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Meet your Paxton prosecutors

It’s officially handed over to the Senate now.

A crook any way you look

The Texas House on Monday named 12 of its members to prosecute its case against impeached Attorney General Ken Paxton in the state Senate.

The House announced a Republican-majority board of managers to handle the prosecution, made up of seven Republicans and five Democrats. The group immediately left the House chamber to deliver the 20 articles of impeachment to the Senate.

The House’s announcement came two days after it voted overwhelmingly to impeach Paxton, alleging a yearslong pattern of misconduct and wrongdoing. Paxton has blasted the impeachment as a “politically motivated sham” and expressed hope the Senate will swiftly clear his name.

The trial in the state Senate has not been scheduled yet.

The board of managers will be chaired by Rep. Andrew Murr, R-Junction, and vice-chaired by Rep. Ann Johnson, D-Houston. They are also the chair and vice chair of the House General Investigating Committee, which investigated Paxton and recommended his impeachment.

The other 10 managers are Reps. Charlie Geren, R-Fort Worth; Joe Moody, D-El Paso; Terry Canales, D-Edinburg; Jeff Leach, R-Plano; Oscar Longoria, D-Mission; Morgan Meyer, R-University Park; Briscoe Cain, R-Deer Park; Cody Vasut, R-Angleton; David Spiller, R-Jacksboro; and Erin Gámez, D-Brownsville.

The managers were named after the House adopted a resolution creating the board by a vote of 136-4.

In introducing the resolution, Murr said it was “similar” to the one used in 1975 after the impeachment of a state district judge, O.P. Carrillo. The resolution, Murr said, “authorizes the employment of a board of managers so they can proceed with the presentation of the trial in the Senate.”

See here for the previous entry. The Chron has an explainer of what to expect next. The big question has been when will this all start, and now we know.

Texas Senate to convene June 20th to consider rules for Paxton trial and that trial is to start no later than August 28.

Patrick appoints committee to consider rules for the trial: Birdwell, Hinojosa, Creighton, Flores, Huffman, King, West.

I’m sure there will be more on this soon, that news broke literally as I was drafting this. Here’s a Twitter thread with a bit more info. In the meantime, expect a special session to be called more or less right away to deal with a couple of things the Lege didn’t get to. None of that is good, but it is what it is.

UPDATE: Yeah, it’s special session time, the first of more than one planned/threatened special sessions.

Countersuit in the “wrongful death” abortion saga

Wild.

A man who is suing his ex-wife’s friends for allegedly helping her get an abortion may have known about her plans and done nothing to stop her, according to a new legal filing.

Marcus Silva brought a wrongful-death lawsuit in March in Galveston County, claiming three women helped his now-ex-wife obtain abortion-inducing medication and “conceal the pregnancy and murder from Marcus, the father of the unborn child.”

The lawsuit is the first of its kind since the overturn of Roe v. Wade last summer. Silva is seeking a million dollars in damages from each plaintiff.

But now, Jackie Noyola and Amy Carpenter, two of the women accused of facilitating the abortion, are countersuing Silva, claiming that he found the medication and text messages laying out their plans before his ex-wife underwent the abortion.

“Rather than talking with [his ex-wife] about what he found or disposing of the pill, Silva took photos of the texts and surreptitiously put the pill back,” the lawsuit reads. “He wasn’t interested in stopping her from terminating a possible pregnancy. Instead, he wanted to obtain evidence he could use against her if she refused to stay under his control, which is precisely what he tried to do.”

The countersuit contains a screenshot of a police report Silva allegedly made to the League City Police Department on July 17, claiming he found a pill labeled MF in his ex-wife’s purse almost a week prior. He identified the pill as mifepristone, a common abortion-inducing medication.

It’s not clear what became of the police report, but the legal filings seem to agree Silva’s ex-wife took the medication, intending to terminate her pregnancy. Silva confronted her two weeks later, the lawsuit says, and told her he knew about the abortion.

He threatened to use the screenshots and evidence he had gathered to have her sent to jail if she didn’t “give him my ‘mind body and soul’ until the end of the divorce, which he’s going to drag out,” she wrote in text messages to Noyola and Carpenter. She said Silva was asking her to sell the house, give him primary custody of the children and “basically [play] wife.”

Texas law does not allow criminal or civil charges to be brought against the pregnant patient who undergoes the abortion; Silva’s ex-wife is not a party to the lawsuit.

Noyola and Carpenter are countersuing Silva for violating their right to privacy and the Texas Harmful Access by Computer Act, which makes it a crime to access a computer without the consent of the owner. They note that if there is a violation of the state’s abortion laws, Silva is as responsible as anyone, since he knew about the medication and did nothing to stop it.

“The hypocrisy of Silva seeking more than a million dollars in damages is as shocking as it is shameful,” the filing says. “It is a craven misuse and abuse of the judicial system to facilitate his ongoing harassment and abuse of his ex-wife.”

[…]

If this case proceeds, the countersuit filing raises several potentially important legal arguments about how and when Texas’ intersecting abortion laws can be enforced. One argument centers on the laws’ exemption from legal liability for the pregnant patient.

“It is not illegal or wrongful for a woman to terminate her own pregnancy,” the suit says. And thus, the lawyers argue “it is not illegal or wrongful to help a friend do something she is legally permitted to do … Nor should it be.”

See here for the background and here for a copy of the countersuit, helpfully annotated on Twitter by Mark Joseph Stern. I have no idea what the legal terrain of this one will be, but I feel reasonably confident saying that it will ultimately be about more than just whether Marcus Silva snooped on his ex-wife’s computer. I’ll wait to hear from legal experts about what all that might mean. The Chron, which notes that the two women are represented by Rusty Hardin, and the Texas Signal have more.

This is definitely a “root for the meteor” situation

Also a “pop some corn” situation.

Two state lawmakers have called for the resignation of Rep. Bryan Slaton, R-Royse City, after The Texas Tribune reported that he is being investigated after allegations of an inappropriate relationship with a Capitol intern.

“The past few days in the Texas House, screams of everything that’s wrong with a small segment of its elected officials. Unfortunately calling the behavior of @BryanForHD2 ‘inappropriate’ is a gross understatement,” state Rep. Steve Toth, R-The Woodlands, wrote on social media Tuesday morning. “He needs to resign.”

Toth added in an interview Tuesday morning that Slaton’s alleged actions had humiliated his wife and said the representative needs to step down to take care of his family.

Toth, a staunch social conservative usually ideologically aligned with Slaton, is the second lawmaker to call for Slaton’s resignation. On Friday — before the allegations against Slaton were public — state Rep. Briscoe Cain, R-Deer Park, also condemned Slaton on Twitter without naming him.

“I am absolutely furious at a [R]epublican whom I believe to be a sexual predator,” Cain wrote on social media. “I’ve never been so ticked off at another legislator.”

Cain has since confirmed he was referring to Slaton.

On Tuesday at least one Democratic House member also piled on. Rep. Ana-Maria Ramos, D-Richardson, said she agreed with the calls for Slaton to step down.

“The young adults working in the Capitol are vulnerable and predators readily target these young people. We owe it to these young professionals to set the standard and protect them from harm,” she said in a tweet.

See here for the background. As I said, Slaton is one of the bigger assholes in the Lege. That said, the short list for Even Bigger Assholes Than Bryan Slaton definitely has Briscoe Cain and Steve Toth on it. There are no winners here, only losers.

I think Rep. Ramos is correct in her sentiments. One could express similar sentiments for the now-former staffers of Rep. Jolanda Jones if one wanted to. I think the allegations against Rep. Slaton are more serious, and much more likely to be the sort of thing that can lead to a resignation, than the allegations against Rep. Jones. I think the behavior alleged about Slaton is the sort of thing that usually doesn’t happen just once, to one person. That would definitely move this into “resignation needed” territory.

We don’t know a lot right now, about either incident. Both are being investigated, and then I hope they will be clearer. In the meantime, I’m happy to see a bunch of invective hurled at Bryan Slaton, who richly deserves it. The Dallas Observer has more.

Abortion funds go back to work

Glad to see it, but I’m waiting for another shoe to drop.

Some abortion advocacy nonprofit groups have resumed paying for Texans to get abortions out of state after a court ruling last month.

These groups, called abortion funds, stopped paying for abortion procedures and travel to out-of-state clinics after the overturn of Roe v. Wade, citing confusion and fear of violating Texas’ intersecting abortion bans.

Virtually overnight, all of Texas’ abortion clinics closed — and the infrastructure that helped Texans access out-of-state care evaporated alongside them. Many of the people these funds work with likely could not afford to leave the state without their financial support, said Denise Rodriguez, communications director with the Texas Equal Access Fund.

“When we found out we had to pause funding, that was something that was really heartbreaking for everybody on our team,” Rodriguez said. “Now that we’re able to start funding abortions again, that’s what this organization was started for, so everybody is just excited.”

The Dallas-based TEA Fund provides Texans vouchers that lessen the costs of abortions at out- of-state clinics. Rodriguez said they have enough funding to assist anyone who calls in between Monday, when their hotline reopens, and June 24, the one-year anniversary of the overturn of Roe v. Wade.

Fund Texas Choice, a statewide group that assists with travel expenses, said on Twitter that they have reopened their hotline and are resuming limited practical support.

The Austin-based Lilith Fund has also reopened its hotline and is funding out-of-state abortions again, a spokesperson said.

Other groups are preparing to relaunch their funding mechanisms as well. This flurry of activity comes after a federal judge granted a temporary injunction in February, blocking a handful of county prosecutors from pursuing charges against anyone who helps a Texan access abortion out of state.

The ruling is not binding statewide, but it has reassured some groups enough to resume operations.

“All of it is so uncertain, but we’re going to fund abortions until we’re forced to stop,” Rodriguez said.

See here for the background. I fear this is what an economics professor of mine would have called an unstable equilibrium. Something will happen, either a ruling in an existing lawsuit, the filing of a new lawsuit, the passage of a new law in the Lege, some Presidential executive action, or something else like that, that will disrupt this. All things considered, I’d expect it to be something bad. What it is and when it might happen, I have no idea. I just don’t think what’s happening now will still be the case in, say, another six months or a year. I’ll refer to this post later when we find out.

The next frontier in forced birth litigation

This is truly wild, and potentially very scary.

A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state’s near-total ban on abortion last summer.

Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state’s prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.

Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.

The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.

A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.

The defendants could not immediately be reached for comment. Silva’s wife filed for divorce in May 2022, court records show, two months before the alleged abortion. The divorce was finalized in February. They share two daughters, the lawsuit said.

[…]

The lawsuit alleges that assisting a self-managed abortion qualifies as murder under state law, which would allow Silva to sue under the wrongful death statute. The women have not been criminally charged. Texas’ abortion laws specifically exempt the pregnant person from prosecution; the ex-wife is not named as a defendant.

The legality of abortion in Texas in July 2022 is murky. The state’s trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state’s pre-Roe abortion bans, which punish anyone who performs or “furnishes the means” for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.

The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were “repealed by implication,” which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.

In 2021, the Legislature passed a law making it a state jail felony to provide abortion-inducing medication except under extremely specific circumstances.

Joanna Grossman, a law professor at SMU Dedman School of Law, said this lawsuit is “absurd and inflammatory.” Since the pregnant patient is protected from prosecution, there is no underlying cause of action to bring a wrongful death suit in a self-managed abortion, she said.

“But this is going to cause such fear and chilling that it doesn’t matter whether [Mitchell] is right,” Grossman said. “Who is going to want to help a friend find an abortion if there is some chance that their text messages are going to end up in the news? And maybe they’re going to get sued, and maybe they’re going to get arrested, and it’s going to get dropped eventually, but in the meantime, they will have been terrified.”

But it’s possible this lawsuit could get traction, said Charles “Rocky” Rhodes, a law professor at South Texas College of Law.

“It’s scary to think that you can be sued for significant damages for helping a friend undertake acts that help her have even a self-medicated abortion,” Rhodes said. “Obviously, the allegations would have to be proven, but there is potentially merit to this suit under Texas’ abortion laws as they exist now.”

Mitchell and Cain intend to also name the manufacturer of the abortion pill as a defendant, once it is identified.

“Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Cain said in a statement.

At first I thought this was an SB8 lawsuit, but it’s not. This is a lawsuit under the “wrongful death” laws, which would make this a lot broader, not to mention not having a $10K cap on how much you can sue for. Among other things, if the plaintiff wins, it would legally establish that a third party can claim an injury when a woman has an abortion. If the alleged father can do that – and bear in mind, the father could be a rapist or an abuser – then who’s to say that a would-be grandparent couldn’t make a similar claim. There are free speech implications as well, if even discussing abortion with a pregnant woman could land you in legal jeopardy. There’s some existing litigation out there about the First Amendment rights of abortion funds, but nothing has been decided yet. All this may sound far-fetched and overly dramatic, but look at the lawyers leading this charge, and what Briscoe Cain – who has said before that he doesn’t just want to make abortion illegal, he wants to make it “unthinkable” – is saying. If anything, I’m not being dark and paranoid enough.

What happens from here is hard to say, but one thing for sure is that these three women are going to be facing many thousands of dollars in legal bills, which among other things may put pressure on them to settle. Again, I’m quite certain that’s all part of the plan. This needs to be much bigger news, and not just in Texas. I’d really like to see national groups and national political figures make a big deal out of this, and not just for fundraising purposes, except to assist the defendants. This is what SCOTUS has unleashed on us, and it’s what these zealots want. We can’t afford to give an inch. The Chron has more.

Fifth Circuit again takes Paxton off the hook for testifying in abortion funds’ lawsuit

It’s like deja vu all over again.

The only criminal involved

Texas Attorney General Ken Paxton will not have to testify in court as part of a lawsuit over whether abortion funds can help people access the procedure in states where it’s still legal.

A three-judge panel of the Fifth Circuit Court of Appeals on Tuesday overruled an order from U.S. District Judge Robert Pitman for Paxton to appear, finding that he should have first ruled on Paxton’s motion to dismiss and that plaintiffs had not proven “exceptional circumstances” existed that would require his testimony. Paxton has argued the court should toss the suit because he has sovereign immunity, a legal principle that protects state officers and agencies from lawsuits.

[…]

Attorneys general rarely testify, as their office’s lawyers are typically able to explain the high-ranking official’s viewpoint and legal argument.

In its ruling Tuesday, the panel of Republican-appointed judges sided with Paxton, who had argued that it would be unduly burdensome for him to testify and that he did not have any unique knowledge of his office’s enforcement policies.

“The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions,” the panel wrote in its ruling Tuesday, referencing Paxton’s public statements. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”

If this sounds familiar, it’s because the Fifth Circuit made a basically identical ruling in September. I was puzzled about the reason why this was litigated again, but a link in this story tells me that the district court judge had ordered Paxton to testify a second time, a couple of weeks after the Fifth Circuit ruled initially. I had just missed that story.

My reaction this time is the same as last time, which is that this doesn’t sound unreasonable, but as there’s every reason to be deeply suspicious of the Fifth Circuit I’d like to see an actual lawyer tell me that it’s reasonable, so that I don’t feel like a chump. Anyway, I guess the bottom line is that nothing much new has happened with this lawsuit.

Wendy Davis’ lawsuit against SB8 dismissed

Alas.

Wendy Davis

A federal judge has dismissed a narrow challenge to Texas’ ban on abortions after about six weeks of pregnancy. The lawsuit was brought by former State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill.

The lawsuit, filed in April, challenges the 2021 Texas law known as Senate Bill 8, which allows private citizens to sue anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, usually around six weeks of pregnancy.

The law is “blatantly unconstitutional” and “make[s] a mockery of the federal courts,” Davis’ lawsuit alleged.

The law was designed to be difficult to challenge in court, since no government entities are involved in enforcement. Abortion advocates have struggled to find a way to block the law that doesn’t require them to first violate it and risk a costly civil lawsuit.

In this case, Davis and others sued a handful of anti-abortion activists who have threatened to bring civil lawsuits against abortion funds that help Texans access abortion out-of-state. These threats contributed to a “chilling effect” on the funds’ operations, and individuals have lost their ability to freely associate with like-minded individuals, the suit said.

The original complaint also named state Rep. Briscoe Cain, R-Deer Park, who sent cease-and-desist letters to abortion funds, threatening criminal prosecution under the state’s abortion ban. An amended complaint, filed in August, removed Cain from the list of defendants.

U.S. District Judge Robert Pitman dismissed the suit Wednesday, finding that Davis and the other plaintiffs “have not articulated a credible, imminent threat that can be attributed to Defendants.”

The defendants have filed court petitions seeking to depose leaders from two other abortion funds to learn about possible prohibited abortions. But as part of this lawsuit, the defendants signed sworn declarations saying they did not intend to sue Davis or the other plaintiffs.

“If anything, the specificity of these petitions lessens the threats’ immediacy,” Pitman wrote. “In short, Plaintiffs have not sufficiently distinguished these threats and the sworn statements disavowing them to show an injury.”

See here for the background and here for a copy of the order. It seems that the original SCOTUS ruling on SB8 means that there’s not a clear avenue for being proactive against the possibility of being sued under that cursed law. To quote from the ruling, “S.B. 8 was designed to evade judicial review so that a plaintiff likely could only challenge the law by subjecting themselves to liability.” Because these defendants have made sworn statements that they won’t sue these specific plaintiffs, there’s nothing to adjudicate and thus the suit is dismissed for lack of standing. Note, as Judge Pitman does, that this remains the case even though two of the named defendants have taken legal action against other abortion funds. You can’t prevent someone from suing you under this law, you can only react if they do. What a world we live in now.

Paxton taken off the hook for testifying in abortion funds’ lawsuit

By the Fifth Circuit, of course.

Best mugshot ever

Texas Attorney General Ken Paxton will not have to testify as nonprofits that help patients legally obtain abortions seek clarity on whether they can do their work in states like Texas where the procedure is outlawed, a federal appellate court ruled Monday.

A three-judge panel of the Fifth Circuit Court of Appeals found that an Austin federal court judge should have granted Paxton’s motion to quash subpoenas he was served by the plaintiff abortion funds.

The subpoena made national headlines after Paxton evaded a legal messenger who had shown up at his house on the eve of a hearing in the case. Paxton later called the messenger “suspicious” and “erratic” and said he “justifiably feared for his personal safety.”

The abortion funds are suing the state for protection to resume their work amid the state’s newly enforced abortion bans. They have said Paxton’s testimony is necessary because he and his office have made conflicting statements about the legality of helping Texas residents legally obtain abortions in other states, and he is the only person who can clarify their meaning and intent.

“We are happy that Judge Pitman can move forward in the case now, and that the Fifth Circuit has acknowledged the real threats against our clients related to assisting people to access reproductive health care out of state,” the plaintiffs’ attorneys said in a joint statement.

[…]

At first, the district court granted Paxton’s motions to quash the subpoenas; however, after more information came to light — Paxton had claimed he was served “on the literal eve of trial,” yet emails submitted to the court by the abortion funds’ lawyers showed he had at least four days notice — the judge changed course and ordered Paxton to testify.

The appellate judges disagreed with the lower court’s finding that there were “exceptional circumstances” requiring Paxton to testify.

“Paxton’s personal ‘thoughts and statements’ have no bearing on his office’s legal authority to enforce Texas’s abortion laws or any other law,” the panel wrote in the ruling. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”

The panel also disagreed with the lower court’s contention that testifying would not cause a significant burden for Paxton.

“‘High ranking government officials have greater duties and time constraints than other witnesses,'” they wrote, citing prior case law. “Those duties often involve communicating with the public on matters of public interest. The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions.”

See here for the background. This is one of those times where I wish the story included a quote or two from an actual legal expert about the opinion. We all know how deeply in the tank for Paxton the Fifth Circuit is, but based on what is reported in the story, the ruling seems at least defensible. But the Fifth Circuit is so utterly corrupt that I can’t rely on my judgment here, and they deserve absolutely no benefit of the doubt. I don’t want to be a chump here, so I’d like to see someone who knows these things render an assessment. In the absence of that, all I have is my well-honed instinct to not trust that terrible court. And we’ll all have the Internet mockery of Ken Paxton for his pusillanimous efforts to evade the process server. Sometimes the snark is the most dependable thing out there.

Endorsement watch: Yeah, I’m still mad

Here’s that Chuck Crews endorsement I thought we were going to get on Wednesday instead of that giant turd the Chron gifted us with.

Chuck Crews

State Rep. Briscoe Cain’s three terms in the Texas House could charitably be described as harmful buffoonery, full of extreme and divisive social media rhetoric that mirrors his approach to policymaking. But, as Texas Monthly rated him the state’s worst legislator in 2017 and in 2021, he’s inept even at that.

What’s clear to us is that the people in his district — which straddles the Houston Ship Channel and includes Pasadena, Deer Park, most of Baytown and La Porte — aren’t well-served by his leadership. Voters in the Republican stronghold keep returning him to office, but people in this area need a representative focused on chemical plant safety, education and air quality. Cain’s priorities? Election fraud, Twitter trolling and abortion lawsuits.

[…]

While Cain sets a low bar, we hope for more out of a challenger than the bare minimum. Fortunately, Democratic challenger Chuck Crews struck us as direct, capable and thoughtful, with a professional background that would help his constituents. A longtime petrochemical engineer, Crews said he’d put his extensive knowledge of the industry to use right away in the Legislature to make plants mechanically safer and environmentally cleaner for surrounding communities. He said he’d do all he could to improve the energy grid, legalize cannabis and bolster rural health care.

“You can’t throw a rock in this district without hitting a chemical plant somewhere. I’m a chemical engineer with 15 years experience in the field,” Crews told us. “I would be the better representative for this district because I know the work, I’ve crawled through distillation columns to inspect them … we need a representative who actually represents us.”

Crews, 48, said he was a field organizer in O’Rourke’s 2018 campaign for U.S. Senate, his first foray into partisan politics, though he’s also worked numerous times as an elections judge. Prior to 2020, no Democrat had even run for the District 128 seat in more than a decade.

We urge voters there to choose Crews because he is the candidate focused on policy and people, and not on partisan noise.

My interview with Chuck Crews is here. They go on at some length against harmful buffoon Cain, but I’m too bitter to enjoy it right now. You go ahead if that feels good to you, they make a solid case. I will stop here before I say something I might later regret.

They also endorsed in three SBOE races.

The culture wars have turned schools into political battlegrounds, as few things spark voters’ passions more than the future of their kids and, by extension, the future of our state. In Texas, the State Board of Education has the final say on curriculum standards, veto power over new charter schools and shared responsibility for managing the permanent fund that backs the debt schools take on.

In their meetings with the editorial board, the candidates who made the strongest case were the ones who kept the best interests of students and teachers in mind, rather than parroting party platform talking points.

They endorsed Republican incumbent Will Hickman in SBOE6 in a close call over Democrat Michelle Palmer, whose interview is here. I don’t have anything bad to say about Hickman, but Palmer is a star and I will be happily voting for her. In District 7 they endorsed Democrat Dan Hochman against a Republican wingnut, and in District 8 they endorsed Republican incumbent Audrey Young against a Libertarian perennial candidate, a fellow who has run as a Democrat and as a Republican in past elections.

Evade this, Kenny

Paxton gets ordered to testify, along with an old-fashioned bench slapping.

Best mugshot ever

A federal judge has ordered Texas Attorney General Ken Paxton to testify in an abortion rights lawsuit. U.S. District Judge Robert Pitman had previously quashed the subpoena, which Paxton fled his home to avoid being served.

In a hearing last week, lawyers representing abortion rights nonprofits asked Pitman to reconsider and require Paxton to testify. Pitman granted their motion on Tuesday.

These nonprofits, called abortion funds, brought the lawsuit in August, seeking assurance that they will not be criminally or civilly penalized for helping Texans pay for abortions out of state. They have argued that Paxton’s statements on social media and in the press make it clear that the state’s top lawyer believes the abortion funds can and should be prosecuted for their work over state lines.

[…]

[I]n Tuesday’s order, [Judge Pitman] said he [originally quashed the subpoena] “on the assumption that counsel for Paxton had made candid representations to the Court … only to learn later that Paxton failed to disclose Plaintiffs’ repeated emails attempting to inquire as to whether Paxton could testify.”

Pitman also sided with the abortion funds’ argument that Paxton has unique, first-hand knowledge that requires him to testify.

“The Court will not sanction a scheme where Paxton repeatedly labels his threats of prosecution as real for the purposes of deterrence and as hypothetical for the purposes of judicial review,” Pitman wrote.

He also rejected the argument that requiring Paxton to testify would be too much to ask of the state’s top lawyer.

“It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements,” Pitman wrote. “The burden faced by Plaintiffs—the effective cessation of many core operations—outweighs the burden of testimony faced by Paxton.”

Pitman gave lawyers on both sides a week to determine how and when Paxton will testify.

See here, here, and here for the background. Judge Pitman’s order is practically perfect. I have no notes. I look forward to seeing how Paxton responds to questions from someone who isn’t a sycophant. The Chron has more.

The hearing that Paxton was trying to flee from

It’s about whether the First Amendment rights of abortion funds have been abridged by threats of prosecution from people like Ken Paxton. You know, no big deal.

Leaders of Texas’ most prominent abortion funds on Tuesday implored a federal judge to give them clearance to resume providing assistance to people seeking abortions in states where the procedure is legal.

The funds filed the class-action suit in August seeking to block state and local prosecutors from suing them if they get back to work offering Texans funding and support for travel, lodging, meals and child care, among other expenses incurred while they obtain abortions. On Tuesday, they sought to temporarily block any potential prosecutions until the case is decided.

The groups halted abortion support operations in June after the Supreme Court issued its decision this summer overturning federal protections for the procedure. The decision also led clinics throughout the state to stop providing abortion services.

The legal battle carries immense implications for thousands of Texans seeking abortions, who will inevitably incur higher costs as they depend on other states due to Texas’ near-total abortion ban. Studies show the vast majority of pregnant people pursue abortion for financial reasons, and most who obtain abortions are low-income people of color.

Texas Attorney General Ken Paxton, a Republican, is named as a defendant in the suit, as well as a number of county and district attorneys who are responsible for enforcing the state’s abortion bans. Some local prosecutors in liberal-leaning counties have pledged not to prosecute, while others in redder counties have said they will.

The plaintiffs point to “myriad threats” of prosecution by the attorney general “and his associates,” including social media posts, statements and cease-and-desist letters sent by members of the hard-line conservative Texas Freedom Caucus to corporations.

Caucus member and Deer Park Republican state Rep. Briscoe Cain has also sent similar letters to Texas abortion funds, including plaintiff organizations, saying their donors, employees and volunteers are subject to prosecution under the pre-Roe statutes, according to the suit.

The Texas Supreme Court ruled in July that the state’s pre-Roe statutes, which make it illegal to “(furnish) the means for procuring an abortion,” are enforceable.

The plaintiffs also cited an advisory issued by Paxton just hours after the Dobbs decision was announced that stated the pre-Roe statutes could be enforced by district and county attorneys immediately.

[…]

The abortion funds claim in their suit that charitable donations are a protected form of freedom of speech and association under the First Amendment, but the possibility of debilitating litigation has chilled their exercise of those rights. It has also, they argue, scared some donors out of giving freely to the group.

“Despite their strong desires and commitment to assisting their fellow Texans, Plaintiffs will be unable to safely return to their prior operations until it is made clear that Defendants have no authority to prosecute Plaintiffs or seek civil penalties from them for their constitutionally protected behavior,” they state in the suit.

See here for some background, and I’ll get back to this in a minute. The Trib adds some details.

They have asked U.S. District Judge Robert Pitman for a preliminary injunction that would stop Paxton from pursuing criminal charges or civil penalties against abortion funds. The state has countered that their fear of prosecution is “self-imposed,” as the attorney general cannot bring criminal charges and the law that allows him to bring civil penalties does not apply to abortion funds.

At the end of the seven-hour hearing Tuesday, Pitman noted that while attorneys for the state had repeatedly implied that the abortion funds had “nothing to worry about,” they had stopped short of saying so directly.

Pitman is expected to rule on the request for a preliminary injunction in the coming weeks but in the meantime is also considering a motion to require Paxton to testify himself. Before the hearing Tuesday, Pitman quashed a subpoena seeking the attorney general’s testimony, but lawyers for the plaintiffs have asked him to reconsider. Paxton fled his home Monday to avoid being served with the original subpoena.

The lawsuit also seeks clarity on whether a Texas-based abortion provider can perform abortions for Texans in other states where the procedure remains legal, or provide telehealth services from Texas to patients in other states.

On that question, the attorney for the state was even less definitive about whether the attorney general would try to enforce the civil penalties in the law, saying that situation was not amenable to a clear “up or down” answer but would have to be handled on a case-by-case basis.

[…]

But all of that changed when the U.S. Supreme Court overturned Roe v. Wade in late June, allowing states to set their own laws on abortion. Immediately, Paxton issued guidance that said prosecutors could “immediately pursue criminal prosecutions based on violations of Texas abortion prohibitions predating Roe that were never repealed by the Texas Legislature.”

“Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today,” Paxton wrote.

But those pre-Roe statutes don’t criminalize just abortion providers — they also criminalize anyone who “furnishes the means” for an abortion, punishable by up to five years in prison.

Immediately, abortion funds in Texas stopped their operations, citing confusion over whether paying for abortions out of state constituted furnishing the means for an illegal abortion. As the leaders of several abortion funds testified to on Tuesday, they were particularly alarmed by Paxton’s statement that his office would “assist any local prosecutor who pursues criminal charges.”

Their fears were exacerbated, according to testimony, when a group of conservative lawmakers in the Texas House, including Cain, issued a letter to Sidley Austin, a prestigious law firm that had offered to pay for its Texas-based employees to travel out of state to get abortions. In the letter, the lawmakers threatened the law firm with criminal prosecution for their actions.

Based on these indications from Paxton and lawmakers, “we believed we would be prosecuted, to be frank,” Anna Rupani, the executive director of Fund Texas Choice said Tuesday.

This freeze on their work came with other consequences, according to Tuesday’s testimony. Several of the funds said they had lost donors or had to spend more time reassuring donors who were confused and worried. Some said they had lost staff or board members over fear of criminal prosecution.

Lawyers for the state, though, argued that this chilling effect was “self-imposed” and “unreasonable.” None of the people the abortion funds cited threats from — Cain, the other legislators or Paxton himself — have the ability to bring criminal charges against anyone.

Only district and county attorneys can bring criminal charges in Texas; the prosecutors named on this lawsuit have agreed not to press charges against abortion funds for paying for out-of-state abortions until the case is fully resolved.

Paxton, though, still has the ability to pursue civil cases and, in the case of Texas’ more recent abortion laws, is actually required to by state statute.

To me, the most salient fact of this case is this, and here I quote from my earlier post: “[I]n their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion.” I Am Not A Lawyer, but it seems to me that a very credible threat of being thrown in jail for your political advocacy is a First Amendment issue. That said, I think we all know what will happen here: Judge Pitman will grant the restraining order, and the Fifth Circuit will block it for no good reason. And so back to SCOTUS we go, and I sure hope they enjoy being constantly dragged into every abortion fight that they said should have been a state issue. What happens from there, I have no idea.

Abortion funds file First Amendment lawsuit for their right to assist others access abortion

We’ll see what SCOTUS does with this one, because for sure that’s where this will end up.

Reproductive rights groups on Tuesday filed a federal class-action lawsuit to head off possible prosecution from Texas officials for helping Texans gain access to legal abortions in other states.

The suit filed in Austin names Texas Attorney General Ken Paxton as well as a class composed of the county and district attorneys who could enforce the state’s near-total abortion ban, which goes into effect on Thursday.

The law, known as House Bill 1280, was passed last year. It is “triggered” into taking effect on Thursday by the U.S. Supreme Court’s ruling in June on Dobbs v. Jackson, which overturned Roe v. Wade’s constitutional protection for abortion access.

The plaintiffs want a federal judge to issue an injunction barring Paxton and prosecutors from using that law and other statutes to target those reproductive rights groups for activities the groups say conservative state leaders may politically oppose but are still legal.

The groups want the court to confirm that “the Trigger Ban cannot be enforced by any Defendant … in a manner that violates Plaintiffs’ rights to freely travel, freely associate, freely speak, and freely support members of their communities through financial assistance, as guaranteed by the United States Constitution and federal law,” according to the suit.

The named plaintiffs are Fund Texas Choice, the North Texas Equal Access Fund, the Lilith Fund for Reproductive Equity, Frontera Fund, The Afiya Center, West Fund, Jane’s Due Process, Clinic Access Support Network and Dr. Ghazaleh Moayedi, an outspoken Texas provider.

They’re asking for legal protection to continue fundraising and paying for out-of-state abortion expenses, including raising funds for travel or other costs or for the procedure itself, as well as helping pregnant Texans with logistical information about legal abortions out of state, according to the lawsuit.

[…]

The suit argues that Paxton, along with “activist legislators and their associates,” are waging a coordinated effort to harass organizations exercising their right to free speech by defending access to abortions and helping pregnant Texans seek them legally under the current bans. Most of the latter involves financial or logistical help in obtaining an abortion in another state where the procedure is still legal.

The court filing points to, as an example, several statements in late June by state Rep. Briscoe Cain, R-Deer Park, asserting that donors, volunteers, employees and anyone else connected to these groups are guilty of violating the law for helping people legally outmaneuver the Texas ban. He also has suggested that the constitutionally protected right to travel interstate for any reason doesn’t translate to the right to pay for someone else to do it, such as for an abortion.

To set the table a bit here, in their amicus brief to a writ of mandamus that blocked a lower court order that would have enjoined the 1925 state law criminalizing abortion, 70 Republican legislators argued that criminal penalties should apply to people who help others get an abortion. I’m sure we can comprehend how far they believe that definition of “help” should be pushed; we need only note what spurts out of Briscoe Cain’s mouth if we’re ever uncertain. There is also a separate federal lawsuit filed by Wendy Davis making similar claims about her right to donate to abortion funds. I don’t know if there has been any action on that front. Two abortion access funds had previously filed lawsuits against anti-abortion activists to protect themselves from SB8-related litigation. There’s a lot going on.

If you for some reason believe what the justices in the majority of the Dobbs opinion said at the time, the right to travel for an abortion should still be upheld on constitutional grounds. As you can tell, I don’t have much faith in anything those charlatans say, but they did say it. Litigation like this will be the first test of that proposition, and whether SCOTUS allows an injunction against the trigger law to stand will give us an early indication. Place your bets now.

The Republicans just want to punish everyone for every abortion ever

They want to put you in jail.

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade.

A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally.

The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect.

Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online.

In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past.

They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem.

See here for the background. This is nearly a legislative majority in itself. Imagine what they’ll do next spring if there are no checks on their power.

They also want to sue everyone in sight.

Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.

They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.

In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions; and the abortion clinics and employees themselves.

“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after fetal cardiac activity is detected and allows citizens to sue suspected violators.

[…]

When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.

But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.

“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion-funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”

On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.

If that effort is successful, the information and documents that the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.

And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.

See here for the background, and note that they got started several months before the Dobbs ruling. If you think they will continue to exclude the women who get abortions from their campaign of vengeance, you are giving way too much credit to a group of people who think that ten-year-old girls should be forced to carry a rapist’s baby and that hospitals should be held criminally liable for performing live-saving care. I would argue this isn’t their highest priority going forward, it’s their only priority. And sooner or later, they’ll come after all of us. What are we going to do about that?

How are Texas businesses going to react to the forthcoming criminalization of abortion?

It’s too soon to say. Certainly too soon for most of them to say.

In overturning Roe v. Wade, the Supreme Court presented corporate America with a question that may prove uncomfortable for big companies headquartered in states such as Texas, where abortion has effectively been banned.

Several national companies — including Disney, Goldman Sachs, and Meta, the parent company of Facebook — reacted the Dobbs v Jackson ruling handed down Friday by announcing that they would reimburse the cost of employees who need to travel out of state to access abortion care. Companies including Apple, Amazon, Citigroup, J.P. Morgan, SalesForce, Bumble and Levi’s had already announced similar policies, in anticipation of such a ruling or after draconian restrictions on abortion were adopted by states such as Texas, which last year banned virtually all abortions after the six-week mark of pregnancy.

But many Houston companies have not been forthcoming about whether they will modify their benefits to help employees get access to reproductive health services.

“We do not have a comment on this issue,” said Kinder Morgan, contacted by the Houston Chronicle on Monday.

“We decline to contribute at this time,” said EOG Services, an oil and gas company.

“We have no comment on this,” said Hines, the real estate firm.

[…]

Experts say no Texas laws prohibit companies from paying for travel for abortion services. A 2017 state law limits the extent to which conventional insurance companies can cover elective abortion, but makes no mention of travel.

“I don’t see they currently have liability if they pay for travel expenses for a lawful, out-of-state abortion,” said Seth J. Chandler, a professor at the University of Houston Law Center.

Whether companies decide to pay for travel expenses may have something to do with how it will affect their ability to attract talent, Chandler said.

“There is an issue of how you would attract employees, if there is a type of health care they perceive they may need is illegal,” Chandler said. “One vehicle for companies to overcome that reluctance is to say, ‘We’ll pay for your travel.’”

It’s not clear to me that they wouldn’t face civil litigation under the vigilante provisions of SB8, but even if they don’t, the Handmaid’s Tale caucus of the legislature will be working to change that.

Several companies have already announced they would cover expenses for an employee who has to travel for an abortion, including Walt Disney Co., Meta and JPMorgan Chase.

Those companies could be punished under the “accomplice liability” section of Texas, which applies to all residents and, according to Cain, also businesses.

“So, it also not just goes after the doctors, but it’s going to be going after those giving rides, supporting it, procuring the means, assisting, anybody that is an accomplice to the procurement of an abortion is also then committing a crime,” the Republican said.

That of course is chief woman hater Briscoe Cain, who says in the story that prosecuting “abortion crimes” is one of his top priorities. Let’s get real, it’s his main driving force. If Briscoe Cain gets his way, a whole lot of people are going to go to jail. That’s the reality we’re in right now.

There are a couple of ways that businesses can respond. They can cower and submit to the likes of Cain, and throw a bunch of their employees under the bus in the process. They can get the hell out of Texas or not come here in the first place; I suspect some will do that, though it’s hard to say how many. Allowing some employees to not live here would be another variant of this. I hope we get some real data and not just anecdotes about that.

And of course, they can fight. They can support candidates who support abortion rights, and other things that SCOTUS and the radicals that are currently in power are threatening, like same sex marriage and LGBTQ rights. That would be a huge change on their part, because keeping their heads down and not offending the powers that be is always the easier road to take. But it has the potential to have by far the biggest effect. It’s a choice they have, that’s all I’m saying. Providing expenses for employees who have to travel out of state to get reproductive health care is a reasonable choice as a short-term stopgap. But there’s only so long that can work. They can’t avoid the choice forever.

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.

There’s only so much that Austin (or any other Texas city) can do to protect abortion rights

I appreciate this, I really do, but it’s important to remember that it can only ever be a band-aid, and very likely a temporary one.

The city of Austin is attempting to shield its residents from prosecution under a Texas law that would criminalize almost all abortions if Roe v. Wade is overturned — the first push by a major city in a red state to try to circumvent state abortion policy.

Councilmember Chito Vela is proposing a resolution that would direct the city’s police department to make criminal enforcement, arrest and investigation of abortions its lowest priority and restrict city funds and city staff from being used to investigate, catalogue or report suspected abortions.

“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” said Vela, who shared the details of the resolution first with POLITICO. “In Texas, you’re an adult at 17. We are looking at the prospect of a 17-year-old girl who has an unplanned pregnancy and is seeking an abortion [being] subjected to first-degree felony charges — up to 99 years in jail — and that’s just absolutely unacceptable.”

[…]

The new resolution doesn’t explicitly decriminalize abortion but rather directs police to make it their lowest enforcement priority in an effort to skirt conflict with state law, Vela said. But it highlights the tension between red state and the blue cities, where a new front in the battle over abortion rights is opening as the Supreme Court prepares to issue a decision on Roe in the coming weeks.

A city of Austin spokesperson said in a statement that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.” The council passed a similar measure in 2020 that effectively decriminalized marijuana by ending arrests and fines for low-level possession, which the police department has followed.

Vela said he is having “ongoing conversations” with Austin Police Chief Joseph Chacon about the proposal and hopes the department will comply with the directive. A department spokesperson did not respond to a request for comment.

“The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”

A spokesperson for state Attorney General Ken Paxton did not respond to a request for comment. Paxton, a Republican, has been at the vanguard of restricting abortion access in Texas, which has been in the spotlight since the state’s six-week abortion ban, enforced through a private right of action, took effect in September 2021.

Austin’s proposal, which aims to protect both patients and providers, comes as an extension of the city’s efforts to preserve abortion access despite the state’s restrictions. The city has, for instance, provided logistical support for abortion access, including transportation, lodging and child care, since 2019 — a model St. Louis is now looking to replicate.

More cities in Texas could be next. Julie Oliver, executive director of Ground Game Texas, a group that pushes for progressive, local ballot measures, said they are looking at pushing similar measures in San Antonio, Houston and Dallas. If that isn’t successful, the group plans to turn to the local ballot initiative process.

“Home rule charter cities have a tremendous amount of leeway and self-governance, and part of that is deciding which laws you’re going to prioritize,” Oliver said. “And so, because you have a finite number of resources in a finite budget, cities are constantly deciding which laws they’re going to enforce and which ones they are not.”

I support the idea and I love the creativity, as we have discussed what progressive cities can do to protect abortion rights. That includes proactive measures to thwart prosecution, which is very much in a city’s purview. The problem with this approach is simply that as long as the state is run by Republicans, they will pass laws to prevent cities from taking these measures and will punish them for even trying. I’m sure I don’t have to recite to you the long list of attacks on local control lately, but we have already seen reporting to say that the Briscoe Cain uterus-invasion caucus will file bills in 2023 to allow other counties to pursue prosecution of anyone who violates the new forced-birth laws if the local DA refuses. It’s not at all far-fetched to imagine state troopers being given the authority to investigate these claims, which I’d bet will come with a bunch of money to hire more staff specifically for that purpose. I’m sure there will be more private vigilante bounties included as well, to help fund the effort. If recent history is any indicator, they will go much farther than anything Austin tries to do, to send a clear message that they will not tolerate any dissent. Do we really want to test that hypothesis?

Please note that I am not saying that any action on our part is pointless and we should just give up. Not at all! I am just saying – again, and again, and again – that we need to win some statewide elections. The Republicans can only do this as long as they are in control, and they will only be incentivized to do this as long as they perceive there’s no price to pay for it. The antidote for that is obvious. I’m not saying it’s easy, and I’m certainly not saying that this will be an opportune year to do it. I’m just saying that as clever and well-intentioned as these ideas sound, they’re sand castles against the tide. The problem is bigger than anything a city can do. We have to solve it at that level if we want to get anywhere. Reform Austin, KVUE, and Daily Kos have more.

Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

Primary checkup

Let me start this post off by once again noting that I cannot find any reporting, like at all, about how many mail ballots were rejected for the May elections. Just nothing. It’s as if interest in the subject by anyone but me disappeared after all of the March stories. Maybe that will change with the primary runoffs, I don’t know. But man, am I discouraged by the lack of curiosity about this.

In searching for such stories, I came across this instead.

Texas lawmakers returned to the state Capitol on Wednesday to examine the reasons for election result delays and the effectiveness of new requirements for poll watchers.

When Texans took to the polls on March 1 for the first primary of the 2022 midterm elections, it was the first time statewide voting had taken place under a controversial new law that made several changes to the state’s voting system. Senate Bill 1 was passed by the Republican-controlled Legislature last September, after months of Democrats rallying and using procedural measures to block any action from being taken on it.

The Texas House Elections Committee began Wednesday’s meeting by asking state and county election officials why election results were delayed for the March primary election.

Speaking first before the committee was Isabell Longoria, elections administrator for Harris County, the state’s largest county and home to Houston. Longoria said that many challenges larger counties face in reporting election results quickly are caused by the state’s new paper ballot system and rigid requirements on when to report results.

“This paper ballot system that we are moving to, I think has some, let us call it, paper challenges that have not yet been contemplated by the Texas Election Code,” Longoria told the lawmakers.

The challenges she cites include issues keeping track of and recording ballots that could be up to two pages long. In Texas, a person’s ballot is first inserted into a machine that records the choices made and prints them out on a physical copy. After that, the ballot is inserted into another machine where the votes are recorded and the paper ballot is stored before being transported to a central counting facility.

When asked by Representative John Bucy, D-Cedar Park, what else could be done to alleviate challenges for election workers, Longoria responded that defining what timely reporting means would be helpful. She pointed to the time needed to ensure every voter in line by 7 p.m. has an opportunity to vote, the time it takes to transport ballots through traffic and the time required to correct human errors. All of these factors lead to delays, Longoria said, stressing that the best solution could be to give larger counties more leeway, so they are not held to a strict time requirement.

The Chron also covered this. I get the concern, and I agree that Harris is an outlier, though the other big urban counties are also geographically large and have bad traffic, too. As I said, I thought Harris County’s reporting on the May election was basically fine, with the posting of regular updates going a long way towards alleviating anxiety about how it was going. Final results were available by the time most people would have been getting ready to begin their day on Sunday. I don’t see why anyone should freak out about that.

Which again isn’t to say we can’t or shouldn’t try to do better. I strongly suspect Harris County could crib a bit from other counties’ processes. If there is some change that could be made to SB1 to make it easier on them, that should be considered as well – if we all care about getting results in a timely fashion, that should be an easy sell. But we should also note that in some states, like the ones that actually promote and widely use mail ballots, sometimes final results are not known for a few days. I don’t remember there being much discussion about the effect that adding paper ballots might have on election reporting as SB1 was being passed. Harris is also one of the newcomers to using printed ballots along with their electronic voting machines. There have been a lot of changes – maybe we just need to let things work themselves out a bit.

This story did at least mention the topic that now obsesses me:

Notably absent from the committee’s agenda was the increased number of rejected mail-in ballots as a result of a new Identification requirement in SB 1. The law requires voters who fill out a mail-in ballot to provide their driver’s license or Social Security number, depending on which was used to register to vote in the state.

Of the over 3 million ballots cast in the March primary, 24,636 mail-in ballots were not counted due to the new requirements. In many instances, voters failed to include the identification number on their ballot and others put a number that did not match the form of identification they used to register to vote, leading to their ballot being rejected.

[James Slattery, senior staff attorney with the Texas Civil Rights Project] said that the issues discussed during the committee hearing should not have been their primary focus.

“The most important issue facing our elections right now is the catastrophic rate of vote-by-mail rejections that SB 1 caused,” said Slattery. “The committee is not facing this crisis of democracy that they caused.”

The absence of this issue was also noted by Representative Bucy before the meeting came to a close.

“We have 24,000 vote-by-mail ballots thrown out this last primary, did you say we will have a hearing to address that?” Bucy asked committee Chairman Briscoe Cain, R-Deer Park. “I just think that is a crisis and I want to make sure this committee is on top of it.”

“Yes,” Cain responded. “The chair intends to do so.”

Cain said that after the May 24 runoff election, the committee will have more information to better examine the issue, leaving the impact of SB 1 still under the watchful eye of lawmakers, election officials and voters.

I mean, there’s still no reason why reporters at the newspapers can’t ask their local election admins about this. Surely there are some numbers out there to be had.

That stupid social media censorship law has been unblocked

The Fifth Circuit continues to debase itself.

A federal appeals court on Wednesday reinstated a Republican-backed Texas law that prohibits large social media companies from banning users over their political viewpoints.

The decision hands a win to Republicans who have long criticized social media platforms such as Twitter for what they call anti-conservative bias — disapproval that was amplified when President Donald Trump was banned from Twitter for violating the platform’s rules on inciting violence during the Jan. 6, 2021, riot at the U.S. Capitol.

The order did not evaluate the law on its constitutionality but instead allows the law to go back into effect while the case proceeds in district court, according to a statement from one of the plaintiff groups. The ruling came from a three-judge panel on the 5th U.S. Circuit Court of Appeals — which is often considered the most conservative appeals court in the country — and was not accompanied by a written opinion explaining the decision at the time of publication.

Two large industry trade groups that represent companies such as Google and Twitter sued to block the law last fall.

In December, a federal district court judge ruled in favor of the groups and blocked the law while the lawsuit continues, reasoning that the First Amendment protects a company’s right to moderate content and called parts of the law “prohibitively vague.” As a result, Texas Attorney General Ken Paxton appealed the district judge’s decision to the circuit court.

Passed during a special session last year, House Bill 20 also requires social media platforms with more than 50 million monthly users to publicly disclose information about content removal and account suspensions.

“HB 20 is an assault on the First Amendment, and it’s constitutionally rotten from top to bottom,” Chris Marchese, counsel for the NetChoice industry trade group, tweeted after the ruling. “So of course we’re going to appeal today’s unprecedented, unexplained, and unfortunate order by a split 2-1 panel.”

See here, here, and here for the background. I’ve been beaten down by the constant flow of atrocities from this outlaw court, so I’m going to hand it off to one of the plaintiffs’ attorneys:

Which means we have to hope there are still a few people on that bench who understand what the First Amendment says. I don’t have any faith, but what are you gonna do? Slate and Reform Austin have more.

Republicans are not going to stop passing anti-abortion bills

It’s what they do. There is no finish line for them.

During their 20 years in control of the Texas Legislature, Republican lawmakers have steadfastly worked to chip away at abortion access.

Bound by the limits of Roe v. Wade, which stopped them from enacting an outright ban on the procedure, lawmakers got creative. They required abortion clinics to have wide hallways and deputized private citizens to sue providers in an effort to shut down facilities that offer the procedure.

Future lawmaking on the topic will likely not require such ingenuity. A leaked draft of a U.S. Supreme Court opinion, published last week by Politico, suggests the court will reverse the landmark abortion ruling in the coming weeks, allowing states to regulate abortion as they see fit. Texas has a “trigger law” that would make performing an abortion a felony, which would go into effect 30 days after the Supreme Court overturns Roe.

Their decadeslong goal achieved, Republican lawmakers said there’s still work to be done. Texas GOP leaders and members of the Legislature said it is now time to turn their attention to strengthening the social safety net for women and children and investing in foster care and adoption services.

“It only makes sense,” said Rep. Steve Toth, R-The Woodlands. “The dog’s caught the car now.”

At least some of the more conservative members of the House said they also want to ensure strict enforcement of the abortion ban and to prevent pregnant Texans from seeking legal abortions in other states.

“I think I can speak for myself and other colleagues that align with my policy beliefs — we’ll continue to do our best to make abortion not just outlawed, but unthinkable,” said Rep. Briscoe Cain, R-Deer Park, a member of the far-right Freedom Caucus.

Texas already has an arsenal of statutes to punish virtually anyone involved in the procurement of an abortion, said University of Texas at Austin law professor Liz Sepper. These include last year’s Senate Bill 8, which empowers private citizens to sue anyone who “abets” an abortion after six weeks of gestational age, as well as unenforced pre-Roe abortion statutes criminalizing a person who gets the procedure, which the Legislature never repealed — some dating to the 1850s.

“If Roe is overturned, there’s already a criminal ban, there’s already an aiding and abetting ban, there’s already a ban on mailing medication abortion,” Sepper said. “In terms of law’s ability to change behavior, they’ve almost filled all the gaps — with the exception of criminalizing the pregnant person involved in an abortion.”

And you better believe that’s where they’ll be going next, though to be sure there are plenty of other avenues for them to pursue as well. This is what gives creeps like Briscoe Cain their purpose in life. If somehow they do eventually run out of things to ban, next up after that is increasing penalties and making it easier for law enforcement to go after whoever the likes of Cain thinks are getting away with something. Listen to what they’re saying – they are not being coy at all about this.

Now as for the claims that maybe now it’s time to do a little something to “strengthen the safety net”, well, let’s just say that they are starting from a position of abolutely no credibility.

With a near-total abortion ban looming in Texas, advocates and experts say the state’s support systems for low-income mothers and children are already insufficient — and won’t easily bear an increase in need.

“When you say ‘social safety net’ in Texas, it sounds like a joke,” said D’Andra Willis of the Afiya Center, a North Texas reproductive justice group. “Everything they could have set up or increased to protect people if they really cared, they’re not doing it here.”

Pregnant women in Texas are more likely to be uninsured and less likely to seek early prenatal care than the rest of the country. They’ll give birth in one of the worst states for maternal mortality and morbidity. And low-income new parents will be kicked off of Medicaid sooner than in many other states.

This would make many Texans want to avoid pregnancy altogether. But learning about, let alone accessing, contraception can be a challenge in a state that does not require sex education and has narrowed family planning options in recent years.

Republican lawmakers, many of whom have focused on restricting abortion access in recent years, have said strengthening the state’s social safety net will now become a top priority. But advocates who have been working on these issues for years say any help will likely be too little, too late.

“People fail to realize that this is bigger than abortion access,” Willis said. “We’re going to be setting people up for generational poverty.”

As with so many other policy items, like boosting mental health care as their prescription to reduce mass shootings, the single biggest thing they could do to achieve that goal would be to expand Medicaid. More than 55% of all births in Texas are paid by Medicaid. I think you can guess how high that is on their priority list. But even if you want to give them a tiny bit of benefit of the doubt, note that it’s just now that they are on the verge of achieving an abortion ban that they’re even beginning to think about maybe doing something to benefit those who are pregnant and have given birth. Look at their priorities, that will tell you how much that counted for them. Why would you expect that to change going forward?

Wendy Davis sues over SB8

Interesting.

Wendy Davis

Former Texas State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill, has filed a federal lawsuit challenging Texas’ recent abortion law. The suit claims the law is “blatantly unconstitutional” and written to “make a mockery of the federal courts.”

The law, which went into effect in September and empowers private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, has led abortion clinics to stop providing the procedure after about six weeks of pregnancy.

Meanwhile, abortion funds — nonprofit advocacy groups that help pay for abortions and related expenses — have seen increased demand from pregnant Texans seeking care outside the state. This financial support has put these funds in the crosshairs of abortion opponents, who have claimed on social media and in legal filings that abortion fund donors, employees and volunteers are susceptible to lawsuits and criminal charges.

Davis, who was the Democratic nominee for Texas governor in 2014 and unsuccessfully ran for Congress in 2020, donates to and works with the Lilith Fund for Reproductive Equity, an Austin-based abortion fund, according to the lawsuit. She claims in the suit that these threats against donors and volunteers “have had a chilling effect” and stop her from associating with “like-minded people to express her views and achieve her advocacy goals.”

“Accordingly, she intends not to make any additional donations to Texas abortion funds until the Court provides clarity on this issue,” the lawsuit said.

She is joined in the suit by the Stigma Relief Fund, an abortion fund associated with abortion provider Whole Woman’s Health, and Marva Sadler and Sean Mehl, who both work for Whole Woman’s Health and serve on the board of the Stigma Relief Fund. Sadler and Mehl say in the suit that they have stopped donating to abortion funds “until the Court clarifies whether and to what extent [they] can face liability for doing so.”

They are suing state Rep. Briscoe Cain, R-Deer Park, and three private citizens who have made efforts to bring lawsuits against abortion funds. Cain recently sent cease-and-desist letters to all the Texas abortion funds, accusing them of criminal conduct.

The lawsuit claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.

“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services.”

[…]

Last month, two abortion funds filed federal lawsuits against the anti-abortion advocacy groups that had threatened to bring lawsuits against them.

Recently, Cain claimed that the abortion funds could also face criminal charges under a Texas abortion statute that was declared unconstitutional by the U.S. Supreme Court in 1973. Cain claimed in his cease-and-desist letter that the law, which was never repealed by lawmakers, was recently reaffirmed when the state passed the new abortion law.

Davis’ lawsuit asks the judge to affirm that the old criminal statute is unenforceable and that the newer law is unconstitutional.

See here and here for more on the abortion funds’ lawsuits against two anti-abortion organizations plus two individuals. Those two individuals, plus a third person in addition to the twerp Briscoe Cain, are also defendants of this lawsuit, which you can download as a PDF here from the Quorum Report. Cain had been sent a letter accusing him of defamation after his claims that abortion funds and their donors were breaking the law; I do not know if there have been any further developments in that story.

The plaintiffs allege violations of the First and Fourteenth amendments, among other things. The claims about the First Amendment were interesting:

Because of Defendants’ threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban against Texas abortion funds and their associates, Plaintiffs Sadler and Mehl intend to cease donating money to Texas abortion funds, including the Stigma Relief Fund, until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.

[…]

By threatening to chill abortion funds’ relationships with their donors, employees, and volunteers, Section 3 of S.B. 8 violates the freedom of expressive association protected by the First Amendment.

This leans into the SCOTUS holding that political contributions are free speech. I don’t doubt the zealots’ ability to double-speak their way out of this, but it’s a reasonable approach. Or at least I, a non-lawyer, think it is. I haven’t seen any commentary on Twitter, and neither Wendy Davis nor the Stigma Relief Fund have tweeted about this. We’ll see what happens. CNN has more.

Abortion funds accuse Briscoe Cain of defamation

This ought to be fun.

Earlier this month, Republican Texas House lawmaker Briscoe Cain sent Texas abortion funds cease-and-desist letters, threatening the funds, their donors and volunteers with criminal prosecution unless they stopped helping fund abortions in Texas.

Now, the Texas Equal Access Fund, a major abortion fund, has published a letter calling Cain’s statements false and defamatory, and threatening to “explore all legal options.”

“Your letters falsely accuse our clients of engaging in criminal acts by funding abortions in any situation in which the mother’s life is not in danger,” reads the response letter by attorneys with the Thompson Coburn law firm. “This accusation, which you have made public by publishing the letters on social media, is objectively false, and has been for almost 50 years.”

“Your unfounded criminal accusations are also defamatory,” the letter continues. “It is per se defamation to falsely accuse someone of criminal acts in Texas. You publicized these letters on social media and issued a press release in which you call our clients ‘criminal organizations.’ Therefore, the false and defamatory statements have been published to a potentially unlimited number of third parties. Your decision to publish these statements on social media demonstrates that the defamatory effect of your words is intentional. Therefore, it is imperative that you immediately retract and/or clarify your defamatory statements.”

“If you do not issue this retraction, our clients will have no choice but to explore all legal options,” the letter concludes, threatening to seek injunctive relief requiring a retraction or clarification of Cain’s statements, or damages to compensate the defamation, damages to clients, and legal fees.

The letter was sent on behalf of several abortion funds in Texas; The North Texas Equal Access Fund, Lilith Fund for Reproductive Equity, The Afiya Center, Frontera Fund, The West Fund, Clinic Access Support Network, and Fund Texas Choice.

You can see a self-incriminating tweet from Cain in the post, and the response letter is here. It also reminded him that the funds are represented by counsel and by state law you’re supposed to only communicate with them via their lawyers, which he did not do. They demanded that he confirm in writing whether he was acting in his role as a State Rep, as an attorney representing someone, or as a private citizen, by five PM yesterday. I suspect they might not have gotten an answer by then, so we’ll see what comes next.

The demand to retract his accusation of criminal activity is the biggie, though. When I blogged about that big WaPo article about the lawsuits filed by the abortion funds, there was a quote from Cain in which he explicitly called it a “crime” to pay for another person’s abortion in Texas and that anyone who donates to these funds will be prosecuted. That’s not only not true, if it were true it would defeat the whole evading-judicial-review aspect of SB8, since the district attorneys and probably Ken Paxton would be obvious defendants to be sued for an injunction. I’m honestly not sure if Cain is too dim to realize that or if he does know and just doesn’t care. Either way, there’s no shortage of evidence for when the inevitable lawsuit against him gets filed. The Trib has more.

Hey, remember when disability rights advocates were worried about the voter suppression bill?

They were right to be worried. Because of course they were.

As polls opened up for early voting this week, disability advocates say they still do not have adequate guidance from the state about new voter assistance rules and worry that the lack of clarity on what constitutes a violation might dissuade people who provide assistance services from helping voters with disabilities.

Republicans enacted restrictions last year on the state’s voting process, including rules on how Texans can assist voters when casting ballots. Texans assisting other voters must now fill out paperwork disclosing their relationship, indicate whether compensation was provided and recite an expanded oath, now under the penalty of perjury, stating that they did not “pressure or coerce” the voter into choosing them for assistance.

Texans who offer or accept compensation for providing voter assistance would be in violation of the new rules, creating anxiety among those who assist people with disabilities as part of their job.

“There are voters with disabilities who use their personal aides or personal attendants to assist them in completing daily tasks, and voting is a daily task,” said Molly Broadway, a voting rights training specialist at Disability Rights Texas, adding that she has already received calls from assistants afraid of incurring criminal charges for activities that are usually part of their duties. “It’s a very present, very real need that exists.”

Texans who drive at least seven voters to the polls are also considered assistants and must comply with new rules on compensation. Broadway said she has heard concerns from nursing home employees who provide transportation to polling places.

The new legislation also limits any kind of voter assistance to “reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.” But voters with intellectual and developmental disabilities might need additional help, such as gestures or reminders about how they had intended to vote, to get through the process, Broadway said.

Broadway has instructed those providing assistance to sign the expanded oath, inform poll workers about the help they’re providing to the voter and reach out to county election offices and request additional accommodations when necessary.

If an assistant appears to be breaching the new rules, poll watchers have been instructed to inform their county’s election administration office. Upon reviewing the case, election administrators may reach out to authorities to investigate the case.

If there’s evidence that an assistant was paid for their services, Potter County elections administrator Melynn Huntley said she would need to refer the case to the attorney general.

“We gather screenshots or copies of the actual papers that may have been signed or not signed, and then we submit them to the appropriate enforcement authority,” Huntley explained.

Brazoria County election director Lisa Mujica said her office has trained clerks around the new regulations for voter assistance. If an assistant appears to be violating the rules, clerks are instructed to step in and educate them about the limitations of their role.

But Chase Bearden, the deputy executive director at the Coalition of Texans with Disabilities, said that’s part of the problem: Inadequate state guidance has created confusion among voters and leaves the responsibility of determining what may constitute a violation to election workers.

“At the end of the day, we aren’t sure how this is going to play out,” Bearden said. “We’re kind of in the dark and are hoping that most election workers will be fair and want to make sure that people get the assistance they need.”

The Coalition of Texans with Disabilities, Disability Rights Texas and other disability rights groups have said they have received little guidance from the secretary of state, which oversees elections, about the steps voters with disabilities should take if they need assistance that conflicts with the regulations established in the new rules.

See here for the background; don’t be confused by the bill number in that post, it became SB1 in the subsequent special session where it ultimately passed. There is of course a lawsuit filed by disability rights activists (among others) against this law, but it has not advanced to the point where action could be taken. (More on that lawsuit here.) Of course these issues were raised at the time, and of course bill authors Briscoe Cain and Bryan Hughes ignored them, because why would they care? And now, if a confused or poorly trained election worker decides that someone’s health assistant is violating the law, the matter may wind up in Ken Paxton’s hands, and we know how fairly and compassionately he handles these matters. So yeah, this is all a giant bag of suck. And that was the point.

Crystal Mason using SB1 to try to overturn her illegal voting conviction

Hope this works. It would be one small good thing to come out of that otherwise harmful law.

Crystal Mason, the Tarrant County woman whose illegal voting conviction has garnered national attention, is asking for a Texas appeals court to overturn her conviction under a new provision of Texas’ recently adopted election law Senate Bill 1.

Mason, 46, was sentenced to five years in prison for attempting to cast a ballot in 2016′s presidential election. At the time, Mason was on supervised release from a federal tax fraud conviction and was prohibited from voting in Texas.

Her lawyers with the American Civil Liberties Union this week filed a brief with the Texas Court of Criminal of Appeals citing the state’s new election law that took effect earlier this month in asking for her conviction to be overturned.

Tucked within SB 1 that was passed by the Texas Legislature in this year’s second special session is a section erasing criminal penalties for felons who attempt to vote without knowing that they were committing a crime. That portion of the law came about with Mason’s conviction in mind.

“SB 1 is a repudiation of Ms. Mason’s conviction and five-year sentence of incarceration,” the brief states.

[…]

Her attorney with the American Civil Liberties Union declined a request for comment. The Tarrant County District Attorney’s office, which prosecuted and has argued against overturning Mason’s conviction, said in an emailed statement that SB 1 has no bearing on Mason’s case.

“Even under the new law, she is guilty,” office spokeswoman Anna Tinsley Williams said. “She wasn’t convicted simply for casting the provisional ballot; she was convicted for casting a provisional ballot when she knew she was ineligible to vote. Knowledge of ineligibility is the key. This is not a case of mistaken voting.”

See here and here for some background. House Democrats had negotiated an amendment in the original bill during the regular session that would have retroactively covered Mason’s case, but it was taken out in the conference committee version by Senators on the committee, and that breaking of the faith was one of the catalysts for the initial quorum break during the regular session, which prevented the bill from getting a final vote. In the second special session, after House Dems had returned from Washington, a similar amendment was added to the House version of the bill, but it again ran into resistance in the Senate, with bill author Bryan Hughes the main obstacle. (How bad does Hughes look when even Briscoe fricking Cain was willing to add this provision to the bill?) If people can read the final version of the bill to include or not include Crystal Mason in its scope, then it’s at best a tossup what the CCA will do, and given their usual pro-prosecution bias, I can’t say I’m optimistic. But it’s sure worth the try.

Social media censorship law blocked

For now. As long as the outlaw Fifth Circuit exists, we can’t say more than that.

A federal judge on Wednesday blocked a Texas law that seeks to restrict how social media companies moderate their content and was championed by Republicans who say the platforms are biased against conservatives.

The law, signed by Gov. Greg Abbott on Sept. 9, would ban platforms with more than 50 million monthly users in the U.S. from removing a user over a “viewpoint” and require them to publicly report information about content removal and account suspensions. It was set to take effect Dec. 2.

In his ruling, U.S. District Judge Robert Pitman wrote that the First Amendment protects social media platforms’ right to moderate content and rejected the defendants’ argument that such companies are “common carriers.” Pitman also ruled that some aspects of the law were “prohibitively vague.”

“This Court is convinced that social media platforms, or at least those covered by [House Bill] 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content,” Pitman wrote.

[…]

Supporters of the law say it ensures that users’ political views go uncensored. State Rep. Briscoe Cain, R-Deer Park — who authored the bill, known as House Bill 20 — compared tech companies to “common carriers” like phone companies or cable providers, which are barred from customer discrimination.

But a federal judge who blocked a similar Florida law in June said such comparisons aren’t accurate. Thomas Leatherbury, the director of the First Amendment Clinic at Southern Methodist University Dedman School of Law, told The Texas Tribune in September that the Texas law is “clearly unconstitutional,” with the same flaws as the Florida law “and then some.”

By targeting only the largest social media platforms, Leatherbury said the law violates the equal protection clause. The law largely prohibits electronic mail service providers from blocking messages based on their content, which Leatherbury said restricts email services’ First Amendment rights.

See here and here for the background. You can see the court order here, some commentary on it here, and NetChoice’s press release here. As with all things, Texas is sure to go running to the Fifth Circuit to get them to ratify their lawlessness, and the usual bet is that the Fifth Circuit will provide room service for them. Maybe this time it will be different since the law attacks businesses instead of just people, but conservatives have decided those particular businesses are Bad for them, so the usual bet is still probably the correct one. But for now, at least this is one terrible new law that won’t get a chance to be enforced. For now.

Social media censorship lawsuit has its day in court

It’s a very dumb law that will hopefully be stopped before it takes effect tomorrow.

Lawyers for two large tech industry groups appeared Monday in federal court in Austin to argue that Texas’ new social media law — inspired by Republican complaints that conservatives are ill-treated on Twitter, Facebook and other large platforms — should be blocked as unconstitutional.

Known as House Bill 20, the law lets social media users sue if they are blocked or their posts are removed based on the user’s viewpoint. It also gives companies two days to respond to user complaints about content removal and two weeks to handle appeals if users disagree with the action.

But lawyer Scott Keller argued that the law should be blocked from taking effect Thursday because it violates the First Amendment free speech right of social media companies to monitor, screen and delete content published on their platforms.

Instead, Keller said, the law requires platforms to continue publishing posts that violate their terms of service, including those that glorify Nazis or spread medical misinformation.

“This is a striking assertion of government power,” he told U.S. District Judge Robert Pitman during a two-hour in-person hearing Monday in downtown Austin. “The First Amendment protects editorial discretion.”

HB 20 also creates an onerous set of regulations on complaints and appeals that would be impossible to meet, Keller argued, noting that in a three-month period earlier this year, YouTube removed 9.5 million videos and 1.16 billion comments for violating decency and other standards.

But Assistant Attorney General Courtney Corbello argued that the law does not stop social media companies from prohibiting certain types of content.

“HB 20 says continue to have your policies, continue to prohibit the content the way you want to, just don’t discriminate against people,” she said. “HB 20 prohibits viewpoint discrimination. It does not prohibit content moderation.”

Corbello also disputed claims that the law is onerous, noting that Facebook and YouTube already inform users when content is removed and have an appeals process in place to resolve disagreements.

See here for the background. I may have been wrong about the timing of the slapdown on this dumb law, but I don’t think I’m wrong about the outcome. This time I can point to someone with fancy law credentials who also thinks this law is trash and the lawsuit will succeed – see here for the analysis of HB20, and here for his thoughts on the filings. There are other analyses of the law and similar ones in equally ridiculous states like Florida, which you should read, and there’s this resource page from NetChoice, one of the plaintiffs, if you really want to go deep. As I said, this and other laws from the special session go into effect tomorrow, so expect there to be something in short order.

Lawsuit filed over our very dumb new social media “censorship” law

So very dumb.

Texas is being sued over its new law barring social media platforms from banning users over their political views by two trade associations that represent some of the industry’s biggest online companies.

NetChoice and the Computer and Communications Industry Association, which represent Google and Twitter, among other companies in the e-commerce and social media industries, filed a lawsuit Wednesday asking a federal judge to block the law.

Under the law, which was passed by the Legislature as House Bill 20, and signed by Gov. Greg Abbott on Sept. 9, social media platforms with over 50 million monthly users in the U.S. — a threshold that includes Twitter, Facebook, Instagram and YouTube — must publicly report details about content removal and account suspensions biannually. The platforms are also required to establish an easily accessible complaint system, where users could flag violations of the law.

Supporters of the bill said it was a necessary step to ensure users’ viewpoints aren’t censored and people who are blocked have a path for recourse.

The state cannot force platforms to host content they wouldn’t otherwise host, the presidents of NetChoice and CCIA said in a Tuesday meeting with reporters. The law threatens the safety of users, creators and businesses that use platforms to reach their audiences, said NetChoice President and CEO Steve DelBianco.

“They can’t be forced to carry content that violates the community standards that they use to curate a community of online content that suits their advertisers and audience,” DelBianco said.

[…]

This lawsuit isn’t the first of its kind for NetChoice and CCIA. In May, the groups sued to block a similar measure in Florida, which became the first state to regulate tech companies’ speech. In June, a federal judge granted the request to block the enforcement of the law.

DelBianco said the First Amendment flaws outlined by the judge in Florida’s case “match pretty closely” to the Texas law.

I didn’t blog about this while it was happening because it was dumb. It was more performance art in a legislative session that was all about grievances and wingnut wish lists. This law will almost certainly die a quiet but expensive-to-defend death without ever being enforced, and we will all get on with our lives. And we will all be a little bit dumber because of it.

Final passage of the voter suppression bill

That’s all for now, we’ll see you in court for what will likely be a frustrating and unsatisfying denouement.

A wave of changes to Texas elections, including new voting restrictions, are headed to Gov. Greg Abbott’s desk.

Three months after House Democrats first broke quorum to stymie a previous iteration of the legislation, Republicans in the House and Senate Tuesday signed off on the final version of Senate Bill 1 to further tighten the state’s voting rules and rein in local efforts to widen voting access. Abbott, a Republican, is expected to sign it into law.

The bill was delayed one more time as its Republican author, state Sen. Bryan Hughes, disapproved of language added by the House to address the controversial conviction of Crystal Mason, a Tarrant County woman facing a five-year sentence for a ballot she has said she did not know she was ineligible to cast. Hughes’ objection triggered backroom talks to strip the Mason amendment before the bill could come up for a final vote.

[…]

On Tuesday, Democrats decried the Senate’s objection to the Mason amendment, with state Rep. John Turner, D-Dallas, stating he hoped it was “not because they believe that more people in situations like that of Crystal Mason should be prosecuted or imprisoned.”

[Rep. Garnet] Coleman and Turner were part of the panel that worked out the final version of the bill in backroom talks. Despite their support for the amendment, House Republicans on that panel also signed off on removing it.

The amendment — offered by state Rep. Briscoe Cain, R-Deer Park, but worked on as a bipartisan effort — was meant to prevent voter mistakes from being prosecuted as fraud.

“We’re just ensuring that people who do innocent things are not harmed from their past mistakes,” Cain said before it was quickly adopted by the House last Thursday.

Mason was convicted of illegal voting for casting a provisional ballot in the 2016 election while she was on supervised release for a federal tax fraud conviction. Her vote was never counted, and Mason has said she had no idea she was ineligible to vote under Texas law and wouldn’t have knowingly risked her freedom.

Tarrant County prosecutors pressed forward to land the conviction, which was upheld by a state appeals court that ruled that the fact Mason did not know she was ineligible was “irrelevant to her prosecution.” Her case is currently under review by the Texas Court of Criminal Appeals, the state’s court of last resort for criminal matters.

Cain’s amendment would have clarified existing law that currently defines illegal voting as an instance in which a person “votes or attempts to vote in an election in which the person knows the person is not eligible to vote” by emphasizing that a person must be aware of the “particular circumstances that make the person not eligible” and also that “those circumstances make the the person not eligible” to vote.

Mason’s case has played out as Republicans’ baseless claims of rampant illegal voting have intensified. But with lack of widespread evidence, her case has landed among the handful of high-profile prosecutions of people of color.

Mason, who is Black, is appealing her case as the Texas attorney general’s office prosecutes Hervis Rogers, who is also Black, after he was featured in news coverage of the March 2020 primaries for being the last person to vote at Texas Southern University in Houston at 1 a.m. His registration was active even though he was a few months away from completing his parole as part of a 25-year prison sentence for burglary and intent to commit theft in 1995.

Hughes on Thursday said the amendment raised concerns for “people in the building” and “outside the building” that the language could go farther than intended, and noted he believed non-citizens who vote in elections should be prosecuted even if they were not aware they were ineligible. Notably, the Mason amendment could have also affected the state’s prosecution of Rogers, who was charged with two counts of illegal voting.

Hughes also noted the bill still includes language that would require proof beyond a provisional ballot for an attempt to cast an illegal vote to count as a crime.

See here and here for some background. Credit to Briscoe Cain (a phrase I am unlikely to type again anytime soon) but in the end it was more important for the Republicans to keep going after the likes of Hervis Rogers and Crystal Mason because there aren’t any real voter fraud cases for them to tout. Look, either we get the John Lewis Act through the US Senate, or this is our reality until Democrats have full control of state government and sufficient awareness that even the watered down two thirds rule is a trap that (like the filibuster) will not allow them to pass anything of substance. I don’t care to speculate when that might be.

Sure, let’s have a fraudit here in Texas

What could possibly go wrong?

Unfair to clowns, honestly

Republican House members are seeking a forensic audit of the November election results, but only in Texas’ largest counties that mostly went for Democrat Joe Biden.

Legislation filed by Rep. Steve Toth, R-The Woodlands, requires the state’s Republican leadership to appoint an “independent third party” to carry out the audit. Among the bill’s 15 GOP co-authors are Deer Park Rep. Briscoe Cain, who chairs the House Elections Committee, and Cypress Rep. Tom Oliverson, vice chairman of the House Republican Caucus.

“Texans want to know more about the claims of voter fraud and deserve to have confidence in their elections,” Toth said in a statement about House Bill 241. “Voters want to know that their legal vote counts and matters.”

The legislation will likely go nowhere in the 30-day special session, since Democrats’ walkout stopped the GOP-led House from conducting any business. But the push shows how, despite no evidence of widespread fraud and in a state Donald Trump carried, some Republicans are still raising questions about the 2020 election results six months after Biden took office.

[…]

Rep. Chris Turner, who chairs the Texas House Democratic Caucus, said Tuesday that the legislation sounds like “it’s all based on the lie that there’s widespread voter fraud and Donald Trump really won the election.”

“I don’t know if these folks are aware of it, Trump actually did carry Texas,” said Turner, D-Grand Prairie. “So I’m not sure what they’re trying to find in their audit.”

The same thing they’ve been looking for from the beginning, which is strategies, methods, and justifications for delegitimizing Democratic votes and voters, especially non-white votes and voters. The tell is in the way the size of the counties that are in scope for this is defined: Counties with at least 415,000 people, which as noted are the top 13 counties by population in Texas. Why stop there, and why such a weird population cutoff number? Well, if you take the next 13 counties, 11 of them were carried by Trump. If you go down to the next 13 on the list, which gets you to all counties with at least 100,000 people (a much nicer, rounder number than 415,000), all 13 were won by Trump. It’s just that simple – maximize the scrutiny on Democratic counties and find ways to make them look suspicious, while minimizing it on Republican counties. It’s genius, in its malicious way. And by the way, this isn’t just my inference. It’s what Steve Toth has explicitly said.

Now some of these counties not-top-13 counties were close – Jefferson and Nueces were just barely won by Trump – and some others are (as we have seen) clearly trending Democratic, like Brazos and Brazoria. But still, they were won by Trump and thus are not of interest to anti-democrats like Toth and Cain. Ken Paxton, who knows a thing or two about making egregiously false claims about the 2020 election, has signed on to this farce as well. Does anyone think Greg Abbott will resist? Hope he’s distracted by some other shiny object, or that someone reminds him of how these audits have caused tons of election equipment to be decertified as a result of being mauled by the incompetent frauditors. As with everything else at this point, if they want to do it and a quorum exists, there’s precious little Dems can do to stop them.

Disabled voters worry about getting screwed by SB7

It won’t be called SB7 in the special session on voter suppression, but you know what I mean.

Texas Republicans have pursued broad efforts this year to ratchet up voting restrictions in the aftermath of a high-turnout election that saw high-profile fights over the state’s voting rules, including the tight eligibility requirements for absentee voting. The 2020 election marked a shift from what was traditionally a tool utilized by the GOP to one that was instead taken up by more Democratic voters. But as the GOP has worked to clamp down on what remains a limited voting option, voters with disabilities — who are among the few groups of Texans eligible to vote by mail — have been caught in the middle of the fight.

Republicans have cast their proposals as “election integrity” measures to protect the voting process from fraud, even though there is no evidence it occurs on a widespread basis. But throughout the spring legislative session, nearly every version of the GOP’s priority voting legislation raised alarms for disability rights advocates who warned lawmakers they would likely run afoul of federal protections for disabled voters.

Texas offers two avenues to voting most helpful for people with disabilities. If they’re unable to vote in person without needing assistance or injuring their health, they can request a mail-in ballot. If they want to vote in person but need assistance, they can ask someone to accompany them to a polling place to help them through the voting process.

Under Republican proposals that are expected to be reconsidered this month, both of those paths might be further constricted.

In the Senate, Republicans wanted to require proof of a condition or illness, including written documentation from the Social Security Administration or a doctor’s note, before disabled voters can receive mail-in ballots for every election in a calendar year. Under current law, voters need only attest that they have a disability that qualifies them for a mail-in ballot.

That proposed change was eventually pulled down, but Republican senators moved forward with a bill that would have increased the likelihood that people with disabilities would be cast as suspect voters if they used other legal accommodations, like having assistance at the polling place.

The GOP bill would have allowed partisan poll watchers to video record voters receiving assistance in filling out their ballots if the poll watchers believed the help was unlawful — a change that disability rights advocates argued would wrongly target people with disabilities. For voters with intellectual or developmental disabilities, for example, voting help may require prompting or questioning that could be misconstrued as coercion by a person unfamiliar with that sort of assistance.

Although voters can select anyone to help them as long as they’re not an employer or union leader, House Republicans attempted to set up new rules for those helping voters, including a requirement to disclose and document the reason the voter needed assistance, even if for medical reasons.

At multiple points during the session, Republicans said they tweaked some of those proposals in response to concerns from disability rights advocates. But when the final version of the legislation emerged from backroom negotiations just before the end of the regular session, it included unwelcome changes to redefine what constitutes a disability under state election law, as well as new identification requirements for voting by mail that advocates said lacked clarity.

“Our voices weren’t being heard at the very end when it was the most important,” said Chase Bearden, the deputy executive director for the Coalition of Texans with Disabilities.

The story opens with an account of one woman who felt the need to cast her mail ballot in person, and the ordeal she endured to do so. It’s worth reading, and reflecting on how much easier it is for some people to vote than it is for others. What happens with the provisions that the disability rights community objected to and had some success stopping in the regular session now that we’re in overtime is unknown. I think the Republicans may at least listen and try to make some accommodations, but if it comes down to them or their base, it’s no contest. At that point it will be a matter of whether litigation over equal access for folks with disabilities will have any better luck in the courts than litigation over claims of racial discrimination. I can’t say I’m optimistic, but we’ll see.

State Rep. James White not running for re-election

I have three things to say about this.

Rep. James White

State Rep. James White, R-Hillister, has decided not to seek reelection, he told East Texas TV station KLTV in a roundtable with lawmakers. And he hinted to another news station that he’s considering a statewide run.

The Texas House doesn’t have term limits, but White suggested that his longevity in the lower chamber was a factor in his decision. He was first elected in 2010.

“I’m a term limit guy by nature,” White told KLTV on Thursday. “I wish we had term limits in Texas… I think we can continue being a great state even without me being in the Texas House.”

White is the chairman of the House Homeland Security and Public Safety Committee, and is the only Black Republican in the Texas House. He represents solidly Republican House District 19 in East Texas.

On Friday, he suggested to KFDM/Fox 4 News in Beaumont that he is mulling a run for statewide office.

“Don’t be surprised if you see me on the Republican Primary ballot for statewide office,” the station reported him as saying.

1. Rep. White may be a “term limit guy by nature”. He will also have served 12 years in the House when his term ends, which means he is fully vested in the pension plan for state reps, worth $34,500 a year as of 2012 for a 12-year veteran over the age of 50 (White is 56, according to his bio). Everything else he says here may be true. It’s just that it’s also true that this is an optimal time for him to call it quits, financially speaking.

2. White’s HD19 voted 81.77% for Trump in 2020, making it the fifth-most Republican district in the state. I think we can all picture what the primary to replace him will look like, even if the redrawn HD19 is slightly less red. I have no warmth for Rep. White, who is as crappy and complicit as everyone else in his rotten caucus, but he does have a record as a serious policymaker and has done some worthwhile work on criminal justice reform. The odds are great that his successor will be less of a policy person and more of a grievance-driven performance artist, as that is the norm in Republican primaries these days. And that has an effect, because one of the few restraints on the two legislative chambers in recent years has been the number of actual legislators in ridiculously Republican districts, especially as those members attain positions of influence.

To put this another way, both James White and Briscoe Cain were committee chairs last session. That’s what happens when the Briscoe Cains of the world replace the boring old establishment guys like Wayne Smith. This is one of the reasons the Senate sucks so bad – since 2012, we’ve swapped Kevin Eltife for Bryan Hughes, Bob Deuell for Bob Hall, and Robert Duncan for Charles Perry (who it must be noted has some criminal justice policy chops as well, but spent this session pretending to be a medical expert on trans youth, which he most emphatically is not). It’s not that Eltife and Deuell and Duncan were great, it’s that their replacements are Dan Patrick’s foot soldiers, and that’s before you take into account the special kind of crazy maliciousness that a Bob Hall brings. Every time you take out Dan Flynn for Bryan Slaton, Rob Eissler for Steve Toth, John Zerwas for Gary Gates, you make the House a little worse. I very much fear we’re about to have the same thing happen here.

3. What statewide office might White run for, if he does run for something statewide? Land Commissioner makes sense – it’s open, and there’s no reason White couldn’t make it a race against Dawn Buckingham. Ag Commissioner is a possibility, even if Sid Miller runs for re-election instead of jumping into the Governor’s race. And though it’s not a statewide office, I will note that State Sen. Robert Nichols, whose SD03 contains all of HD19, is 76 years old, and the post-redistricting election cycle is always a popular time to peace out. Just a thought.

UPDATE: I drafted this over the weekend, but the just-released Texas Monthly Best and Worst Legislators list for this session illustrates the point I made in item two damn near perfectly.

From the “Oops, how did that get in there?” department

Remember how the final version of SB7, the one that emerged from behind closed doors in conference committee, had a provision in it that would have made it a lot easier to overturn the result of an election via legal challenge? That was one such provision that had not been in previous versions of the bill. Well, apparently no one claims to know how it got there, and we are being promised that the next version of the omnibus voter suppression bill will not have it.

In a sweeping overhaul of Texas elections law that Republicans rushed toward approval in the waning hours of the legislative session, one provision stood out to critics as particularly alarming.

The hastily-added clause would have made it easy for a judge to overturn an election, even if there were only thin evidence of fraud. With former President Donald Trump’s historic efforts to nullify his November loss still fresh in their minds, Democrats singled out the measure as irresponsible.

“Just think about that — your election, YOUR election could be overturned without the other side being required to prove actual voter fraud,” said state Rep. Julie Johnson, D-Carrolton, in an impassioned speech on the floor of the Texas House. “The implications of this are unthinkable. To make matters worse, the provision was not in either the Senate or the House version of the bill.”

The bill never passed, dying at midnight on May 31 after the Democrats blocked a vote on it by walking out. Yet policy debates have given way to an even more basic question: Who added the “Overturning Elections” section to it?

One of the members of the conference committee that crafted the final version of the bill, state Rep. Travis Clardy, R-Nagodoches, says he doesn’t know. Other top Republicans who worked on the final draft of the legislation say they don’t know either.

What’s more, Clardy — and chief author Sen. Bryan Hughes — now denounces the measures related to overturning elections and says Republicans don’t plan to revive them in a future bill.

“There was zero appetite or intent or willingness to create some low bar where a single judge can overturn the results of an election,” Clardy said in an interview with Hearst Newspapers. “That would be horrendous policy, and it would never be healthy for the democracy.”

Democratic members say there is no way those provisions were inserted by mistake. They say they raised concerns about them with Republicans when there was time to spare for the bill to be revised.

The sections would have lowered the standard of proof to overturn an election from “clear and convincing” evidence to a “preponderance of the evidence” for many types of fraud allegations. And they gave judges the ability to void elections even if it couldn’t be demonstrated that fraudulent ballots made a difference in the outcome.

If the bill had passed, Texas would have been one of few states to have lowered the bar so much, opening the door to a flood of potential election challenges, election law experts said.

“If we deliberately design a system that says all you have to do is come up with a simple preponderance — that is, just barely more evidence than the other side — and we’re going to throw out the elections, when we have a whole gamut of election procedures in place that we justifiably expect to produce reliable results in the normal course, we’re really undermining that,” said Steven Huefner, professor of law at the Ohio State University.

[…]

State Rep. Nicole Collier, one of three Democrats on the conference committee and chair of the Texas Legislative Black Caucus, wasn’t buying Republicans’ claims that the language was added by mistake.

“They had time to review it,” Collier said. “The fact that the conference report was signed on Saturday” — the day before it went to the House floor — “means that they had read it, and they approved it.”

Must have been another typo. Really need some better proofreaders, I guess.

This is, of course, all transparent bullshit. The bill was in conference committee for over ten days. Someone put that clause in there, whether anyone will admit to it or not. I will note again how the likes of Dan Patrick were patronizingly telling everyone who made any claim about how the initial version of SB7 would suppress votes to “read the bill”. Who’s not reading the bills now? Maybe if we’d had the time to hold public hearings on this bill, we might have avoided this little embarrassment as well.

And note again, for all of the whining and bitching and threatening to veto funding for legislative functions over the Democratic quorum breaking, the only reason this obvious threat to democracy, which now all of these Republicans agree was a bad idea and which they swear they never intended to include, is not about to be law in Texas is because Dems were able to use the processes available to them to kill that bill. I feel pretty confident saying that Greg Abbott would not put fixing that provision on the agenda in however many special sessions he calls. Republicans screwed this up, because they didn’t care about the niceties of legislating, they just wanted to get their win. You can thank the Dems for sparing us the fallout of their malign incompetence.

More on the post-quorum break fallout

This Trib story mostly centers on the perspective of the Black legislators during the SB7 fight, and it’s a good read for that, but I want to focus on this bit here:

Photo by Miguel Gutierrez Jr./The Texas Tribune

While the legislation in the Senate partly targeted Harris County, SB 7 carried the potential to alter the voting process across the state. Beyond banning extended early voting hours, it enhanced the freedoms of partisan poll watchers, set new rules for removing people from the voter rolls and further tightened vote-by-mail rules. In early May, lawmakers in the House negotiated a significantly slimmed down version of the bill that was narrower in scope and included a series of Democratic amendments. In recent days, some Democrats have indicated that version wouldn’t have prompted a walkout, though they wouldn’t have supported it.

Tension around the bill escalated in its last 48 hours through the Capitol as Republicans ironed out the differences in both chamber’s versions, choosing to include significant portions of the Senate’s more expansive version and dropping in a series of new provisions behind closed doors. The bill doubled in size to include new ID requirements for absentee voters and a higher standard for who could qualify to vote by mail based on a disability. Much of Democrats’ ire fell on a new rule mandating that early voting on Sunday couldn’t start until 1 p.m., which they saw as an unjustified attack on “souls to the polls” efforts churches use to turn out Black voters.

Republicans defended the additions as a standard part of the negotiation process, noting that some of them were pulled from other bills passed by the Senate or generally discussed by the chamber.

But the changes were revealed to the full Senate and House less than 48 hours before the deadline to approve the bill, setting off frustrations among Democrats over the lack of time to fully review the legislation. To keep the bill out of range of a filibuster, Senate Republicans used their majority to suspend their own rules and take up the final bill a day earlier than the rules required. Democrats said a resolution laying out many of the last-minute additions to the bill wasn’t presented to them until just before they were supposed to take it up.

In the House, the final bill was so hastily put together that state Rep. Briscoe Cain, who was ushering it through the chamber, said it left out a Democratic initiative he had promised to keep in. The report also misspelled the word equal as “egual.”

“It seemed like the fix was in from the beginning,” state Rep. Nicole Collier, a Fort Worth Democrat and chair of the Texas Legislative Black Caucus, said at a press conference early Sunday. “From the beginning, there was no interest in hearing how these measures would impact people of color.”

The description of how things were so rushed raises again a point I made in this post, which is why it took SB7 so long to get to a final vote. Look at the legislative history. The conference committee was appointed on May 19, and it took until May 30 for the final bill to appear, which kicked off the Senate suspending their rules and the final showdown in the House. Why did it take so long? Maybe the House committee members were trying to defend the Democratic amendments, but if so they ultimately did a lousy job of it. A whole lot of new stuff was added, but it seems to me that was mostly language taken from other bills that didn’t come to a vote. None of this should have taken so long, and yet it did. My theory, which so far no one else has even brought up (that I know of), is that the Republicans wanted to do this at the last minute, over the holiday weekend, because it limited the amount of attention they’d face as it was happening. I could be wrong about this – maybe they really couldn’t get their act together in time – and it surely didn’t work out the way they wanted, but until someone demonstrates otherwise, this is the reason I believe for why things unfolded as they did.

Of related interest:

A last-minute addition to the final version of Senate Bill 7, negotiated behind closed doors, set a new window for early voting on Sundays, limiting it to 1 to 9 p.m. Democrats and voting rights advocates said GOP lawmakers were targeting “souls to the polls,” the longtime practice by Black congregations that encourages members to go vote after Sunday morning services.

In an interview Tuesday with NPR, one of the negotiators, Rep. Travis Clardy of Nacogdoches, said the 1 p.m. start time was an error and that it should have been 11 a.m. Despite his claim, no Republicans raised an issue with the start time during final debate over the bill, and one of them even defended it.

Clardy told NPR that the Sunday start time was “one of the things I look forward to fixing the most” in a special session.

“That was not intended to be reduced,” Clardy said. “I think there was a — call it a mistake if you want to — what should have been 11 was actually printed up as 1.”

Lawmakers are set to revisit the legislation in a yet-to-be-called special session after Democrats staged a walkout late Sunday night that blocked passage of SB 7 in the regular session, which ended Monday. In a Texas Tribune interview later Tuesday, Gov. Greg Abbott said he was unaware of the specific mistake that Clardy was referring to but that he had heard there “clerical errors” with the final version of SB 7 and that he would be open to “making modifications” to the Sunday voting rules.

After Clardy’s interview with NPR, another GOP negotiator and the bill’s House sponsor, Rep. Briscoe Cain of Deer Park, said that what Clardy said was true and that lawmakers intended to fix the start time in a special session.

Despite the new claims that the 1 p.m. start time was a mistake, Republicans did not flag it as an error in debate over the final version of SB 7 this weekend. In the Senate, SB 7’s author, Sen. Bryan Hughes, R-Mineola, stood by the start time under Democratic questioning late Saturday night.

“Those election workers want to go to church, too,” Hughes said. “And so that’s why it says 1 p.m. [and] no later than 9 p.m. You can make Sunday service and go after that.”

When Sen. Royce West, a Dallas Democrat, pressed Hughes on that justification, Hughes admitted it wasn’t based on conversations with election workers but suggested that “souls to the polls” efforts promoted voting after the lunch hour.

“You can correct me, but souls to the polls — I thought we went to church and ate lunch and then voted,” Hughes said.

When the House moved Sunday night to pass SB 7, Cain noted that it did not outlaw voting initiatives “such as souls at the polls.”

Asked about Clardy’s comments Tuesday, Hughes said the “intent was to extend the Sunday voting hours” and that lawmakers would “make this clear in the special session.”

I mean, come on. The Republicans fully intended to limit Sunday voting to after 1 PM. What they’re saying now is one part PR, one part making a minor concession to try to appear reasonable, and one part trying to make the inevitable lawsuit a little harder to prosecute. Come up with better rationalizations, guys.

And then there’s this.

Texas House Speaker Dade Phelan said Tuesday he has concerns with Gov. Greg Abbott’s recent vow to veto a section of the state budget that funds the Legislature, citing how the move to block such pay could impact staffers and legislative agencies.

“I understand the frustration the governor has in [lawmakers] not passing those emergency items — they were priorities of the governor, they were priorities of mine, priorities of many members of the Legislature,” Phelan, a Beaumont Republican, said in an interview with The Texas Tribune. “My only concern is how it impacts staff, especially those who live here in Austin, which is not an inexpensive place to live and raise your family and children.”

[…]

Phelan also said he thinks that, under the Constitution, lawmakers would still have to be paid even if Abbott carried out his veto. Lawmakers are paid $600 a month in addition to a per diem of $221 every day the Legislature is in session, during both regular and special sessions.

In an interview with the Tribune later Tuesday, Abbott insisted he still plans to veto that part of the budget and said that if Phelan is “concerned about it, he needs to do something about it.”

“He has a role to play here,” Abbott said. “He’s not some outside viewer. He’s a participant, and he needs to step up and get the job done.”

The governor has said he will summon the Legislature back to Austin for an overtime round to pass the legislation, though he has not yet specified when he plans to do so. Lawmakers are already expected to return this fall for a special session to redraw the state’s political maps.

Phelan said if Abbott carries out the veto, which he has until June 20 to do, lawmakers could be back for an earlier-than-anticipated overtime round to deal with the issue, since the budget involved covers the fiscal year starting Sept. 1.

The speaker also said he had concerns about how the move could impact legislative agencies such as the Legislative Budget Board, which are also funded by Article X of the budget.

“They weren’t the ones who decided that we were going to break quorum,” Phelan said.

Ever watch a movie that has an evil overlord who expresses his displeasure at some hapless minion who has failed him by murdering some other hapless minion? (See item #45 on that list.) That’s what this reminds me of. A whole lot of innocent civil servants may have their pay cut off because Abbott has his nose out of joint. Is that leadership or what?

State Reps to P Bush: Reconsider

Nearly all of the Harris County State Reps have written a letter to Land Commissioner George P Bush asking him to reconsider the ridiculous process that completely shut Houston and Harris County out of federal flooding funds.

A bipartisan group of state lawmakers on Tuesday asked Land Commissioner George P. Bush to reconsider his agency’s move to deny Houston and Harris County any funds out of a $1 billion federal pot of flood mitigation aid stemming from Hurricane Harvey.

In a letter to Bush, 22 state representatives — the entire Harris County delegation, aside from state Reps. Briscoe Cain and Mike Schofield — wrote that they found the decision “disappointing” and asked that the General Land Office “work to rectify this situation.”

The GLO, which Bush oversees, is responsible for disbursing more than $4 billion in federal aid to fund flood mitigation projects across southeast Texas. In the first round of aid payout last week, four smaller municipalities in east Harris County were awarded $90 million, but the city and county received nothing for the more than $1.3 billion in applications they submitted for various projects.

“We recognize there have been disagreements between local and state leaders on how to allocate various sets of federal funds around mitigation and recovery since Hurricane Harvey,” the lawmakers wrote. “(H)owever, no reasonable person could believe that the United States Department of Housing and Urban Development intended or … envisioned a scenario where a county of 4.7 million people and the fourth largest city in the United States, after experiencing three consecutive years of flood disasters, would not receive any of this $1 billion allotment.”

See here and here for the background, and here for a copy of the letter. As noted, the two Republican County Commissioners have also complained to P Bush about this. I’m not surprised that Briscoe Cain didn’t sign on to this – he’s a complete waste of space – but Mike Schofield’s omission is intriguing. I know things will change with redistricting to strengthen his position, but I thank him for providing the campaign fodder nonetheless. Whether this will make any difference or not I have no idea, but it was the right thing to do regardless. Kudos to Jon Rosenthal, the county delegation chair, for organizing this and to all of the members who did sign it.