened yet, but that doesn’t mean it can’t or it won’t.

It’s also possible that the delayed July 14 primary runoffs will go off without any problems and in-person voting is fine, thus leading to a sense of complacency for November. Or maybe things will still be bad, or at least bad in the more-Republican rural areas, and that might make some people more aware of the fact that everyone has something to lose if we don’t plan better. That recent SOS advisory leaves me with some hope for a settlement in the existing litigation. The real tell will be if and when the usual agitators on the right start whipping up a frenzy. Remember also that the Republicans are busy trying to register voters this year – they have a stake in getting whatever new voters they sign up to the polls, too. Like I said, I have hope for a settlement, but it’s too early to tell which way the wind will blow.

Goodbye, Greenlink

Another version of Metro’s downtown trolley system is shut down due to coronavirus, and likely won’t come back, at least not in that format.

Downtown Houston’s free shuttle may have hauled its last passenger, a victim of the central district’s stop-and-go traffic, as well as changes in how residents and visitors move around town.

GreenLink, shuttles that pick up and drop off at Metropolitan Transit Authority bus stops along various streets in the downtown district, stopped March 23 as transit officials and the downtown district reduced service because of the COVID-19 crisis.

The timing could accelerate what already was a planned discontinuation of the service on May 31, said Bob Eury, executive director of the Houston Downtown Management District, which owned the shuttles that started circling the city’s center in mid-2012, operated by Metro with funding from the downtown district.

Eury said given the weeks of isolation orders likely ahead, it is possible GreenLink shuttles never get a green light ever again, at least in their present form.

[…]

Metro on March 24 agreed to buy the seven buses used on the route for $264,439, their estimated value due to depreciation.

Officials said it is possible they will not go far, however. Metro board member Jim Robinson said the transit agency is exploring quick routes across the central business district to connect workers on the eastern side to the park and ride service largely focused on the west side.

“I’ve had a number of people who live in northern or western park and ride areas tell me they would use the service if they didn’t have to walk from the west side of the (central business district) to the east side in Houston weather,” Robinson said.

Robinson said a decision will come within a comprehensive look at the entire commuter bus system, and how it can serve jobs spreading across the downtown area and into EaDo and Midtown.

That makes sense. The Greenlink buses were low-capacity to begin with, and to some extent they were an alternative to walking, which when downtown streets were jammed was often at least as quick a way to go. Uber and Lyft also competed with Greenlink. I worked two different stints downtown, for two years in the mid-90s when the previous trolley system was in place, and for four years in the 2010s with GreenLink. I never used either service, mostly because I’m a fast and impatient walker who doesn’t mind a little recreational jaywalking. In my second time downtown, I made use of B-Cycle when I had to take a trip that was just a bit too far to walk. As Metro redesigned its local bus system a few years ago, it makes sense to rethink what GreenLink is about, and to ensure that it’s providing the kind of rides that most people really need. After we’re all able to get out of the house and use it again, of course.