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April 3rd, 2021:

Let’s get rid of Democratic appellate court justices

If that’s the Legislature’s goal, then this would be an effective way of accomplishing it.

A Texas Senate committee [heard] public comment Thursday on a controversial proposal to consolidate the state’s 14 intermediate appellate courts into just seven, a move opponents have criticized as gerrymandering but that supporters say will make the courts more efficient and cure knotty court splits.

A committee substitute to S.B. 11 proposes dramatic changes to the organization of the state’s appellate districts: It would combine Houston’s two appellate courts, merge the Dallas and Austin districts together, lasso Waco and Eastland into a division with Texarkana and Fort Worth, and move two San Antonio justices to Midland in a district that would span roughly 500 miles — from Kendall County just southwest of Austin to the state’s western edge and include El Paso — among other changes.

The state’s current number and location of appellate courts largely reflects the state’s demographics, economy and travel conditions of the late 19th and early 20th centuries,
Hunton Andrews Kurth LLP partner Scott Brister wrote in a 2003 Houston Bar Association article.

Brister, who formerly served as a Texas Supreme Court justice and chief justice of the Fourteenth Court of Appeals in Houston, told Law360 the districts need to be updated and consolidated.

“I just think 14 is too many,” he said. “They’re not located where all the people and the cases are.”

Yet opponents of the consolidation plan say it is blatant gerrymandering, and the worst instance of it they’ve seen in the Texas judiciary.

Elsa Alcala, a former justice on the First Court of Appeals in Houston and Texas’ Court of Criminal Appeals, took to Twitter to call out the plan, writing “This has nothing to do with justice and everything to do with electing Republicans to the bench.”

Since the 2018 general election, a wave of Democratic justices have ousted Republican from Texas appellate benches in record numbers, largely concentrated in urban population centers.

Alcala told Law360 that in the past the Legislature has changed jurisdictions one county at a time, but lawmakers have never proposed completely eradicating certain appellate courts like the proposed committee substitute bill does.

“This is the most significant and blatant change I’ve ever seen,” she said.

S.B. 11 originally called for a realignment of five counties that are currently under the jurisdiction of two appellate courts outside of the Houston district to eliminate overlapping jurisdiction between multiple courts.

Details for the new bill were leaked and spread on social media Tuesday, but the bill’s text [hadn’t] yet been made public. Law360 has reviewed a map detailing the new appellate districts as well as a bill summary and a table explaining how the 80 Texas justices would be distributed among the new districts.

According to the bill summary, consolidating the appellate districts would balance a “highly unbalanced” workload across the courts, an issue the Texas judiciary has dealt with for years through a docket equalization program that transfers cases when needed. The summary cites workload data showing that, between 2015 and 2019, the Eighth Court of Appeals in El Paso received an average of 79 appeals per justice compared to 158 appeals per justice in the Third Court of Appeals in Austin.

[…]

During her time on the First Court of Appeals, which has nine justices, Alcala said she would frequently review opinions handed down by her colleagues to make sure she didn’t have any qualms about their rulings. But on a court with 21 justices, it would be impossible to review all those decisions, she said.

Lawyers are also concerned that larger benches could cause issues at the ballot box.

Alcala said there’s already an issue with the public being able to make informed choices during elections about the various judges on the ballot. Expanding the court’s jurisdictions would mean more judges for the public to inform themselves about before voting.

Brister acknowledged that under the committee’s substitute, voting would look different. He would be concerned if he were a judge in Texarkana on the state’s eastern border with Arkansas, for example, because under the new district alignment, there’s a good chance voters from the more populous Fort Worth would control outcomes in the district and knock some small-town judges off the bench.

Christopher Kratovil, managing partner of Dykema Gossett PLLC’s Dallas office, told Law360 he can see both sides of the consolidation argument but believes the committee’s substitute isn’t the proper way to redistrict the state.

“I do think there are some good-faith efficiency arguments for reducing the number of intermediate appellate courts in the state,” he said. “That said, this is not based on efficiency. If we’re being honest about this, it is a partisan gerrymandered map to return control of the majority of the state intermediate appellate courts to the Republican party.”

Other attorneys, like solo appellate practitioner Chad Ruback, are upset that information about the committee substitute bill hasn’t been released ahead of Thursday’s public hearing. The original version of S.B. 11 is currently attached to agenda materials for the meeting.

“That doesn’t give the appellate judiciary — or appellate lawyers who regularly practice in front of them — much time to analyze the potential ramifications of the proposed changes in advance of the hearing,” he said. “That looks awfully suspicious.”

See here for the background. Not being transparent about the process or giving anyone the time to review the bill in question is on brand for the Republicans. To give you a sense of what this looks like, here’s a picture from the story:

This Twitter thread from Dylan Drummond gives you the data:

Maybe the new Fifth Circuit, with Dallas and Travis Counties, or the Third, with Bexar County and South Texas, would lean Democratic. I’d have to do a more in depth analysis. Katie Buehler, the reporter of the story linked above, attended the hearing and reported that Sen. Nathan Johnson said it would be a 5-2 split. Whatever the case, I guarantee you that someone with strong Republican credentials has already done such an analysis, and these districts are drawn in a maximally beneficial way for Republicans. What would even be the point from their perspective if that wasn’t the case?

You’ve read many bloviations from me over the years about why calls to change the way we select judges from the current system of partisan elections to something else were mostly a smokescreen to disguise complaints about the fact that Democrats were now winning many of those elections. It has never escaped my notice that we only began seeing those calls for change after the 2008 election, when Dems broke through in Harris County, and it moved to DefCon 1 following the 2018 election. If nothing else, I thank Sen. Joan Huffman for putting the lie to the idea that the motivating factor behind those calls for change was a fairer or more equitable or more merit-based system for picking judges, or that “taking politics out of the system” had anything to do with it. No, it is exactly what I thought it was from the beginning, a means to ensure that as many judges are Republican as possible. There may well be legitimate merits to rethinking the appellate court system in Texas – I’m not an appellate lawyer, I have no idea – but it’s crystal clear that this ain’t it. This is a full employment program for Republicans who want to be judges. That’s what we’ll get if this bill passes.

Which it has now done from the Senate committee, on a partisan 3-2 vote. For a report from the committee hearing, where multiple appellate court justices from both parties testified against SB11, see Law360 and The Texas Lawbook. This is easily the biggest redistricting matter going on right now it’s getting very little attention so far. (The DMN has a story, but it’s subscriber-only, which limits the impact.) Let’s not let this slip through without being noticed.

UPDATE: The Chron now has a story as well, and it contains this knee-slapper:

Sen. Nathan Johnson, D-Dallas, also an attorney, asked Huffman if she took partisanship into consideration when making the maps.

“Some people think this is going to result in five Republican courts and two Democratic courts,” Johnson said. “Do you think that would accurately represent the partisan breakdown of this state?”

Huffman said she did not consider political makeup in drawing the maps and didn’t know how her plan might alter that.

Yeah, that’s obvious bullshit. Anyone with a list of counties per appellate district and access to recent state election results could tell you in five minutes what the likely orientation of each district would look like. Joan Huffman isn’t stupid, but if that’s what she claims then she thinks the rest of us are.

One more thing:

Another bill introduced by Huffman would create a statewide Court of Appeals that would have exclusive jurisdiction over civil cases of statewide significance filed by or against state agencies or officials. The justices on the court, seated in Austin, would be elected on a statewide ballot. No Democrat has won statewide office since 1994.

That bill was met with similar opposition and accusations of partisan motivation. It, too, was referred to the full Senate on a 3-2 party line vote.

This appears to be SB1529, and I heard about it yesterday for the first time. I have no idea what problem (real, imagined, or political) this is intended to solve. Any thoughts from the lawyers out there?

MLB pulls 2021 All Star Game out of Georgia

Well, well, well.

Major League Baseball on Friday pulled this year’s All-Star Game out of Atlanta in protest of Georgia’s new restrictive voting law.

The “Midsummer Classic” was set for July 13 at Truist Park, home of the Atlanta Braves, in addition to other activities connected to the game, such as the annual MLB Draft.

“I have decided that the best way to demonstrate our values as a sport is by relocating this year’s All-Star Game and MLB Draft,” Commissioner Robert D. Manfred Jr. said in a statement. “Major League Baseball fundamentally supports voting rights for all Americans and opposes restrictions to the ballot box.”

[…]

While Truist Park is in Cobb County, just outside of Atlanta, Mayor Keisha Lance Bottoms warned her constituents that MLB’s move will likely be the first “of many dominoes to fall, until the unnecessary barriers put in place to restrict access to the ballot box are removed.”

“Just as elections have consequences, so do the actions of those who are elected,” she said in a statement.

U.S. Sen. Marco Rubio, a Republican from neighboring Florida, blasted MLB for caving to public pressure.

“Why are we still listening to these woke corporate hypocrites on taxes regulations & anti-trust?” Rubio tweeted.

This week, President Joe Biden said he would strongly support moving the All-Star Game out of Georgia to protest the new law.

MLB’s action follows strong statements from the Georgia-based companies Coca-Cola and Delta Airlines blasting the state’s law.

Stacey Abrams, the former Georgia House of Representatives minority leader, said in a statement Friday that she’s “disappointed” that MLB officials took the All-Star Game from Atlanta but is “proud of their stance on voting rights.”

Georgia Republicans “traded economic opportunity for suppression,” said Abrams, who is credited with voter-drive efforts that delivered the Peach State to Biden and two Democrats to the U.S. Senate.

MLB has not determined a new All Star Game location yet, but as the story notes the 2020 game was supposed to be in LA but was canceled due to COVID-19. That’s an obvious solution if they want it. You can see a copy of the full MLB statement here. They’re basically following in the footsteps of the NBA, which you may recall pulled their 2017 All Star Game out of Charlotte following the passage of the extremely anti-trans HB2 in North Carolina; that law was later amended, though not repealed. Stacey Abrams has said elsewhere that she does not advocate for boycotts of Georgia in response to their voter suppression bill because the effects of such boycotts tend to hit lower income folks and people of color harder, but it’s still meaningful to see a response.

Meanwhile, in Texas.

Some of the state’s most influential companies are criticizing a package of proposed changes to Texas elections that civil rights groups liken to Jim Crow laws and that will suppress voting.

The bill approved by the Texas Senate on Thursday would limit early voting hours, prohibit drive-thru voting and ban local election officials from sending vote-by-mail applications to voters unless specifically requested. A bill that combines the Senate and House versions is expected to reach Gov. Greg Abbott’s desk within weeks.

Among the Texas-based companies decrying the bill are American Airlines, computer-maker Dell and Waste Management.

The Houston-based waste disposal company said in a statement that it supports elections that are open to all voters.

“Integrity and equal access for all are critical to a healthy voting system and our democracy,” spokeswoman Janette Micelli said.

The Greater Houston Partnership, the Houston region’s chamber of commerce, said in an email that it believes that the state’s voting process should instill confidence in the process and be “open and readily accessible by all.”

“We encourage our elected leaders, on both sides of the political aisle, to balance these two ideals, strengthening all Texans’ right to vote in free and fair elections,” the GHP said.

AA and Dell we knew about, while Waste Management is new to the party – welcome, y’all. As for the GHP, that statement is pretty damn limp, and SB7 author Bryan Hughes is quoted in the story claiming this is exactly what his trash bill is meant to do. Don’t be mealy-mouthed, GHP. Take an actual stand or sit down and be quiet. Daily Kos, which notes that Southwest Airlines and AT&T have “offered vaguer statements in support of voting rights” without mentioning SB7, has more.

The infrastructure bill and the power grid

Of interest.

President Joe Biden’s $2 trillion infrastructure plan could help rebuild Texas highways and ports and push broadband into rural parts of the state, where up to 31 percent of residents do not have access to high-speed internet.

It could help Texas weatherize the grid in a way that wouldn’t stick consumers with the bill as well as guard the Gulf Coast against hurricanes and address racial disparities that have made Latino and Black communities particularly vulnerable to natural disasters.

The infrastructure pitch is the president’s latest attempt to offer up money for things Republican leaders in Texas have been looking for funds to cover, as well as some that state lawmakers have been reluctant to take on.

But the president’s latest proposal also comes with a heavy emphasis on clean energy that some Texas Republicans have framed as an attack on the state’s oil industry, and Biden is calling for corporate tax increases to foot the bill.

[…]

Though Biden outlined the package in Pittsburgh on Wednesday, the pitch may as well have been aimed at Texas.

“As we saw in Texas and elsewhere, our electrical power grids are vulnerable to storms, catastrophic failures and security lapses to tragic results,” Biden said, pledging to “put hundreds of thousands of people to work” rebuilding a “modern, resilient and fully clean grid” and capping hundreds of thousands of dry oil and gas wells, many in Texas.

[…]

The infrastructure bill could also help pick up the tab — if not cover completely — the cost of weatherizing Texas’ power grid, which state lawmakers are so far requiring the industry to cover. Consumer advocates have warned those costs would then be passed down to consumers.

So far the White House has not detailed specific projects, but the plan calls for $100 billion to be spent on energy projects, including upgrades to electrical grids. [Michael Webber, an energy resources professor at the University of Texas at Austin] said given that Texas accounts for about 8 percent of the U.S. population and 10 percent of the GDP, a proportionate slice of that $100 billion would cover the estimated $8 to $10 billion price of weatherizing the grid.

But the president’s push for green energy in the infrastructure package already has state leaders pushing back.

The Texas Legislature is working to counteract tax credits for clean energy Biden would extend as his proposal aims for 100 percent carbon-free electricity by 2035. The state Senate passed a bill this week adding fees on solar and wind electricity production in the state in hopes of boosting fossil fuels.

More far-reaching proposals for clean energy in the plan could have major implications for the Texas oil and gas industry. Republicans are calling it Biden’s latest attack on fossil fuels after moves to end the Keystone XL pipeline and pause drilling on federal lands.

As Biden is calling for pouring $174 billion to juice the electric vehicle market and another $213 billion to retrofit 2 million homes and businesses to increase energy efficiency, he is also proposing spending $16 billion plugging oil wells — an endeavor Webber said could be a multi-billion dollar industry in Texas offering plenty of jobs to oil workers worried about Biden’s clean energy bent.

“This is a multi-hundred million to multi-billion dollar economic opportunity,” he said. “If you’re looking to be angry, you could be angry about what this might do to oil and gas — but I would say actually it’s a pretty good opportunity.”

As a reminder, right now this is the Infrastructure Plan That Is Not Yet A Bill, though the House is now working on what it will look like as legislation. The Texas Senate has passed its bill to overhaul the electricity market, which has some good things in it as well as that dumb and petty attack on renewable energy, which last I checked was still big business in Texas. The fact that Biden’s plan includes ending tax subsidies to fossil fuel companies will I’m sure have heads exploding all over the state. I have to assume that federal funds to cover the cost of weatherizing the grid would be scooped up and used, though never acknowledged and certainly not voted for by Republicans.

It’s hard to know how any of this will play out, given that we don’t have a piece of legislation yet, and we very much have to take into account the whole filibuster obstacle in the Senate. I have read elsewhere that the legislative calendar is such that this would all need to be done by late summer, so to say the least it’s a race. As a reminder, if you want to know more about the plan, see Slate and the Trib.

Space City Safe

I wholeheartedly endorse this.

A new crowdsourced website that allows Houstonians to vet a business or restaurant to see if they are following COVID-19 guidelines has exploded with responses.

The website, Space City Safe, is the brainchild of 25-year-old Heights resident Chris Haseler. Haseler, who works as an engineer, created the website the weekend after Texas Gov. Greg Abbott lifted the statewide mask mandate and opened Texas back up 100%.

“I think a lot of Houston was caught off guard by the governor’s announcement,” Haseler said. “A lot of people don’t feel safe quite yet.”

Haseler’s website allows users to input information about a Houston business or restaurant, including if they are requiring masks, social distancing and their capacity level. It also lets users leave comments about their experiences, link to where they got their information (such as a restaurant’s Instagram page), and make corrections.

“One of the integral parts of the website is being able to specify the information source, it sort of adds a level of accuracy,” Haseler said. “So you’ll notice for a lot of the website, it’s the business owner themselves who have put up their COVID restrictions.”

The site has grown to house just over 600 businesses. The boom in responses is not something Haseler expected – he created the website as a challenge for himself, “just for fun to learn about something new.”

“I certainly was not expecting this to take off at all,” Haseler said. “The fact that it has garnered so much attention and so many users has been a surprise and a lot of fun to deal with.”

Hey, if it’s up to businesses to decide how they want to handle it, then it’s up to the rest of us to decide what kind of response from businesses we want to support. I’d much rather know this ahead of time. The one piece of data on the site that I’d have included is whether there’s an outdoor option, but this is fine. I applaud the effort. If you don’t see your favorite place there, you can send its info to Space City Safe yourself. At some point we’ll need websites like this less, but we’re not at that point just yet. In the meantime, keep yourself informed so you can keep yourself safe.