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November 2nd, 2021:

Hispanic Policy Foundation poll: Abbott 44, Beto 43

At long last, some new polling data, and this one is eye-catching.

A year before they could meet in a showdown for the state’s top office, Gov. Greg Abbott and expected Democratic challenger Beto O’Rourke are virtually tied, according to new polling from the Texas Hispanic Policy Foundation (TxHPF).

The poll shows Republican Abbott leading O’Rourke, 44% to 43% among voters who went to the polls in 2020, with the rest of respondents unsure or supporting minor-party candidates. The race is virtually unchanged if actor Matthew McConaughey, whose name has come up in gubernatorial-race speculation, appears on the ballot as an Independent candidate.

Among all registered voters, Abbott is the choice of 43% and O’Rourke of 42%, with 12% unsure of whom they would vote for and 3% choosing minor party candidates. The results remain nearly identical if the population is restricted to 2020 presidential election voters, with Abbott preferred by 44% and O’Rourke by 43%, with 10% unsure and 3% supporting minor party candidates.

O’Rourke, a former Congressman from El Paso who previously ran for president and for a seat in the U.S. Senate, has not formally announced his candidacy for governor but is widely expected to run.

The poll found that 49% of Hispanic respondents favor O’Rourke and 31% favor Abbott. Hispanics who are evangelical Protestants are more likely to vote for Abbott (42%) than O’Rourke (37%), while Catholic Hispanics and non-religious Hispanics overwhelmingly favor O’Rourke (56% and 46%) over Abbott (29% and 28%).

Before taking on the Democratic nominee, Abbott must make it through a competitive Republican primary. The new polling shows the two-term governor with an overwhelming lead in the GOP race: Abbott is ahead of his next-closest rival, former state Republican Party Chairman Allen West, by 51 percentage points, with 64% of the most likely GOP primary voters intending to vote for Abbott compared to 13% for West.

“Governor Abbott has shored up his right flank and stands firmly on solid ground with Republican primary voters,” said Jason Villalba, Chairman and CEO of the TxHPF. “But based on our data, it appears that he has achieved this objective by cutting deeply into his support with Texans who vote in the general election. Much can happen over the course of the year, but these numbers show that not only can we expect a competitive general election, but that Abbott’s shift to the hard right may have imperiled his governorship.”

[…]

The TxHPF has previously established its credibility in measuring public opinion in Texas. In August 2020, the TxHPF was the first major research organization to forecast that then-President Donald Trump was running relatively well among Texas Hispanics. Those survey results proved to be strikingly accurate on Election Night 2020, when Trump performed stronger than previous Republican candidates in heavily Hispanic regions of the state.

For the survey 1,402 respondents were interviewed online between October 14 and 27, with a margin of error of +/- 2.6%.

The data they provide can be found here – it doesn’t provide the individual questions or the totals for each, so make of it what you will. The topline numbers are the Abbott/Beto number, which has Abbott up 44-43, and a three-way race that includes Matthew McConaughey as an independent, which goes 40/37/9, a much less sexy result that those idiot polls that had Abbott versus McConaughey straight up without ever acknowledging that the only way that could happen is if our boy ran in and won the Democratic primary first.

As far as I can tell, the last straight up horse-race poll result we have is from September, in which Abbott led 42-37. Both that one and the other most recent result, from July, which had Abbott leading Beto 45-33, are from the DMN/UT-Tyler series that included those dumb Abbott/McC matchups. Since then what we’ve had is multiple polls that have highlighted Abbott’s declining approval rating, but basically no other election polls. I have to assume that Beto will indeed make official his candidacy, at which point I suspect we’ll get all the polling we can handle.

The one thing this poll doesn’t have that I would have liked to have seen was an approval rating for President Biden, which has also tanked since late spring, matching the national trend. This poll does a very nice job of taking a closer look at Latino response to Abbott and Beto, and boy would it have been cool to see those same questions about Biden and maybe even that other guy, to perhaps provide some extra context about the last election and what we might see this time around. Alas.

They also polled the primaries, with Abbott well in the lead and Ken Paxton just above fifty percent, thanks mostly I’d say to none of the other candidates being remotely well known to the voters. Same for the Ag Commissioner race, and the Dem primaries for Lite Guv and Attorney General, which is now out of date anyway. Primary polling is a lot harder to do, and the fact that many candidates aren’t well known doesn’t help. I’d say Abbott is in good shape to win without a runoff, Paxton may be able to avoid a runoff, and the rest isn’t worth worrying about.

As always, this is one poll, so don’t put too much weight on it. I do think we’ll start to see more results, and once that happens I’ll add a new widget on the sidebar to track them all. That has sure come in handy for me when I’ve had to trawl through the archives here to provide comparisons to past numbers. Let’s get this thing on the road already. The Texas Signal and the Chron have more.

SB8’s day before SCOTUS

The good guys appear to have the upper hand in this case. It seems unlikely that will last for very long, however.

The U.S. Supreme Court on Monday grilled attorneys for abortion providers, the federal government and Texas over the state’s near-total abortion ban — and possibly hinted at support for allowing at least one legal challenge to the law to stand.

The majority of justices pushed back on the enforcement mechanism that has allowed the law to skirt judicial review so far but seemed skeptical of the federal government’s claims that it had a right to sue the state over the law.

The Supreme Court heard hearings over Texas’ abortion law, also known as Senate Bill 8, as part of two lawsuits — one lodged by abortion providers and the other by the U.S. Department of Justice. Both focused on procedural technicalities surrounding the law and the suits challenging it, not on abortion rights nor the constitutionality of the law itself.

Those questions centered on whether Texas’ enforcement strategy for the law is allowable — which empowers private citizens to sue those who perform or help someone get an abortion disallowed by the law — and whether the United States has the right to sue Texas over the statute.

Notably, conservative Justices Amy Coney Barrett and Brett Kavanaugh seemed to push back on Texas’ unique enforcement mechanism. Their line of questioning and comments suggested they might side with abortion providers in condemning the “loophole” that the law exploits to thwart judicial review. Kavanaugh and Barrett, along with three other conservative justices, voted against temporarily blocking the law on Sept. 1, when the law took effect.

Texas’ law, which blocks abortions at about six weeks into a pregnancy, skirts constitutional precedent by forbidding state officials from enforcing it and instead relying on private citizens to sue those in violation. Typically, in suits aiming to overturn laws considered unconstitutional, courts don’t block the laws themselves — they block their enforcement. This is the reason opponents have struggled to name the right defendants to block the law.

Much of the discussion Monday centered around how that enforcement mechanism could be replicated to cast a chilling effect other rights protected by the Constitution: not just abortion rights, but also gun ownership, freedom of the press and same-sex marriage.

See here for the details about what was to be argued in the case. The 19th goes into more depth about how Monday’s hearing went.

The significance of SB 8’s unusual structure and what that might mean for constitutional rights more broadly was a key focus. It is a point newly confirmed Solicitor General Elizabeth Prelogar honed in on during the second argument of the day.

“If the state can just take this simple mechanism of taking its enforcement authority and giving it to the general public, backed up with a bounty of $10,000 or $1 million, if they can do that, then no constitutional right is safe,” Prelogar argued. “No constitutional decision from this court is safe. That would be an intolerable state of affairs and it cannot be the law. Our constitutional guarantees cannot be that fragile, and the supremacy of federal law cannot be that easily subject to manipulation.”

Three of the court’s conservative justices — Chief Justice John Roberts, Justice Brett Kavanaugh and Justice Amy Coney Barrett — indicated openness to the arguments made by Texas’ abortion providers, noting in particular that the law turns state officials into enforcement agents. Both Barrett and Kavanaugh previously voted the opposite way, joining the court’s conservative wing in a September 2 decision allowing SB 8 to take effect.

Barrett asked leading questions about the clinics’ inability to obtain constitutional relief in state court under SB 8, which reveals she might vote in the providers’ favor, said Joanna Grossman, a professor at Southern Methodist University’s Dedman School of Law.

Kavanaugh had already been deemed a likely swing vote. Kavanaugh showed particular skepticism of Texas’ argument and questioned whether the law could be used as a blueprint for other issues beyond abortion, such as restricting gun rights.

Those questions spoke to a deeper issue: Allowing the Texas law to stay in effect could weaken not only the federal government, but the Supreme Court’s overarching authority, by giving states a blueprint for writing laws that violate court precedent but circumvent judicial review.

That appears to be a powerful motivator, suggested Leah Litman, a constitutional law expert at the University of Michigan.

“The court is likely to protect its institutional authority, and that desire will probably unify and unite Democratic appointees and Republican appointees,” she said.

Focusing on the Whole Woman’s Health lawsuit could also allow the court to avoid some of the thornier constitutional questions raised in the U.S. government’s case, she added.

“The U.S. v Texas lawsuit might be — by asking what is the injury to the U.S. — that may be seen as teeing up bigger questions they don’t want to address,” [Melissa Murray, a reproductive law expert at New York University] said. “There may be more appetite for the provider suit.”

As both The 19th and Slate point out, whatever SCOTUS does here, they can clear a path for Texas to more cleanly ban abortion in the coming months.

In exactly one month, the justices will hear a more important case, Dobbs v. Jackson Women’s Health Organization, that gives them an opportunity to overrule Roe v. Wade. And if Roe goes, Texas will simply ban abortion outright, obviating the need for the convulated workaround at the center of today’s oral arguments. For the three justices who are torn over S.B. 8, the solution may be simple: Affirm the federal judiciary’s supremacy over states that undermine their authority, then hand those states the power to ban abortion whenever, wherever, and however they please.

[…]

Previously, the big stumbling block for the conservative justices was the question of who to sue; in their shadow docket decision, the justices sounded uncertain about whether abortion providers can sue state judges and clerks to halt S.B. 8 in its tracks. Under a doctrine known as Ex parte Young, plaintiffs can sue government officials tasked with enforcing a law, though it’s unclear whether judges qualify. On Monday, Kavanaugh seemed to propose a compromise: close the “loophole” that Texas has “exploited” by allowing providers to sue clerks but not judges. The case would then go back down to the district court, who could bar Texas clerks from docketing S.B. 8 cases, thereby defanging the law. As a result, the Justice Department’s lawsuit would become irrelevant, because abortion providers could protect their own interests in federal court.

The best part of this compromise, to the conservatives, is that it could become irrelevant to abortion within months. On Dec. 1, the court will hear arguments in Dobbs, which asks them to overrule Roe v. Wade. If the majority accepts this invitation, Texas won’t need to worry about S.B. 8 anymore; it has already passed a “trigger law” that will automatically ban abortion if Roe falls. At the same time, blue states will not be able to deploy S.B. 8–style schemes against disfavored rights like the Second Amendment. We may remember S.B. 8 not as the start of a new era in state supremacy over constitutional rights, but as a last gasp of defiance before the Supreme Court plunged us into a post-Roe world.

So yeah, keep the bigger picture in mind. Reform Austin, Daily Kos, TPM, and the Chron have more.

Trump Train lawsuit update

San Marcos Police Department, wyd?

As supporters of then-President Donald Trump surrounded and harassed a Joe Biden campaign bus on a Central Texas highway last year, San Marcos police officials and 911 dispatchers fielded multiple requests for assistance from Democratic campaigners and bus passengers who said they feared for their safety from a pack of motorists, known as a “Trump Train,” allegedly driving in dangerously aggressive ways.

“San Marcos refused to help,” an amended federal lawsuit over the 2020 freeway skirmish claims.

Transcribed 911 audio recordings and documents that reveal behind-the-scenes communications among law enforcement and dispatchers were included in the amended lawsuit, filed late Friday.

The transcribed recordings were filed in an attempt to show that San Marcos law enforcement leaders chose not to provide the bus with a police escort multiple times, even though police departments in other nearby cities did. In one transcribed recording, Matthew Daenzer, a San Marcos police corporal on duty the day of the incident, refused to provide an escort when recommended by another jurisdiction.

“No, we’re not going to do it,” Daenzer told a 911 dispatcher, according to the amended filing. “We will ‘close patrol’ that, but we’re not going to escort a bus.”

The amended filing also states that in those audio recordings, law enforcement officers “privately laughed” and “joked about the victims and their distress.”

Former state Sen. Wendy Davis, who was running for Congress at the time, is among the four plaintiffs in the lawsuit. The new complaint also expands the number of people and entities being sued to include Daenzer, San Marcos assistant police chief Brandon Winkenwerder and the city itself.

See here for the background. The whole story is infuriating, ridiculous, and scary – I mean, it’s political violence that at least one law enforcement agency chose to just shrug off. It’s the sort of thing that Republicans spent the 80s warning us was happening in countries that the Soviet Union was trying to influence. There’s been very little accountability of any kind for this type of activity, and maybe the civil courts aren’t the best venue for exacting any, but it’s what we’ve got right now. I sure hope the plaintiffs can make it happen.

NAACP tells athletes to steer clear of Texas

At least someone is willing to take a stand.

The NAACP is urging professional athletes who are free agents to boycott Texas over recent restrictive voting and abortion laws as well as policies stopping local governments from enacting coronavirus containment measures, all of which the civil rights organization says “isn’t safe for anyone.”

“From abortion to voting rights and mask mandates, Texas has become a blueprint by legislators to violate constitutional rights for all, especially for women, children and marginalized communities,” wrote NAACP President and CEO Derrick Johnson in a letter to all major players’ associations.

The letter specifically called out the GOP elections bill that Gov. Greg Abbott signed last month; the virtual ban on abortions Abbott signed in May that’s being challenged at the U.S. Supreme Court; and Abbott’s executive orders blocking school districts from enforcing mask mandates.

“Texas lawmakers have destroyed the state’s moral compass by passing these laws. In return, we are asking that you seek employment with sports teams located in states that will protect, honor and serve your families with integrity,” Johnson wrote in the letter to the NFL, NBA, WNBA, MLB and NHL Players’ Associations.

You can see the letter here. On the one hand, we’re going to need as many people who oppose these things as we can get if we want to be able to vote these bastards out, and anyone who might heed this warning would presumably be on our side for that. On the other hand, people have to do what’s best for themselves and their families. I can’t blame anyone for not wanting to have to deal with this crap when they have other, better choices available to them. So thank you to the NAACP for calling attention to these issues. I’m still waiting for the NCAA to do its part.

Election Day 2021

You know what to do.

Find a voting location in Harris County near you here. You can vote at any location. If you prefer a list, here you go. I suspect that if you’re reading this, you’ve probably already voted or have a plan to do so today, but you never know. I’ll post results tomorrow.