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January 1st, 2021:

Pence asks for deranged Gohmert lawsuit to be dismissed

Here we go.

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

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

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

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

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

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

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

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

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

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

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

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

How’s the vaccine rollout going?

Not very quickly.

Top Texas officials again urged health care providers to administer more coronavirus vaccines Tuesday, the same day the state reported that the proportion of Texans whose coronavirus tests come back positive has hit levels not seen since a summer wave of cases that overwhelmed some hospitals.

The state reported Tuesday that 163,700 Texans had been vaccinated with at least one dose of the vaccine. About 1.2 million doses have been allocated to providers across the state through the first three weeks since their arrival, according to the Department of State Health Services.

“A significant portion of vaccines distributed across Texas might be sitting on hospital shelves as opposed to being given to vulnerable Texans,” Gov. Greg Abbott said in a tweet Tuesday evening.

That tweet came after health officials asked providers that received doses of the COVID-19 vaccine to “immediately vaccinate” all eligible Texans, including people 65 and older and those who are at least 16 with a qualifying medical condition. That renewed push echoed a statement Dr. John Hellerstedt, commissioner of the Texas DSHS, sent to providers last week directing them to “administer their entire allotment with all deliberate speed.”

“Dr. Hellerstedt put out that statement today to make it clear to all providers that people over the age of 65 and people with medical conditions that put them at greater risk of severe disease of death from COVID-19 are eligible to receive vaccine now,” said spokesperson Douglas Loveday. “Vaccine supply remains limited but more vaccine will be delivered to providers each week. It will take time to vaccinate everyone in those priority groups.”

To be fair, lots of states are stuck in low gear right now, but even accounting for that, Texas is in the back of the pack. There are distribution problems, and there is confusion over who can get a vaccine and where and how they can get it.

A single state website and hotline, with accurate and updated information about vaccine locations and supplies sure would be nice. What we have here evokes the old proverb that a person with one watch knows what time it is, and a person with two watches is never sure. Maybe when Greg Abbott and Ken Paxton are finished harassing the city of Austin, they can spend a few minutes thinking about that. In the meantime, hospitals are pushing back against the claim that they are the bottleneck.

The state’s largest hospital association is pushing back against a suggestion from Gov. Greg Abbott and the state’s top health official that a large number of coronavirus vaccines could be going unused in Texas hospitals.

The back and forth comes as the state vaccine dashboard shows that just 205,463 Texans had received the first dose of the coronavirus vaccine as of midweek, although 678,925 doses have been shipped around the state.

Abbott and Dr. John Hellerstedt, the commissioner of the Texas Department of State Health Services, sounded the alarm Tuesday, urging health care providers to begin vaccinating people 65 and over and those with underlying health conditions, including pregnant women, if they have concluded the first phase of vaccinations.

But most hospitals in the state are still vaccinating the first group of eligible Texans — hospital staffers working directly with coronavirus patients; long-term care residents and staff; emergency workers; and home health care workers — or have not yet received any shipments of the vaccine, according to Carrie Williams, spokeswoman for the Texas Hospital Association, which represents more than 85% of the state’s acute-care hospitals and health care systems.

“Vaccine is not sitting on hospital shelves,” Williams said, suggesting the state’s immunization reporting system has caused delays in reporting data. “With regard to data, we have no certainty it is accurate at this point in time. The number of doses administered is higher than what’s indicated.”

While the number of vaccines shipped across Texas is accurate, there have been “varying reports of the actual number of vaccines administered,” a spokesman for the Texas Division of Emergency Management said Wednesday.

The agency launched a website Wednesday showing up-to-date numbers of vaccine doses and therapeutics available at health care providers.

Abbott spokeswoman Renae Eze touted the website as a source of “real-time reporting system to show vaccine usage data from health care providers across Texas.”

The site, however, does not show how many COVID-19 vaccine doses have been administered.

[…]

For their part, hospital directors say the call from state leaders to move onto the next tier of vaccinations has caused chaos across the state as hospitals try to manage a vaccine rollout and a growing number of COVID-19 patients, Williams said.

“Hospitals are being flooded with calls from the general public seeking vaccine, which creates further operational challenges,” she said. “And, there are still hospitals that have not received any vaccine for their frontlines.”

The story doesn’t indicate what the URL of this new website is. The TDEM website is here, but all I found on a cursory search was information about testing, not about vaccines. This WFAA story about the bumpy vaccine rollout says that this DSHS page is the state’s main vaccine information center, but it’s mostly about eligibility. The story also reports, as Miya Shay did in her tweet, that DSHS and TDEM have two different maps showing providers who have received vaccine doses, and advise people to reach out to providers with their questions. That is not going to help with the flood of questions hospitals are already getting. Meanwhile, State Rep. Donna Howard tried to answer some questions on Twitter:

You can read the thread, but it largely comes down to lags in reporting, the timing of distribution, and confusion over who is eligible. For a guy who’s emphatically rejected calls for further COVID restrictions because the vaccines will save us all, you’d think Greg Abbott would want to put more effort into getting the vaccine distribution part of it right. Just a thought, but maybe this should be a campaign issue next year. What has been your experience trying to chase down a vaccine, for yourself or for a family member?

UPDATE: Later last night, the Trib published this longer story that covers all of the topics I’ve touched on here and more. At some point, Greg Abbott really needs to feel some heat for this.

TEA still barred from taking over HISD

Still in a state of limbo.

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

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

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

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

[…]

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

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

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

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

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

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

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

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