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ACLU of Texas

Appealing the Crystal Mason illegal voting conviction

This continues to be an appalling travesty.

When Crystal Mason got out of federal prison, she said, she “got out running.”

By Nov. 8, 2016, when she’d been out for months but was still on supervised release, she was working full-time at Santander Bank in downtown Dallas and enrolled in night classes at Ogle Beauty School, trying, she said, to show her children that a “bump in the road doesn’t determine your future.”

On Election Day, there was yet another thing to do: After work, she drove through the rain to her polling place in the southern end of Tarrant County, expecting to vote for the first female president.

When she got there, she was surprised to learn that her name wasn’t on the roll. On the advice of a poll worker, she cast a provisional ballot instead. She didn’t make it to her night class.

A month later, she learned that her ballot had been rejected, and a few months after that, she was arrested. Because she was on supervised release, prosecutors argued, she had knowingly violated a law preventing felons from voting before completing their sentences. Mason insisted she had no idea officials considered her ineligible — and would never have risked her freedom if she had.

For “illegally voting,” she was sentenced to five years in prison. Now, as her lawyers attempt to persuade a Fort Worth appeals court to overturn that sentence, the question is whether she voted at all.

Created in 2002, provisional ballots were intended to serve as an electoral safe harbor, allowing a person to record her vote even amid questions about her eligibility. In 2016, more than 66,000 provisional ballots were cast in Texas, and the vast majority of those were rejected, most of them because they were cast by individuals who weren’t registered to vote, according to data compiled by the U.S. Election Assistance Commission. In Tarrant County, where Mason lives, nearly 4,500 provisional ballots were cast that year, and 3,990 were rejected — but she was the only one who faced criminal prosecution.

In fact, Mason’s lawyer told a three-judge panel in North Texas last Tuesday, hers is the first known instance of an individual facing criminal charges for casting a ballot that ultimately didn’t count.

Her case, now pending before an all-Republican appeals panel, is about not just her freedom, but about the role and risks of the provisional ballot itself.

Prosecutors insist that they are not criminalizing individuals who merely vote by mistake. Despite those assurances, voting rights advocates fear the case could foster enough doubt among low-information voters that they’ll be discouraged from heading to the polls — or even clear a path for prosecutors to criminally pursue other provisional ballot-casters.

“There are a lot of people who have questions about whether they can vote or where they can vote,” said Andre Segura, legal director of the American Civil Liberties Union of Texas. “You want all of those people to feel comfortable going in and submitting a provisional ballot.”

[…]

Tarrant County prosecutors have brushed off concerns the Mason case could lead to voter suppression. “The fact that this case is so unique should emphasize why this case should in no way have a ‘chilling effect’ on anyone except people who knowingly vote illegally,” Jordan said.

But during the 2019 legislative session, some Republican lawmakers pushed to erase Mason’s legal defense for future defendants by making it easier to prosecute people who cast ballots without realizing they’re ineligible.

Currently, to commit a crime, voters must know they are ineligible; under the proposed law, they would commit a crime just by voting while knowing about the circumstances that made them ineligible. In other words, Mason would have been illegally voting because she was aware of her past felony conviction — even if she was not aware her “supervised release” status made her ineligible.

The fact that Mason’s provisional ballot wasn’t actually counted would have also been ruled out as a legal defense under the proposed changes to state law. That legislation ultimately failed in the House amid major opposition from Democrats.

See here for some background. The appellate hearing was last week, and it drew national coverage. There are three legal justifications given by the ACLU on behalf of Crystal Mason why her attempt to vote was not illegal, but even if you think those arguments are insufficient, there’s still no possible justice in a five year prison sentence for this. I mean, there’s plenty of other crimes that are punished far, far less. This is about scaring certain people so they don’t feel confident about voting. This is why reversing the tide of voter suppression laws has to be a priority for the next Democratic Legislature. Further reading about the case from the ACLU is here and here, and the Observer has more.

Galveston ordered to provide counsel at bail hearings

Sure seems like the proper thing to do.

Add Galveston to the list of Texas counties that have been court ordered to change their bail practices.

A federal district judge on Wednesday issued a temporary injunction in a 2018 lawsuit where attorneys for inmates have called Galveston County’s money bail system discriminatory against poor criminal defendants. The court’s order doesn’t target the entire pretrial system — which has largely changed since the suit was filed after federal rulings against Harris County. But it requires poor arrestees to have a lawyer at their first court appearance, where their bail is set to determine the monetary or other conditions under which an arrestee can be released from jail before trial.

The ACLU of Texas, which represents Galveston County inmates in the lawsuit, said in a statement after the order that it was the first court in the country to conclude that the Sixth Amendment, which guarantees a right to counsel, requires defense attorneys to be provided at initial bail-setting hearings.

“It’s a matter of basic fairness that you should get a lawyer before a judge decides whether to lock you in jail,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Unsurprisingly, without lawyers to advocate for their release, many people wind up in jail who shouldn’t be there. And even a short time in jail can have devastating repercussions on someone’s life.”

[…]

Since the lawsuit was filed — and as the two most populous counties in the state were repeatedly slammed by federal judges for their bail practices — Galveston County has transformed its pretrial practices. The district attorney’s office still recommends bail amounts from a schedule, but the judicial officer setting bail now has financial information the defendant provided before the first court appearance. Defendants who want to request a lower bond amount for financial reasons can get a second bail review hearing, typically within 12 hours of their first court appearance, where a defense attorney is present to represent all the defendants before the judge in that time slot.

U.S. District Judge George Hanks Jr.’s injunction, however, said the county needs to have a lawyer not just at the review hearings, but at the initial court appearance. He clarified that the order applies to those arrested without warrants and that are first seen in court through Galveston County jail. Hanks adopted the recommendation of magistrate judge Andrew Edison, who said having a defense attorney at a hearing where the court determines how, if at all, to release a defendant before trial, is “a no-brainer.”

See here and here for the background. A copy of the ruling is here and a copy of the magistrate’s recommendations is here. I have to say, I don’t know what the argument against providing an attorney for defendants at bail hearings is, but we’ll find out if there’s an appeal. The Chron has more.

Anti-Israel boycott law amended

For whatever this is worth.

Gov. Greg Abbott this week signed a bill into law that limits the scope of a controversial anti-Israel boycott law, just weeks after a federal judge temporarily blocked its enforcement in an ongoing First Amendment lawsuit.

The 2017 law — which seeks to combat the Boycotts, Divestments and Sanctions movement, an international protest over Israel’s treatment of Palestinians — prohibits state agencies from investing in and contracting with companies that boycott Israel. It also requires anyone contracting with the state to pledge in writing that it will not boycott Israel.

The changes Abbott signed into law Tuesday make it only applicable to contracts of at least $100,000 with companies with 10 or more full-time employees. Legislators who support the law have said they never intended for it to impact individuals or small businesses.

Texas Attorney General Ken Paxton, who had appealed the preliminary injunction to the U.S. Court of Appeals for the Fifth Circuit, did not waste time in filing a motion to dismiss the federal lawsuit brought by several Texas contractors who claimed it violated their right to free speech.

In the motion filed Wednesday, Paxton argued that “this legislative enactment is exactly the kind of development that the Fifth Circuit has recognized will render a case moot.”

ACLU of Texas spokeswoman Imelda Mejia said the agency, which is representing some of the plaintiffs in the suit, said the agency is “analyzing the new law and its possible implications on our case.”

[…]

Federal judges have struck down laws in Arizona and Kansas and upheld one in Arkansas; all are on appeal but the Kansas law.

There, after the Kansas Legislature made nearly identical changes to those signed by Abbott on Tuesday, the American Civil Liberties Union, lacking an affected plaintiff, agreed to dismiss its lawsuit.

See here for the background. Given that the lawsuit in question involved an individual who would no longer be affected by the law, it probably is the case that a motion to dismiss would succeed. That said – and here I put on my I Am Not A Lawyer hat – I don’t think the change to the law fixes the underlying constitutional problem. We’ll see if the court agrees.

Settlement officially reached in lawsuits over bogus SOS advisory

Great news.

Still the only voter ID anyone should need

Three months after first questioning the citizenship status of almost 100,000 registered voters, the Texas secretary of state has agreed to end a review of the voter rolls for supposed noncitizens that was flawed from the start.

The deal was announced Friday as part of an agreement to settle three legal challenges brought by more than a dozen naturalized citizens and voting rights groups against the state. The groups alleged that the voter citizenship review, which was launched in late January, was unconstitutional and violated federal protections for voters of color.

Secretary of State David Whitley — who has yet to be confirmed by the Texas Senate amid the fallout over the review — agreed to scrap the lists of registered voters his office had sent to county voter registrars for examination. Whitley’s office will instruct local officials to take no further action on the names of people it had classified as “possible non-U.S citizens,” and county officials will be charged with notifying voters who received letters demanding they prove their citizenship that their registrations are safe.

The state is also on the hook for $450,000 in costs and attorney fees for the plaintiffs’ lawyers.

The agreement must still be approved by the federal judge overseeing the case, and the state will have five days after the judge dismisses the plaintiffs’ legal claims to officially rescind the list. But the settlement amounts to a profound defeat for the state leaders who had defended the review even though it had jeopardized the voting rights of tens of thousands of naturalized citizens.

“Today’s agreement accomplishes our office’s goal of maintaining an accurate list of qualified registered voters while eliminating the impact of any list maintenance activity on naturalized U.S. citizens,” Whitley said in a statement Friday. “I will continue to work with all stakeholders in the election community to ensure this process is conducted in a manner that holds my office accountable and protects the voting rights of eligible Texans.”

See here for the background. I thought at the time that this was a resounding defeat for the state of Texas, and I very much still think that. Honestly, I’m stunned that the state gave up like this instead of taking their chances with the ever-pliable Fifth Circuit. Did they think their case was such a loser that even the Fifth Circuit wouldn’t bail them out? It’s mind-boggling. Anyway, here are the statements from the various plaintiffs in the suit, courtesy of the ACLU’s press release:

“After months of litigation, the state has finally agreed to do what we’ve demanded from the start — a complete withdrawal of the flawed and discriminatory voter purge list, bringing this failed experiment in voter suppression to an end,” said Andre Segura, legal director for the ACLU of Texas. “The right to vote is sacrosanct, and no eligible voter should have to worry about losing that right. We are glad that the state has agreed to give up this misguided effort to eliminate people from the voter rolls, and we will continue to monitor any future voter purge attempt by the state to ensure that no eligible Texan loses their voice in our democracy.”

“Three months after the state released a discriminatory and flawed voter purge list, they have finally agreed to completely withdraw the advisory that risked throwing tens of thousands of potentially eligible voters off the rolls,” said Beth Stevens, voting rights legal director with the Texas Civil Rights Project. “State officials have wasted hundreds of thousands of dollars and struck fear and confusion into thousands of voters in order to pursue their voter suppression agenda. We are glad that this particular effort was stopped in its tracks and we will remain vigilant to ensure that not one single voter loses their right to vote due to the actions of state officials.”

“While we are glad to see this program scrapped, it’s important to remember that the state not only began to disenfranchise tens of thousands of eligible voters, but also threatened them with criminal prosecution,” said Brendan Downes, associate counsel with the Lawyers’ Committee for Civil Rights Under Law’s Voting Rights Project. “Naturalized citizens are, by definition, Americans. It’s time for the state to start treating them that way.”

“Secretary Whitley’s agreement to scrap what the court called a ‘ham-handed’ process and implement these common sense changes will go a long way to protecting eligible naturalized citizens from being improperly purged from the rolls,” said Sophia Lakin, staff attorney with the ACLU’s Voting Rights Project. “We will continue to monitor the secretary and counties to protect eligible Texas voters from discriminatory barriers to the ballot box.”

“This settlement acknowledges that naturalized Americans have full and equal voting rights — they cannot be singled out and purged from the rolls due to their status,” said Chiraag Bains, director of legal strategies at Demos. “The settlement is a victory for our clients and all in Texas who were wrongfully deemed ineligible to vote. The secretary’s actions were reckless and misguided, and we hope that other states will take note and avoid similar unlawful actions.”

“The League regrets that it took a lawsuit to remind our state officials that naturalized citizens have a right to vote and to fully participate in our democracy,” said Grace Chimene, president of the League of Women Voters of Texas. “We are hopeful that new procedures will prevent naturalized citizens from being treated as second class citizens. We will continue to work with the secretary of state, as the chief election officer for Texas, to protect all citizens’ right to vote.”

“When the secretary of state tried to discriminate against eligible voters in a dangerous voter purge, we stood up to challenge this egregious act of voter suppression. Today, we won,” said H. Drew Galloway, executive director of MOVE Texas Civic Fund. “Young naturalized citizens no longer have to worry about this reckless voter purge impacting their constitutional right to vote. We will continue to fight for all young voters across the state.”

The whole thing is also visible at the Texas Civil Rights Project webpage. The Secretary of State – who by the way still needs to be someone other than the deeply incompetent David Whitley – will still conduct reviews of voter rolls to look for non-citizens, it will just need to be done under this new framework. The one remaining question is what will happen with the voters whose names were referred to AG Ken Paxton for possible criminal investigation. We’ll just have to see what Paxton does – I can’t imagine him turning down an opportunity to grandstand, but he may be just smart enough to decline to pursue cases that will be tough to win given the questionableness of the evidence. With him, it could go either way. The Chron, the Dallas Observer, and Slate have more.

Injunction granted against Texas anti-Israel boycott law

From the inbox:

A federal court today ruled that a Texas law that requires government contractors to certify that they are not engaged in boycotts of Israel or companies that do business with Israel is unconstitutional. The judge ruled that the law, HB 89, which went into effect in 2017 violates the First Amendment’s protection against government intrusion into political speech and expression.

“Today’s ruling is a victory for the free speech rights of all Texans,” said Tommy Buser-Clancy, staff attorney for the ACLU of Texas, who argued the motion to block the law in court. “The right to boycott is deeply ingrained in American tradition, from our nation’s founding to today. The state cannot dictate the views of its own citizens on the Israel/Palestine conflict – or any issue – by preventing them from exercising their First Amendment right to boycott.”

“We applaud this decision, though nothing about it surprises us; in its decision the court has affirmed its understanding that this law was intended to chill the expression of personal opinion,” stated Terri Burke, executive director of the ACLU of Texas. “By any name, that’s free speech and free speech is the north star of our democracy. It’s foundational, and this decision underlines that no issue of importance can be addressed if the speech about it is stymied, or worse, silenced.”

The ACLU of Texas filed its lawsuit challenging the law on behalf of four Texans who were forced to choose between signing away their right to boycott or forgoing job opportunities and losing income. Those plaintiffs are represented by attorneys from the ACLU of Texas, the ACLU Speech Privacy & Technology Project, and Kevin Dubose of Alexander Dubose Jefferson & Townsend LLP in Houston.

“I’m very happy that the judge has decided to support our right to hold our own political beliefs and express them as we see fit,” said John Pluecker, a plaintiff in the ACLU of Texas lawsuit. “This ruling goes beyond just the plaintiffs – this law needed to be challenged for everyone. People in Texas need to know that our ability to earn our livelihoods won’t be threatened by the state because of our political positions.”

More information on the case is available here: https://www.aclutx.org/en/press-releases/aclu-texas-files-first-amendment-challenge-anti-boycott-law

A copy of today’s decision is available here: https://www.aclutx.org/sites/default/files/4-25-19_bds_order.pdf

The first paragraph in that press release is inaccurate. This was not a final ruling, it was a ruling on a motion for a temporary injunction, as well as a ruling on motions to dismiss by the defendants. The court granted the motion for the injunction and enjoined the state from enforcing HB89, while denying the motions to dismiss. I noted this lawsuit in passing in this post about the Texas-versus-AirBnB matter. This NYT profile of plaintiff Bahia Amawi has some good information if you want more. A law like this just seems unconstitutional on its face – it restricts speech in a clear and direct manner – but as we know by now, the federal courts can be a strange place. Just keep this law in mind the next time you hear Greg Abbott or someone like him prattle on about supposed efforts to curb “free speech” on college campuses. See the Chron and the Trib for more.

LULAC settles its SOS lawsuit

Good news.

Still the only voter ID anyone should need

The state of Texas is ending a program to purge voters it claimed were noncitizens in order to settle lawsuits brought by civil rights groups over the plan.

The deal was reached following a meeting Monday in San Antonio between acting Secretary of State David Whitley and the League of United Latin American Citizens, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other plaintiffs.

The groups brought three separate lawsuits — filed in San Antonio, Corpus Christi and Galveston — alleging the program illegally targeted immigrant voters and resulted in voter intimidation. The suits were consolidated into one in San Antonio with the lead case, which was filed by LULAC and Washington, D.C.-based Campaign Legal Center.

As part of the deal, Whitley and his staff will tell county voter registrars and local election administrators to take no further action on any data files the state had sent them in late January, but may start a new program that won’t demand voters prove their U.S. citizenship.

[…]

As part of the settlement, the state will scrap the data it used for the first program and begin a new one that, “to the best of its ability, assures that all United States citizens not be affected with the undue burden of having to prove their citizenship,” according to LULAC.

The state will also work with LULAC and the other plaintiffs groups on the plan by sharing the methodology and data used.

The process will enable the state to remove voters who shouldn’t be on the rolls, while being the least disruptive to those who are U.S. citizens, LULAC said.

“It’s not going to be perfect, but it’s nowhere near the disaster of the first one,” said Luis Vera, LULAC’s national legal counsel. “It allows us to have some input in the process.”

See here, here, here, and here for the background. As noted, both of the other two lawsuits were joined with this one, so what happens here is going to be the final word. I Am Not A Lawyer, and I was not able to find a copy of the settlement, but this sure looks like a big win for the plaintiffs. Honestly, just the fact that the state is settling and not taking its chances with the Fifth Circuit tells you something. Kudos to the plaintiffs for forcing some accountability into this mess.

UPDATE: It’s not fully done, but it’s close.

A deal was about “99 percent” done Monday, after Secretary of State David Whitley met in San Antonio with members of the League of United Latin American Citizens, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other plaintiffs, said Luis Vera, LULAC’s national legal counsel.

As part of the tentative agreement discussed Monday, the state would scrap the data it used for the first voter purge program and begin a new one that, “to the best of its ability, assures that all United States citizens not be affected with the undue burden of having to prove their citizenship,” according to LULAC.

“It’s not going to be perfect, but it’s nowhere near the disaster of the first one,” Vera said. “It allows us to have some input in the process.”

The parties were to return to the table Tuesday to hammer out additional terms before taking the final deal to a judge for review.

Sam Taylor, communications director for the secretary of state, said that while there is no official settlement yet, progress was made Monday.

“We are encouraged by the positive and constructive progress we have made with the plaintiffs, and we remain committed to our goal of maintaining accurate voter rolls while eliminating the impact of any list maintenance activity on eligible Texas voters,” Taylor said.

Stay tuned.

Judge blocks any voter purges from the SOS advisory

Good. Let’s hope this lasts.

Still the only voter ID anyone should need

In a major victory for voting rights groups, a federal judge has ordered that no Texas county should purge suspected noncitizen voters from the rolls or issue letters demanding that they prove their citizenship “without prior approval of the Court with a conclusive showing that the person is ineligible to vote.”

The Wednesday order from U.S. District Judge Fred Biery comes a month after the Texas secretary of state flagged nearly 100,000 voters for citizenship review — and a flurry of civil rights groups filed three lawsuits to block state and county officials from purging voters based on what has proven a deeply flawed set of data.

Biery ordered that as the litigation continues, counties can “continue to find out if in fact someone is registered who is not a citizen” — some local officials have proposed comparing lists of flagged voters with names of individuals made citizens at recent naturalization ceremonies, for example — but may not communicate directly with any particular individual on the list. Reaching out to a voter to demand proof of citizenship starts the clock on a process that can lead to that voter being purged from the rolls.

[…]

Biery’s order directly addresses the more than a dozen counties that are named defendants in the flurry of lawsuits. It also directs the state to inform Texas’ other 200-plus counties that they may not purge voters or demand proof of citizenship without his approval.

Last week, eight counties agreed voluntarily to halt their efforts, and on Monday, Biery extended that order to a total of 15 counties.

[…]

Much like his remarks in court this week, Biery’s order contained harsh words for the state’s bungled attempt to review its rolls, and good omens for the civil rights groups aiming to prove that Texas has treated two groups of people, native-born citizens and naturalized citizens, differently.

“Notwithstanding good intentions, the road to a solution was inherently paved with flawed results, meaning perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us,” Biery wrote. “No native born Americans were subjected to such treatment.”

Biery also wrote — as civil rights groups and voting experts have long maintained — that “there is no widespread voter fraud” in Texas and that an attempt to root out noncitizens on the voter roll forces officials to figure out “how to ferret the infinitesimal needles out of the haystack.”

State officials have said that moving forward, they plan to watch for noncitizens who are registered to vote by comparing voter rolls with more recent lists of individuals who present proof of legal status, but not citizenship, at DPS. Biery’s Wednesday order allows that process to proceed but advises that officials may not purge those voters or demand proof of citizenship without approval from him.

See here, here, and here for the background. As a reminder, this is just the wrangling over an injunction, to determine whether or not the state and counties can continue to pursue this purge while the case is being litigated. It’s not a decision on the merits, just a stop sign for the state until a decision is reached. Assuming the Fifth Circuit doesn’t step in and screw things up as it usually does, of course. No word as of the publication of that story as to whether or not the state would appeal. Judge Biery made a good call, but as always this is far from over. The Lone Star Project, which picks out some highlights from Biery’s order, has more.

Three times a lawsuit

Hat trick!

Still the only voter ID anyone should need

A group of civil and voting rights organizations is suing the state’s chief election officers and local election officials in five counties, claiming Texas’ voter citizenship review efforts are unconstitutional because they intentionally target naturalized citizens and voters of color.

In a lawsuit filed Monday in a Galveston federal court, the MOVE Texas Civic Fund, the Jolt Initiative, the League of Women Voters of Texas and the Texas NAACP allege that the state’s move to flag tens of thousands of voters for review using faulty data violates the equal protection clause of the U.S. Constitution. They claim the effort places an undue burden on the right to vote and treats naturalized citizens differently than those born in the county.

The groups also allege that the state violated the Constitution and the federal Voting Rights Act by acting at least in part with the goal of discriminating against voters of color when it advised counties to verify the citizenship status of the voters it flagged.

The lawsuit against Texas Secretary of State David Whitley, Director of Elections Keith Ingram, and local election officials in Galveston, Blanco, Fayette, Caldwell and Washington counties is the third one filed against state officials since Jan. 25, when the state announced that it was sending counties a list of approximately 95,000 registered voters who told the Texas Department of Safety they were not citizens when they obtained their driver’s licenses or ID cards.

[…]

In their complaint, the plaintiffs — represented by the ACLU of Texas, the national ACLU, the Texas Civil Rights Project, Demos and the Lawyers’ Committee for Civil Rights Under Law — argue that Whitley “declined to include safeguards” in the process that would ensure naturalized citizens weren’t erroneously included on the list.

“The right to vote is a fundamental and foundational right, possessed equally by U.S. born and naturalized citizens,” the complaint reads. “The Secretary of State’s purge treats those who have been naturalized as second-class citizens whose right to vote can be uniquely threatened and burdened solely because at some point in the past, these individuals were not U.S. citizens.”

See here and here for the scoop on the other lawsuits, and here for a copy of the complaint. I had speculated in yesterday’s post about Lawsuit #2 that we could get this one as well, as the groups representing these plaintiffs had had specifically said they would sue if the SOS didn’t back all the way off. Gotta follow through when you say stuff like that, so folks will know you don’t mess around. At this point, we’re waiting to see what the courts will say. In an ideal world, they will force the state to do what these plaintiffs asked in the first place, which is to get their crap together before they put out baloney like this. Here’s hoping. On a related note, Mayor Turner released a statement urging Harris County Tax Assessor Ann Harris Bennett to reject the SOS advisory, which you can find here.

As the SOS advisory numbers get revised down

This really can’t be emphasized enough.

Still the only voter ID anyone should need

State officials on Tuesday acknowledged widespread errors in their list of 95,000 Texas voters flagged as potential non-citizens, reinforcing the concerns of advocates who say the state’s effort amounts to illegal voter suppression.

In Harris County alone, officials said, more than 60 percent of nearly 30,000 names on a list the state supplied last week are being removed after new guidance from state officials. Voter registrars in several other counties reported getting similar calls Tuesday from the Texas Secretary of State’s office, which last week said its review showed that 95,000 registered voters did not appear to be U.S. citizens.

[…]

On Tuesday, officials in Harris County and several other counties were told to remove from their lists names of people who registered to vote at Texas Department of Public Safety offices. Harris County officials also were advised to remove those who registered to vote at a naturalization ceremony, said Douglas Ray, a special assistant county attorney who specializes in election issues.

With the new criteria, Harris County was able to remove more than 60 percent of the names off the nearly 30,000-voter list it was sent. Only about 11,000 names remain.

“Our experience with these mass lists from the secretary of state’s office is that they’re very questionable, so we have to treat them very carefully,” Ray said.

I included that bit at the tail end of yesterday’s post, but it needed to be its own entry. More than sixty percent of the names the SOS gave Harris County had to be removed because the SOS had failed to do any kind of due diligence. I’ve checked around and we don’t have solid numbers for this kind of correction elsewhere in the state (not that I can find, anyway), so perhaps Harris County was an outlier. I see no reason to give the SOS any benefit of that doubt. They need to recall the entire list, do their actual freaking job to vet it properly, and then get back to the counties with whatever is left. And put out a big statement walking back everything they said on Friday, which has been trumpeted far and wide by Republicans who desperately want to believe they need to take drastic measures to stop hordes of non-citizens from voting. This was both 100% grade A bullshit and some extremely convenient cover for whatever anti-voting bills that get pushed this session. Like I said yesterday, we can’t sue them hard enough.

A trio of updates about that bogus SOS letter

Most counties reacted skeptically, as well they should.

Still the only voter ID anyone should need

The Texas Tribune reached out to 13 of the 15 counties with the most registered voters on Monday; Galveston was the only one that indicated it would immediately send out letters, even as more than a dozen civil rights groups warned the state and local election officials that they risked violating federal law by scrutinizing the voters flagged by the state.

[…]

Bruce Elfant, Travis County’s tax assessor-collector and voter registrar, indicated he was concerned about the accuracy of the data because the county has previously received data from DPS that was “less than pristine.” County officials vowed to review the list of 4,547 registered voters they received but were still trying to convert the data into a usable format.

He said he also wanted more information about the methodology the Texas Secretary of State’s office used to compile the list, pointing out that naturalized citizens may have obtained their driver licenses before becoming citizens.

“The state is responsible for vetting for citizenship” during the voter registration process, Elfant said. “I would be surprised if that many people got through it.”

Other county officials echoed Elfant’s point about naturalized citizens. Collin County’s election administrator, Bruce Sherbert, said they had received a list of approximately 4,700 names and would consider them on a case-by-case basis, checking for cases in which a voter might have already provided some form of proof they are citizens.

“It can be a process that takes several months to go through,” Sherbert said. “We’re just at the front side of it.”

Facing a list of 2,033 individuals, Williamson County officials said they were considering ways in which they could determine citizenship without sending notices to voters. Chris Davis, the county’s election administrator, said some naturalized citizens could have registered to vote at naturalization ceremonies in other counties, so their files might indicate their registration applications were mailed in from there.

“We want to try to avoid sending notices to folks if we can find proof of their citizenship, thereby they don’t have to come in and prove it themselves or mail it,” Davis said.

Election officials in Fort Bend County said they had received a list of about 8,400 voters, though they noted some may be duplicates. El Paso County officials said their list included 4,152 voters.

Harris County officials did not provide a count of voters the state flagged on its rolls, but Douglas Ray, a special assistant county attorney, said they were treading carefully because of previous missteps by the state.

“To be quite frank, several years ago the secretary of state did something very similar claiming there were people who were deceased,” Ray said. “They sent us a list and the voter registrar sent confirmation notices and it turned out a lot of people identified on the list were misidentified. A lot of the people who received notices were very much alive.”

See here and here for the background. I’m certainly glad we have county officials now in Harris County that care about protecting the right to vote, but the reaction from places like Collin and Williamson was a pleasant surprise. As for Galveston, well. There’s one in every crowd.

If common sense and a principled commitment to the right to vote wasn’t enough to treat the SOS advisory with skepticism, there’s also this.

After flagging tens of thousands of registered voters for citizenship reviews, the Texas secretary of state’s office is now telling counties that some of those voters don’t belong on the lists it sent out.

Officials in five large counties — Harris, Travis, Fort Bend, Collin and Williamson — told The Texas Tribune they had received calls Tuesday from the secretary of state’s office indicating that some of the voters whose citizenship status the state said counties should consider checking should not actually be on those lists.

The secretary of state’s office incorrectly included some voters who had submitted their voting registration applications at Texas Department of Public Safety offices, according to county officials. Now, the secretary of state is instructing counties to remove them from the list of flagged voters.

[…]

It’s unclear at this point how many counties have received these calls. County officials said Tuesday they had not received anything in writing about the mistake. It’s also unclear how many people will be removed from the original list of approximately 95,000 individuals flagged by the state. The secretary of state’s office did not respond to questions Tuesday about how much this would reduce the initial count.

In a statement Tuesday, Sam Taylor, a spokesman for the secretary of state, said the state was providing counties with information as “part of the process of ensuring no eligible voters were impacted by any list maintenance activity.”

“This is to ensure that any registered voters who provided proof of citizenship at the time they registered to vote will not be required to provide proof of citizenship as part of the counties’ examination,” Taylor said.

I dunno, maybe next time check for that sort of thing before rushing to publish? Just a thought. I’m sure Ken Paxton et al will duly correct any now-inaccurate assertions they may have made about the initial advisory.

And then, the least surprising update to all this.

In a lawsuit filed in federal court in San Antonio, lawyers for the League of United Latin American Citizens’ national and Texas arms alleged that Texas Secretary of State David Whitley and Attorney General Ken Paxton violated a portion of the federal Voting Rights Act that prohibits the intimidation of voters.

They point to an advisory issued Friday in which Whitley’s office said it was flagging individuals who had provided the Texas Department of Public Safety with some form of documentation — including a work visa or a green card — that showed they were not citizens when they were obtaining driver’s licenses or ID cards. The state put the number of registered voters who fell into that category at approximately 95,000 — 58,000 of whom had voted in one or more elections from 1996 to 2018.

In its announcement, the secretary of state’s office said it had immediately turned over the data to Paxton’s office. On the same day, Paxton posted the news on Twitter prefaced with “VOTER FRAUD ALERT,” the lawyers noted in the lawsuit.

“These two Texas officials have carefully crafted and orchestrated a program that combines an election advisory ostensibly directed at ensuring that all those registered to vote in the May election are citizens eligible to vote with the use of data that is suspect on its face and a blackout on public access to the data,” LULAC’s lawyers wrote in the complaint.

I mean, someone was going to have to sue eventually. Why wait? Texas Monthly and the Observer have more.

Before you go, here’s a little story from my archives that might be of interest to you. It involves an actual, by-God case of a non-citizen voting, right here in Harris County, in a high profile and hotly contested election. You might be surprised how it turns out. Enjoy!

UPDATE: How bad was that original list of alleged non-citizens? This bad:

State officials on Tuesday acknowledged widespread errors in their list of 95,000 Texas voters flagged as potential non-citizens, reinforcing the concerns of advocates who say the state’s effort amounts to illegal voter suppression.

In Harris County alone, officials said, more than 60 percent of nearly 30,000 names on a list the state supplied last week are being removed after new guidance from state officials. Voter registrars in several other counties reported getting similar calls Tuesday from the Texas Secretary of State’s office, which last week said its review showed that 95,000 registered voters did not appear to be U.S. citizens.

[…]

On Tuesday, officials in Harris County and several other counties were told to remove from their lists names of people who registered to vote at Texas Department of Public Safety offices. Harris County officials also were advised to remove those who registered to vote at a naturalization ceremony, said Douglas Ray, a special assistant county attorney who specializes in election issues.

With the new criteria, Harris County was able to remove more than 60 percent of the names off the nearly 30,000-voter list it was sent. Only about 11,000 names remain.

“Our experience with these mass lists from the secretary of state’s office is that they’re very questionable, so we have to treat them very carefully,” Ray said.

And that’s before any of the counties do their own checking. We can’t sue these clowns hard enough.

Civil rights groups push back on bogus SOS letter

Good.

Still the only voter ID anyone should need

Lawyers with 13 organizations — including the Texas Civil Rights Project, the ACLU of Texas, the League of Women Voters of Texas and the NAACP Legal Defense Fund — are demanding that the state rescind an advisory sent to local election officials regarding the individuals whose citizenship status the state says the counties should consider checking. In a letter sent Monday, the groups requested a response by Jan. 30, claiming that the state’s data was flawed and demanding more information about the methodology it used.

Some of the groups are considering litigation against the state, said Beth Stevens, voting rights legal director for the Texas Civil Rights Project.

The letter comes three days after the Texas secretary of state’s office announced it would send local election officials a list of 95,000 registered voters who had provided the Texas Department of Safety some form of documentation, such as a green card or a work visa, that showed they were not citizens when they were obtaining driver’s licenses or an ID cards.

“Using such a data set to review the current citizenship status of anyone is inherently flawed because it fails to account for individuals who became naturalized citizens and registered to vote at any point after having obtained their driver license or personal identification card,” the lawyers wrote.

In their letter, the groups point to efforts in Florida that used similar methodology to create a list of approximately 180,000 registered voters that officials claimed were noncitizens based on records used when they obtained driver’s licenses. That fight ended up in federal court after more than 2,600 were mistakenly removed from the rolls after being classified as noncitizens. About 85 voters “ultimately proved actionable,” the lawyers wrote.

See here for the background. The letter to the SOS is here, and the letter they sent to all 254 county election administrators is here. The latter is both a public information request for “all records relating to the Advisory, including but not limited to the list of all individuals identified by the Secretary of State or Department of Public Safety as potential non-citizens, the Voter Unique Identifier for each of those individuals, and all communications and correspondence with the Secretary of State concerning the Advisory”, and a plea to not take any action “unless and until the Secretary of State has provided greater transparency on its procedures and ensured there are adequate safeguards for not identifying lawfully registered naturalized citizens.” The letter to the SOS lays out their demands for more information, and drops a little math on them:

Given that Texas Driver Licenses and ID Cards do not expire for a full six years after they are issued, the odds are quite high that this list of purported non-citizens includes tens of thousands of people who are now US citizens entitled to vote. Indeed, each year, between 52,000-63,000 Texans become naturalized citizens (roughly the same number of potential non-citizens you claim have voted in Texas elections over a 22-year period).1 Given that newly naturalized citizens have voter registration rates around 50%,2 it is reasonable to conclude that at least 25,000 newly naturalized Texans are lawfully registering to vote each year. Even if one assumes that not all naturalized citizens previously obtained driver licenses, and not all registered naturalized citizens registered immediately, it is easy to see how this would result in your office obtaining over 90,000 incorrectly identified matches.

Read them both. Given that Ken Paxton was sending out email earlier the same day screaming about thousands of illegal voters, I think the odds are very high this will wind up in court.

Bail lawsuit continues in Galveston County

Good.

A lawsuit alleging that Galveston County’s cash bail system favors wealthier defendants will continue after a recent ruling by a U.S. district court judge.

On Jan. 10, Judge George Hanks Jr. upheld Magistrate Judge Andrew Edison’s denial of the county’s motion to dismiss the lawsuit.

The ACLU of Texas and the Arnold & Porter law firm filed the suit in April 2018 on behalf of Aaron Booth, 37, of Galveston, who was arrested on felony drug possession charges but couldn’t afford to post his $20,000 bail — the minimum permitted under the county’s bail schedule for that charge.

The suit accuses county officials, including local judges and magistrates as well as District Attorney Jack Roady, of operating an arbitrary, two-tiered system of justice based on wealth, in violation of the constitutional right to counsel, the right to due process and equal protection under the law.

In addition to keeping the suit alive, Hanks agreed that the ACLU sufficiently argued that under the Constitution’s 6th Amendment, Booth and all defendants are guaranteed a right to counsel at any bail hearing.

Hanks also agreed that Roady, who controls the county’s bail schedule, was liable for his role in perpetuating a wealth-based detention system. Magistrate Edison had ruled that magistrate judges “always strictly adhere” to the bail amounts recommended by Roady.

[…]

A preliminary injunction hearing scheduled for Tuesday will give the ACLU the opportunity to present evidence that Galveston County has not done enough to reform its bail system.

“It’s still our burden to show that the facts are what we’ve alleged,” [Trisha Trigilio, senior staff attorney for the ACLU of Texas] said. “So we are presenting evidence that actually shows that an injunction is necessary.”

Galveston County Judge Mark Henry said he hoped Tuesday’s hearing would be the “end or beginning of the end” to the lawsuit. Henry said the litigation has hindered the county’s bail reform efforts, and said he was pleased to see individual magistrate judges and district judges dismissed as defendants.

“We’ve been trying to get these things done for years,” Henry said. “Government moves notoriously slow, I think we’ve been about as fast as we can be.”

See here for the background. It should be clear to everyone where this is going, given the rulings in the Harris County case. One presumes it’s just a matter of how long it takes to get there.

ACLU reminds counties to provide voting materials in Spanish

From the inbox:

With weeks to go before the November 6 election, the ACLU of Texas has sent advisal letters to 36 counties across Texas that may be in violation of the Voting Rights Act. The letters urge the identified counties to comply with a provision in the law that requires any information about voting or elections to be provided in English and Spanish in counties where more than 10,000 or more than 5% of all voting age citizens are Spanish-speakers with low English proficiency.

“Counties need to ensure that they are providing all citizens with information that will enable them to vote,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “The obligation to provide information in Spanish is a simple but important requirement which helps to remove barriers to voting in the state with the largest number of counties needing foreign language voting materials.”

ACLU of Texas attorneys reviewed county election websites and looked at whether pertinent information was made available in Spanish, including voter identification information, key voting dates, voter registration information, and applications for ballot by mail and absentee voting. The preliminary research determined that 36 counties had inadequate or inaccessible information in Spanish, had poor or misleading translations, or offered no voting information in Spanish at all. For example, one county’s use of an automated translation service translated the term “runoff election” as “election water leak” or “election drainage.”

Several counties have already responded positively to the letters, agreeing to comply with the Voting Rights Act and include Spanish language voting information on their websites.

Click over to see the list of counties. If one of them is yours, maybe make a call yourself to your local elections administrator. It’s a little hard to believe that any county could still have problems with this after all this time, but here we are.

Dallas County gets the Harris County treatment in its bail lawsuit

We have a precedent, even if everything is still a work in progress.

Taking a cue from the rulings on Harris County’s bail-setting practices, a U.S. district judge in Dallas issued a temporary order Thursday evening saying the county’s post-arrest procedures routinely violate inmates’ constitutional rights. The judge gave the county 30 days to change its ways.

U.S. District Judge David Godbey in Dallas said that the county has to stop the practice of imposing pre-set bail bond amounts, which often keep poor defendants locked up for days or weeks while letting wealthier ones go free, without individual consideration if arrestees claim they can’t afford it. He sided with the plaintiffs’ allegation that the county uses “wealth-based detention.”

“Wealthy arrestees — regardless of the crime they are accused of — who are offered secured bail can pay the requested amount and leave,” Godbey wrote. “Indigent arrestees in the same position cannot.”

[…]

Godbey relied heavily on Harris County rulings from the federal district court and the appellate court. He said the cases had the “same roots” — despite Dallas’ lawsuit also including felony defendants whereas Harris only involves those accused of misdemeanors — and concluded that doing anything other than what the appellate court ruled in Harris would “put the Court in direct conflict with binding precedent.”

“Broadly, those procedures include ‘notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decision-maker,’ he wrote, quoting the higher court’s ruling.

See here for some background, and here for an earlier story on how bail hearings have been done in Dallas. You know where I stand on this, and we both know that Dallas County has Democratic leadership, and thus I hope more than enough incentive to find a settlement. Some long overdue change is coming, and it is in everyone’s best interests to embrace it. The Chron and the Observer have more.

ACLU sues Galveston County over bail practices

From the inbox:

The ACLU of Texas, the ACLU and Arnold & Porter filed a federal class-action lawsuit today against Galveston County, Texas, for violating the constitutional rights of people arrested for misdemeanors and felonies.

The lawsuit was brought against the County itself, as well as each of the County’s judges who hear felonies and misdemeanors, the County magistrates, and the District Attorney. This is the first filing by the ACLU to include the District Attorney as a defendant in bail reform litigation. It seeks an immediate and permanent change to an unconstitutional cash bail system that discriminates against people who are financially strapped.

Those who cannot afford to pay money bail amounts determined by the county’s bail schedule are detained for a week or longer, while those who face the same charges but can afford to pay the money bail amounts are freed until trial. Galveston County’s district attorneys are involved in setting bail amounts for felony charges, often recommending bail amounts even higher than what the bail schedule suggests.

“A system that requires people to buy their freedom is not a system interested in dispensing justice,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Our client is seeking one thing: a fair hearing. Rich or poor, everyone should have a meaningful chance for a judge to hear them out before they are locked in a jail cell – but that’s not what’s happening in Galveston County.”

The lawsuit argues that Galveston County’s system of money bail violates the Constitution because it keeps people in jail if they can’t afford bail, while allowing those who can pay to go home to their families, jobs, and communities. With each day in jail, the person’s chances for a fair trial diminish as evidence and witnesses disappear, and many who are innocent nonetheless plead guilty simply to end the ordeal.

“A person’s wealth should never decide their freedom, but that’s exactly what’s happening in Texas and across the country,” said Brandon Buskey, staff attorney with the ACLU’s Criminal Law Reform Project. “Galveston’s bail system disregards the presumption of innocence, destroys families, and negatively affects jobs, and homes.”

The suit, filed on behalf of one plaintiff representing a class in U.S. District Court for the Southern District of Texas, accuses county officials of operating a two-tiered system of justice based on wealth, in violation of the right to counsel, the right to due process, and equal protection under the law.

“Studies consistently show that individuals who are held in jail until trial are more likely to be convicted, and more likely to be sentenced to prison, than those who are released pending trial,” said Christopher Odell, an attorney with Arnold & Porter. “Our goal is to ensure that the criminal justice system is fair to everyone in Galveston County, whether they’re rich or poor or somewhere in between.”

The plaintiff Aaron Booth, age 36, was arrested on April 8 for drug possession. He cannot afford the $20,000 money bail required by the court’s bail schedule. Mr. Booth fears losing his job because he is in jail; a job he needs to help his mother afford her monthly expenses.

Galveston’s system of wealth-based detention is arbitrary, the lawsuit argues. Each offense has an assigned dollar amount. If a person can arrange to pay the full amount to the sheriff in cash or property, or can arrange for payment through a bail bond company or another third party, the sheriff releases that person automatically.

Those who cannot pay the pre-determined bail amount must remain in jail indefinitely.

The lawsuit against Galveston County is a continuation of efforts from the ACLU Campaign for Smart Justice to end wealth-based bail detention in Texas and across the nation. This January, a related lawsuit aimed at ending Dallas County’s disciriminatory, wealth based bail practices was filed by the ACLU of Texas, the American Civil Liberties Union, Civil Rights Corps and the Texas Fair Defense Project.

The ACLU Campaign for Smart Justice — an unprecedented effort to reduce the U.S. jail and prison population by 50 percent and to combat racial disparities in the criminal justice system — is focused on bolstering the movement to end money bail and eliminate wealth-based pretrial detention through legislative advocacy, voter education, and litigation. Thirty-seven ACLU state affiliates are spearheading efforts to end this unjust system.

The complaint can be found here. The Chron adds a few details.

The Galveston County Commissioner’s Court issued a resolution in September supporting an immediate end to pretrial detention for misdemeanor and state jail cell arrests and committing a minimum of $2 million to those efforts.

The county also voted in December to approve a contract with the Council of State Governments to help implement reforms to the county’s jail system.

But Trigilio said that the county has not committed to large-scale changes to its bail system in an appropriate timeframe. The ACLU drafted a standing order proposal outlining steps that needed to be taken to create a model pretrial system and requesting that the county come up with its own detailed plan. Their requests were ignored, with only one judge, Lonnie Cox of the 56th District Court, reviewing the standing order in November.

“We’re very open to collaborative solutions with policymakers, in fact, that’s what we prefer,” Trigilio said. “But it’s important to act with the urgency that the situation merits, and when they’re locking hundreds of people away every day just because they’re poor, that’s not something we can tolerate while we work out the nuances of a system that might be in place any year from now.”

Galveston County Judge Mark Henry said on Monday that he had not had a chance to look at the lawsuit yet but that the county has been working with the ACLU “for nine months or so” to implement their suggested reforms to the bail system.

“We are certainly trying, yes,” he said, adding that he had not yet seen the suit but that the county was “absolutely committed” to making the changes already discussed.

“It’s not necessarily in our control,” he said. “There are about 15 other elected officials that have to agree and implement their part of it.”

Those of us in Harris County can relate to that complaint. You know where I stand on this, so let me just say that I hope other counties are looking at their own practices and taking proactive steps to get in line so they don’t have to be sued as well. But if suing them is what it takes, then so be it. Think Progress and KUHF have more.

Fifth Circuit lets most of SB4 remain in place

Ugh.

A panel of three U.S. 5th Circuit Court of Appeals judges ruled Tuesday that most of the state’s immigration enforcement legislation, Senate Bill 4, can remain in effect while the case plays out, handing a victory to Gov. Greg Abbott and Republican supporters of the legislation.

As passed, Senate Bill 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and punishes local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation — in the form of jail time and penalties that exceed $25,000.

The one part of SB 4 that is still on hold is a provision that punishes local officials from “adopting, enforcing or endorsing” policies that specifically prohibit or limit enforcement of immigration laws. The judges kept that injunction in place, but said it only applies to the word “endorse.” The bill, as passed and signed, would have made elected and appointed officials subject to a fine, jail time and possible removal from office for violating all or parts of the legislation.

The American Civil Liberties Union of Texas, which represents some of the plaintiffs in the SB 4 case, said it was considering how to move forward.

“The court made clear that we remain free to challenge the manner in which the law is implemented, so we will be monitoring the situation on the ground closely,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

See here, here, and here for the background. This one is destined for the Supreme Court, but in the meantime it can’t hurt to ask for an en banc review, as this wasn’t the friendliest three judge panel. This is still the injunction phase, not the trial on the merits, so no matter what there’s still a long road ahead. A copy of the ruling is here, and Texas Monthly has more.

ACLU goes after Judge McSpadden

As well they should.

The ACLU of Texas is asking Harris County’s longest serving felony court judge to resign after making a statement to the Houston Chronicle on his views about black men’s attitudes toward the criminal justice system.

The civil rights group also is asking that the judge be automatically recused from cases involving African-American defendants until an investigation into potential racial bias occurs, according to a news release Tuesday.

[…]

“If there remained any doubt that the deck is stacked against people of color in our criminal justice system, Michael McSpadden just dispelled it,” said Terri Burke, executive director of the ACLU of Texas. “When a sitting judge feels comfortable enough to admit openly and on the record that he uses bail orders to jail black defendants on the assumption they can’t be trusted, it’s time to take action. This kind of flagrant racism has no place in our justice system.”

She said, “The Texas Commission on Judicial Conduct needs to take the first step toward rooting it out, and Judge McSpadden should voluntarily step down.”

McSpadden could not be immediately respond to a request for comment Tuesday. His court staff said he was on the bench hearing cases.

The civil rights organization said McSpadden’s comments violate the Texas Code of Judicial Conduct and could merit removal from office.

“Judge McSpadden’s remarks are inexcusable, but not at all surprising for those of us who know the justice system well,” said former death row inmate Anthony Graves, who runs a criminal justice initiative for the ACLU of Texas.

See here for the background. Perhaps there’s some context Judge McSpadden can add to his comments, or perhaps he could just admit that was a dumb and offensive thing to say and offer an apology for it. People may or may not accept either action, but at least it would be something. In the absence of any such followup, one is left to conclude that he has nothing further to say on the matter. Whatever one may have thought of Judge McSpadden before now, that’s not a good look. And as a reminder, Judge McSpadden is up for election this fall. For all the griping some people do about partisan judicial elections, they do at least give the voters the chance to correct errors on the bench.

On a side note, two of Judge McSpadden’s colleagues on the misdemeanor courts are again urging the county to settle the bail lawsuit.

“The most conservative appellate court in this country, strict constitutional conservatives, have said that this practice that we are doing is unconstitutional,” said Judge Darrell Jordan, one of the defendants in the lawsuit.

Jordan told County Judge Ed Emmett and county commissioners that fighting the suit had already cost Harris County $6 million in legal fees. “I’m asking that you all cut this last check, fire these $6 million lawyers, let the County Attorney’s office come, and we all sit down and work out a settlement.”

Jordan’s co-defendant, Judge Mike Fields, urged Emmett and the commissioners to “use every tool in your arsenal to help us settle this lawsuit.” Fields added, “Our county needs to settle this for financial reasons, and our public needs it settled for reasons of good governance and confidence in the criminal justice system.”

Judge Emmett said he’s willing to settle on the basis of the 5th Circuit’s ruling, but said plaintiffs haven’t responded to offers to talk.

Judge Jordan, the lone Democrat on these benches, and Judge Fields have been the lone voices from those courts for sanity. Unfortunately, their colleagues remain uninterested in such matters as the cost of the litigation and the fact that they’ve lost at every step and looked bad in doing so. And they’re all up for election this November. See my comments above on that.

Lawsuit filed over Dallas County bail practices

Bring it on, I say.

On the heels of a federal ruling slamming Harris County for its bail practices, civil rights lawyers have now set their sights on a county with a similar system: Dallas.

Six indigent misdemeanor and felony defendants arrested this week and held in the Dallas County Jail filed suit against the county on Sunday night, claiming the bail system unconstitutionally discriminates against them by holding them in jail for days or weeks while letting similar defendants with cash walk free. One plaintiff, Shannon Daves, is a 47-year-old homeless and jobless transgender woman arrested on a misdemeanor theft charge. She has been kept in solitary confinement in the men’s unit since Wednesday under a $500 misdemeanor bond she can’t afford, the lawsuit claims.

“This system is really devastating for the people who can’t afford to purchase their freedom,” said Trisha Trigilio, a senior attorney at the ACLU of Texas, one of the legal groups representing the inmates. Lawyers with the Civil Rights Corps and the Texas Fair Defense Project are also leading the lawsuits in both Dallas and Harris counties.

[…]

In Dallas County, the plaintiffs state that judicial magistrates set money bail based on the alleged crime and prior convictions without considering an inmate’s ability to pay or determining if non-monetary conditions of release, like an ankle monitor or cab fare voucher, could ensure the defendant shows up to court. Texas law requires officials to consider financial ability when setting bail.

Instead, poor inmates who have yet to be convicted usually stay in jail because they can’t afford the bail, sometimes causing them to lose their jobs or housing, the lawsuit said. The lawsuit also argues that the threat of lengthy jail stays while awaiting trial encourages defendants to plead guilty.

Dallas County Judge Clay Jenkins said Sunday that he wouldn’t comment on a pending lawsuit, but said the county is working to improve the system.

“I support bail reform because some low-risk suspects that don’t need to be there are held in Texas jails at taxpayer expense simply because they can’t afford to bond out,” he said.

Dallas County Commissioner John Wiley Price also pointed to the county’s efforts to reform its bail system, touting a decrease in the county jail population. As of December, there were about 5,000 inmates in the jail, which has a capacity for about 8,700, according to the Texas Commission on Jail Standards.

You can see a copy of the complaint here. There are differences between the Dallas and Houston cases – the Dallas one involves felons as well as misdemeanants, and as noted their jail population had already declined by a significant amount. And, not to make too fine a point of it, Dallas County is ruled by Democrats, not Republicans. I would hope that means they’ll be much more amenable to finding a settlement rather than draw this out. (As this story reminds us, the Harris County case hasn’t even been heard yet – Judge Rosenthal’s ruling was an injunction, not on the merits.) We’ll see what happens. The ACLU’s statement on the suit is beneath the fold.

(more…)

The First Amendment remains in effect in Fort Bend

For now, at least.

Karen Fonseca, the owner of a white truck at the center of a social media dispute with Fort Bend County Sheriff Troy Nehls, is considering a civil rights lawsuit against the sheriff’s office.

Fonseca’s attorney, Brian Middleton, made the announcement during a press conference on Monday. Middleton added that the American Civil Liberties Union has also expressed interest in a possible lawsuit.

“We should not allow Sheriff Nehls to intimidate people into silence,” Middleton said. “This is wrong and we will not let it stand.”

The threat of legal action stems from controversy over a Facebook post Nehls made on Wednesday, Nov. 15, regarding Fonseca’s truck, which bears a sticker that reads “F— Trump and f— you for voting for him.”

Nehls threatened to charge Fonseca with disorderly conduct over the sticker. A day later, Fonseca was arrested on a pre-existing fraud warrant out of the Rosenberg Police Department.

Middleton and State Rep. Ron Reynolds allege that Nehls’ public dispute with Fonseca is a politically-motivated attack designed to gain attention as Nehls considers a campaign against Rep. Pete Olson, who represents the 22nd District of Texas.

“I demand an apology from Sheriff Nehls for targeting (Fonseca) and making her life and her family’s life a living nightmare,” Reynolds said in a statement.

Fonseca has since added a new sticker that reads “F— Troy Nehls and f— you for voting for him.”

I hadn’t covered this before now, but I’m sure you’ve seen the stories; some earlier Chron articles are here and here. To be perfectly honest, I don’t much care for the Fonseca’s bumper stickers. They’re tacky, and as a parent I have sympathy for anyone who would prefer their kids not see that. But clearly, they have a right to decorate their truck in that fashion, and Sheriff Nehls has grossly abused his office by arresting Karen Fonseca, against the advice of the Fort Bend County District Attorney. He deserves to get his hat handed to him in court for this. Pull up a chair and enjoy the show, this ought to be good.

Federal court bars enforcement if city’s ban on homeless encampments

Score one for the law’s opponents.

Mayor Sylvester Turner

A federal court on Tuesday temporarily blocked Houston from enforcing its fledgling ban on public encampments, dealing a blow to city efforts to manage escalating tensions between homeless people and the neighborhoods their camps abut.

The city’s three-month-old law – passed under intense pressure from residents and council members – bars the unauthorized use of temporary structures for “human habitation” and empowers police officers to arrest violators if they refuse medical treatment or social services.

Enforcing that prohibition may, U.S. District Judge Kenneth M. Hoyt wrote, violate the homeless plaintiffs’ Eighth Amendment protections against cruel and unusual punishment.

“The plaintiffs have demonstrated that they are subject to a credible threat of being arrested, booked, prosecuted and jailed for violating the City of Houston’s ban on sheltering in public,” Hoyt said. “The evidence is conclusive that they are involuntarily in public, harmlessly attempting to shelter themselves – an act they cannot realistically forgo, and that is integral to their status as unsheltered homeless individuals.”

[…]

The city ordinance “was not designed to punish homeless people. Rather, it was passed to stop the accumulation of property in these encampments,” Marc Eichenbaum, special assistant to the mayor for homeless initiatives, said in an affidavit filed last week.

Hoyt’s order, however, focuses on the law rather than the city’s approach to enforcing it.

“The fact that the governmental entity has not fully enforced the alleged unconstitutional conduct does not bar a suit for injunctive relief where the alleged unconstitutional conduct is imminent or is in process,” he wrote.

See here and here for the background, and here for a copy of the restraining order. It should be noted that in the complaint filed by the plaintiffs, they also asked for an injunction prohibiting “Enforcement of Houston City Code Section 28-46 (Aggressive panhandling) and Section 40-27(b) (Impeding the use of a roadway)”, but that request was not granted. The city had been lightly enforcing the enjoined provision, which suggests there had been concerns about it from the beginning. I get where the Mayor and Council are coming from, but they need to take this as a sign that they chose an unwise path. I do not want to wake up one day and read that the city is shelling out $500 an hour to some fancypants law firm to defend this thing in court. Find a way to fix this in a way that everyone can live with and move on.

The “run over a protester” bill

This was from a day or two after the racist violence in Charlottesville, which included the vehicular murder of a counterprotester.

Rep. Pat Fallon

Last month, Rep. Pat Fallon filed legislation to protect motorists who hit demonstrators “blocking traffic in a public right-of-way” if the driver exercises “due care.” House Bill 250 would protect drivers against civil liability only but would not lessen criminal penalties for deadly hit-and-runs, a second-degree felony in Texas.

Fallon’s bill has no chance of passing this summer. Lawmakers are scheduled to gavel out the month-long summer special session on Wednesday without even holding a hearing on the measure.

Nevertheless, by Monday morning, the Frisco Republican said he’d received “hundreds” of angry responses from people upset over the events this weekend in Virginia, especially the death of Heather Heyer, a 32-year-old protester struck and killed by a driver who also injured at least 19 other people.

James Alex Fields, a 20-year-old Ohio man who rallied with white supremacist groups on Saturday, has been charged with her murder as well as malicious wounding and failing to stop at a crash site that resulted in a death. Fallon said his legislation would not have protected someone like Fields from criminal charges. He blasted the white supremacists who gathered in Charlottesville.

“Any jackass that thinks they’re going to be cool because they’re a Nazi, are you serious?” Fallon told The Dallas Morning News. “There’s no room for that,” he added, calling Heyer’s death “horrific.”

Fallon added he was “incredibly offended” that people tied his bill to Fields and those like him.

[…]

Representatives with the ACLU in Texas and North Carolina, where similar legislation is being debated, said Fallon’s bill was intended to discourage free speech and assembly.

“The flavor and tenor of this is to quell protest,” said Karen Anderson, executive director of the ACLU of North Carolina. “It is to essentially set up a structure where you protest at your own risk (and) there is a shield for motorists who choose, which happened just recently, to use their vehicle as a literal bludgeon.”

She expressed concern over why the proposal does not define “due care,” and questioned how protesters could prove they were hit intentionally if there was no video footage of the incident, like there was in Charlottesville.

Matt Simpson, a police specialist with the ACLU of Texas, acknowledged Fallon’s bill would not lessen criminal penalties for drivers who intentionally kill pedestrian protesters. But he said the bill would be difficult to implement if it became law and would send “a terrible message” to Texans.

“This is obviously more symbolic than meaningful,” said Simpson. He said he was unaware of anyone who had sued a Texas driver who accidentally hit protesters. “This seems like a solution in search of a problem.”

Seems like there’s a lot of that these days. Rep. Fallon pitched a fit when people pointed out his bill and the potential it had for making life easier for someone who might feel the need to dish out a little four-wheeled havoc. Maybe don’t file such morally vacant bills in the future? Just a thought. All I can say is that if he files the same thing in 2019, he’ll definitely have learned nothing from this experience.

ACLU seeks information about state’s compliance with Trump election commission

From the inbox:

Today the ACLU of Texas filed an open records request with the Texas Secretary of State seeking documentation related to the State’s compliance with the federal Election Integrity Commission, which had asked states to submit voters’ full names, the last four digits of their social security numbers, their voting histories and information regarding felony convictions. The ACLU’s request seeks all communications between the Texas Secretary of State and the Election Integrity Commission, including records relating to the “views and recommendations” Texas submitted at the Commission’s request.

“The true threat to electoral integrity is voter suppression, not voter fraud,” said Edgar Saldivar, senior staff attorney at the ACLU of Texas. “This nonsense of voter fraud is a lie peddled by politicians complicit in a corrupt scheme to rig elections by keeping minority and low-income Americans away from the polls. We are demanding this information of state officials to ensure they are doing everything they can to advance the right to vote, not threaten it.”

The ACLU of Texas’s request comes days after the ACLU national office sued the Trump administration over the Commission’s failure to comply with the Federal Advisory Committee Act, a law that guarantees transparency and public accountability of advisory committees.

“The President’s Election Integrity Commission is a voter suppression machine, pure and simple” said Terri Burke, executive director of the ACLU of Texas. “It threatens our right to privacy, endangers the foundations of our democracy, and its mission is based on a lie. No wonder it conducts its business behind closed doors.”

The Commission’s vice chairman Kris Kobach, who requested the sensitive voter information, was recently fined $1,000 by a federal magistrate judge in a voting-related lawsuit for “deceptive conduct and lack of candor.” The judge said that Kobach and his legal team had “made patently misleading representations to the court.”

The ACLU of Texas is not requesting any information related to private voter information or voter roll data.

See here for a copy of the open records request, and here for a copy of the ACLU’s lawsuit against the Trump Commission, which is one of seven that have been filed so far around the country. This phony commission is all about suppressing the vote. It needs to be resisted on every front.

City of El Paso joins in on SB4

Add one more to the list.

The city of El Paso voted on Tuesday to join the growing list of local governments that have filed a legal challenge in hopes of stopping Texas’ new immigration enforcement law from going into effect.

The city council’s vote to join El Paso County and the cities of Dallas, Austin, San Antonio and Houston to halt the legislation, Senate Bill 4, means Fort Worth is the only major Texas city that hasn’t registered its opposition to the bill. Maverick and Bexar counties and the border city of El Cenizo are original plaintiffs in the lawsuit, which was filed in a federal court in San Antonio in May, just one day after Gov. Greg Abbott signed the bill.

[…]

In a statement, the city council said even though El Paso is not considered a “sanctuary city,” they voted to join the effort because local leaders are “concerned with provisions in SB 4 that raise questions related to the compliance and integration of the proposed bill in current law enforcement operations.”

“The unfunded mandate is expected to put additional strain on the El Paso Police Department, as SB 4 will add an extra requirement on the workforce that is already seeing a shortage in staff,” the statement continues. “The City of El Paso has a long successful history of working alongside our federal law enforcement partners, to add additional mandates on local resources will only limit officers from performing their public safety responsibilities.”

As you know, the hearing for a temporary injunction was Monday, but there’s a long way to go to get to the arguments on the merits, so it is far from too late for any entity to join in. I had previously listed El Paso as a plaintiff in the litigation, but it was El Paso County; I had assumed the city was in there as well, which was my mistake. No big deal, they’re in there now. I hope they and the other plaintiffs have a lot more company by the time this gets to the main event.

SB4’s day in court

Sparks were flying.

Opponents of Texas’ state-based immigration law told a federal judge Monday that allowing the controversial measure to stand would pave the way for a nationwide police state where local officers could subvert the established immigration-enforcement powers of the federal government.

But the state’s attorneys argued in tandem with their colleagues from the U.S. Department of Justice that the issue was settled in 2012 when the U.S. Supreme Court ruled in favor of a state-based immigration-enforcement provision passed in Arizona.

The day marked the first skirmish in what could be a lengthy battle over Texas’ law, Senate Bill 4, which has been billed as the toughest state-based immigration bill in the country. Known as the “sanctuary cities” law, SB4 allows local law enforcement officers to question the immigration status of people they detain or arrest and seeks to punish local government department heads and elected officials who don’t cooperate with federal immigration “detainers” — requests by agents to turn over immigrants subject to possible deportation. Punishment could come in the form of jail time and penalties that exceed $25,000.

Opponents of the measure, including the cities of Houston, Austin, San Antonio and El Cenizo, as well as Maverick and El Paso counties, have argued the law violates several provisions of the U.S. Constitution, including guarantees of equal protection and freedom of speech. They are seeking a temporary injunction of the rule, which is scheduled to go into effect Sept. 1.

Lee Gelernt, an attorney with the American Civil Liberties Union representing the city of El Cenizo, a small municipality in Webb County, argued that the law, as written is vague and provides such little guidance to officers that they will be forced to use a heavy hand when detaining or arresting someone. That, he said, will lead to a broad assumption that they need to ask nearly every minority their immigration status for fear of violating the provision of the law — the aftereffect of which would be an across-the-board erosion of Texans’ rights.

“The overriding point is that the penalties are so harsh that it’s simply unrealistic for any police officer to take a chance” of violating the law, Gelernt told U.S. District Judge Orlando Garcia. “[The lawmakers] knew what they were doing when they crafted the legislation.”

There’s a lot more, so go read the rest. The state’s argument, among other things, was that SB4 was less strict than Arizona’s infamous SB1070, and that it adhered to the parts of SB1070 that were upheld by SCOTUS. The plaintiffs’ argument, also among other things, was that the law was so vague and broad it was hard to even say what it did and did not allow and require law enforcement agencies to do; they also noted that while the Arizona law punished agencies, SB4 targets individuals who fail to comply with it. The plaintiffs are seeking an injunction to prevent the law from taking effect while the matter is being litigated; you can read the ACLU’s application for an injunction here. Judge Garcia did not say when he might rule, but he did note that he’s also one of the judges in the redistricting litigation, so maybe don’t expect anything till after those hearings in July. The Observer, the Chron, and the Current and Current again have more.

ACLU files for injunction against SB4

From the inbox:

The American Civil Liberties Union and the ACLU of Texas filed the first motion today to block the anti-immigrant and anti-law enforcement Texas Senate Bill (SB4) before it takes effect. This is the next step in the organization’s effort to strike down SB4.

The law, recently signed by Gov. Greg Abbott, strips localities and local law enforcement in the state of the authority to determine how to best use their limited resources to ensure the safety of their communities. The law also turns Texas into a “show me your papers” state. Law enforcement leaders throughout Texas and the country strongly oppose the law.

The motion, filed on behalf of the plaintiffs Texas LULAC and its members, the City of El Cenizo, the City’s Mayor Raul Reyes and Maverick County and elected officials of the County, asks the federal district court in San Antonio to fast track a ruling on the constitutionality of SB4. In this motion, the ACLU demonstrates that SB4 violates numerous fundamental constitutional rights and principles.

“Governor Abbott and his allies in the legislature enacted the harshest anti-immigration law in the country, ignoring the concerned voices of many Texans who stood in solidarity with our immigrant communities,” said Edgar Saldivar, senior staff attorney for the ACLU of Texas. “Not only will SB4 lead to wholesale racial profiling, it is so vaguely written that local officials and law enforcement agencies are essentially left to guess whether their policies and practices would violate the law. We’re proud to lead the charge on this important next step in the legal battle to keep this calamitous legislation from taking effect on September 1.”

“SB4 is patently unconstitutional. Under SB4, local authorities will be unable to serve their constituents,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project. “Local officials won’t be able to keep Texans safe and will be forced to carry out harsh discriminatory policies that hurt their communities.”

The ACLU’s co-counsel are Luis Roberto Vera, Jr., LULAC’s National General Counsel, and Renea Hicks of the Law Office of Max Renea Hicks.

Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, submitted a declaration in support of the ACLU’s motion filed today. Gupta is a former head of the Civil Rights Division at the U.S. Department of Justice.

SB4 Application for Preliminary Injunction:
https://www.aclutx.org/sites/default/files/sb4_application_for_preliminary_injunction_6.5.17.pdf

See here and here for the background. This occurred after the AG’s office filed a motion in the Austin court to consolidate the other anti-SB4 lawsuits with the lawsuit he filed to declare the law constitutional. Among other things, the courts are going to have to decide which of them will be the court in which all the action takes place. For now, there’s a lot of parallel activity going on. I can see this escalating quickly.

In the meantime, go read this NBC Latino story for the backdrop against which all this takes place.

Supporters of SB4 balk at suggestions the immigration enforcement law may foster racism or encourage discrimination, but as they try to enact it on Sept. 1, it will be impossible to ignore the state’s history of racism and the current challenges for Texans of Mexican descent.

Consider that, during the period from 1848 to 1928, at least 232 people of Mexican descent were killed by mob violence or lynchings in Texas — some committed at the hands of Texas Rangers, according to research by William D. Carrigan and Clive Webb, authors of “Forgotten Dead: Mob Violence Against Mexicans in the United States.” Texas led 12 states in killings of Mexicans and Mexican-Americans, the authors solidly documented.

In addition, the effort to place Texas under the anti-discrimination provisions of the Voting Rights Act was the genesis of the 1975 expansion of the act to extend its protections of voting rights of Latinos and other people who were then called “language minorities.”

More recently, Texas’ voter ID law, enacted in 2013, has been struck down in a series of court decisions that found it discriminatory.

Also, Texas’ education board only added Mexican-American studies as an elective course to its public school curriculum in 2014.

“For Texas it really has been a slow march to effective citizenship for Mexican-Americans,” said John Morán González, director of the Center for Mexican American Studies at University of Texas at Austin.

Read the whole thing. You can argue with its premise or with the assertion that SB4 is racist, but you still have to grapple with the history. The DMN has more.

State files motion to combine all the “sanctuary cities” lawsuits

This isn’t a surprise, but there is a bit of a twist.

Best mugshot ever

In a filing late Thursday, Attorney General Ken Paxton asked a federal district court in Austin to absorb two other legal challenges that have been filed against the ban in San Antonio, which is seen as a friendlier venue toward opponents of the law.

In May, the city of El Cenizo became the first jurisdiction to file suit to block the ban. El Paso County followed a few weeks later.

But Texas had filed a pre-emptive lawsuit May 7 asking for the Austin district court to rule the ban constitutional. Because Texas had filed its suit first, Paxton argued in his motion, the cases should be tried in the court it had petitioned under a concept known as the “first-filed” rule.

“The El Paso case (in the San Antonio Division) and this case ask the courts to decide the same legal issues because they are essentially the same case,” Paxton wrote. “Since this case was first-filed, the interests of justice and judicial economy warrant consolidating these cases in the Austin Division.”

Because Texas had filed its suit first in the Austin Division, Paxton said, that court should determine whether other cases should be “dismissed, stayed, transferred or consolidated.”

Paxton also argued that the legal challenges in the San Antonio court should be stopped because the plaintiffs, which include El Paso and El Cenizo, had no connection to that jurisdiction.

“The proper venue for the El Paso case lies in Austin,” he wrote. “There is no substantial connection to San Antonio and plaintiffs sued the Governor and Attorney General in their official capacities. Suits against government officials in their official capacities should be brought in the division from where those officials primarily perform their duties.”

The motion could mean that jurisdictions and groups that had signed on to lawsuits as plaintiffs — like El Paso, El Cenizo and the League of United Latin American Citizens — will now become defendants in the state’s original suit.

[…]

Mimi Marziani, executive director of the Texas Civil Rights Project that is representing the Texas Organizing Project Education Fund, said the state is trying to intimidate civil rights groups to make them wary of joining suits against the ban.

“It’s clear that Texas is seeking to punish civil rights organizations that have bravely stood up against the State and prevent additional groups from coming forward,” she said in a written statement. “Indeed, their lawsuit does not include any specific allegations against groups like our client.”

See here, here, and here for the background. I presume that Paxton will eventually amend his motion to encompass the San Antonio/Austin lawsuit as well. I Am Not A Lawyer, so it is not clear to me what the advantage to Paxton is in doing this, other than his apparent belief that the court he filed in is more amenable to his argument than the San Antonio court. Plaintiffs usually have some burden of proof on them, so you’d think that being the defendant would be the less onerous task, but again, I don’t know what I’m talking about, so any actual attorneys out there are encouraged to weigh in. I do believe that this is intended to intimidate any other potential litigants, though I don’t think it will be successful on that front. In any event, I’ll be keeping an eye on this.

ACLU joins first “sanctuary cities” lawsuit

From the inbox:

The ACLU of Texas and the ACLU Immigrants’ Rights Project have joined the lawsuit challenging Texas Senate Bill 4 (SB4), which demands that local governments and their employees engage in federal immigration enforcement practices. The case, City of El Cenizo, Texas, et al. v. State of Texas, et al., was filed earlier this month on behalf of a group of local governments and law enforcement officials whose rights and ability to serve their own constituents are imperiled by SB4. The Plaintiffs include the City of El Cenizo, El Cenizo Mayor Raul L. Reyes, Maverick County, Maverick County Sheriff Tom Schmerber, Maverick County Constable Mario A. Hernandez, and the Texas State League of United Latin American Citizens (Texas LULAC).

“As the leader of a diverse community along the South Texas border, I am challenging SB4 because it will undo the decades of work to build trust with the immigrant community and to use our scarce resources to increase public safety. We will not be part of Trump’s deportation force,” said Raul Reyes, mayor of El Cenizo. “This lawsuit will give a voice to the people and families that live in fear because of SB4.”

“By joining as co-counsel for the City of El Cenizo, Mayor Reyes, and the other courageous plaintiffs who sued the state, we aim to protect the civil liberties of immigrant communities,” said Edgar Saldivar, senior staff attorney at the ACLU of Texas. “The Constitution does not allow the State of Texas to enact laws that threaten immigrants and the local officials entrusted to protect them. Today, we assert our resistance to the state’s pervasive attacks on vulnerable people and say to Gov. Abbott, see you in court.”

“Under SB4, local authorities will lose control over public safety and Texans will suffer from discrimination because of the color of their skin, accents or background,” said Lee Gelernt, ACLU Immigrants’ Rights Project deputy director.

The El Cenizo lawsuit was filed in the United States District Court for the Western District of Texas, San Antonio Division. The ACLU will serve as co-counsel with Luis Roberto Vera, Jr., LULAC’s National General Counsel, and Renea Hicks of the Law Office of Max Renea Hicks.

See here for the background. There is also the El Paso County lawsuit, which is different in nature due to a previous lawsuit settlement that may put El Paso in conflict with SB4. The city of San Antonio may get into the act in the near future, and once the pension reform bill is signed there will be pressure on Mayor Turner to address the issue as well. I’m happy to see as many lawsuits against this atrocity as possible.

Lawsuit filed against Houston panhandling ordinance

From the inbox:

The ACLU of Texas announced today that it had filed a lawsuit on behalf of three homeless Houstonian plaintiffs adversely affected by the City of Houston’s camping and panhandling ordinances. Taken together, these ordinances illegally deprive homeless Houstonians of shelter, infringe on their right to free speech and ultimately constitute a criminalization of homelessness itself.

“In recent years, Houston has admirably managed to reduce homelessness by half by pursuing sensible and compassionate solutions to this nationwide crisis,” said Trisha Trigilio, staff attorney for the ACLU of Texas. “But these latest ordinances abandon that humane approach. The City says they’re meant to get people into shelters with ‘tough love,’ but the truth is the shelters are full and Houston’s homeless have nowhere else to go.”

“Laws that criminalize homelessness are ineffective, waste limited public resources and violate basic human and constitutional rights,” said Maria Foscarinis, executive director of the National Law Center on Homelessness & Poverty. “The Law Center shares the ACLU’s concerns that Houston’s new ordinances governing outdoor camping and panhandling violate homeless persons’ constitutional rights.”

“The main thing these laws take from us is our dignity,” said Plaintiff Tammy Kohr. “We’re not bad people; we’re just trying to survive.” Plaintiff Eugene Stroman added, “This law shows little respect or sympathy for the impoverished people of Houston. Living in shelters just isn’t an option for us, but if you can’t find your own place to live, you’re treated like a criminal.”

The lawsuit requests an injunction prohibiting the tent ban, the panhandling ban and the seizure of homeless Houstonians’ private property.

See here for some background. The ordinance went into effect on Friday, which is no doubt why the lawsuit was filed on Monday morning. The Chron story adds some more details.

Mayor Sylvester Turner defended the ordinances in response to questions from the Chronicle at a Monday afternoon news conference, saying the rules aimed to balance constitutional rights and “the legitimate public health safety and welfare of all citizens in the public space.”

“Based on my reading of the lawsuit filed by the ACLU, they would have us do nothing,” the mayor added. “We have chosen to work with those living on the streets on a one by one basis to assess and address their individual needs and provide compassionate and meaningful solutions. Make no mistake, this is a public safety issue and we cannot bury our heads in the sand and pretend that it does not exist. The question is what is the best way or ways to transition people from living on the street.”

The mayor has said the panhandling ordinance doesn’t put an undue burden on free speech, as the ACLU lawsuit contends.

[HPD Captain William Staney, who oversees the mental health division] said Friday that Houston police would slowly ramp up enforcement. He said no one was arrested, cited or even formally warned on Friday. However, police eventually would take away people’s property if they keep more belongings than would fit in a 3-foot cube, as the ordinance requires.

The police department circulated a memo Friday emphasizing that arrest is a last resort and that officers must first offer access to medical help, addiction treatment and temporary shelter before taking action under the new rules.

While the ACLU lawsuit and some homeless people contend that shelters don’t have room, the mayor’s special assistant for homeless initiatives differed on Monday.

“We’ve worked with these shelters to make sure that even if a bed is not available that there’s still room for them to get them out from the elements inside where there’s additional services,” said the assistant, Marc Eichenbaum.

I agree that the city has done a lot of work to reduce homelessness in Houston, all to its credit, and I think there’s a lot of merit to the push to redirect charity towards support services and away from giving a dollar to people on the streets. Mayor Turner believes this ordinance is compliant with previous court rulings. Obviously, that remains to be seen, and the fact that advocates for the homeless think this ordinance will do more harm than good cannot be overlooked. I would really rather see this get mediated instead of litigated. Surely there are things the city can do to the ordinance to settle this. The Press has more.

Get ready for the “sanctuary cities” lawsuits

It’s just a matter of time.

Now that Senate Bill 4 is on its way to becoming law, opponents are looking to the courts for relief – and a 2012 U.S. Supreme Court case is giving them hope.
The high court struck down parts of a controversial 2010 immigration law in Arizona on the grounds that Congress, not the states, has the power to create immigration law. Experts say that argument could come into play with Texas’ SB 4, which requires local jails to comply with immigration detention requests that federal officials have said are voluntary.

“My opinion is the state is regulating in the immigration field,” said Barbara Hines, senior fellow at the immigration reform group the Emerson Collective. “What the state of Texas is doing is they are creating their own detainer program. That is pre-empted. Immigration is a federal area.”

Among other things, SB 4 would create civil and criminal penalties for officials who disregard requests by U.S. Immigration and Customs Enforcement to extend the detention of jail inmates suspected of being in the country illegally. Those detention requests, or detainers, help facilitate possible deportation proceedings.

State Rep. Rafael Anchia, D-Dallas, predicted that the bill will follow the same course as Arizona’s SB 1070, better known as the “papers please” law because it required law enforcement officers in Arizona to demand the documentation of anyone they believed was in the country illegally.

Texas’ SB 4 doesn’t require officers to ask, but it prohibits sheriffs or police chiefs from keeping their officers from doing so.

“It allows local law enforcement to ask anybody on the street for their immigration status,” said Anchia, who chairs the Democrat-dominated Mexican American Legislative Caucus, which is fighting the state in court over redistricting maps it says are racially discriminatory.

[…]

Critics have argued the bill would separate families, deport well-meaning immigrants and create a fear in immigrant communities that might undermine their safety.

They picked up a legal argument this week after a group of mayors, including Austin Mayor Steve Adler, met with U.S. Attorney General Jeff Sessions for clarity on the ramifications for so-called “sanctuary cities.”

Sessions confirmed Tuesday to the mayors that compliance with the federal immigration detention requests sent to local jails — the central requirement of SB 4 — isn’t mandated under federal law. Rather, the jails can choose whether to hold inmates longer at the request of ICE, Sessions said.

That the comments came from such a high-ranking Trump administration official deflated the notion often associated with SB 4: that local officials like Travis County Sheriff Sally Hernandez are breaking federal law by choosing to ignore some ICE detention requests.

It also raised questions over whether the state could step in and create an immigration law making the detainers mandatory.

“It is inevitable that you will see cities and counties across the state suing the state. The overreach is unprecedented,” Austin City Council Member Greg Casar said. “I don’t know who died and made Greg Abbott (into) Putin, but our cities are going to fight back.”

See here for the background, and here for more on what Mayor Adler said about his meeting with Sessions. I hope opponents of this lousy bill flood the zone with lawsuits. It’s clear from the HB2 experience that setbacks in court will not stop the Lege from trying the same things again in the future, but it’s still necessary. Also, I say Greg Abbott has always had authoritarian inclinations, he’s just more comfortable expressing them in public now.

There will also be many headaches for law enforcement agencies, which strongly opposed SB4.

Houston Police Chief Art Acevedo spoke vehemently against Senate Bill 4 Thursday afternoon, calling it a dangerous move by the state Legislature because it would redirect limited HPD resources from crime fighting efforts to an initiative that does not improve public safety.

Acevedo did not share if HPD would alter its policies if SB 4 were to become law. However, he made it clear during the afternoon presser he would make public safety a priority over policies he believe are unrelated.

“I am carrying out my sworn duty and moral duty to speak out on matters of public safety. And I’m not here to keep a job to do it,” he said.

[…]

The legislation would force police to honor all federal requests to detain people suspected of being in the country illegally until federal authorities can investigate the person’s status. It also would prohibit local jurisdictions from passing or enforcing an ordinance that prohibits police officers from inquiring about a detained person’s immigration status, which would nullify the Houston Police Department’s 1990 policy on the matter.

“If that language does not get removed … we’re going to have some negative consequences,” Acevedo said.

Police departments across the state, including Houston, are understaffed, he said. And the bill would diminish those already limited resources, he added. Just this year Acevedo announced plans to target high-crime areas and violent documented gang members.

He also announced a joint effort with the Texas Department of Public Safety to decrease violent crime in the area by creating two squad assigned to the initiative.

However, he believes SB4 may affect those plans.

“We don’t have the resources, nor do we have the bandwidth nor the desire to be ICE agents. If I wanted to work for ICE, I would’ve applied for ICE,” he said.

Acevedo’s worry is that a police officer’s duty and the proposed policy will create a divide among departments throughout the state. While police officers are sworn to protect, he says the bill could open the door for harassment.

“I will lose my ability and authority to direct (my officers) workflow,” he said. “ … And all of sudden I’ll have a police officer that wants to go off and play ICE agent all day.”

He went on to add he hopes that isn’t the case, but that perception would be damaging for Houston – particularly on immigrant communities.

It’s not about what local officials want, it’s about what Greg Abbott wants. Sorry, Chief. The Chron, ThinkProgress, and the Press have more.

House passes its “sanctuary cities” bill

Terrible.

After more than 16 hours of debate, the Texas House of Representatives early Thursday morning tentatively gave a nod to the latest version of a Senate bill that would ban “sanctuary” jurisdictions in Texas.

The 93-54 vote on second reading fell along party lines and came after one of the slowest moving but most emotional legislative days at the state Capitol.

The vote came at 3 a.m. after state Rep. Dennis Bonnen, R-Angleton, successfully made an what some Democratic members called an unprecedented motion to group all of the remaining amendments — more than 100 — and record them as failed. He said he made that suggestion so members wouldn’t be forced to pull their amendments. The motion passed 114 to 29, with about a third of Democrats approving the measure.

Members voted on the bill after adding back a controversial provision that extends the scope of the bill and allows local peace officers to question the immigration status of people they legally detain. The original House version of the bill only allowed officers to inquire about status during a lawful arrest.

That detainment language was included in what the Senate passed out of its chamber in February but was later removed by state Rep. Charlie Geren, R-Fort Worth, the bill’s House sponsor.

The amendment to add that provision back into the bill was offered by Tyler Republican Rep. Matt Schaefer, who was in the middle of a back-and-forth, deal-making struggle that stopped debate for more than hour. Both parties’ members caucused as they tried to hammer out a deal whereby Schaefer would pull his amendment and Democrats would limit the number of proposals they would offer.

But no compromise was reached, despite several high-profile Republicans, including Geren and House State Affairs Committee Chairman Byron Cook, R-Corsicana, telling members they would vote against the Schaefer proposal.

The intent of bill is “getting dangerous criminals off the street. That’s the mission. Shouldn’t be anymore than that,” Cook said.

The bill keeps a provision that makes sheriffs, constables and police chiefs subject to a Class A misdemeanor for failing to cooperate with federal authorities and honor requests from immigration agents to hold noncitizen inmates subject to removal. It also keeps civil penalties for entities in violation of the provision that begin at $1,000 for a first offense and swell to as high as $25,500 for each subsequent infraction.”

[…]

One point of major contention was a controversial amendment that moves the House version closer to the bill that passed the Senate.

The amendment would make police eligible to question the status of any person detained for an investigation of a criminal infraction, no matter how serious. The House had originally gutted that language and limited the questioning to police officers making an arrest.

The 81-64 vote came after key Republicans, including Geren, said came out against the change. Geren was one of nine Republicans joining Democrats in voting against the amendment.

SB4 was given final approval yesterday and will head back to the Senate for concurrence. Remember how the revised House version was supposed to be less awful than the original Senate version? Thanks to the Schaefer amendment, that is no longer the case. This bill was a top priority of the Republicans, and it was always going to pass. The only real question was how harmful it was going to be, and now we have an answer to that. I still don’t know what public policy goals the Republicans have in mind for this bill, but I’m confident they will not achieve them. What they will get is a bunch of lawsuits, so get ready for that.

Two more things. One, there’s this:

Legislation designed to limit the ability of cities for issuing ID cards to undocumented immigrants and onetime criminals was tentatively approved Thursday by the Texas Senate.

Supporters insisted Senate Bill 1733 was designed to standardize ID across Texas, and ensure that they meet federal homeland-security standards.

Opponents said the measure is designed to make it harder for minority populations to get access to services, and targets immigrants since many of them use locally issued ID cards for that purpose.

[…]

Sen. Jose Rodriguez, an El Paso Democrat who chairs the minority caucus in the Republican-controlled Senate, said he fears “various groups would be restricted from accessing services” because the bill appears to limit local officials from issuing cards and restricts the types of cards that can be accepted for identification by a government official.

Sen. Sylvia Garcia, D-Houston, expressed similar concerns.

“They’re more worried about this being used for voting than anything else,” she said after the debate ended. “It’s all made up. It’s a problem that doesn’t exist.”

Many problems that don’t exist have been getting solved this session. I’d say it’s the Republicans’ core competency.

Two, I usually put statements I receive in email about this bill or that news item beneath the fold, but in this case I want it on the main page. So here are some reactions to the House passage of SB4.

From the ACLU, which had a press call with several Texas leaders:

The State of Texas is on the verge of enacting legislation that could make the state a pariah in the eyes of the nation.

Today, local elected officials and advocates gathered on a press call to condemn this legislation and outline the varied consequences, including: 1) promoting racial profiling based on appearance, background and accent that will affect U.S. citizens and immigrants alike; 2) hurting public safety policies that encourage all residents, including immigrants, to report crimes and serve as witnesses; and 3) dictating to elected officials and law enforcement that they must follow state mandates or else face jail time.

A recording of today’s call is available here.

When Arizona enacted draconian legislation in 2010, it resulted in boycotts, lost revenue and a devastating blow to the reputation of the state. Texas is on the verge of repeating that mistake.

As the United States courts continue to uphold the Constitution and block Trump’s overarching, un-American and anti-immigrant executive orders — including his attempts to cut funding from so-called sanctuary cities — legislation, such as this bill, allows states to circumvent the courts and enlarge Trump’s Deportation Force.

Greg Casar, Austin Council Member
“The Legislature is attempting to blackmail cities into violating our residents’ constitutional rights. We must not comply with this unconstitutional, discriminatory and dangerous mandate. We will fight this bill to the end — at City Hall, in the courts, and protesting in the streets.”

​Terri Burke, executive director for the ACLU of Texas
“I am deeply grieved but wholly unsurprised that anti-immigrant lawmakers in the Texas House have taken a wrongheaded, racist piece of legislation and made it a ‘show me your papers’ bill. They have stated as clearly as they can that they’re willing to target innocent children, break up families, encourage constitutional violations like racial profiling and endanger Texas communities solely to make immigrants feel unwelcome in Texas. But the members of our immigrant communities should know that you are welcome in Texas, and you’re not alone. The ACLU stands ready to fight the inevitable excesses and abuses of this inhumane, wasteful, hateful bill. We stand with Texas immigrants.”​

State Representative Victoria Neave
“This issue is very personal to me. It will impact families on a level some people just don’t understand. This bill will make us less safe and cause a chilling effect among communities in our state.”

Jose P. Garza, executive director of Workers Defense Project
“Today, Texas officially became the front line of resistance against racist and discriminatory immigration policies. SB 4 will result in increased racial profiling, communities that are less safe and a more stagnant economy. On behalf of working families across the state, we vow to fight this policy in the streets, in the courtroom and at the ballot box until we prevail.”

Karla Perez, statewide coordinator for United We Dream UndocuTexas Campaign
“Anti-immigrant legislators in Texas have directed their hate at the immigrant children and families of this state, people of color and our LGBTQ community by criminalizing us and our families, and by passing legislation that will tear apart families like mine. They have shown that they do not care about dignity and respect for immigrants in our state. It is no surprise that under anti-immigrant leadership, Texas is advancing yet another proposal couched in discriminatory intent to the aide of their white supremacist agenda. We will hold accountable those causing pain and fear in our state, and history will not judge them well. Our fight does not end here. When our immigrant community is under attack, we unite and we fight back. Our diverse communities will continue to organize and build our networks of local defenses across the state to move us forward. This is our resilience, this is our strength, and this is our home — we are here to stay.​

Frank Sharry, executive director of America’s Voice Education Fund
“Texas Governor Greg Abbott and the state Legislature are turbocharging the radical mass deportation strategy of President Trump, Attorney General Jeff Sessions and Department of Homeland Security Secretary John Kelly. If not reversed or resisted, the combination of ‘unshackled’ federal deportation force agents and state-mandated collusion with those agents by local jurisdictions could result in one of the darkest chapters in American history. Texas has a population of 1.5 million undocumented immigrants, second only to California. The prospect of a Trump-Abbott mass deportation strategy taking root is as terrifying as it is despicable. People of goodwill from throughout America, and from throughout the world, are not going to stand by in silence as the state of Texas unleashes a campaign of discrimination against people based on their color, national origin or accent. Nor are they going to continue embracing a state that is about to unleash a campaign of terror aimed at immigrant families with deep roots in the state.”

From the Texas Organizing Project:

The following is a statement from Michelle Tremillo, executive director of the Texas Organizing Project, on the passage of SB4 by the Texas House early this morning:

“This morning’s vote by the Texas House is disheartening and disgraceful, and puts Texas closer to passing a show-me-your-papers law that will promote racial profiling of Latinos. The amendments added during the debate that will allow police to question the immigration status ofr children and people detained, not arrested, are especially troublesome and cruel.

“If SB4 becomes law, it will also make Texas less safe by further driving undocumented immigrants into the shadows, afraid of all interactions with police, whether they’re the victims or witnesses. It will also hurt the state’s economy by making us a target for economic boycotts and the loss of productivity that an increase in deportations this law would surely cause.

“No one except Republicans in the state’s leadership wants this racist, divisive and inhumane bill to become law; not police, not local elected officials and certainly not a majority of Texans.

“This bill, combined with the voter ID law and redistricting maps that have been repeatedly deemed to be intentionally discriminatory by federal courts, prove that our state’s legislature wants to erase and marginalize people of color. But we will not succumb to their will. We will not disappear. We will rise up. We will vote. We will claim our power. This is our Texas.

“As Martin Luther King Jr. said: “The arc of the moral universe is long, but it bends towards justice.” Justice will prevail. We will prevail.”

From State Rep. Gene Wu:

Today’s passage of Senate Bill 4 is a solution in search of a problem. This is a bill that has been crafted out of fear and hatred of immigrants. Not a single Texas city refuses to comply with voluntary ICE Detainers. Not a single Texas city can be called a “Sanctuary City.” The bill as passed, would not just detain criminals, but would target children, victims of crimes, and even immigrants who served in our armed forces. The Texas Legislature has, today, passed a Arizona-style, “Show-me-your-papers” law that will disproportionately affect communities such as those that make up District 137 — hardworking communities made up of native and non-native Texans, refugees, and immigrants both documented and undocumented.

This legislation is cruel. When it was made clear this bill would cause American citizens to be jailed and detained, the proponents of the bill shrugged it off as an unfortunate inconvenience. When Democrats offered amendments to exempt children and victims going to testify in court, those measures were repeatedly defeated on purely party lines. Democrats also asked to exempt religious-based schools who may object with deeply held beliefs; that too was defeated on partisan lines.

When I first spoke on this bill I couldn’t stop thinking about my boys. This bill and other laws like it are a constant reminder that, despite being born in this nation, they will be seen as outsiders because of the way they look; that the law will treat them with suspicion; and they will have to fight just to be treated equally. I was reminded that this is not the first time laws were passed against immigrants based on fear and hatred. And, it will not be the last.

Democrats were united in their opposition to the legislation because this felt like an attack on the diverse communities that we represent and that make Texas great. At the end of the day, all we asked for was mercy for our communities; mercy for our families; and mercy for our children. But no mercy was given.

From the Texas AFL-CIO:

Approval of a harsh, “show me your papers”-style bill that drafts local criminal justice officials into becoming an arm of the federal immigration system marks one of the saddest days I have ever spent around the Texas Legislature.

This bill will harm all working people. Immigrants do some of the hardest jobs in our state and are net contributors not just to our economy but to our future. SB 4 will not only make it easier for unscrupulous employers to deny important workplace rights to immigrants, but will also undermine important labor standards for all workers.

SB 4 is also bad for our Brothers and Sisters in law enforcement who depend on the trust of those who live in the communities they police. That trust could become all but unobtainable under SB 4.

Worst of all, SB 4 will broadly discriminate against minorities in Texas, regardless of immigration status. It will increase the number of times American citizens are asked about their immigration status because of their appearance or language. By making mere detention, rather than arrest, the threshold for questioning immigration status, the law will ensnare people who are not even suspected of committing a crime.

We believe there is broad consensus that the U.S. immigration system is broken. But SB 4 will simply increase discrimination and hardship rather than point toward comprehensive immigration reform.

The DMN, the Texas Observer, the Dallas Observer, and the Current have more.

Lawsuit filed over Muslim ban documents

From the inbox:

The American Civil Liberties Union of Texas filed a Freedom of Information Act (FOIA) lawsuit [Wednesday] demanding government documents about the on-the-ground implementation of President Trump’s Muslim ban.

Today’s action is part of a total of 13 FOIA lawsuits filed by ACLU affiliates across the country. The ACLU of Texas lawsuit is seeking records from U.S. Customs and Border Protection’s Houston Field Office.  In particular, the lawsuit seeks records related to CBP’s implementation of President Trump’s Muslim ban at Houston’s Bush Intercontinental Airport (IAH) and Dallas Ft. Worth International Airport (DFW). The ACLU first sought this information through FOIA requests submitted to CBP on February 6. The ACLU is now suing because, other than acknowledging receipt of the request, the government has failed to respond.

“Transparency and accountability in our government are fundamental marks of a vibrant democracy,” said Edgar Saldivar, senior staff attorney of the ACLU of Texas. “If our government is to be truly of the people, by the people, and for the people, the American public needs to know what goes on behind the veil of federal agencies. FOIA gives us that right. And with this lawsuit, we expect to find out more about CBP’s role in carrying out the Muslim ban.”

“President Trump has tried twice to force his unconstitutional and ham-fisted Muslim ban on the public, and twice American courts have had to remind him — swiftly — that he is not above the law,” said Terri Burke, executive director of the ACLU of Texas. “CBP’s refusal to comply with our FOIA requests indicates that not everyone in the Trump administration got the message. But we will continue to do everything in our power to ensure that CBP respects our laws, as well as the people — all of the people — they protect.”

“CBP has a long history of ignoring its obligations under the federal Freedom of Information Act — a law that was enacted to ensure that Americans have timely access to information of pressing public concern. The public has a right to know how federal immigration officials have handled the implementation of the Muslim bans, especially after multiple federal courts have blocked various aspects of these executive orders,” said Mitra Ebadolahi, Border Litigation Project Staff Attorney with the ACLU of San Diego and Imperial Counties.

Each lawsuit seeks unique and local information regarding how CBP implemented the executive orders at specific airports and ports of entry in the midst of rapidly developing and sometimes conflicting government guidance.

The coordinated lawsuits seek information from the following local CBP offices:

Atlanta
Baltimore
Boston
Chicago
Detroit
Houston
Los Angeles
Miami
Portland
San Diego
San Francisco
Seattle
Tampa
Tucson

All of the affiliate FOIA lawsuits will be available here:
https://www.aclu.org/other/aclu-cbp-foia-lawsuits-regarding-muslim-ban-implementation

This release can be found here:
https://www.aclutx.org/en/press-releases/aclu-texas-files-lawsuit-demanding-documents-implementation-trump-muslim-ban

The ACLU national release is here:
https://www.aclu.org/news/aclu-files-lawsuits-demanding-local-documents-implementation-trump-muslim-ban

The ACLU national release on the original FOIA requests is here:
https://www.aclu.org/news/aclu-files-demands-documents-implementation-trumps-muslim-ban

The ACLU of Texas release on the original FOIA request from is here:
https://www.aclutx.org/en/press-releases/aclu-texas-files-demands-documents-implementation-trumps-muslim-ban

More background on CBP’s FOIA practices is here:
https://www.aclu.org/letter/aclu-letter-cbp-re-foia-practices-july-2016

Here’s a Chron story about the lawsuit. Given what a debacle this all was (and still is), we deserve to know exactly what happened and to whom.

There’s more than SB6 to watch out for

Keep an eye out for other anti-LGBT bills, because any of them might pass even if SB6 goes down.

With the media seemingly preoccupied by Lieutenant Governor Dan Patrick’s bathroom bill, three Republican state senators have quietly introduced a sweeping anti-LGBT “religious freedom” measure.

Senate Bill 651, filed last week, would bar state agencies that are responsible for regulating more than 65 licensed occupations from taking action against those who choose not to comply with professional standards due to religious objections.

Eunice Hyon Min Rho, advocacy and policy counsel for the ACLU, said SB 651 would open the door to rampant discrimination against LGBT people, women seeking reproductive health care and others. Rho said the bill could lead to doctors with religious objections refusing to perform medical procedures, teachers not reporting child abuse if they support corporal punishment, or a fundamentalist Mormon police officer declining to arrest a polygamist for taking underage brides.

“This is incredibly broadly written,” said Rho, who monitors religious freedom legislation across the country. “It’s just really alarming. There are no limitations to this bill.”

Rho said only one state, Arizona, has passed a similar law, but unlike SB 651 it includes exceptions related to health care and law enforcement. She also warned that anti-LGBT state lawmakers may be trying to use the bathroom bill as a distraction.

“I think because some of the bills are receiving more attention than others, it’s a way for them to sneak some stuff through with a little bit less fanfare,” Rho said. “This is a tactic we’ve seen in countless states.”

[…]

As of Thursday, nine anti-LGBT bills had been filed in the 2017 session, according to Equality Texas, compared to at 23 in 2015. But there were indications that additional anti-LGBT “religious freedom” proposals are coming before the March 10 filing deadline.

Take a look at that Equality Texas list, and if you’ve gotten yourself into the habit of calling your legislators, add the bad bills there to your recitations. There’s nothing subtle about any of this, but with SB6 taking up all the oxygen, there’s cover for those bills. They would allow discrimination of the Woolworth’s lunch counter kind, and they cannot be allowed to pass.

Transgender health directive halted

One last kick in the rear from the annus horribilis that was 2016.

A Texas judge issued an injunction Saturday against a federal mandate aimed to protect transgender people, finding that the federal health rule violates existing law.

The preliminary injunction, granted by U.S. District Judge Reed O’Connor, is in response to a lawsuit filed by Texas, on behalf of religious hospital network Franciscan Alliance, and four other states in August.

In the suit, Texas and the other plaintiffs argued that a federal regulation prohibiting discrimination against transgender individuals in certain health programs would force doctors “to perform and provide insurance coverage for gender transitions and abortions, regardless of their contrary religious beliefs or medical judgment,” according to the order. The plaintiffs also claim they could be required to perform gender transition procedures on children. Texas asked the court to block the federal government from enforcing the regulation.

Transgender rights activists have refuted claims that the health rule prevents doctors from using sound medical judgment, arguing instead that it clarifies that health care providers can’t deny services or insurance to someone because that person is transgender.

In Saturday’s ruling against the federal government, the judge indicated that a preliminary injunction was appropriate because the federal health mandate violates the Administrative Procedure Act, which governs how federal agencies develop and issue regulations, and likely violates federal religious freedom protections for the plaintiffs that are private entities.

“While this lawsuit involves many issues of great importance—state sovereignty, expanded healthcare coverage, anti-discrimination protections, and medical judgment—ultimately, the question before the Court is whether Defendants exceeded their authority under the ACA in the challenged regulations’ interpretation of sex discrimination and whether the regulation violates the Religious Freedom Restoration Act as applied to Private Plaintiffs,” the order reads.

See here and here for the background. The Chron adds on.

Ezra Young, director of Impact Litigation at Transgender Legal Defense and Education Fund, challenged both rulings as misinterpretations of federal law. He called Saturday’s “flatly contrary to law,” “morally repugnant,” and predicted it would be overturned on appeal.

“The U.S. Supreme Court has long recognized that sex discrimination takes many forms, and our nation’s expansive and unyielding nondiscrimination laws necessarily reach sex discrimination whenever and wherever it strikes,” Young said in a statement Saturday.

[…]

Young said the impact could be damaging to transgender people seeking care, who for years have faced denial of insurance benefits or access to doctors they chose because of their gender identity. Young said while some states have similar rules protecting transgender rights, Obama’s move was “groundbreaking.”

“The benefit of the federal law is it sort codifies things and it gave one unifying rule all across the country,” he said.

I’m sure this will be appealed. At least with the intervention of the ACLU, the defense of the lawsuit can’t be tanked by a corrupted Justice Department. I don’t know enough to speculate about the legalities going forward, but I do know this: Some day, and I hope to live long enough to see it, people will look back at the actions of Ken Paxton and the other obstructers of progress, and wonder what the hell they were doing. Paxton and those like him will be seen as the George Wallace and Bull Connor of the early 21st century. I don’t know when that day will come, I just know that it will.

ACLU intervenes in transgender health care suit

Good for them.

RedEquality

The ACLU and ACLU of Texas are getting involved in a lawsuit over a regulation in the Affordable Care Act. In August, Texas filed a lawsuit against federal regulations that prohibit healthcare discrimination against people who are transgender. The lawsuit was announced by the Becket Fund for Religious Liberty, representing the Franciscan Alliance. The lawsuit will be heard in Wichita Falls.

The rules state that healthcare entities are not allowed to deny or limit services – including gender transition services – based on race, national origin, sex, age or disability.

But the State of Texas, along with four other states, says the regulation in would force doctors to perform medical procedures to change the gender of children.

The ACLU says the lawsuit would have the larger implication of allowing providers to use religion to deny medical care.

Josh Block, a senior staff attorney with the ACLU’s LGBT project, says the lawsuit echoes the recent attempt to strike down guidance from the U.S. Department of Education to allow public school students to use the bathroom that is in line with their gender identity.

Block says the ACLU got involved because no one else had intervened to represent the interest of the people who are being discriminated against.

“It’s really crucial that the people who are being discriminated against have a voice in that courtroom to explain why the law is so necessary,” he says.

[…]

Individual doctors and hospitals are saying they should not be required to perform gender transition procedures because they violate their religious beliefs. Block says the regulations aren’t targeted at individual doctors; instead, they require the medical institution to follow the rules.

“They don’t require anyone to perform any surgery or give any treatment that the doctor doesn’t want to,” Block says. “The obligations are on the entity that’s employing the doctors. The burden isn’t on anyone’s individual conscience – this is an organization that is claiming the right to have federal funds to provide healthcare to the general public but then discriminate based on their religious beliefs.”

See here for the background. I sincerely hope the ACLU has some company in its involvement here. I put in those last two paragraphs to address a comment from my earlier post on this topic. If the rule in question really applies to institutions and not individual doctors, I’m hard pressed to see what the objection is. Truth be told, though, I believe this rule should apply to individual doctors, for the same reason why individual firefighters should respond to an alarm at an LGBT person’s house regardless of that firefighter’s personal feelings. If you can’t treat every person you serve with equal respect, dignity, and effort, then you really ought to consider another occupation, and that’s before we take the Hippocratic Oath into account for the docs. Every person deserves equal treatment. What is so freaking difficult about that?