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SCOTx re-enables statewide abortion ban

Ugh.

The Texas Supreme Court has blocked a lower court order that had allowed clinics in the state to continue performing abortions even after the U.S. Supreme Court overturned it’s landmark 1973 ruling that confirmed a constitutional right to abortion.

It was not immediately clear whether the clinics in Texas that resumed performing abortions just days ago would halt services again following the ruling late Friday night. A hearing is scheduled for later this month.

The whiplash of Texas clinics turning away patients, rescheduling them, and now potentially canceling appointments again — all in the span of a week — illustrates the confusion and scrambling that has taken place across the country since Roe v. Wade was overturned.

An order by a Houston judge on Tuesday had reassured some clinics they could temporarily resume abortions up to six weeks into pregnancy. Texas Attorney General Ken Paxton quickly asked the state’s highest court, which is stocked with nine Republican justices, to temporarily put that order on hold.

“These laws are confusing, unnecessary, and cruel,” said Marc Hearron, attorney for the Center for Reproductive Rights, after the order was issued Friday night.

Clinics in Texas — a state of nearly 30 million people — stopped performing abortions after the U.S. Supreme Court last week overturned Roe v. Wade. Texas had left an abortion ban on the books for the past 50 years while Roe was in place.

Attorneys for Texas clinics provided a copy of Friday’s order, which was not immediately available on the court’s website.

See here and here for the background; Steve Vladeck provides a bit more context. You can see a summary of the order (order 22-0527) here. The relevant bits:

The parties are directed to submit briefing by 5 p.m. July 7, 2022 regarding whether the 269th District Court of Harris County, Texas, has jurisdiction to enjoin the enforcement of a criminal statute. See State v. Morales, 869 S.W.3d 941 (Tex. 1994). Real parties in interest are requested to respond to relators’ petition for writ of mandamus by 5 p.m. July 11, 2022. This order does not preclude further proceedings in the court of appeals and district court, including proceedings to address the jurisdictional issue described in paragraph 2 above. The Court is confident that those courts will proceed expeditiously.

[Note: The petition for writ of mandamus remains pending before this Court.]

The 269th Civil Court in Harris County, which issued the temporary restraining order that SCOTx has now lifted, has a hearing scheduled for July 12 to determine whether an injunction can be granted. We may get that on the 12th or 13th, and then subsequent rulings from SCOTx shortly thereafter. I assume the writ of mandamus was filed by the Attorney General to supersede all this and just declare that there’s nothing stopping them from enforcing that 1925 law that criminalized abortion. Don’t you just love it when this kind of order drops on the Friday evening of a holiday weekend? Axios, the WaPo, the NYT, and the DMN have more; as of Saturday morning when I drafted this the Trib had not yet published anything and the Chron was carrying this same AP story. Like I said, Friday night, holiday weekend.

UPDATE: Here’s the Trib story.

Temporary restraining order granted to abortion clinics in trigger lawsuit

Some abortions are temporarily legal in Texas again.

Abortions up to about six weeks in pregnancy can resume at some clinics in Texas for now after a Harris County District Court judge granted a temporary restraining order that blocks an abortion ban that was in place before Roe v. Wade.

In the ruling issued Tuesday, Judge Christine Weems ruled that the pre-Roe abortion ban “is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution.”

“It is a relief that this Texas state court acted so quickly to block this deeply harmful abortion ban,” Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a press release. “This decision will allow abortion services to resume at many clinics across the state, connecting Texans to the essential health care they need. Every hour that abortion is accessible in Texas is a victory.

Whole Woman’s Health, which operates abortion clinics in McAllen, McKinney, Fort Worth and Austin, said it would resume providing abortions as a result of this ruling.

“We immediately began calling the patients on our waiting lists and bringing our staff and providers back into the clinics,” said Amy Hagstrom Miller, the organization’s president and CEO.

Abortions can resume only at the clinics named in the lawsuit. Besides the Whole Woman’s Health clinics, the others that will resume operations are Alamo Women’s Reproductive Services in San Antonio, Brookside Women’s Medical Center and Austin Women’s Health Center in Austin, Houston Women’s Clinic and Houston Women’s Reproductive Services in Houston, and Southwestern Women’s Surgery Center in Dallas.

A hearing has been set for July 12 to decide on a more permanent restraining order.

[…]

On a press call Tuesday, Hearron declined to speculate on what the temporary restraining order on the pre-Roe ban might mean for other clinics and abortion funds in the state.

“I don’t know that I have an answer to that question,” he said. “I think that’s a legal question that the other clients would want to look at.”

While some abortion access has been restored in Texas, current state law still allows abortions only up to around six weeks of pregnancy, a point at which many people don’t even know they are pregnant.

“So there still will be a large number of Texans who are still going to need to try to find access and appointments outside of the state,” Hearron said.

See here for the background. This will of course be appealed, so as I said before it will ultimately come down to what the Supreme Court says, if they choose to weigh in at all – they may decide to slow roll it, given that the whole thing will be moot in at most about two months. Not deciding when they don’t have to is a specialty of theirs.

As for the question of other providers, the Chron has a bit of input.

It’s unclear whether the injunction applies to clinics that are not party to the suit, such as Planned Parenthood.

The CEOs of Texas Planned Parenthood affiliates said in a joint statement Tuesday that their clinics had no immediate plans to resume offering abortions, but added: “This is a rapidly evolving situation and legal teams are still reviewing this order and its potential implications.”

The case could also offer a lifeline to Texas abortion funds, which provide transportation and other assistance to people seeking abortions, after they shuttered Friday, citing concerns of criminal liability.

Seems like it’s worthwhile to me to at least get the clarity and some assurance that you won’t be arrested for something that may have happened five minutes after Ken Paxton decided it was illegal. I Am Not A Lawyer, your mileage may vary, etc etc etc. I still think they should at least give serious thought to filing their own claims. We’ll see.

Lawsuit filed over Texas trigger law implementation

One last fight before the curtain comes down.

Texas abortion providers are making a last-ditch effort to temporarily resume procedures by challenging a pre-Roe v. Wade abortion ban that has not been enforced for nearly a half-century, but that some abortion opponents argue could be enforced after the U.S. Supreme Court’s decision to overturn the constitutional right to an abortion.

The providers filed a lawsuit on Monday, and a Harris County judge will hear arguments on Tuesday for implementing a temporary restraining order to block enforcement of the old ban, which criminalized both performing abortions and assisting anyone who performs abortions in Texas.

Texas Attorney General Ken Paxton, some Republican lawmakers and anti-abortion activists have argued that old state statutes banning abortion may have instantly gone back into effect following the Supreme Court’s announcement that it would overturn Roe v. Wade.

Texas abortion clinics stopped all procedures, and abortion funds ceased operating in the state after the Supreme Court ruled Friday to overturn Roe v. Wade, the landmark case that affirmed abortions as a constitutional right for nearly five decades. Some doctors had to halt procedures moments before they were set to perform them because of concerns that old state abortion laws that had been blocked by Roe could now once again be criminally enforced.

“We will fight to maintain access for as long as we can,” Nancy Northup, president of the Center for Reproductive Rights — one of the plaintiffs challenging pre-Roe restrictions — said in a statement. “Every day, every hour that abortion remains legal in Texas is a chance for more people to get the care they need. The clinics we represent want to help as many patients as they can, down to the last minute.”

Last year, Texas passed a “trigger law” to ban abortions if the Supreme Court repealed Roe v. Wade. The law will go into effect 30 days after the court issues a judgment repealing Roe.

Though the court issued its opinion signaling its intention to overturn Roe on Friday, it’s unclear when the formal judgment will come. Paxton said the judgment could take a month. He said his office will announce the effective date for the trigger law as soon as possible.

However, laws predating Roe v. Wade in Texas that ban abortion are still on the books — leading some to argue they’re valid again and that there’s no need to wait for the trigger law to seek criminal penalties for performing abortions in the state. Paxton noted this on Friday, saying “some prosecutors may choose to immediately pursue criminal prosecutions.”

But a 2004 case in the Fifth Circuit Court of Appeals found that by passing abortion laws — such as regulations on the availability of abortions for minors and the practices of abortion clinics — the Texas Legislature repealed its old bans and replaced them with regulations that implied those statutes were no longer in effect. And because the Supreme Court has yet to issue its formal judgment, it’s unclear whether the pre-Roe statutes can be enforced until that happens.

[…]

The pre-Roe laws include more detailed provisions than Texas’ trigger ban, including the potential to charge anyone who “furnishes the means” for someone to obtain an abortion. The threat of criminal charges has been enough to chill both abortion procedures as well as funding for Texans to travel and obtain abortions outside the state.

“It’s going to be very difficult for anyone to take on the threat of criminal prosecution in order to test these theories because the harm inflicted by the criminal justice system is immediate,” said Elizabeth Myers, an attorney who represents abortion funds.

Some abortion providers have already said they will resume procedures if a court gives them the protection to do so before Texas’ trigger ban takes effect.

“If these laws are blocked, I plan to provide abortions for as long as I legally can,” Dr. Alan Braid, abortion provider and owner of Alamo Women’s Reproductive Services, a plaintiff in the lawsuit, said in a statement Monday. “I started my medical career before Roe v. Wade and never imagined our country would go back to criminalizing doctors and preventing us from helping women.”

A copy of the complaint is here, and a brief thread from the ACLU of Texas, representing the plaintiffs, is here. I’d find this all fascinating as an academic exercise if it weren’t so fucking depressing. The complaint is long and I didn’t read it, but the bottom line question is simple enough. That said, similar efforts in Louisiana and Utah have succeeded, at least for now, so that offers a bit of hope. I just wonder if SCOTx will let a TRO stand if they are asked to weigh in. The Chron has more.

DAs are not going to be able to avoid enforcing anti-abortion laws

I appreciate the sentiment, but that’s not how it works.

Even before the U.S. Supreme Court overturned Roe v. Wade on Friday, local prosecutors in several of the largest Texas counties vowed not to file criminal charges in abortion-related cases, seemingly offering hope for those seeking a way around the state’s impending abortion ban.

But those counties are unlikely to serve as abortion safe havens in post-Roe Texas, legal experts and abortion rights advocates say, largely because clinics still face the threat of legal retribution even in counties with sympathetic district attorneys. And the penalty for those who continue offering the procedure is steep — up to life in prison and at least $100,000 in fines under Texas’ so-called trigger law, which will soon outlaw nearly all abortions, starting at fertilization.

While Attorney General Ken Paxton cannot unilaterally prosecute criminal cases unless authorized by a local prosecutor, he is free to do so for civil matters anywhere in Texas. That means district attorneys may shield clinics and physicians from the trigger law’s criminal penalty of a first- or second-degree felony, but Paxton could still target them for six-figure civil fines, said Sandra Guerra Thompson, a law professor at the University of Houston.

She also noted that abortion providers could be found criminally liable if an incumbent district attorney reconsiders or is replaced by a successor who wants to pursue abortion-related charges.

The trigger law, which takes effect 30 days after a Supreme Court judgment overturning Roe v. Wade, makes no exceptions for pregnancies resulting from rape or incest, nor for severe fetal abnormalities. It carries narrow exemptions for abortion patients placed at risk of death or “substantial impairment of a major bodily function.”

Still, some prosecutors could begin pursuing criminal charges immediately based on Texas statutes that pre-dated Roe but were never repealed by the Legislature, Paxton said Friday. Those laws prohibit all abortions except “for the purpose of saving the life of the mother.”

In any case, it’s unlikely that abortion providers will take the risk. They are already bound by the state’s six-week abortion ban, which allows people anywhere in the country to sue providers or those who help someone access the procedure in Texas after fetal cardiac activity is detected. Successful litigants win damages of at least $10,000 under the law.

We’ve discussed this before. There are things that cities and individuals can do to hinder law enforcement or prosecutorial efforts to enforce anti-abortion laws, but one way or another they are going to be enforced, very likely via increasingly intrusive and draconian means. If somehow local DAs refuse to pursue cases, the Lege will change the law to go around them, either to the Attorney General or to neighboring counties – Briscoe Cain is already planning to file bills to that effect. We can’t succeed at this level. The only way to fight it is to have power at the state level, and that’s going to mean winning statewide races and/or winning enough seats in the Lege to take a majority in the House. Even that is at best a defensive position – we are not taking over the Senate, not even in the most wildly optimistic scenario I can imagine – but it’s the best we can do, and it would definitely reduce the harm that is otherwise coming.

One more thing:

Harris County District Attorney Kim Ogg also slammed the Supreme Court decision, arguing that the “criminalization of reproductive health will cause great harm to women in America.” While she added that “prosecutors and police have no role in matters between doctors and patients,” she stopped short of a blanket vow to not prosecute alleged violations of state abortion laws.

“As in every case, we will evaluate the facts and make decisions on a case-by-case basis,” said Ogg, a Democrat.

I’m including this because as far as I can tell it’s the first time Ogg has spoken publicly about the coming anti-abortion enforcement wave. I seriously doubt that Kim Ogg will want to pursue any cases that are filed with her office, but I also doubt that she’ll just ignore them. Maybe she’ll take a broad “prosecutorial discretion” stance, but again, if she does and if nothing changes with the November elections, that discretion will be taken away from her. There just isn’t much she or anyone in her position can do about this. We need to be clear about that.

Roe v Wade

You don’t need me to tell you what happened yesterday, or what is likely to come. Abortion is still technically legal for another 29 days in Texas, when the trigger law kicks in, but many clinics have already stopped providing abortions because they don’t want to get tangled up in another legal fight that they fear they’ll lose. Local district attorneys will have to handle things from there, though as I said before, if there’s even a hint that local prosecutors and/or police departments are dragging their heels, the enforcement power will be shifted to the state (or to the rabid prosecutors in other counties) so fast it will make you dizzy.

That’s only as long as the Republicans have the power to do that, of course. Governor Beto O’Rourke would be able to veto bills that tried to make that happen, while Attorney General Rochelle Garza would not act as the backup prosecutor if it came to that. We at least have the power to make those things happen. You’re mad now, as you should be. This is where to channel that. It’s our best hope.

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

Look for the grifters

In any rightwing political movement, there will always be grifters. It’s absolutely an ants-to-a-picnic situation.

Over the last two presidential election cycles, True the Vote has raised millions in donations with claims that it discovered tide-turning voter fraud. It’s promised to release its evidence. It never has.

Instead, the Texas-based nonprofit organization has engaged in a series of questionable transactions that sent more than $1 million combined to its founder, a longtime board member romantically linked to the founder and the group’s general counsel, an investigation by Reveal from The Center for Investigative Reporting has found.

A former PTA mom-turned-Tea Party activist, True the Vote founder Catherine Engelbrecht has played a pivotal role in helping drive the voter fraud movement from the political fringes to a central pillar in the Republican Party’s ideology. Casting herself as a God-fearing, small-town Texan, she’s spread the voter-fraud gospel by commanding airtime on cable television, space on the pages of Breitbart News and even theater seats, as a new feature film dramatizing her organization’s exploits, “2000 Mules,” plays in cinemas across the country.

Along the way, she’s gained key allies across the conservative movement. Former President Donald Trump, who shouts her out by name during rallies and held a private screening for the film at his Mar-a-Lago resort, exploited the group’s declarations to proclaim that he won the popular vote in 2016. Provocateur Dinesh D’Souza partnered with Engelbrecht on the film. And she’s represented by the legal heavyweight James Bopp Jr., who helped dismantle abortion rights, crafted many of the arguments in the Citizens United case that revolutionized campaign finance law and was part of the legal team that prevailed in Bush v. Gore.

A review of thousands of pages of documents from state filings, tax returns and court records, however, paints the picture of an organization that enriches Engelbrecht and partner Gregg Phillips rather than actually rooting out any fraud. According to the documents, True the Vote has given questionable loans to Engelbrecht and has a history of awarding contracts to companies run by Engelbrecht and Phillips. Within days of receiving $2.5 million from a donor to stop the certification of the 2020 election, True the Vote distributed much of the money to a company owned by Phillips, Bopp’s law firm and Engelbrecht directly for a campaign that quickly fizzled out.

Legal and nonprofit accounting experts who reviewed Reveal’s findings said the Texas attorney general and Internal Revenue Service should investigate.

“This certainly looks really bad,” said Laurie Styron, executive director of CharityWatch.

And while the claims of widespread fraud in the 2020 election have been dismissed out of hand by courts and debunked by audits, even those led by Republicans, the story of True the Vote highlights how exploiting the Big Lie has become a lucrative enterprise, growing from a cottage industry to a thriving economy.

The records show:

  • True the Vote regularly reported loans to Engelbrecht, including more than $113,000 in 2019, according to a tax filing. Texas law bans nonprofits from loaning money to directors; Engelbrecht is both a director and an employee.
  • Companies connected to Engelbrecht and Phillips collected nearly $890,000 from True the Vote from 2014 to 2020. The largest payment – at least $750,000 – went to a new company created by Phillips, OPSEC Group LLC, to do voter analysis in 2020. It’s unclear whether OPSEC has any other clients; it has no website and no digital footprint that Reveal could trace beyond its incorporation records. The contract, which one expert called “eye-popping” for its largess, did not appear to be disclosed in the 2020 tax return the organization provided to Reveal.
  • True the Vote provided Bopp’s law firm a retainer of at least $500,000 to lead a legal charge against the results of the 2020 election, but he filed only four of the seven lawsuits promised to a $2.5 million donor, all of which were voluntarily dismissed less than a week after being filed. The donor later called the amount billed by Bopp’s firm “unconscionable” and “impossible.”
  • The organization’s tax returns are riddled with inconsistencies and have regularly been amended. Experts who reviewed the filings said it makes it difficult to understand how True the Vote is truly spending its donations.

In one instance, True the Vote produced two different versions of the same document. A copy of the 2019 tax return Engelbrecht provided to Reveal does not match the version on the IRS website.

There’s more, but that will get you started. I hope this story will lead to a criminal investigation of Engelbrecht and Phillips and TTV; it seems to me that perhaps both state and federal laws may have been broken, so there’s room to go around. We know that Ken Paxton won’t touch this, but surely one of the local Democratic DAs could give it a go.

I wrote about Engelbrecht and her crowd a couple of times in 2010 and 2012. I’m honestly a little surprised they’re still around, but given the money people seem to have been willing to throw at them, why wouldn’t they milk that cow till it’s all dried out?

Juanita has far more experience with this crowd, and she just enjoyed the heck out of that story. I can add a little context to the story she tells in return, which you can see here.

Readers with long memories may also recognize the name of Engelbrecht’s co-conspirator, who has his own long history of grifting, which of course later morphed into Trumpian “election fraud” bullshit, because that’s where the money is these days. As I said in one of those posts, guys like Gregg Phillips are basically cockroaches – you just can’t get rid of them. But this time it sure would be nice to try.

C’mon, we should get to see the city’s after-action report on the freeze

This is silly.

Houston will not release its retrospective report on the 2021 winter freeze, citing a post-9/11 law shielding information that could be exposed by terrorists or criminals.

The city drafted a report, called “After-Action Report/Improvement Plans for the 2021 Winter Storm,” after the February freeze, when plunging temperatures crippled the state’s electrical grid and led to hundreds of deaths across Texas.

The prolonged power outages, paired with tens of thousands of burst water pipes, also brought down Houston’s water system. The city at times was unable to send water to customers, including the Harris County Jail and parts of the Texas Medical Center. The system was under a state-mandated boil water advisory for four days. More than a dozen generators failed at city water plants, inhibiting their ability to withstand the electrical outages.

The after-action report includes information about the city’s response and adjustments it has made to plan for future events. It details operational coordination, communication procedures, and emergency medical services, among other information.

The Chronicle requested the report in February 2022 under the Texas Public Information Act, but the city sought the opinion of the attorney general’s office, which said the city must withhold the document. City attorneys argued the information could help criminals or terrorists plot an attack.

The Texas Government Code says municipalities must withhold information that is collected “for the purpose of preventing, detecting, responding to, or investigating an act of terrorism or related criminal activity,” and relates to staffing requirement and tactical plans. It also allows an exemption for assessments about how to protect people, property or critical infrastructure from terrorism or criminal activity. Those exemptions were added as part of the Homeland Security Act, passed by the Texas Legislature in 2003.

[…]

Joseph Larsen, a Houston attorney who has worked on public information cases, said the issue lies in the broad interpretation of the exemptions by governments seeking to withhold documents, the attorney general’s office tasked with enforcing it, and the courts that review those decisions.

“Their hands are not tied, that’s just ridiculous. They can release the report if they want to,” Larsen said of the city. “This is one of the very worst exceptions… It can be used to basically withhold anything.”

Governments often use the terrorism exemption to the Texas Public Information Act to shield weather readiness plans, Larsen said. Similar arguments were made to conceal plans made after Hurricane Ike. And the city is not the only one to use it for the winter storm. The Public Utility Commission, which oversees the state’s electrical grid, has been raising the same argument, according to Larsen.

The open records law is supposed to be “liberally construed in favor of granting a request for information,” the attorney general’s office has said. Exceptions to that rule should be interpreted narrowly, Larsen said.

“They’re not being narrowly interpreted, and that’s just a fact,” Larsen said. “They allow government bodies to cover their behinds for any specific event, and it prevents the public from actually fixing the problems, which is the whole point of freedom of information.”

I can believe that the existing law could be interpreted broadly enough to exclude this after-action report, and I can certainly believe that Ken Paxton’s office would prefer a sufficiently broad interpretation so as to keep most government activity under wraps. That doesn’t mean this is a good idea or that it’s the correct interpretation of the law. I don’t see what’s wrong with just doing a little redaction if there is some legitimately sensitive operational data in there. Blocking the whole thing, especially when there has already been reporting about what the city will do differently now, seems to me to serve no one. We can do better than that.

Long lost daughter of Tina Linn and Dean Clouse found

Incredible. Absolutely incredible.

Donna Casasanta got the call this week, a call she’s spent half of her life praying for.

A call about Holly Marie.

More than 40 years ago, her son, Harold Dean Clouse, moved to Texas from New Smyrna, Fla., with his wife, Tina Linn, and their young daughter. Then, all three abruptly vanished.

Finally, in October 2021, genealogists called Casasanta and her relatives with painful news: Police had discovered the couple’s bodies, back in 1981, in a copse of trees in east Harris County, but only had recently identified them using modern technology.

Dean was beaten to death. Tina had been strangled.

There was no sign of their baby, Holly Marie.

This week that changed. Holly Marie is alive and well and living in Oklahoma, after a family adopted her as a baby.

Investigators from the Texas Attorney General’s office walked into Holly’s workplace on Tuesday and told her who she was.

Hours later, Holly and her grandmother and aunts and uncles met, in a raucous Zoom call.

It was June 7, the day that her father would have turned 63.

“Finding Holly is a birthday present from heaven since we found her on Junior’s birthday,” Casasanta said, in a statement released by a family spokeswoman. “I prayed for more than 40 years for answers and the Lord has revealed some of it.”

See here and here for the background. This whole story richly deserves a prestige true-crime miniseries on HBO, and there are still some huge questions that may never be answered. Read the rest, and read the previous stories of how Linn and Clouse were identified if you haven’t yet. The Observer has more.

Is he Elon Musk’s lawyer now?

Someone please explain this to me.

Best mugshot ever

Texas Attorney General Ken Paxton said Monday he is investigating Twitter over its reporting of how many accounts on the platform are from bots and fake users, saying the company may be misrepresenting the number to inflate its value and raise its revenue.

Twitter has claimed in its financial regulatory filings that less than 5% of its daily active users are spam accounts. But Paxton on Monday alleged that spam accounts could make up as much as 20% of users or more.

“Bot accounts can not only reduce the quality of users’ experience on the platform but may also inflate the value of the company and the costs of doing business with it, thus directly harming Texas consumers and businesses,” Paxton said.

False reporting of fake users could be considered “false, misleading, or deceptive” under the Texas Deceptive Trade Practices Act, he said. Paxton sent Twitter a civil investigative demand, requiring the social media company to turn over documents related to how it calculates and manages its user data.

Twitter could not be immediately reached for comment on the investigation.

The investigation comes as Tesla CEO Elon Musk is also raising questions about the number of fake accounts on Twitter. Musk, who is in negotiations to buy the social media company, threatened to walk away from the deal saying that Twitter has not provided data he has requested on spam accounts.

I mean, I guess this could be a matter of interest for the state of Texas under its Deceptive Trade Practices Act. Hard for me to believe that it’s of such urgency right now as to merit action from the Attorney General – the question of how many fake Twitter accounts there are is as old as Twitter is – and of course the fact that it coincides with Elon Musk’s performance art bid to buy Twitter, which if there’s any justice in the world will cause him serious financial pain, makes it even less credible. But hey, surely we can take Ken Paxton’s word for it, right?

I do want to call your attention to the fact that what Paxton has actually done is to send Twitter a “civil investigative demand” for this info. Do you know what that means? Well, I now do, thanks to some research I did when a previous lawsuit filed by Twitter against Paxton, who had been demanding information about their ban of The Former Guy, was dismissed by a California judge. Paxton has made a similar “civil investigative demand”, and the judge ruled that Twitter had no cause to sue over this because a “civil investigative demand” is what the legal folks call “self-executing”, which is a fancy way of saying “completely voluntary”. Twitter was free to ignore the CID by Paxton, who would have had to sue them in federal court to enforce it, with Twitter then having the opportunity to argue that he had no jurisdiction over them in this matter.

That all sure sounds familiar here. If that’s the case – and Paxton clearly knows this – then what we have here is just a bit of trolling, plus some sucking up to another rich dude that Paxton likes. If you want to make the argument that this is a thing the state’s top lawyer ought to be doing, you go right ahead. Reform Austin has more.

Runoff results: Around the state

After the primary, I rounded up the Democratic runoffs we’d have in May. I’m going to use that post to round up the results from last night, as best as I can tell as of when I gave up the ghost and went to bed. I started filling this in around 10 PM.

Statewide Dem

Lite Guv – Mike Collier vs Michelle Beckley.
AG – Rochelle Garza vs Joe Jaworski.
Comptroller – Janet Dudding vs Angel Vega.
Land Commissioner – Sandragrace Martinez vs Jay Kleberg.

Garza and Dudding were both up 61-39 as of 9:30 PM, with Garza being declared the winner. Collier (54.8 – 45.2) and Kleberg (52.2 – 47.8) were leading but it was too soon to say with them. Kleberg was up 62-38 in Harris County, and Collier was up 60-40, so that bodes well for them.

Congressional Dem

CD01 – JJ Jefferson vs Victor Dunn.
CD15 – Ruben Ramirez vs Michelle Vallejo.
CD21 – Claudia Zapata vs Ricardo Villarreal.
CD24 – Jan McDowell vs Derrik Gay.
CD28 – Rep. Henry Cuellar vs Jessica Cisneros.
CD30 – Jasmine Crockett vs Jane Hope Hamilton.

Jefferson (75%), Zapata (62%), and Crockett (75%) all had huge leads and were on their way to victory. Henry Cuellar (52.75 – 47.25) had a smaller lead but looked to be in pretty good shape. The other two races were ridiculously close – Ramirez was up by 78 votes, McDowell up by 20 votes. You’ll want to check them again today, and don’t be surprised if they wind up in recount territory.

SBOE Dem

SBOE1 – Melissa Ortega vs Laura Marquez.
SBOE2 – Victor Perez vs Pete Garcia.

Ortega (58%) and Perez (56%) looked to be in good shape.

State Senate Dem

SD27 – Morgan LaMantia vs Sara Stapleton-Barrera. LaMantia was at 57% and appeared to be in good shape.

State House Dems

HD22 – Joseph Trahan vs Christian Hayes.
HD37 – Ruben Cortez vs Luis Villarreal
HD70 – Cassandra Hernandez vs Mihaela Plesa.
HD76 – Suleman Lalani vs Vanesia Johnson.
HD100 – Sandra Crenshaw vs Venton Jones.
HD114 – Alexandra Guio vs John Bryant.

Lalani (64%), Jones (70%), and Bryant (62%) looked to be headed to victory. Lalani would be the first Muslim to serve in the Lege. Jones is openly gay and HIV positive and was the subject of a bizarre homophobic rant by his opponent, so his win is especially sweet. Bryant, who is 75 and served in Congress 30 years ago, wins one for the old white guys.

As of 10 PM, the other races were too close to call, with Hayes (50.86%), Villarreal (52.44%), and Plesa (52.91%) holding the advantage.

Republicans

Ken Paxton easily beat George P. Bush, which launched multiple (likely written in advance) eulogies to the “Bush dynasty” in Texas. Good riddance, if P is what that had fallen to. Dawn Buckingham (Land Commissioner) and Wayne Christian (RR Commissioner) were also cruising to victory.

UPDATE: All of the Dem statewide candidates that were leading when I signed off won. Michelle Vallejo (50.1%) edged ahead in CD15, while Jan McDowell (51.15%) increased her lead. It got super tight towards the end, but yes, Henry Cuellar (50.2%) once again came out ahead. All of the state office candidates that were leading last night were still ahead this morning.

On the importance of the Democratic AG runoff

We have two good choices in this race. Whoever wins, we need to fully support them in November.

Rochelle Garza

Rochelle Garza locked hands with her mother and marched through Dallas at a reproductive rights rally this month to let voters know she could lead the fight for abortion care.

“Our mothers fought before and won. Now, it’s our turn to continue the fight and win for OUR daughters and everyone’s access to abortion care,” Garza wrote to her base on Twitter after the rally.

Reproductive care has always been central to Garza’s campaign as she vies to be the Democratic nominee for the Texas attorney general race in November. But with the recent leak of a U.S. Supreme Court draft opinion suggesting that the constitutional protection on abortion established in Roe v. Wade might soon come to an end, both Garza and Joe Jaworski, her opponent for the Democratic nomination in a May 24 primary runoff, are pitching themselves as the last line of defense for access to reproductive care in Texas.

“Really the last stand for reproductive rights are the attorney general of each state,” Garza told The Texas Tribune in an interview. “So now more than ever, having an attorney general in the state of Texas is going to be critical to protecting reproductive rights.”

Garza is a former American Civil Liberties Union lawyer from Brownsville. Jaworski is the former mayor of Galveston. Early voting began Monday and ends Friday.

The winner will face the victor of the Republican primary runoff in the general election — either Ken Paxton, the incumbent attorney general, or Texas Land Commissioner George P. Bush. Paxton is the frontrunner in that race, clinching twice as many votes as Bush in the primaries and the support of former President Donald Trump.

[…]

Joe Jaworski

Although they have never faced off in the ballot, Garza and Paxton have been on opposite sides of an abortion case. Garza made a name for herself in 2017 when she sued the Trump administration, seeking access to an abortion for an undocumented teenager held in detention. After a federal appeals court ruled in Garza’s favor, Paxton filed a brief in response, arguing that immigrants have no constitutional right to abortion. Garza also testified in 2018 against the Supreme Court nomination of Brett Kavanaugh, who ruled against the case as an appellate court judge.

The teen was able to obtain an abortion while the case was being litigated. The case was later dismissed after the federal government adopted a new policy under which it would not interfere with immigrant minors’ access to abortion.

“Having this nuanced understanding of what it takes to build a case like that and to fight for someone who the government believes is not powerful — that’s what I bring to this race and bring to this position,” Garza said.

Garza was nine weeks pregnant when the state’s controversial ban on abortions after about six weeks into a pregnancy went into effect in September. She was worried at the time about her limited reproductive health care options.

Garza, who balanced her newborn daughter in her arms as she spoke to the Tribune, is now arguing she’s the right choice to defend reproductive rights in the state.

She also stands a clear favorite among national and state abortion rights advocacy groups, garnering endorsements from EMILY’s List, NARAL Pro-Choice America, Planned Parenthood Texas Votes and Avow.

Both Jaworski and Garza have stated they would defend reproductive rights as Texas’ next attorney general, who can play a major role in the fight over abortion law in courts. The state’s top lawyer also determines how an abortion ban can be regulated and enforced.

But Jaworski has presented himself as the most experienced candidate. While Garza’s run for attorney general will be her first political race, Jaworski is an established local politician. He served three terms on the Galveston City Council and one term as mayor.

And while Garza’s reproductive rights bona fides stand on her well-known 2017 case, Jaworski points to his experience as a trial attorney for over 31 years. Jaworski has said he would use federal and state court channels to initiate litigation to preserve reproductive rights under both the U.S. and the Texas constitutions.

We can’t go wrong with either of these two, so make your best choice and then support the winner. I will let Paxton’s own runoff opponent remind you of what’s at stake here:

Who am I to disagree with that assessment? Someone be sure to grab a screenshot of that tweet for future reference.

DMN/UT-Tyler: Abbott 46, Beto 39

Here’s the story, which I currently can’t access. A very brief summary of it is in this Current article. The data is here and I’m going to riff on that, with references to the February version of this poll, for which the data can be found here. I will note that there are some primary runoff results in this sample, and I am ignoring all of them – that kind of polling is too tricky to be worth worrying about.

“In a race for Governor would you vote for Governor Abbott, Beto O’Rourke, or someone else?” I’ll generally be quoting the poll questions, which thankfully are the same in each sample. In May, as noted in the post title, it’s 46-39 for Abbott, basically identical to the 45-38 Abbott result from February. The shape of those numbers are a bit different. In February, possibly because both Beto and Abbott were in contested primaries, there was a considerable amount of crossover support for each, Dems were only 76-16 for Beto, while Rs were just 76-11 for Abbott. In May, those numbers were 82-9 among Dems for Beto and 85-7 for Abbott among Rs. Independents were 36-29 for Abbott in February and show as 16-6 for Abbott now, with 29% going to the Libertarian (there is a Green candidate named as well, who also gets 6%) and an astonishing 38% for “someone else”. This has to be a mangling of the data – among other things, given the size of the Indy subsample, it would have put the Libertarian candidate at nearly 10% overall, but the topline result gives him just 3%. Most likely, the 38 is for Abbott and the 29 is for Beto, or possibly all of these numbers are just wrong. I will shrug and move on at this point.

For approval numbers, President Biden checks in with 39-58 approval, which is obviously not good. Greg Abbott is also underwater at 46-50, while Beto has a 42-44 approval rating, which is the only one of the three to improve since last time. It was 39-57 for Biden, 50-46 for Abbott, and 40-46 for Beto in February.

Weirdly, Dan Patrick has 50-41 approval, and Ken Paxton has 42-41. Usually, Abbott does better in approvals than any other Republican, in part because fewer people have opinions about the rest of them. A separate question about Paxton asks “do you agree or disagree that he (Paxton) has the integrity to serve as attorney general?”, and it’s 30 for agree, 37 disagree, and 33 unsure. He was at 34-33-33 in February, so a bit of a dip there.

For some other questions of interest, the numbers are not bad for the Dems, and usually a little better than they were in February.

“If the general election was today, would you vote for a Republican candidate or Democratic candidate for the Texas House?” That was 49-48 for Republicans in May, 52-45 for Republicans in February.

“On orders from Governor Abbott, Texas Child Protective Services recently began investigating families who provide gender-affirming care to transgender children. Was this action” needed or unnecessary, with various reasons for each? There were three sub-options for each of those choices, and if you add them up it comes to 52-48 combined for “unnecessary”. Honestly, that’s better than I expected. There was no February comparison for this one, as that order had not yet been given at that time.

“Should the Supreme Court overturn its Roe v. Wade decision and allow states to decide abortion policy?” This was 53-46 for “no it should not be overturned” in May, and 50-47 in February. Again, a little better than I might have thought, and a tick up from before, which is to say before the draft opinion got leaked. Put those numbers in your back pocket for the next time someone claims that Texas is a “pro-life” state.

“Do you agree or disagree that K-12 teachers should be permitted to discuss how historical examples of discrimination in our laws apply to inequalities today?” Here, 61-24 strongly or somewhat agreed in May, and it was 59-22 for Agree in February. That means that for abortion, trans kids, and book banning, the Republican position is the minority one. Obviously, one poll and all that, but there’s nothing to suggest Dems should be running scared on any of this. Quite the reverse, in fact.

Now as we’ve said a zillion times, it’s one poll, opinions on issues often don’t drive voting behavior, and we’re still months away from an election where many other factors will affect the outcome. I’m quite scared of another COVID wave, especially if Congress doesn’t get some more funding for vaccines and treatments and whatever else passed in the very near future. But for now, and bearing in mind that it’s still a 7-point lead for Abbott, the numbers ain’t that bad. We’ll see what other polls have to say.

Ken Paxton totally lied about gender affirming care

I know, I’m as shocked as you are.

Best mugshot ever

Texas Attorney General Ken Paxton relied on false claims, exaggerations and errors to conclude that gender-affirming medical care constitutes child abuse, a report by university-level medical experts has concluded.

Paxton’s legal opinion on transgender care, issued in February, formed the basis of Gov. Greg Abbott’s directive requiring Child Protective Services to investigate all reports of families with children who are receiving gender-affirming care.

But the report published Monday by medical and legal experts at Yale University and the University of Texas Southwestern Medical Center said Paxton’s opinion was so full of errors and false claims that it appeared to have been “motivated by bias” and crafted to reach a predetermined goal: denying medical care to transgender youths.

“The repeated errors and omissions in the AG Opinion are so consistent and so extensive that it is difficult to believe that the opinion represents a good-faith effort to draw legal conclusions based on the best scientific evidence,” the report’s executive summary said.

“These are not close calls or areas of reasonable disagreement,” the report added. “The AG Opinion … ignores established medical authorities and repeats discredited, outdated, and poor-quality information.”

[…]

Monday’s report focused on puncturing a central premise behind Paxton’s legal analysis: that the surgical removal of genitals and reproductive organs is standard medical care offered to transgender pediatric patients.

“In fact, the authoritative protocols for medical care for transgender children and adolescents, which define what we term ‘gender-affirming care,’ specifically state that individuals must be over the age of majority before they can undergo such surgery,” the study said.

In Texas, the age of majority is 18.

Paxton also falsely implied that puberty blockers — medication meant to delay physical changes to give transgender youths time to consider more permanent options — and hormones are given to young children, the report said.

“In fact, the standard medical protocols recommend drug treatments only for adolescents — and not prepubertal children,” the study said.

The authors — three medical doctors and three doctors of psychology — all treat transgender children and adolescents in daily clinical practice and hold positions at major medical schools, the report said. A law professor rounded out the study’s team.

Their report criticized Paxton for presenting a “warped picture of the scientific evidence” by exaggerating potential risks and ignoring evidence of the benefit that such care provides in the treatment of gender dysphoria, the distress caused when a person’s body does not match their gender identity.

“The standard medical protocols were crafted by bodies of international experts based on a solid scientific foundation and have been in use for decades. Thus, treating gender dysphoria is considered not only ethical but also the clinically and medically recommended standard of care,” the report said.

You can read the report if you want. It will surely be helpful if you need to have a conversation with someone for whom facts and science and expertise still matter. The thing to remember here is not that Ken Paxton was unable to understand this, or didn’t have access to people who could explain it to him. This was about affirming a worldview and appealing to an identity, for the purposes of maintaining and enhancing political power. As such, while it’s always good to have the facts at hand, this isn’t about the facts. It’s not going to be for as long as the Republican Party is like this. All we can do is try to win elections, and then once we have done that use the power we’ve gained from them to do good things. Easier said than done, I know, but here we are.

Abbott and Patrick ask SCOTx to take up Paxton’s whistleblower appeal

They sort of have a point, but they should still butt out.

Best mugshot ever

Gov. Greg Abbott and Lt. Gov. Dan Patrick on Monday urged the Supreme Court of Texas to take up Attorney General Ken Paxton’s appeal to throw out a whistleblower lawsuit against him.

The appeal is Paxton’s latest attempt to avoid a trial after eight of his former top deputies accused him of bribery and abuse of office in late 2020. Within seven weeks of their complaint to authorities, all eight had either been fired or driven to leave the agency. Four of the fired employees later filed a whistleblower lawsuit against Paxton saying they were fired in retaliation for their complaint and have asked to be reinstated to their jobs. Paxton denies wrongdoing.

Paxton, a Republican, has fought that lawsuit, claiming that the state’s whistleblower law — which covers public employees, appointed officials and governmental entities — does not apply to him because he is an elected official. A district court and an appeals court have ruled against Paxton’s lawyers and said the lawsuit could move forward. But in January, Paxton’s lawyers asked the Texas Supreme Court to reconsider the matter and throw out the case.

Paxton’s lawyers argue that allowing whistleblowers to sue the attorney general for firing them could hamper the executive power that the state constitution gives him. It is the same argument two lower courts have already rejected after hearing from the whistleblowers’ lawyers, who argue that siding with Paxton would take away whistleblower protections for employees trying to report the misconduct of an elected official.

Lawyers for the governor’s and lieutenant governor’s offices did not indicate whether they agree with Paxton’s argument. The two Republican state officials filed friend of the court briefs asking that the high court take up the case because it is relevant to statewide governance and to the powers of an executive office under the Texas Constitution. Because of that, lawyers for the offices argued the case should be considered by a statewide court and not by the local courts that have already rejected Paxton’s argument.

The two lower courts were filled by Democrats. The Texas Supreme Court is made up of nine Republicans.

See here for the background. I don’t think it’s unreasonable to argue that the state’s high court should weigh in on this question. They could, I suppose, simply issue an order denying the appeal request on the grounds that they’re fine with the lower courts’ rulings. Most cases never get close to the Supreme Court. Indeed, one of the themes I saw in the judicial Q&A responses I got from 1st and 14th Court of Appeals candidates in 2018 and 2020 was precisely that those courts are often the last word on a lot of consequential cases. SCOTx has no obligation to take this up. It’s easy to see why they might want to, but in the end it would be unremarkable if they didn’t.

It’s also easy to see that what Abbott and Patrick want is for a court full of Republicans to have the final word, since I’m sure they don’t consider the lower courts to be valid in the same way. One could perversely assert that only a rejection from the all-Republican Supreme Court will settle this matter in a way that might shut up Paxton and his sycophants, though perhaps the Court of Criminal Appeals would beg to differ.

One more thing:

An attorney whose firm represented Paul, the friend and campaign donor to Paxton, also urged the Supreme Court Monday to weigh in on the case, saying it “presents far reaching consequences for our state government.”

Statewide officials like Paxton need to be able to fire or retain employees based on whether they help advance their goals, wrote Kent Hance, founding partner of the Austin-based law firm Hance Scarborough.

“Inferior officers are carefully chosen by an elected official to provide competent policymaking advice in line with the policymaking goals as defined by the elected official,” Hance wrote. “This works well when the goals are in line with the advice, but what happens when they are at odds?”

A political action committee for Hance’s firm — the HS Law PAC — donated $25,000 to Paxton in June 2020, after he intervened in litigation involving Paul, as Hearst Newspapers reported.

Lawyers for one of the whistleblowers pointed to the donation this week.

“Only somebody as shameless as Ken Paxton would get a lobbyist whose firm donated $25,000 to Paxton while it was representing Nate Paul companies to ask the Texas Supreme Court to re-write the Texas Whistleblower Act,” lawyers TJ Turner and Tom Nesbitt said in a statement. They declined to comment on the briefs by Abbott and Patrick.

Hance did not immediately respond to a request for comment, but managing partner Jay Stewart, who is trustee of the PAC, has told Hearst it operates independent of the firm’s litigation section and that the donation had nothing to do with any cases.

Yeah, that’s a pretty good summary of Texas politics. Political donations never have anything to do with getting the political outcome we prefer. Who would ever think such a thing?

Where are the endorsements?

As you know, early voting has begun for the May 7 election, which includes two Constitutional amendments and the special election for HCC District 2. As of last night when I drafted this, I see no endorsements in any of these elections on the Chron’s opinion page. Are these elections not worth it to them, or have they just not gotten around to them yet? I sure hope it’s the latter, and that they will rectify that quickly. I don’t know what they’re waiting for.

Seventeen days after that election will be the primary runoffs. A quick check of the Erik Manning spreadsheet confirms for me that in all of the Democratic primary runoffs for which the Chron issued a March endorsement, their preferred candidate is still running. In ballot order:

CD38 – Duncan Klussman
Lt. Governor – Mike Collier
Attorney General – Joe Jaworski
Comptroller – Janet Dudding
Land Commissioner – Jay Kleberg
SBOE4 – Staci Childs
HD147 – Danielle Bess
185th Criminal Court – Judge Jason Luong
208th Criminal Court – Kim McTorry
Commissioners Court Precinct 4 – Lesley Briones

You may or may not agree with these, but those are who the Chron picked. They have no races to revisit among them. They do, however, have three more races to consider, which were among those they skipped in Round One:

312th Family Court – Judge Chip Wells vs Teresa Waldrop
County Civil Court at Law #4 – MK Singh vs Treasea Treviño
Justice of the Peace, Precinct 1 Place 2 – Steve Duble vs Sonia Lopez

The links are to my judicial Q&As for those who submitted responses. You can find all the Q&A and interview links from the primary here. More recently I interviewed Staci Childs and Coretta Mallet-Fontenot in SBOE4; I will have an interview with Janet Dudding on Monday. There’s no need to rush if the Chron wants to circle back to these races they ignored originally – they can wait till after the May 7 election, but not too long since early voting there will begin on May 16. It’s only three runoff races (*), plus those two Constitutional amendments and that one HCC race. C’mon, Chron editorial board, you can do this.

(*) There may be some Republican runoffs for them to revisit as well. I didn’t check and am obviously not as interested. I doubt most Republican runoff voters are either, so whatever. The HD147 special election is between the same two candidates as in the primary runoff, so we can assume the endorsement for one carries over to the other.

Paxton threatens HISD over its COVID sick leave policy

We live in such stupid times.

Best mugshot ever

Attorney General Ken Paxton and Republicans in the Legislature are taking aim at Houston ISD, arguing that the district’s COVID sick day policy violates state law.

This academic year, Houston ISD is offering 10 additional days of paid sick leave to employees who are vaccinated against the coronavirus but test positive during the school year. Unvaccinated staff, however, must use personal leave time if they are infected.

In a nonbinding opinion last week, Paxton said the policy likely constitutes a “vaccine passport,” the documentation certifying a person’s vaccination status shown in exchange for “entry or services.” The GOP-led Texas Legislature last year outlawed such requirements for both private businesses and public agencies, and Gov. Greg Abbott issued a similar executive order banning the practice last summer.

“A court would likely conclude that, by offering additional paid leave only to those employees showing proof of COVID-19 vaccination or a medical exemption, the Houston Independent School District’s COVID-19 paid leave policy violates” the executive order, Paxton wrote.

Tejal Patel, a spokesperson for Houston ISD, said Paxton’s opinion “does not change the implementation” of the district’s paid leave policy. The last day of classes is just about seven weeks away.

“No court has ruled that the district’s policy of awarding additional leave days to vaccinated employees violates” the executive order, Patel said. “The district continues to evaluate its COVID protocols in our efforts to maintain a safe learning and working environment.”

The point of this was that since HISD couldn’t mandate that employees get vaccinated, they took the approach of incentivizing it by offering a reward to those who did. And it worked pretty well, as the story notes – over 20,000 of the district’s 24,000 employees have been vaccinated. In practice, this is no different than a million corporate wellness programs out there. The one I’m most familiar with offered a discount on your health insurance premium if you jumped through certain hoops, which ranged from things like taking a dumb survey to getting a blood test. If you participated – it was completely voluntary – you got a couple hundred bucks off the cost of your insurance for the year. This made sense for the insurer as well, as it (supposedly, at least) led people towards healthier lifestyles, which meant they’d pay out fewer claims.

So I struggle to see how one differs from the other. Except of course that we’re dealing with the extremely whiny snowflakes who refuse to get a COVID shot and who therefore must be catered to at every turn by politicians like Ken Paxton and Paul Bettencourt, who requested the opinion. God knows, we cannot deprive these special delicate flowers of anything. I approve of HISD’s response. So far, the school districts have done pretty well for themselves ignoring Paxton and Abbott. No guarantees here, and of course the Lege can deal with this next year if the Republicans remain in control, but for now I’d say keep on keeping on and hope for the best.

Feds warn about lawsuits to come over anti-trans legislation

Bring it.

The Department of Justice is warning states like Texas that policies meant to block transgender children from receiving gender-affirming care violate their constitutional rights.

“Intentionally erecting discriminatory barriers to prevent individuals from receiving gender-affirming care implicates a number of federal legal guarantees,” DOJ officials wrote in a letter sent Thursday to state attorney generals.

The letter comes after Texas Attorney General Ken Paxton authored a nonbinding legal opinion that some gender-affirming care may constitute child abuse and Gov. Greg Abbott ordered the state’s child welfare agency to investigate parents who get such care for their children.

[…]

The DOJ says additional lawsuits may follow.

“State laws and policies that prevent parents or guardians from following the advice of a health care professional regarding what may be medically necessary or otherwise appropriate care for transgender minors may infringe on rights protected by both the equal protection and the due process clauses of the Fourteenth Amendment,” said the DOJ letter, which was sent on Trans Day of Visibility.

Not much to add here. I don’t have a whole lot of faith in the courts, but I also don’t know what else there is to be done right now. A better Senate is really what’s needed to move the ball forward, and the odds of that happening in this election aren’t great. But again, what else is there to be done? The 19th has more.

Hispanic Policy Foundation: Abbott 50, Beto 42

More poll data.

In the November 2022 gubernatorial election, Greg Abbott leads Beto O’Rourke by 8% (50% to 42%) among likely voters and by 12% (53% to 41%) among the most likely (almost certain) voters. Among both groups, Libertarian Mark Tippetts registers 2% and the Green Party’s Delilah Barrios 1%, with 5% and 3% undecided.

Abbott enjoys a two to one advantage over O’Rourke among white voters (65% to 29%) and O’Rourke an 88% to 11% advantage among Black voters. Support is more
equal among Hispanic voters, 53% intend to vote for O’Rourke and 39% for Abbott.

Abbott bests O’Rourke among men by a substantial 61% to 34% margin, while O’Rourke narrowly edges out Abbott among women by a 47% to 45% margin.

Abbott (96%) and O’Rourke (93%) are the preferred candidates among their fellow Republicans and Democrats, while 4% of Democrats intend to vote for Abbott and
1% of Republicans for O’Rourke. Independents favor Abbott 51% to 19%.

[…]

In the November lieutenant governor election, Dan Patrick leads [Mike] Collier by 6% (49% to 43%) and [Michelle] Beckley by 8% (50% to 42%) among likely voters and leads Collier by 10% (52% to 42%) and Beckley by 13% (53% to 40%) among the most likely voters.

[…]

In the November attorney general election, [Ken] Paxton leads [Rochelle] Garza and [Joe] Jaworski by 6% (48% to 42%) and 7% (48% to 41%) respectively among likely voters and by 10% (50% to 40%) and 12% (51% to 39%) among the most likely voters.

In the November attorney general election, [George P.] Bush is in statistical dead heat with both Garza and Jaworski both among likely voters (39% to 39% against Garza and 38% to 39% against Jaworski) and among the most likely voters (39% to 38% against Garza and 38% to 38% against Jaworski).

In a general election against Garza and Jaworski, Paxton’s vote intention among Texans whose partisan ID is Republican is 91% and 92%. In a general election against these same two Democrats, Bush’s GOP vote intention is 68% in both cases. The vote intention for Libertarian candidate Mark Ash is 3% when Paxton is the GOP attorney general candidate, but rises to 7% and 8% when Bush is the nominee.

In a November generic U.S. House ballot, the Republican candidate leads the Democratic candidate by a 7% margin (49% to 42%) among likely voters and by a 12% margin (52% to 40%) among the most likely voters.

In November, the HPF had Abbott up over Beto by a 44-43 margin. I’d account for the increase in Abbott’s support as one part being past the primaries – as we’ve seen before, sometimes supporters of a primary opponent will be a “don’t know/no answer” response in a poll, which gets converted later to supporting the party’s nominee – and one part the general enthusiasm gap that exists now. Beto’s level of support was largely the same, so at least we have that going for us. The other races are similar, which is a little odd as there’s usually a larger “don’t know/no answer” contingent in them. Not sure if that’s a result of the HPF’s likely voter screen or just an unusual level of engagement among the respondents. Oh, and I consider that “Most Likely Voters” bit to be meaningless.

The poll also suggests that Mike Collier, Rochelle Garza, and Ken Paxton are all well-positioned to win their runoffs. Primary polling, especially primary runoff polling, is a dicey proposition, but they’re projecting the March leaders in each case, so it’s not a crazy idea. This poll result is obviously less favorable than the recent Lyceum poll result, which has been prominently touted in multiple fundraising emails lately, but that’s why we don’t put too much emphasis on any one poll. You have to track them all as best you can, and to that end let me cite the Reform Austin poll tracker, which showed me a couple of results I hadn’t seen before. Feels like we’re entering another polling cycle, so let’s see what we get.

The dark side of redistricting litigation

The state of Texas is taking a big swing in defense of its gerrymanders, and if they connect it’s going to be devastating.

Beyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.

For decades, redistricting in Texas has tracked a familiar rhythm — new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.

The pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.

Those protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated — in some cases intentionally — against voters of color.

But tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.

First, the Texas attorney general’s office is arguing that private individuals — like the average voters and civil rights groups now suing the state — don’t have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.

Second, the state argues that Section 2 does not apply to redistricting issues at all.

Should either argument prevail — which would almost certainly require it to be embraced by a conservative U.S. Supreme Court that has already struck down other portions of the law — the courthouse door will be slammed shut on many future lawsuits over discriminatory map-drawing and voting practices.

“Fundamentally, this Supreme Court thinks we are past the time in which we need the Voting Rights Act, so of course if you’re a state like Texas, you’re going to bring every argument that’s ever been made to challenge the constitutionality of the rest of it,” said Franita Tolson, a vice dean and law professor at the University of Southern California Gould School of Law.

[…]

The turnover at the Supreme Court has cracked the door for “audacious attacks on Section 2,” that would have “never had a chance” under previous iterations of the court, said Rick Hasen, a law professor at the University of California, Irvine who specializes in voting law. Texas is trying to push the door wide open.

In legal briefs, Texas’ argument that Section 2 does not apply to redistricting relies almost exclusively on a series of comments in opinions by Justice Clarence Thomas, who has plainly endorsed the idea in cases dating back to 1994. Justice Neil Gorsuch, a Trump appointee who joined the court in 2017, echoed the view in one of Thomas’ recent opinions.

In a recent case over Arizona voting laws, Thomas and Gorsuch also joined an opinion indicating they agreed with the argument Texas is offering now that private individuals cannot sue to enforce the Voting Rights Act.

The fallout if the Supreme Court agreed with the state on either argument would be radical, upending long established procedures for litigating claims of discrimination in voting and redistricting, and making it harder to enforce what has endured as the chief federal protection for voters of color in a post-preclearance world.

Covering its bets, the state is also pressing a backup argument — that even if individual voters are allowed to sue under Section 2, organizations that serve voters of color cannot bring claims on their behalf. That could knock out of the box groups like the NAACP and LULAC who may have more resources and membership across the state to prop up the complex challenges.

If affirmed by the court, that prospect would put even more pressure on private individuals to protect themselves from alleged discrimination by the state, said Noor Taj, a lawyer with the Southern Coalition for Social Justice who is representing various civil rights and community groups that serve Texans of color, particularly Asian Texans, in a lawsuit against the maps.

“It’s either taking their rights altogether or increasing the burden,” Taj said. “Both ends of that are problematic and incorrect.”

If the high court ultimately decides redistricting lawsuits simply aren’t allowed under Section 2, the recourse left for Texans of color to challenge political maps would be litigation under the U.S. Constitution’s broader promise of equal protection.

That would require challengers to show lawmakers intentionally discriminated against them — “which is the hardest case to win, particularly before a Supreme Court,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.

The state’s efforts to overturn protections for voters of color is ironic given its long history of violating the same law it is now looking to gut, said Perales, who is suing the state over its latest maps on behalf of a group of individual voters and organizations that represent Latinos.

“Since the beginning of the modern era of decennial redistricting, Texas has been found liable for violating the voting rights of Latinos in every single cycle,” Perales said.

The more “aggressive attacks” on Section 2 have come as it’s getting harder for Republicans to comply with the law while preserving their power, Hasen said.

If you can’t comply with the law but you have the power to change it so that you don’t have to, well, it’s obvious what you’ll do. The state’s arguments have not gained any purchase with the three-judge panel at the district court level, but we know where it goes from there. The Democrats would like to do something at the national level about this, but as long as Joe Manchin and Kyrsten Sinema are deciding votes, they don’t actually have the power. (Beating Ken Paxton this fall would also help, but this argument is going to get before SCOTUS one way or another eventually regardless.) And so we get to watch this play out like a slow-motion train wreck, and we’re all standing close enough to it to be collateral damage. Isn’t that nice?

Paxton accused of creating a hostile workplace for LGBTQ employees at the AG’s office

I doubt anyone would be surprised by this accusation, but just because Ken Paxton is a terrible human being doesn’t mean he gets to be a terrible boss as well. And while our entire state government has taken a swan dive into the deep end lately, I’d bet that even this office wasn’t that bad a place for an LGBTQ person to work as of a few years ago. If you’re wondering why any LGBTQ person would want to work at the Attorney General’s office, remember that it’s a big place that does a lot of non-political work, with child support enforcement being one of their main tasks.

The article is paywalled, but Ed Sills included this bit in his daily AFL-CIO newsletter on Friday:

Speaking of justice or the lack thereof, Attorney General Ken Paxton stands accused of creating a “hostile work environment” for LGBTQ employees in the Criminal Prosecutions division of his agency, the Austin American-Statesman reports.

A departing lawyer made the accusation in a letter to the human resources department, reporter Chuck Lindell writes. The letter, redacted in part by the agency, mentions Paxton’s legal opinion concerning gender-affirming health care for transgender children. It also states that Paxton’s office has generally become more politicized (not that it ever wasn’t).

The Texas AFL-CIO COPE has endorsed Joe Jaworski in the May 24 Democratic runoff for Attorney General. Paxton himself is locked in a runoff as more and more Republicans are on to him:

The letter from lawyer Jason Scully-Clemmons, sent March 3 on his last day as an assistant attorney general, said the departure of two top supervisors appeared to leave employees of the Criminal Prosecutions Division vulnerable to Attorney General Ken Paxton’s “personal anti-LGBTQIA+ ideology.”

The letter also complained that the Criminal Prosecutions Division had become overly political after the departures of Mark Penley — who was fired as deputy attorney general for criminal justice in November 2020 after joining several other high-ranking agency officials in accusing Paxton of bribery and official misconduct — and Lisa Tanner, the division chief who left the agency Aug. 31.

The last two paragraphs are from the story. That’s all I know right now, but this sort of thing could well be the first shot in a lawsuit, so we’ll keep an eye on it. And remember to vote in the Democratic primary runoff, where either Rochelle Garza or Joe Jaworski would be a billion times better as AG than the human stain we have in there now.

Paxton “investigating” pharmaceuticals over puberty blockers

Also from last week, I don’t know if this is something to worry about or just blowing smoke.

Best mugshot ever

Texas Attorney General Ken Paxton is investigating two pharmaceutical companies — Endo Pharmaceuticals and AbbVie Inc. — for allegedly advertising puberty blockers to children and their parents to treat gender dysphoria rather than the other medical conditions they are approved to treat.

Paxton opened the investigation in December and filed civil investigative demands with the two companies on Thursday.

This is the latest move in an ongoing effort by Paxton and Gov. Greg Abbott to limit access to gender-affirming medical care for transgender teens in Texas.

[…]

In December, Paxton announced investigations under the Texas Deceptive Trade Practices Act into Endo Pharmaceuticals and AbbVie Inc., the two companies that sell puberty blockers. He claimed in a press release that the drugs are approved to treat precocious puberty and forms of prostate cancer but were being marketed and prescribed off-label to treat gender dysphoria.

“These drugs were approved for very different purposes and can have detrimental and even irreversible side effects,” Paxton said. “I will not allow pharmaceutical companies to take advantage of Texas children.”

On Thursday, Paxton issued letters to the companies, demanding certain documents related to the sale and advertisement of the drugs.

In a statement, a spokesperson for Endo said the company does not promote its medications for off-label uses and is cooperating with the investigation. AbbVie did not immediately respond to comment.

On the one hand, Paxton has a documented history of lying about what he does and what the courts do in response to what he does for the purpose of puffing himself up in front of the rubes. It is entirely plausible that this is little more than a letter and a press release and that it will have no followup or further effect. On the other hand, as we have also seen, threats and bullying tactics by the likes of Ken Paxton and Greg Abbott have been sufficient to achieve political goals where medical care for transgender kids are concerned, even when the law is not on their side. So I think it’s fair to be skeptical but not dismissive, and keep an eye on this.

When a divorce helps to define a marriage

Interesting case.

A gay San Antonio man has filed for a divorce in which he seeks to prove a common law marriage existed with his former partner of 25 years when federal law prohibited same sex marriage. The law has since then been ruled unconstitutional by Obergefell vs. Hodges in 2015.

If he is successful in his divorce petition, Christopher Hoffman would be eligible for alimony and other benefits from his former partner Moises Ortiz. It would also mark the first time in Texas that a common law [informal] divorce would be granted to a same sex couple who were together prior to Obergefell.

The Texas Family Code provides two methods for establishing a common law [informal] marriage. The first is to “file a declaration of informal marriage with the county clerk. Tex. Fam. Code 2.40l(a)(l).” The second is by showing that “I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’ Tex. Fam. Code 2.401 (a)(2).” Additionally, the partner seeking to establish the existence of a common law marriage “bears the burden of demonstrating the three elements by a preponderance of the evidence.”

According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for the common law divorce on July 19, 2019 citing adultery and mistreatment among other reasons. In responding to Hoffman’s assertion, Ortiz denies that a common law marriage existed, saying that he and Hoffman had only been roommates.

On July 30, 2019, Judge Mary Lou Alvarez of the 45th District Court of Bexar County found that Ortiz’s claim that he and Hoffman “were simply roommates that acted as partners to be incredulous testimony.” The judge went on to issue a temporary order requiring Ortiz to pay Hoffman $1,200 monthly for interim spousal support until a final jury trial’s verdict.

On January 22, 2021, Ortiz’s attorney filed a motion for a Declaratory Judgment which would have made a final, legally binding declaration that Hoffman’s petition was not valid.

Ortiz contended that there was no precedent in Texas state law to show that Obergefell applies retroactively to same sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of courts in Texas recognizing “a pre-Obergefell same sex common law marriage. However no Texas appellate court has issued any binding authority on the issue.”

(Lambda Legal Senior Staff Attorney Shelly Skeen authored a brief in the Hinojosa v. LaFredo case.)

There are a couple of precedents I could cite for pre-Obergefell marriages later getting legally dissolved in Texas. Way back in 2010, a Travis County district court judge granted a divorce to two women who had been married in Massachusetts. Then-Attorney General Greg Abbott sued to undo the divorce ruling on the grounds that their marriage was not recognized by the state of Texas. That case went all the way to the State Supreme Court, which ruled against Abbott, upholding a Third Court of Appeals decision that Abbott didn’t have standing because he waited to intervene until after the original district court ruling. That ruling happened a few months before Obergefell, and SCOTx was emphatic that it was not saying anything about the constitutionality of same-sex marriage, just about the AG’s standing to intervene in that case.

In 2014, there was a divorce and child custody filing in Bexar County, also between two women who in this case had been married in Washington,. That one had been filed eight days before a federal judge ruled that Texas’s law against same-sex marriage was unconstitutional; this was the original Texas case filed by Cleopatra De Leon and Nicole Dimetman, and Vic Holmes and Mark Phariss. The judge in that Bexar County case later also ruled that Texas’s law against same-sex marriage was unconstitutional, basing her opinion on the federal case while specifying sections of the state’s Family Code as being illegal. She also cordially invited Greg Abbott to butt the hell out, which kind of makes her my hero. I don’t have any further updates on that case, so it’s my best guess that it eventually proceeded to a normal resolution in the courts.

Finally (yes, I went deep on this one; it’s a topic that fascinates me), there was a post-Obergefell divorce granted in Tarrant County, the culmination of a proceeding that had been filed in 2013. It appears that it was the SCOTUS ruling on same-sex marriage that spurred the case resolution for this one.

So with all that said, and with the usual proviso that I Am Not A Lawyer, I like plaintiff Hoffman’s chances, on the grounds that this is in every other way a pretty normal, boring divorce case that will ultimately be decided on the merits. It’s certainly possible that some bad actors might try to get involved in an effort to pursue a ruling that might draw a distinction between “traditional” marriage and same-sex marriage. I don’t know how that might happen, and I don’t know if it can happen if defendant Ortiz objects to their intervention, I just know that the there are definitely people who would like to intervene in this fashion and for this purpose, and I wouldn’t put it past them. Anyway, I’ll try to keep an eye on this one, just to see how it goes. The trial begins today, so we may know more soon.

Not just Beto for marijuana legalization

The two Democrats in the runoff for Attorney General are also on board.

As the May 24 runoff approaches, both Democrats in the runoff for Texas Attorney General have doubled down on their promises to legalize cannabis in the state.

Rochelle Garza and Joe Jaworski made it clear in the runup to the primary that they’re in favor of legalization, and in the past few days both have taken to Twitter make sure voters know where they stand.

Garza, a Brownsville lawyer and former staff attorney for the ACLU of Texas, finished first in the primary, but didn’t secure the majority needed to avoid a runoff with Jaworski, a former Galveston mayor and grandson of Watergate special prosecutor Leon Jaworski.

“It’s time to legalize the sale and use of recreational cannabis in Texas,” Garza tweeted Saturday. “Nearly 70% of Texans support legalization, and they deserve an Attorney General who will work with them to advance our priorities.”

On Tuesday, Jaworksi tweeted that legalizing cannabis is an important element of criminal justice reform, throwing in the hashtag #legalizecannabis to leave no doubt where he stands.

“How many young lives, principally lives of color, are we going to put in private prisons so ppl can make a profit from their incarceration?” he asked. “We can’t have that — that is a sick society.”

See here for some background. The AG doesn’t play a direct role in the legislation process, so while their positions are appreciated they’re not necessarily needed. That said, Ken Paxton is another big opponent of marijuana – you know, because he’s such an upstanding and law-abiding citizen himself – and even in the absence of legalization I’m sure there are things that the state’s top law enforcement officer could do from an executive policy position to improve things. There’s only one way to find out, and while pot legalization has got to be pretty far down on the list of good reasons to vote Paxton’s sorry ass out of office, it is on there, and we should be sure to point it out.

A trifecta of crap from the Fifth Circuit

It’s what they do.

A federal appeals court has ruled for Texas in three lawsuits challenging the state’s voting laws, including mail-in ballot provisions and the elimination of straight-ticket voting.

In a series of 2-1 rulings Wednesday evening, a panel of the 5th U.S. Circuit Court of Appeals ruled that the lawsuits by civil rights groups, political organizations and voters targeted the wrong state agency — the Texas secretary of state’s office — when they sought to overturn a string of voting laws and practices.

Because the secretary of state is not in charge of enforcing the challenged laws, the agency is protected by sovereign immunity in all three lawsuits, said the opinions written by Judge Stuart Kyle Duncan and joined by Judge Don Willett.

Judge Patrick Higginbotham dissented in all three cases, writing that he believed the majority was splitting hairs by narrowly interpreting which state officers enforce election laws.

The secretary of state is the chief election officer of Texas who is charged by law with protecting the voting rights of Texans “from abuse by the authorities administering the state’s electoral processes,” Higginbotham wrote.

“The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our … inquiry,” he said.

Reporter Chuck Lindell first posted about this on Twitter, so if for some reason the Statesman link doesn’t work or gets paywalled, you can see the basics there. Let’s break down the three cases:

A challenge by the Texas Alliance for Retired Americans and two national Democratic organizations sought to overturn a 2017 law that ended straight-ticket voting, also known as one-punch voting because it lets voters select all candidates of a particular political party in one step.

A state district judge barred enforcement of the law, ruling in September 2020 that the change unconstitutionally burdened the right to vote.

See here and here for the background. This one confused me at first, because there had been a basically identical challenge filed earlier in the same court by a different set of plaintiffs that was later dismissed by that judge. I don’t know why the subsequent challenge, which fell under the Democracy Docket umbrella, was more successful, but there you have it. You may recall I was skeptical of this one, and of the three it’s the one I’m the least upset about. The Fifth Circuit’s ruling is here.

A lawsuit by the NAACP and Texas Alliance for Retired Americans sought to block mail-in ballot regulations that require voters to pay for postage and mandate that ballots be postmarked by 7 p.m. on Election Day and received by 5 p.m. on the next day.

The lawsuit also challenged signature-matching requirements and a law that makes it a crime to possess another voter’s mail ballot.

See here and here for the background. I thought this was an interesting suit that made a reasoned case and that in a fair world would have gotten a more thoughtful review by the Fifth Circuit, but that ain’t the world we live in. I don’t know if this subject was addressed in one of the many voting rights bills that Joe Manchin and Kyrsten Sinema personally strangled (with the help of all 50 Republicans, of course), but if there’s ever another opportunity to address voting rights at a federal level, this should be an item on the to do list. The Fifth Circuit opinion is here.

A lawsuit by groups including the League of Women Voters of Texas and the Coalition of Texans with Disabilities challenged the process of verifying mail-in ballots by ensuring that the voter’s signature on the outside envelope matches the signature on the vote-by-mail application.

A trial judge granted a detailed injunction limiting the practice in September 2020, but again the 5th Circuit Court stepped in to halt the injunction until the appeal was decided. Wednesday’s ruling vacated the injunction.

See here, here, and here for the background. Remember when signature matching was our biggest concern about mail ballots? Boy, those were the days. Anyway, even though this suit was filed in 2019, that injunction was halted by a different Fifth Circuit panel because it was too close to the election. There’s always, always an excuse. The opinion for this one is here.

The first and third cases were reversed and remanded to the district court “for further proceedings consistent with this opinion”, while the second was reversed and remanded with instructions to dismiss. I’m not quite sure what further proceedings there may be, and it may be that the bigger problems caused by SB1 may make the third case not particularly relevant at this time, I dunno. I assume that since the issue cited by the Fifth Circuit was that the SOS was not the proper defendant, the cases could be refiled with some number of county election administrators as defendants instead. I don’t know how practical that would be, and I also don’t know if this is just a prelude to the Fifth Circuit (or later SCOTUS) ruling that actually you can’t sue those people either, because the whole idea that you can pursue redress in a federal court is just an illusion anyway or whatever. We’ll see if anything does get refiled, but I would not feel particularly optimistic about any of it.

UPDATE: And when I checked Twitter on Thursday, I saw that Prof. Vladeck had addressed my questions.

Always expect the worst from the Fifth Circuit. You’ll almost never be wrong.

Texas sues to keep federal funds that would be denied for bullying trans kids

The utter gall, it’s breathtaking.

Texas is worried it could lose over a billion dollars in federal funding over Gov. Greg Abbott’s directive requiring medical professionals to report transgender children receiving gender-affirming health care as potential child abuse.

Texas Attorney General Ken Paxton amended an existing lawsuit suing the Biden administration Wednesday, attempting to void guidance issued by the U.S. Health and Human Services on March 2 that said restricting someone’s ability to receive medical care solely on the basis of their sex assigned at birth or gender identity is likely a violation of the Affordable Care Act for federally funded entities. That federal guidance came in response to Abbott’s directive issued late last month to treat certain medical treatments for trans children as possible crimes to be investigated by the Department of Family and Protective Services.

The federal guidance stated that health care providers do not need to disclose private patient information regarding gender-affirming care and that it is illegal to deny health care based on gender identity.

Paxton, in the lawsuit, said that guidance is based on “erroneous interpretation of sex discrimination.” The lawsuit says Texas does not aim to deny health care based on gender identity. Instead, the state argues its investigations disregard gender entirely, barring all children from “unnecessary medical interventions.”

In 2020, $1.36 billion in federal funds went to Texas’ Department of State Health Services, Paxton said in the lawsuit. More than $26 billion went to the State’s Health and Human Services Commission.

I noted the federal guidance in this post. The main thing you need to know at this point is this:

It’s not a guarantee that Paxton will get what he wants from his hand-picked judge. But there’s a reason he picked him, you know? Daily Kos has more.

More on Tina Linn and Harold Clouse

Very moving stuff.

Donna Casasanta picked through the brush in an overgrown patch of woods in northeast Harris County, looking.

The 80-year-old mother had spent 40 years wondering. She had traveled 980 miles, driven with her grown children for three days from her home in Florida, to be here.

Casasanta is not as sturdy as she once was. Navigating through the brush and brambles wouldn’t have been difficult 40 years ago, but now she walks with a cane.

But she needed to reach the spot where police finally found her son’s body, a small piece of land next to Wallisville Road in northeast Harris County. The spot was sprinkled with palmettos, fallen trees, and a bed of leaves that crunched and rustled at every step.

She needed to see it.

Forty-two years ago, her son, Harold “Dean” Clouse and his young wife, Tina Gail Linn, moved to Texas from New Smyrna, Fla.

He’d been promised a job building houses, a job that would help him provide for Tina and their infant daughter, Hollie Marie.

They exchanged letters all throughout 1980, but that October, Dean stopped writing.

As the months passed, Casasanta became more and more worried. What had happened to her son?

As we now know, her son and his wife had been murdered. Their bodies were found in 1981, but weren’t identified until last year, thanks to DNA, geneaolgy, and a couple of amateur sleuths. It’s a fascinating story, and you should go back and read the first one if you haven’t already. But there was another mystery to go along with what happened to Tina and Harold. What happened to their baby daughter Holly?

Weeks after those IDs, more questions have emerged: Who will investigate the 1981 murder of Dean and Tina Clouse? Did the Jesus Freaks have something to do with it? And what became of Holly? Was her tiny body carried away by predators or overlooked?

With help from relatives, Peacock, who no longer works with Identigene, has already begun exploring another possibility: Was Holly kidnapped by her parents’ killers? If so, she’d be a woman of about 42 with no memory of them at all.

The Clouse homicide case is considered active in Harris County, according to Deputy Thomas Gilliland, a Harris County Sheriff’s Office spokesman. But recently, that department, which has jurisdiction over a county of 4 million—a population larger than most states—essentially defunded their cold case unit. The two detectives who once oversaw unsolved murder cases like this one have been reassigned, leaving the unit with only one part-time investigator. Gilliland told the Observer via email that the department has “no active suspects or any information on the missing daughter. This case may be transferred to the Texas Attorney General’s Missing Person & Cold Case Unit so that they can utilize more manpower/resources than we can.”

Unfortunately, the cold case task force formed last year by the Texas Attorney General’s office has only just begun to take its first cases. The group’s blue-ribbon advisory board has met, but its progress has been frustratingly slow, members say. Potential leads in the 1981 murder of Tina and Dean Clouse—and the disappearance of their baby Holly—are scarce. It’s unclear if any of the physical evidence from the murder scene is still around.

And it’s not the only high-profile cold murder case in Texas that seems to need urgent attention. Most genetic genealogy groups, like Identigene, rely on small grants or even crowdfunding to work cold cases. But even with limited funding, relatives of several other Texas homicide victims have already been identified through genetic genealogy.

In April 2019, genetic genealogists had identified two out of four women murdered and dumped at different times in a lonely patch of woods in League City, Texas. But the serial murder case called “the Killing Fields” remains unsolved more than 30 years later.

Then, in August 2019, other genealogists working with the non-profit DNA Doe Project helped identify Debra Jackson, a teen found on Halloween 1979 off I-35 north of Austin. Jackson’s murder was initially blamed on Henry Lee Lucas, Texas’ notorious lying “Confession Killer.” But Lucas’ death sentence was commuted after his lies were exposed, and Jackson’s murder also remains unsolved.

The state’s huge backlog of unidentified murder victims should not exist at all, argues Kristen Mittelman, whose husband and business partner David is a member of the AG Cold Case and Missing Persons Unit Advisory Committee. She and David Mittelman, who together run a genetics lab in Houston called Othram, both told the Observer that the state should move more quickly. “We’re super excited with the task force. But unfortunately, we haven’t worked any cases,” she said. “What’s going to change the world is creating a way to solve these cases at scale—and to be able to clear 1,000 of cases at a time and be able to clear these backlogs.”

More money is the obvious answer to that. I can see a bill to make it happen getting through the Legislature – it’s the kind of thing that would have little to no opposition, and would be an easy cause to champion – but someone has to do it. It might take more than one try, as these things often do. But it can be done, if someone makes the effort.

It’s officially Garza and Jaworski in the AG runoff

Glad that’s settled.

Rochelle Garza

Civil rights lawyer Lee Merritt suspended his campaign for the Democratic nomination for Texas attorney general on Thursday, clearing the way for top vote-getter Rochelle Garza to face Joe Jaworski in a May runoff election.

More than a week after election day, Merritt, who was less than 4,000 votes behind Jaworski for second place, conceded that he had failed to garner enough votes to make the runoff and endorsed Garza.

“She has demonstrated that she can run a campaign that can energize our base, that reflects the diversity of our party,” Merritt said in a press conference in Houston. “She and I had a conversation yesterday about my plans to join her on the campaign trail to encourage young progressive voters to get engaged in the process.”

Merritt said he was still within a “razor thin margin” of Jaworski but wanted to help consolidate support for Garza so she could focus on winning the general election in November.

“When I got into the race, Rochelle Garza wasn’t in it,” he said. “She represents a young, progressive, forward-thinking advocate that I wouldn’t have joined the race if I thought she was in it. So even if we were to come out ahead, I would encourage the parties to get behind Rochelle Garza and focus on actually flipping that office.”

[…]

In a statement on Thursday, Jaworski said he enjoyed a cordial relationship with Merritt on the campaign trail and wished him well in his law practice.

“I’m looking forward to a robust runoff campaign with Ms. Garza, so that Texas voters can choose the best candidate to defeat Ken Paxton in November,” he said.

In a statement after Merritt’s concession, Garza touted the endorsements from two of her primary opponents — last week, fourth-place finisher Mike Fields also asked his fellow candidates to forgo a runoff and allow Garza to focus on the general election — and made a pitch to Merritt’s supporters.

“To Mr. Merritt’s supporters, I am committed to continuing to fight for our civil rights and to earn your support in this runoff election,” she said. “People of color are the majority of the population of our state, and I look forward to working together with Mr. Merritt to ensure we have representation at the state level and do the hard work of turning out the vote in Texas.”

See here for the background. Both Garza and Jaworski are terrific candidates and either would deserve to be elected in a landslide this fall. As I said before, the advantage to their being a runoff instead of a concession from Jaworski is that this race and these candidates will continue to be in the news, rather than it being all Paxton-Bush. Jaworski has been an okay fundraiser so far, now it’s Garza’s turn to show she can do that, too. Vote for who you like in May, and then support the hell out of the winner.

The story of course notes the absentee ballot tabulation screwup in Harris County and the fact that it left this race in a bit of limbo. The gap between Jaworski and Merritt was indeed thin, but Jaworski’s drew far more support than Merritt in the initial count of absentee ballots in Harris County, and anyone could have surmised that the odds greatly favored him maintaining his overall lead as the other ballots were added into the count. And yet

Prior to the revelation about the missing ballots, Jaworski and civil rights attorney Lee Merritt had been separated by about 1,400 votes. But with the new Harris County totals, Jaworski picked up about 2,600 votes, and Merritt gained just under 1,000 — not enough to close the gap.

Yes, well it would be difficult for Merritt to close the gap when Jaworski was increasing his lead due to getting way more votes from these ballots. I know math is hard, but it’s pretty simple to just say “the gap grew larger” or “Merritt fell further behind” or some other thing that expressed this basic fact. Good grief.

Longoria to resign as Election Administrator

Ultimately for the best.

Harris County Elections Administrator Isabel Longoria submitted her resignation Tuesday, about an hour and half after Judge Lina Hidalgo announced she intended to replace her following last week’s bungled primary contests.

Longoria said her resignation would take effect July 1.

“I think this date ensures that there’s a presiding officer during the May and June elections, and allows the election commission the time they need to find a replacement,” Longoria said.

She said she took responsibility for last Tuesday’s miscues, including the discovery Saturday of more than 10,000 ballots that had not been included in the final, unofficial count. Her office also had been faulted for a slow count that took 30 hours to tally.

Hidalgo said some mistakes were due to new rules under SB1, the voting law the Legislature passed last year, while others were simply unforced errors by Longoria and her staff.

[…]

Election judges who spoke at Commissioners Court on Tuesday described numerous problems during the primary voting period, including inadequate supplies, malfunctioning machines and a lack of support from elections office staff.

Art Pronin, president of Meyerland Area Democrats, was not at Tuesday’s meeting, but applauded Longoria’s resignation, saying he has been inundated with texts and calls from demoralized and angry precinct chairs and election workers since last week.

“This feeling comes from a lack of support on Election Day,” he said. “They told me of issues from their training session, lacking enough paper at the polling sites and being left on hold up to an hour when calling in for help with machines.”

He added, “I urge the hiring of a highly qualified individual who has a history running elections with the machines we now use here, along with robust voter education on machine and mail ballot usage, and more support for our precinct chairs and judges.”

See here and here for some background. I feel bad about this – I like Isabel, I thought she was a perfectly fine choice for the job when she was appointed, but it just didn’t work out. I’ve seen some similar comments to those made by Art Pronin among activist Dems on Facebook, and it’s just not possible to continue in a job like that when you’ve lost people’s confidence. I wish Isabel all the best, I hope we can learn from this experience to make the May and especially November elections run more smoothly, and I absolutely hope we make a solid choice for the next administrator.

Also last night a bit after I wrote this, the updated primary totals were posted. As I expected and wrote about, none of the races were changed by the additional mail ballots. I’ve been annoyed by some of the coverage of the uncounted absentee ballots, mostly because the mention that some races “could” be affected completely fails to address the fact that the leaders in the closest races were almost always also the leaders (often by a lot) of the counted mail ballots. Indeed, Joe Jaworski went from having a 4,129 to 1,658 advantage in mail ballots over Lee Merritt to a 6,572 to 2,643 lead, a net gain of 1,458 votes. Harold Dutton netted 80 votes as well. It’s not that these or other races couldn’t have been affected – theoretically, it was possible – but leaving out that context was really misleading. It could have happened, but it was very unlikely based on the information we had, that’s all I’m saying. I’ll keep my eye on the results and will post when they appear to be finalized. The Trib has more.

UPDATE: Forgot to mention, final turnout for the Dems was 165,983, or about a thousand less than 2018. For Republicans it was 187,651, a gain of about 30K.

UPDATE: Stace has more.

How about a new Ken Paxton scandal?

Funny how these things keep cropping up. It’s almost as if it were habitual or something.

Best mugshot ever

In late 2018, Conduent Business Services, the giant information company formerly part of Xerox, was on the edge of a financial cliff.

For more than four years, the Texas attorney general’s office had aggressively pursued the company for what it asserted was Conduent’s massive fraud overseeing a government program to fix poor children’s teeth. Instead of evaluating treatment requests as it had been hired to do, Conduent simply rubber-stamped them while taxpayer dollars streamed out the door. The company tried to blame the dentists, but in June 2018 the Texas Supreme Court said Conduent alone was responsible.

A trial that could cost the company billions of dollars was rapidly approaching. Texas had indicated it would settle, but Conduent had a money problem: Its liability insurance policy refused to pay legal costs involving fraud.

So with the help of Attorney General Ken Paxton’s office, Conduent hatched a plan to trick the insurer into paying up to tens of millions of the legal settlement, according to documents the insurer, AIG, filed in Delaware state court. Two weeks ago, a jury found the deal defrauded AIG.

The jury’s verdict did not implicate Texas, Paxton or his lawyers in the scheme to deceive the insurer. Yet trial documents also show the attorney general’s staff knew Conduent was asking the agency to manipulate its case against the company to help with insurance claims, and that they agreed to the plan.

[…]

Problems in the State of Texas’s Medicaid dental program first became public in 2011, when a Dallas television station reported some clinics were billing more for children’s orthodontic care than entire states. Although the practitioners were first to be blamed, court documents later revealed Xerox had hired workers with little or no knowledge of dental procedures to process the applications for treatment as quickly as possible, with scant review.

About 90 percent were approved, often in a matter of seconds. Evidence such as molds and X-rays that dentists submitted with the applications often were never even looked at. Xerox had only a single dentist to review hundreds of daily requests.

The company said Texas officials were aware of how it was handling the Medicaid work and did nothing, but the state removed Xerox from the dental program in 2012 and fired it two years later. Since then the case has spawned a thicket of legal disputes as the various parties have tried to pin blame and costs on the others.

Texas has re-paid the federal government $133 million, the amount the U.S. Department of Health and Human Services calculated it was due for the state allowing Xerox to approve unnecessary dental payments. Texas regulators, in turn, have tried with limited success to recover money from dentists they say abused the program.

But the state’s main target has been Xerox, which in 2016 spun off its business services division into Conduent. Launched in 2014, the state’s Medicaid fraud lawsuit against the company meandered through the court system for years. By late 2018 a trial was scheduled.

Texas was seeking $2 billion. Conduent denied it committed fraud, but it had reason to avoid risking a bad verdict at trial. The federal government prohibits companies convicted of fraud from contract work; a jury finding against it would jeopardize Conduent’s business in other states.

The company entered a round of intensive negotiations with the attorney general’s office in late 2018, legal documents from the Delaware case show. With AIG already having denied its liability insurance claims, Conduent needed the foundation of the case against it to fundamentally change if it wanted to collect.

And for that it required an assist from Paxton’s office.

[…]

But in early January 2019, Conduent asked the attorney general’s office to file a new petition, court documents filed by AIG said. Typically, defendants try to convince prosecutors to drop crimes they’ve been accused of. In this case, Conduent asked Paxton’s office to add two new charges against it: breach of contract and negligence.

The reason, according to the Delaware lawsuit: If Texas prosecutors officially declared they were pursuing Conduent for those violations, AIG’s liability insurance policy would kick in, allowing the company to collect tens of millions of dollars.

Paxton announced a $236 million settlement with Conduent in January of 2019, shortly after the new charges were filed. AIG’s attorney argued that the state never intended to pursue those charges, they were just included to get Conduent to settle because then they could recover the funds from their insurer. The jury agreed with AIG and called what Conduent did “insurance fraud”. For which they got an assist from the Texas Attorney General’s office.

There’s a lot we don’t know yet. Maybe Conduent blatantly misrepresented their intentions to the AG’s office, and is solely responsible for all fraudulent actions. Maybe the AG’s office just erred in adding those extra charges, and didn’t pursue them because they were never going to get anywhere. Maybe all of the fault for the AG office’s activities belongs to the attorneys on the case, while Paxton himself wasn’t involved. I hope that now that we have this story, we’ll find out more. It’s obviously easy to believe that Paxton did something shady – it’s his brand, after all – but we need more information before we can conclude anything like that. Let’s see what else gets dug up. Reform Austin has more.

The Dem runoff for AG is not fully settled

First place in the Democratic primary for Attorney General went to Rochelle Garza. Second place is still somewhat of a question.

Rochelle Garza

Two days after election day in the March primary, the Democratic race for attorney general is still not settled.

By Tuesday night, it was clear that Rochelle Garza, a former American Civil Liberties Union lawyer from Brownsville, was the clear front-runner in the race, but she did not garner enough support to avoid a May runoff. Joe Jaworski, an attorney and former Galveston mayor, was in a tight battle with civil rights lawyer Lee Merritt for second place, with Jaworski in the lead but only a few thousand votes separating the two.

Early Wednesday morning, Garza celebrated her showing, thanking voters for their support. She did not mention the runoff and instead turned her sights to Republican incumbent Attorney General Ken Paxton, who is headed into his own runoff against Land Commissioner George P. Bush.

“I got in this race to fight for Texas families, protect voting & reproductive rights and hold corporations and bad actors to account when they take advantage of Texans,” Garza said in a statement. “Indicted Ken Paxton is the most corrupt Attorney General in the country and our campaign is ready to defeat him this November.”

Merritt said Wednesday afternoon that the “race is not over” and was waiting for all the votes to be counted. He said the delayed results showed “flaws in our election system” that led to mistrust, confusion and people being discouraged from voting.

“Our campaign is eagerly watching and waiting along with the rest of the state and the country to see the results of this election,” he said in a statement.

By Thursday, the secretary of state’s website said all polling locations in the state had reported. But some mail-in ballots and provisional ballots can still be tabulated. Jaworski still held a slim lead over Merritt.

On Thursday, Jaworski tweeted cheerily that he was still in second place and was “exhibiting Olympian patience” in waiting for final results.

“Let’s get another cup of coffee while we wait,” he said. “Onward!”

Meanwhile, Mike Fields, who placed a distant fourth, congratulated Garza and said she was “the preferred choice of the majority of Democratic primary voters,” garnering more than twice the votes of her nearest competitor. He then asked Jaworski and Merritt to forgo a runoff and allow Garza to focus her attention on winning the general election in November.

First, Garza received 432,212 votes out of just over one million cast. Jaworski is second with 196,463, while Merritt has 195,045. That’s a difference of 1,418 votes, and 0.14 percentage points. It’s a small margin, but I think it’s highly unlikely that any combination of provisional ballots, overseas ballots, and mail ballots that can still be corrected for incorrect voter ID information could put Merritt ahead. There may not be enough votes left in play for it to be mathematically possible, and even if there is he’d have to win such an overwhelming number of them that it’s virtually impossible. This is why so few elections are truly in doubt once the Election Day votes are counted. There just isn’t enough slack for the difference to be made up.

As for Fields’ suggestion that Jaworski and Merritt drop out so Garza can begin her general election campaign, there is an argument for that. She needs to raise a bunch of money, and it would be better to have most of it for November. Of course, money spent on organizing and voter outreach now, for the runoff, is still a good investment. One could also argue that she’ll get more attention over the next two months as the frontrunner in the runoff than she would as the nominee, especially with Paxton himself in a runoff. I’m agnostic on the question, but it doesn’t really matter since neither Jaworski nor Merritt seems inclined to take that advice.

But as noted, one can make a reasonable case for Garza’s path to be cleared. This is much more of a stretch.

State Rep. Michelle Beckley forced a runoff in the Democratic race for lieutenant governor — and now she’s calling on her opponent, Houston accountant Mike Collier, to end his campaign.

“He doesn’t inspire the base,” Beckley, of Carrollton, said in an interview Thursday. “He should drop out.”

Collier was the 2018 Democratic nominee for the post and came within 5 points of unseating Republican Lt. Gov. Dan Patrick that year. He earned about 42 percent of the vote in Tuesday night’s election, followed by Beckley at 30 percent.

A third candidate, Houston educator Carla Brailey, came in just behind at 28 percent, according to unofficial results. Patrick, who is seeking his third term in Texas’ No. 2 spot, sailed to victory in the Republican primary.

Collier says he has no intention of dropping out, and the two will face off in a May runoff election.

“Our campaign is building a diverse coalition around the issues that matter to Texans — protecting our individual rights, fully funding our public education system, fixing the damn grid, expanding Medicaid — and working together to defeat Dan Patrick,” Collier said.

[…]

Collier has two statewide elections under his belt: the lieutenant governor’s race four years ago and a bid for state comptroller before that. His campaign has a massive funding advantage, spending hundreds of thousands of dollars in the lead-up to the primary.

As of Feb. 22, his campaign had about $120,000 on hand to Beckley’s $9,000. Collier has raised nearly $2 million since announcing his run last year, though his campaign is bogged down by about $450,000 in outstanding loans — a holdover from the 2018 race that he’d given to himself.

For Collier, the lead-up to the May runoff will focus on digital campaigns and travel across the state, starting with a visit to North Texas on Monday. His campaign also announced a number of new endorsements on Thursday, including three members of Congress — Reps. Veronica Escobar, Lizzie Fletcher and Lloyd Doggett — and a slate of Houston-area politicians who had previously endorsed Brailey.

Seems a bit presumptuous to me. Collier is reasonably well known among Dems, he did quite respectably well in 2018, he’s done decently in fundraising, and well, he got the most votes this past Tuesday. Maybe he’s not “inspiring”, whatever that may mean, but if so I’d say it’s on Beckley to demonstrate that she’s more so than he is. That’s what the runoff is for.

A roundup of runoffs

I was going to just do a basic recap of all the primary races that will require runoffs, and then this happened, and I had to do some redesign.

Rep. Van Taylor

U.S. Rep. Van Taylor, R-Plano, has decided to end his reelection campaign after he was forced into a primary runoff amid 11th-hour allegations of infidelity.

Taylor made the stunning announcement Wednesday, hours after he finished his five-way primary with 49% of the vote, just missing the cutoff for winning the primary outright. The runner-up was former Collin County Judge Keith Self, who is now likely to become the next congressman for the 3rd District.

“About a year ago, I made a horrible mistake that has caused deep hurt and pain among those I love most in this world,” Taylor wrote in an email to supporters. “I had an affair, it was wrong, and it was the greatest failure of my life. I want to apologize for the pain I have caused with my indiscretion, most of all to my wife Anne and our three daughters.”

The day before the primary, the conservative outlet Breitbart News posted a story that Taylor had had a monthslong affair with a Plano woman, Tania Joya, who he had paid $5,000 to keep quiet. The publication reported that she provided it a phone screen shot purporting to be communications with Taylor and a bank record showing that she deposited $5,000 into her account. The Texas Tribune has not been able to independently verify the report.

[…]

Taylor has until March 16 to remove his name from the runoff ballot, which he plans to do, according to a spokesperson. After he does that, Self is automatically the Republican nominee for the district. There is a Democratic nominee for the seat, Sandeep Srivastava, but they face long odds after the district was redrawn last year to favor Republicans.

Holy shit. There’s a link to that article in the Trib story, which I refuse to include. It’s one of the less important aspects of this story, but the timing is curious. Why not publish this earlier, if that’s what you’re going to do, and not take the chance that he could win without a runoff? It gets a whole lot more complicated for the Republicans if he withdraws after winning the primary, and he came quite close to doing just that. I don’t understand any of this.

Anyway, this is where I was originally going to start this post. Here’s a list of the races that have gone into overtime. You can also read the Decision Desk wrapup for some more details.

Statewide Dem

Lite Guv – Mike Collier vs Michelle Beckley.

AG – Rochelle Garza vs Joe Jaworski. As of Wednesday afternoon Jaworski had less than a 2K vote lead over Lee Merritt. When I first looked at this, it was a 3K lead, with all of the remaining ballots in Harris County, where Jaworski started the day with a 6K vote lead over Merritt. That had shrunk to a bit less than 5K votes by the afternoon, which almost made my logic that Jaworski would easily hold his lead look idiotic, but the gap appears to have been too large for Merritt to overcome. But who knows, there may be a bunch of late-fixed mail ballots out there, so let’s put a pin in this one.

Comptroller – Janet Dudding vs Angel Vega.

Land Commissioner – Sandragrace Martinez vs Jay Kleberg.

Congressional Dem

CD01 – JJ Jefferson vs Victor Dunn.

CD15 – Ruben Ramirez vs Michelle Vallejo, who has a 300-vote lead over John Rigney.

CD21 – Claudia Zapata vs Ricardo Villarreal.

CD24 – Jan McDowell vs Derrik Gay, who rebounded after my initial bout of pessimism to finish in second place.

CD28 – Rep. Henry Cuellar vs Jessica Cisneros. Cisneros had a big early lead that was mostly a function of the order in which the counties reported their results. Cisneros crushed it in Bexar County, then watched as Starr, Webb, and Zapata erased her lead. In the end, if what I’m seeing is the actual final tally, it was Cuellar who missed winning outright by nine (!) votes. This one could change to a Cuellar win as the overseas and provisional votes are tallied, and then of course there may be a recount. Hold onto your hats.

CD30 – Jasmine Crockett vs Jane Hope Hamilton.

CD38 – Diana Martinez Alexander vs. Duncan Klussman. This is the only Congressional runoff in Harris County for Dems.

SBOE Dem

SBOE1 – Melissa Ortega vs Laura Marquez. The third-place finisher had big charter school backing, so this race can go back to being one you don’t need to know about.

SBOE2 – Victor Perez vs Pete Garcia.

SBOE4 – Coretta Mallet-Fontenot vs Staci Childs. This is in Harris County, it’s the seat Lawrence Allen vacated in his unsuccessful run for HD26. I’ll put this one on my to do list for runoff interviews.

SBOE11 – Luis Sifuentes vs James Whitfield. Double-timer DC Caldwell finished third, while also losing in the Republican primary for this same seat to incumbent Pat Hardy. Let us never speak of this again.

State Senate Dem

SD27 – Morgan LaMantia vs Sara Stapleton-Barrera.

State House Dems

HD22 – Joseph Trahan vs Christian Hayes.

HD37 – Ruben Cortez vs Luis Villarreal

HD70 – Cassandra Hernandez vs Mihaela Plesa. This one was an almost even split among three candidates, with third place finisher Lorenzo Sanchez 29 votes behind Plesa and 102 votes behind Hernandez. Another overseas/provisional vote count to watch and another recount possibility.

HD76 – Suleman Lalani vs Vanesia Johnson. This is the new Dem-likely seat in Fort Bend.

HD100 – Sandra Crenshaw vs Venton Jones.

HD114 – Alexandra Guio vs John Bryant. Bryant was a Dem Congressman in the 90’s, in the old CD05. After winning a squeaker against Pete Sessions in 1994, Bryant tried his luck in the primary for Senate in 1996, eventually losing in a runoff to Victor Morales. Bryant just turned 75 (why anyone would want to get back into the Lege at that age boggles my mind, but maybe that’s just me), while Guio is quite a bit younger. Should be an interesting matchup. This was a five-way race with everyone getting between 17 and 25 percent, so endorsements from the ousted candidates may make a difference.

HD147 – Jolanda Jones vs Danielle Bess.

Harris County Dems

185th Criminal District Court – Andrea Beall vs Judge Jason Luong.

208th Criminal District Court – Beverly Armstrong vs Kim McTorry. Judge Greg Glass finished third.

312th Family District Court – Teresa Waldrop vs Judge Chip Wells.

County Civil Court at Law #4 – Manpreet Monica Singh vs Treasea Treviño. David Patronella was in second place after early voting, but fell behind as the Tuesday votes came in.

Commissioners Court, Precinct 4 – Lesley Briones vs Ben Chou.

Justice of the Peace, Precinct 1, Place 2 – Sonia Lopez vs Steve Duble.

Republicans

Not really interested in a complete rundown, but it’s Paxton versus P Bush for AG, Dawn Buckingham versus Tim Westley for Land Commissioner, and Wayne Christian versus Sarah Stogner for Railroad Commissioner. At least that last one will be interesting.

As noted yesterday, it will be Alexandra Mealer versus Vidal Martinez for the nomination for County Judge. I have no feelings about this.

I will put some other primary news and notes in a separate post. Let me know if I missed a race.

2022 primary results: Statewide

That didn’t take long:

Literally one minute after polls would have closed in El Paso. You can’t report any earlier than that. With the first very early batch of results posted on the SOS website, Beto was at 92.82% of the vote, so even though maybe ten percent of the votes had been counted, this seems like a pretty safe call.

Greg Abbott was cruising as well, with just under 70% in very early returns. The Trib says his race was called at the same time; I didn’t see anything on Twitter, but you know how that can go. At least one of his opponents was preparing to concede right out of the gate. Both Huffines and West were in the 10-12% range early on, which makes their attention-to-performance ratio pretty much a “division by zero” error.

Susan Hays was headed for a decisive win for Ag Commissioner on the Dem side, starting out with about 85% of the vote. All of the other Dem statewides look like they’re headed for runoffs. Mike Collier, Rochelle Garza, and Janet Dudding were the clear early leaders for Lite Guv, AG, and Comptroller. The Land Commissioner race was more jumbled, with Sandragrace Martinez and Jay Kleberg the initial frontrunners.

On the Republican side, Dan Patrick and Glenn Hegar easily turned away nominal opposition, while the crook Sid Miller was close to 60% against more substantial opposition. Ken Paxton and Wayne Christian were leading for AG and Railroad Commissioner, but both were in the low-to-mid 40s early on. Dawn Buckingham was at about 45% with three opponents who might be the one to face her in a runoff in the 12-15 percent range. Two Supreme Court incumbents, Evan Young (appointed to replace Eva Guzman) and Scott Walker, were in the mid-to-upper 50s against single opponents.

I found the Trib‘s results page to be faster than the SOS, and it had both Dems and GOP on one page. The only other matter of interest here for now is total turnout. I’m not going to get a handle on that before I go to bed, so let’s put that in the to-be-followed-up file.

Final 2022 primary early voting totals

It’s been a strange two weeks for early voting, so let’s get to the wrapup. Here are your final early voting totals. The table for comparison:


Election    Mail   Early   Total
================================
2018 D    22,695  70,152  92,847
2018 R    24,500  61,425  85,925

2020 D    22,785 116,748 139,533
2020 R    22,801  82,108 104,909

2022 D    13,713  82,342  96,055
2022 R     9,684  96,439 106,123

As a reminder, 2018 final totals are here, and 2020 final totals are here. Please note that the “2018 final totals” file I have is actually from the penultimate day of early voting. I either never got the last day’s totals, or I forgot to save the file to my Google Drive. The numbers in the table above are from the Election Day report for 2018, which means that the mail ballots include those that came in between the Friday and Tuesday. It would have been a smaller number if I had that day-of EV report.

Clearly, mail ballots were down. I had thought that the good number of mail ballots returned on Tuesday heralded an upswing for them, perhaps because of corrected ones getting in, but that wasn’t to be. Indeed, the combined total for Dems over the remaining three days was just a bit higher than the Tuesday total. The mail ballot total for Dems this year so far is 60% of what it was four years ago, though that will tick up a bit as the last batch rolls in. The number for Republicans dropped even more, though that is undoubtedly due in part to Republicans swallowing the former guy’s propaganda about mail ballots. Both Dems and Republicans saw more in person voters, and I’d say for sure some of that is connected, more on the R side than the D side.

How many people were actually unable to vote as a result of the new and needless voter ID requirements for mail ballots is hard to say. If I have the time, I’ll try to compare the vote rosters for the two years, to see what the mail voters of both parties from 2018 did this year. I’m sure some number of them voted (or will vote on Tuesday) in person. For those that voted by mail in 2018 but fail to vote this year, it will still be hard to say why. Primaries always have low turnout, so a no-show this year may just mean lack of interest or opportunity, for whatever the reason. I hope someone with a better view of the data comes up with a more holistic and analytic report. I fear it will mostly be all anecdotal otherwise. For sure, any suggestion that Republicans may regret their new voting restrictions are extremely premature. I’ve not doubt that some Republican consultants would prefer not to have to do new things, but they’re not representative of the party as a whole. Believe me, if they ever do come to regret this change, they will make that clear.

The Republicans had more voters this year than the Dems did, after the Dems outvoted them in 2018 and 2020. Does this worry me? Not really. Like I said, primaries are low turnout. That means people don’t participate for a lot of reasons. I think the main reason normal people do – by “normal” I mean the non-activist and news junkie portions of the population – is when there’s a headline race that grabs their attention. There wasn’t one in the 2018 primary – Beto didn’t have to run a serious primary campaign because he didn’t have a serious primary opponent, and indeed he faced questions afterward when Dems barely broke 1 million total voters statewide (compared to 1.5 million for the GOP even though they didn’t really have a headline primary race that year either) and he got “only” 62% of the vote. He’s in the same position this year – the entire story of the race so far is about Beto versus Abbott, not Beto versus Joy Diaz. On the other hand, at least as much of the story on the Republican side is Abbott versus West and Huffines, and that’s before you factor in the clusterfuck of an AG primary. Those are the kind of races that draw people to the polls.

Look at it this way: In 2016, nearly 330K people voted in the GOP primary in Harris County, compared to 227K for Dems. The November vote went pretty well for Dems in Harris County that year.

As for final turnout, it’s a little hard to say because samples are small and context changes greatly from Presidential to non-Presidential years. A little more than 40% of the Democratic vote was cast on Election Day in 2018 and 2014, while more than half was cast in 2010 and 2006. More than half was cast on Election Day in 2020, 2016, and 2008, while slightly less than half was cast in 2012. Going just by 2018, we’d probably approach 170K for final turnout. Republicans in 2018 had about 45% of their vote on Election Day, which projects them to 185-190K overall. Take all of that with a huge grain of salt – I just don’t know how to factor in the mail ballot changes, the recent aggressively revanchist policy moves by Greg Abbott et al, and just the overall state of the world. All I can say is we’ll see.

I’ll have a look at the statewide numbers tomorrow. Let me know what you think.