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September 20th, 2021:

Interview with Elizabeth Santos

Elizabeth Santos

This week we will meet the three candidates in HISD District I, which happens to be my district. Elizabeth Santos is the incumbent, having been elected in 2017 after Anna Eastman decided to not run again. Santos is a lifelong resident in the district, and spent ten years teaching in HISD, at Sam Houston and Northside, while getting a BA in English Literature from UH-Downtown. You can listen to the interview I did with her in 2017 here – it was one of the first I did following Hurricane Harvey, which as you can imagine had an effect on the questions I was asking. A lot has happened since then, and you can hear about some of those things in this interview:

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Sue Deigaard, District V
Anne Sung, District VII

Signs pointing to Beto running for Governor

Oh, God, yes.

Beto O’Rourke

Former Rep. Beto O’Rourke is preparing to run for governor of Texas in 2022, with an announcement expected later this year, Texas political operatives tell Axios.

Why it matters: O’Rourke’s entry would give Democrats a high-profile candidate with a national fundraising network to challenge Republican Gov. Greg Abbott — and give O’Rourke, a former three-term congressman from El Paso and 2020 presidential candidate and voting rights activist, a path to a political comeback.

  • But he would be running in a complicated political environment. Immigration is surging at the southern border and Democrats at the national level are bracing for a brutal midterm election and potentially losing the House of Representatives in 2022.
  • new poll for the Dallas Morning News shows that O’Rourke has narrowed the gap with Abbott in a hypothetical matchup, down, 37%-42%. In July, O’Rourke faced a 12-point deficit, 33%-45%.
  • Over the summer, Abbot has seen his approval rating sink to 41%, with 50% disapproving, in a separate poll.

Driving the news: O’Rourke has been calling political allies to solicit their advice, leaving them with the impression that he’s made his decision to run in the country’s second-largest state.

  • “No decision has been made,” said David Wysong, O’Rourke’s former House chief of staff and a longtime adviser. “He has been making and receiving calls with people from all over the state.”

I’ve been assuming that Beto would be running for Governor for some time now, so this is more of a relief and a “finally!” than anything else. That said, the lack of any deep-background, “sources say” stories of the “he’s thinking about it/he’s inching closer to it” variety were beginning to worry me. I suppose this could still end up not happening, but really, outlets like Axios don’t run this kind of story for things that wind up not happening. I feel pretty confident at this point.

So we move forward from here, which means “start the fundraising engines” and recruit the back end of the ticket. The narrative piece is in place, the rest is execution. I’m ready.

“Heartbeat” lawsuit bait

Something like this was going to happen sooner or later.

A Texas doctor stepped forward Saturday to say he had performed an abortion that is illegal under the state’s restrictive new law to force a test of its legality.

“I understand that by providing an abortion beyond the new legal limit, I am taking a personal risk, but it’s something I believe in strongly,” Alan Braid, a San Antonio OB/GYN, said in an op-ed in The Washington Post. “I have daughters, granddaughters and nieces. I believe abortion is an essential part of health care. . . . I can’t just sit back and watch us return to 1972.”

Braid said he performed a first-trimester abortion on Sept. 6, just a few days after the law known as Senate Bill 8 went into effect in Texas, making nearly all abortions illegal after a woman is about six weeks pregnant ­— with no exceptions for incest or rape. The doctor said he acted because he had “a duty of care to this patient, as I do for all patients.”

[…]

John Seago, legislative director for Texas Right to Life said that group “is exploring all of our options to hold anyone accountable who breaks the (Texas) law.”

“This is obviously a stunt to move forward with other legal attacks on the law,” he said of Braid’s column. “This was always something that we expected — that someone would essentially try to bait a lawsuit. So we’re just moving into the next phase of Senate Bill 8 right now.”

But the leader of another Texas-based anti-abortion-rights group, said it has no plans to sue Braid at this time.

Braid “is willfully conducting illegal abortions right now,” said Chelsey Youman, national director of public policy for Human Coalition, which operates crisis pregnancy centers across the country. “He knows he’s currently incurring liability and he may face repercussions for that . . . but for the most part that’s a choice the larger abortion clinics have not made. They’re saying they’re going to comply. We should celebrate that lives are being saved in the interim.”

Abortion rights advocates, meanwhile, praised Braid for stepping forward.

“The situation has become untenable,” said Kristin Ford, acting vice president of communications for NARAL Pro-Choice America, an abortion rights advocacy group. “Roe v. Wade has been rendered meaningless in the second biggest state in the country, and we can’t continue in that limbo,” she said.

The op-ed is here, if you have access to it. This was in fact the scenario that was predicted after SB8 was passed, that to gain a legal foothold in court a provider would need to be sued to effectively challenge the law in court. It’s a common path for such action – the groundbreaking Lawrence v Texas case began as an arrest and conviction for sodomy, which was then appealed until SOCUTS invalidated Texas’ law banning gay sex. There are other paths being taken now, from the state lawsuits that have gained injunctions on behalf of specific plaintiffs and against particular groups to the initial federal lawsuit that named defendants other than Greg Abbott and Ken Paxton – you know, the one that the Fifth Circuit stopped before it could get a hearing and which SCOTUS punted on – and the lawsuit filed by the Justice Department that names the state of Texas as defendant. The first as noted is limited in scope while the other two have yet to be tested in court.

Any or all of these could work, or not. We don’t know yet, and the two federal cases are novel in their own way. The point is that this was the path that legal experts were able to visualize from the beginning. It too may not work – SCOTUS is still SCOTUS, after all – but no one would question the ability of the provider who was targeted by the action authorized by SB8 to fight it by challenging the legality and/or constitutionality of the law.

And here in this story, we see the limit of this approach, which is that it required someone to sue the doctor (or other “abetter”) in order to get it into court in the first place. The thing is, the pro-forced-birth advocates who pushed SB8 don’t need to sue Dr. Braid. Strategically, they don’t really care if there are individual doctors who do one-off abortions. That’s a small piece of the pie. Their goal was to shut off abortion access at the big clinics, the Planned Parenthoods and Whole Women’s Health and so on. And they’ve succeeded! The number of abortions being performed in Texas is near zero. People have already internalized the idea that abortion is functionally illegal, or at least nearly impossible to get, in Texas. Sure, they want that number to be zero, but this was such a huge step in that direction they can afford to coast.

To that extent, filing those $10,000 bounty lawsuit doesn’t serve their purposes at all. They just introduce the risk that SB8 could someday be thrown out, in the same way that the omnibus TRAP law of 2013 (it was HB2 in that session and often referred to as HB2 in stories of the lawsuit against it) was eventually tossed. The thing is, though, that long before HB2 was thrown out, it had caused half of all clinics that offered abortion services to quit doing so, and thus greatly reduce access in the state. They lost their big hammer, but by then they’d pounded in so many nails it hardly mattered.

I hadn’t really thought about it before writing this post, and I haven’t seen anyone else touch on this, but I think this explains the very laid-back reaction that Texas Right to Life has had to the state lawsuit Planned Parenthood filed against them, and why they’re basically shrugging their shoulders here. The status quo at this point suits them just fine. The bounty lawsuits were never the main point of SB8. They were a means to an end, and they have already achieved that end. Why mess with success?

Now, someone who hasn’t gotten this memo could still sue Dr. Braid, and that will kick all the legal machinery that people had expected into gear. Once there is a case for the courts to act on, all of the high-powered lawyers from all of the main players will get involved, and on to SCOTUS we will march. Similarly, if one of the big clinics decides to go back to business as usual, the forced birthers will take action, because they will have to. Until then, they’re happy to wait and see what happens with the existing lawsuits. They’re playing with house money, and they know it. Slate has more.

The electoral dress code lawsuit

Still interesting.

A U.S. magistrate judge this week recommended striking down parts of Texas law that prohibit wearing political apparel within 100 feet of a polling place as unconstitutionally vague — but upholding a narrower provision that specifies that clothing bearing messages related to what’s on the ballot can be banned.

The issue first arose in 2018 when Harris County resident Jillian Ostrewich wore a Houston firefighters T-shirt to a polling place and election workers told her to turn it inside out because it related to Prop B, a pay parity measure for firefighters on that ballot that year. Claiming she was unconstitutionally censored and her right to free speech infringed upon, she sued Harris County and state officials.

The case puts to the test a U.S. Supreme Court ruling from June of that year in which the justices struck down a Minnesota law that banned voters from displaying “issue-oriented” apparel at the polls for being overbroad. The Texas suit was brought by Pacific Legal Foundation, the same California-based libertarian public interest law firm that won the Minnesota case.

[…]

U.S. Magistrate Judge Andrew M. Edison in his report on Tuesday said the election judge had a constitutional basis for rejecting Ostrewich’s shirt because it had a clear relationship to the ballot measure, even if it did not explicitly say to vote for that measure. Under that law, Edison said, Ostrewich had not been harmed and therefore was not entitled to damages.

Other parts of the law, however, which define “electioneering” as advocating “for or against any candidate, measure, or political party” through “posting, use, or distribution of political signs or literature” leaves room for misunderstanding, he said. Ostrewich would have no way of knowing whether wearing that same shirt in a future election, even if the measure weren’t on the ballot then, could also be considered illegal electioneering.

Those parts of the law “do not give Texas voters notice of what is expected of them in the polling place, and they do not provide election judges with objective, workable standards to rein in their discretion,” Edison wrote. “This is impermissible under the First Amendment and these statutory provisions should be struck down as unconstitutional.”

See here for the background. Seems reasonable to me to say that you can be barred from the restricted area for wearing a shirt that directly addresses the current election, but barring a shirt that’s not about that election may be too broad. The plaintiffs are claiming a victory, even though their main actor was denied any relief; I think the defendants can be reasonably satisfied with this as well. This was a recommendation and not a ruling – the parties have two weeks to hammer out an agreement of some kind, which will then need to be approved by the judge. I’ll be honest, I had no idea that was a thing, but here we are. The lawyers out there, what do you think about this?