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Court of Criminal Appeals

In support of Crystal Mason

Feb 23rd, 2023
by Charles Kuffner.
1 comment

Hoping for the best.

The same month Tarrant County officials announced the creation of an election integrity task force, a group of 14 bipartisan prosecutors threw their weight behind an effort to acquit the woman at the center of a high-profile voting fraud conviction in the county.

Crystal Mason, a Tarrant County resident, was sentenced to five years in prison for casting a provisional ballot in the 2016 election. Mason, who was on supervised release for a federal felony, was ineligible to vote, and while her ballot was never counted, Tarrant County prosecutors charged her with illegal voting. Mason has maintained that she did not know she was ineligible and her case has gained national attention among the media and civil liberty advocates.

Now, Mason is appealing her conviction for a second time in front of the Second Court of Appeals in Fort Worth, after the state’s highest appeals court told those judges to reconsider their previous decision.

Their decision did not take into account whether Mason knew she was ineligible.

A bipartisan group of former state and federal prosecutors, organized by the States United Democracy Center, filed an amicus brief Feb. 14 in support of Mason’s appeal. Among the signees is Sarah Saldaña, former U.S. attorney for the Northern District of Texas and former director of U.S. Immigration and Customs Enforcement.

“I had this visceral reaction to the injustice manifested in the decision, No. 1, to prosecute, but also the ultimate conviction,” Saldaña said. “It’s obvious that this whole issue of intent was not charged in the jury charge. … That to me was very offensive, particularly as a former prosecutor, and particularly as the principal decision maker in North Texas, at the time when I was U.S. attorney.”

Mason’s intent is a key aspect of the amicus brief’s argument. The signees call her prosecution “outside the bounds of any reasonable exercise of prosecutorial power,” and point to wording in Texas’ illegal voting statute that requires voters have “actual knowledge” that they were committing a crime by voting.

Without enforcing the actual knowledge requirement, the signees argue Texas voters will be afraid to vote at all for fear of accidentally running afoul of voting laws.

“Ms. Mason’s prosecution sends the troubling message that casting a provisional ballot carries a serious risk, with a consequent chilling effect on the use of provisional ballots,” the prosecutors wrote. “This chill would likely disproportionately impact minority voters, who tend to cast more provisional ballots.”

See here and here for some background. There’s hope after that CCA ruling, but even if her conviction is overturned, Tarrant County could choose to try her again. And then there’s this:

Statewide, efforts by Republican lawmakers to make illegal voting a felony again are gaining steam. It’s currently a misdemeanor, after lawmakers passed Senate Bill 1 in 2021; the bill, among other things, lowered the penalty for illegal voting conduct.

Rep. Craig Goldman, R-Fort Worth, filed House Bill 397 to reverse that change. Sen. Bryan Hughes, who represents East Texas, filed a companion bill in the Senate, which was referred to the state affairs committee for review Feb. 15.

One of the Republican legislative goals for this session is to ensure there is a steady stream of Crystal Masons in the future. Overturning this conviction can’t do anything about that. Oh, and this is what actual voter suppression looks like. There are other ways to do it as well, but when it happens it’s very clear what it is.

The next round of voter suppression bills are coming

Jan 27th, 2023
by Charles Kuffner.
4 comments

Brace yourselves.

Texas Republicans spent most of the 2021 legislative session focusing on election security — and this year, it’s a top priority for them again.

GOP leaders are discussing a range of election security measures, from higher penalties for voter fraud to broader power for the attorney general to prosecute election crimes. Many of them target Harris County, which Republicans have spent the past two years chastising for back-to-back elections blunders.

“Harris County is the big problem,” said state Sen. Paul Bettencourt, a Houston Republican who plans to file close to a dozen election bills this legislative session. “You’ve got the nation’s third-largest county that has had multiple problems with multiple election officers, to the point where one had to resign, and the problem is that it’s too big a piece of the electorate to ignore.”

Harris County Elections Administrator Clifford Tatum did not respond directly to the criticism, but said the office supports any legislation that increases voter registration and access to voting.

“Right now, we are focused on implementing new systems to promote the efficiency with which our office runs elections,” Tatum said in a statement.

[…]

Bettencourt said he’s considering a bill that would raise the charges for some voting-related misdemeanors, such as failing to provide election supplies.

He also questioned the existence of — and the accountability measures for — the election administrator position in Harris County. [Isabel] Longoria was the first, appointed under a newly created office in late 2020; Tatum was named as her replacement last July.

“That’s somebody that’s supposed to have better acumen and better results than elected officials, but the reverse has been proven to be true in Harris County,” Bettencourt said. “One of the things we’re going to have to explore is: Why aren’t the elected tax assessor-collector and the elected county clerk — which are, quite frankly, both Democrats — why are they not running the election, where there’s some public accountability?”

I’ve said this multiple times before, but as a reminder for the slow kids in the class, many counties have election administrators, including many Republican counties like Tarrant and Lubbock. Ed Emmett first proposed the idea for Harris County. There were problems with elections back when the County Clerk – specifically, Stan Stanart – was in charge of running them. This is nothing but a pretext.

Beyond Harris County, lawmakers are looking at a slate of statewide elections reforms, starting with returning the penalty for illegal voting to a felony instead of a misdemeanor. The Legislature lowered the punishment when it passed Senate Bill 1, but top Republicans — including Gov. Greg Abbott and Lt. Gov. Dan Patrick — have pushed to return it to the stiffer penalty.

Republican House Speaker Dade Phelan, whose chamber amended the bill to include the lower penalty, rejected the idea when it was first floated during a series of 2021 special sessions.

“This important legislation made its way through the House after several thoughtful amendments were adopted,” he said. “Now is not the time to re-litigate.”

[…]

State Rep. Jacey Jetton, a Richmond Republican, said he’s exploring legislation to facilitate [the mail ballot] process, such as enabling election officials to check all identification numbers associated with an individual at the Texas Department of Public Safety. He also wants to review the system’s new online mail ballot tracker and ensure it’s working properly.

Republicans have also introduced bills to further investigate election fraud, to limit the state’s early voting period from two weeks to one, and to set earlier deadlines for handing in mail ballots. And some of them are hoping to give Attorney General Ken Paxton stronger authority to prosecute election crimes, after the state’s highest criminal appeals court ruled in 2021 that he could not unilaterally take on such cases.

Currently, Paxton can only get involved if invited by a district or county attorney, according to the court’s ruling. The decision led to an outcry from top Republicans, including Abbott and Patrick, who called for the case to be reheared.

Paxton encouraged his supporters to launch a pressure campaign and flood the court with calls and emails demanding, unsuccessfully, that they reverse the decision. The move prompted a complaint to the State Bar accusing Paxton of professional misconduct for attempting to interfere in a pending case before the court.

Much of this is also covered in this Trib story. I don’t know if Speaker Phelan will be persuaded or arm-twisted into changing his mind about making whatever minor infractions into felonies, but I hope he holds out. I commend Rep. Jetton for his interest in reducing the number of mail ballot rejections, though I have a hard time believing anyone can get such a bill through the Lege. As for Paxton’s continued desire to be Supreme Prosecutor, the CCA’s ruling was made on constitutional grounds. I feel confident saying that a constitutional amendment to allow this will not pass.

Anything else, however, is fair game and just a matter of whether the Republicans want it to pass or not. They have the votes and they have the will, and there’s basically nothing Dems can do to stop them. They’ll fight and they’ll make noise and they’ll employ the rules and pick up the occasional small-bore victory, but in the end they have no power. You know the mantra: Nothing will change until that changes.

And yes, it really is all about voter suppression, even if Texas Republicans are better than their Wisconsin colleagues at keeping the quiet part to themselves. It’s certainly possible that these laws aren’t as good at actually suppressing the vote as they’re intended to, but that’s beside the point. If they keep making it harder to vote, and they keep making it costlier to make an honest mistake in voting, and that cost is almost entirely borne by Democratic-leaning voters of color, it’s suppressive. The debate is about the extent, not the existence.

Charges dropped against Hervis Rogers

Oct 24th, 2022
by Charles Kuffner.
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Good, but this whole thing was an enraging travesty and in no way makes things right.

Hervis Rogers

Voter fraud charges against Hervis Rogers, who garnered widespread attention for waiting hours in line to vote at a Houston polling location during the March 2020 presidential primary, have been dismissed.

Attorney General Ken Paxton ordered Rogers’ arrest in July 2021 on charges that he voted while on parole. Over a year later, after the Texas Court of Criminal Appeals reiterated that the attorney general doesn’t have the ability to unilaterally prosecute election crimes, a district court judge has dropped the two counts of illegal voting against Rogers.

“I am thankful that justice has been done,” Rogers said in a statement.

After serving time for a 1995 burglary conviction, Rogers had been out on parole since 2004. His parole ended in June 2020. In Texas, knowingly voting while on parole or probation is a second-degree felony, which could result in up to 20 years in prison. But Rogers said he wasn’t aware of his ineligibility, and advocates pointed to the fact that he had waited for six hours to vote — while working two jobs, including one that starts at 6 a.m. — as evidence of this.

Rogers is over 60 years old, so a conviction could have resulted in what amounted to a life sentence.

“It has been horrible to go through this, and I am so glad my case is over. I look forward to being able to get back to my life,” he added in the statement.

See here for the background. As a reminder, Hervis Rogers was initially jailed on a $100,000 bond – which is higher than what is often assessed on murder suspects – in Montgomery County. Not Harris County, where he voted, but Montgomery because Ken Paxton figured he’d have a better shot at conviction there. Literally everything about this was wrong, and it’s only because the Court of Criminal Appeals actually applied the state constitution that an even larger miscarriage of justice was avoided. Now if there were justice, Hervis Rogers would be able to sue not only the state of Texas but Ken Paxton personally for the needless suffering inflicted on him. None of that is going to happen, but the one thing we can do is vote Ken Paxton out of office, and never give him the chance to do this to someone else. The Chron has more.

Endorsement watch: A smattering

Oct 19th, 2022
by Charles Kuffner.
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The Chron endorses Stephanie Morales, the Democratic challenger in HD138.

Stephanie Morales

Stephanie Morales began her interview with the editorial board with a story about children who wind up in the care of Child Protective Services, fleeing harsh conditions at home only to find themselves sleeping in somebody’s office because the agency is so strapped for resources. Such are the heartbreaking realities that motivated her to run for the Texas House.

“I knew that there was a need,” she told us. “This is the perfect place for me to run where I can actually make a difference, because we need someone who has been boots-on-the-ground, actually representing kids and parents to truly change the system.”

Morales is a Texas A&M and South Texas College of Law-educated criminal defense lawyer whose cases often involve parents and juveniles in the CPS system. In her meeting with us, she talked at length about the “unintended consequences” of recent legislation meant to improve how the agency works. She displayed an expertise that would benefit the Legislature, and her constituents. She wants to add funding for more trauma-informed courts like the ones in use in Harris County, and to build and fund a halfway-house program for people who age out of the foster care system.

Morales, 33, is running for House District 138, which covers Jersey Village, Spring Branch and other parts of west Harris County. She argues that she’ll be more civically engaged, particularly with supporting children’s needs, than Republican incumbent Lacey Hull. “This district needs someone who will really advocate for them and wrangle resources that we need here,” she said.

She told us that her legislative priorities also would include bolstering protections against flooding, passing whatever “commonsense” gun-safety laws might be possible, improving the credit-recapture system in Texas schools and increasing teacher pay.

Hull was another Republican who didn’t bother to screen with them, and the Chron rightly dings her for her anti-trans activism. This is as noted one of the few competitive State House districts in the area, likely the only one in Harris County that has a chance of flipping. I’ll be very interested to see how it performs in comparison to 2020. You can listen to my interview with Stephanie Morales, who is indeed a strong candidate and would make a fine legislator, here.

Elsewhere, the Chron endorses three Republican Supreme Court incumbents, two Republican CCA incumbents, the Libertarian candidate in CD22, as the Republican incumbent is an insurrection-loving MAGA-head and the Democratic candidate appears to be an apparition, State Rep. Jon Rosenthal, now in a much bluer district, US Rep. Sylvia Garcia, and a bunch of Criminal District Court nominees, slightly more than half of whom are Dem incumbents. They still have a ton of races to get to, and as has been the case in a number of elections they will have to do many of them after voting has begun.

CCA tells Paxton again that he’s not the supreme prosecutor

Sep 30th, 2022
by Charles Kuffner.
Comments are off for this post

Good, but this isn’t over. It just means that the fight will have shifted.

Best mugshot ever

Texas Attorney General Ken Paxton’s last-ditch attempt to regain the power of his office to unilaterally prosecute election cases was rejected by the state’s highest criminal court Wednesday.

The Court of Criminal Appeals instead upheld its previous ruling that says that the attorney general must get permission from local county prosecutors to pursue cases on issues like voter fraud. Paxton had been fighting to overturn that ruling as the issue of prosecuting election fraud has become fraught in recent years. Paxton sought to overturn the results of the 2020 presidential election and has aggressively pursued individual cases of fraud, outraging some voting rights advocates who see the punishments as too harsh for people who made honest mistakes.

Last December, eight of the nine members on the all-GOP court struck down a law that previously allowed Paxton’s office to take on those cases without local consent. The court said the law violated the separation-of-powers clause in the Texas Constitution.

In the aftermath, Paxton, joined by Gov. Greg Abbott and Lt. Gov. Dan Patrick, led a political push to get the court to reconsider its decision, warning that it would allow cases of fraud to go unpunished. His office filed a motion asking the Court of Criminal Appeals to rehear the case, vacate its previous opinion and affirm an appellate court’s judgment, which was in his favor.

The court’s decision Wednesday came with no explanation, though one judge wrote a concurring opinion.

“I still agree with our original decision handed down in December, when we recognized that the specific powers given to the Attorney General by the Texas Constitution do not include the ability to initiate criminal proceedings—even in cases involving alleged violations of the Election Code,” Judge Scott Walker wrote.

Two judges dissented in the case.

See here and here for the background. It’s good that the CCA was able to withstand the political pressure to change their ruling to something that sated Paxton’s blood lust, but that pressure isn’t going to just dissipate on its own. The usual suspects are now agitating for the Legislature to step in and change the law. As far as I can tell, the CCA made its ruling not on statutory grounds but on Constitutional grounds (*), and as such it would take a Constitutional amendment to change this. Which is good news because the Lege won’t have a two-thirds Republican majority in both chambers, which would be needed for this to happen. But that doesn’t mean they won’t try it anyway, and if it comes back through the courts again on those grounds, who knows what could happen. You know what the solution to this is, I don’t have to tell you. The Chron has more.

(*) Noted in some of the coverage of this is that the same ruling means that Paxton couldn’t unilaterally decide to pursue prosecutions of any abortion “crimes” he likes, either. The Lege is sure to work on bills that would allow DAs from other counties to prosecute such charges in the event that the DA of the county in question chooses not to, so that may not make much difference. That same logic might also apply to whatever “vote fraud” charges these guys want to include, too.

Crystal Mason’s conviction to be reconsidered

May 12th, 2022
by Charles Kuffner.
1 comment

Good news.

The Texas Court of Criminal Appeals has told a lower appeals court to take another look at the controversial illegal voting conviction of Crystal Mason, who was given a five-year prison sentence for casting a provisional ballot in the 2016 election while she was on supervised release for a federal conviction.

The state’s court of last resort for criminal matters on Wednesday ruled a lower appeals court had wrongly upheld Mason’s conviction by concluding that it was “irrelevant” to Mason’s prosecution that she did not know she was ineligible to cast a ballot. The ruling opens the door for Mason’s conviction to ultimately be overturned.

Mason’s lawyers turned to the Texas Court of Criminal Appeals after the Tarrant County-based Second Court of Appeals found that her knowledge that she was on supervised release, and therefore ineligible to vote, was sufficient for an illegal voting conviction. Mason has said she did know she was ineligible to vote and wouldn’t have knowingly risked her freedom.

On Wednesday, the Texas Court of Criminal Appeals ruled that the lower court had “erred by failing to require proof that [Mason] had actual knowledge that it was a crime for her to vote while on supervised release.” They sent the case back down with instructions for the lower court to “evaluate the sufficiency” of the evidence against Mason.

[…]

In Wednesday’s ruling, the court held that the Texas election code requires individuals to know they are ineligible to vote to be convicted of illegal voting.

“To construe the statute to mean that a person can be guilty even if she does not ‘know[] the person is not eligible to vote’ is to disregard the words the Legislature intended,” the court wrote. “It turns the knowledge requirement into a sort of negligence scheme wherein a person can be guilty because she fails to take reasonable care to ensure that she is eligible to vote.”

The court on Wednesday ruled against Mason on two other issues. They rejected her arguments that the lower court had interpreted the state’s illegal voting statute in a way that criminalized the good faith submission of provisional ballots, and that the appeals court had wrongly found she “voted in an election” even though her provisional ballot was never counted.

See here, here, and here for some background. Of particular interest is that the recent voter suppression law played a positive role in this outcome.

Insisting they’re not criminalizing individuals who merely vote by mistake, Tarrant County prosecutors have said Mason’s case is about intent. The case against her has turned on the affidavit she signed when submitting her provisional ballot.

But the legal landscape underpinning Tarrant County’s prosecution shifted while the case was under review, the Texas Court of Criminal Appeals noted.

Last year, the Texas Legislature included in its sweeping new voting law several changes to the election code’s illegal voting provisions. The law, known as Senate Bill 1, added new language stating that Texans may not be convicted of voting illegally “solely upon the fact that the person signed a provisional ballot,” instead requiring other evidence to corroborate they knowingly tried to cast an unlawful vote.

The Legislature’s change to the election code — along with a resolution passed in the Texas House regarding the interpretation of the illegal voting statute — are “persuasive authority” that the lower court’s interpretation of the law’s mens rea requirement was incorrect, the Texas Court of Criminal Appeals ruled on Wednesday.

Good. This isn’t over for Mason, as this is just about the appeal of her conviction. Even if the appeals court ultimately throws it out after reconsideration, Tarrant County could still pursue this case and who knows, they might be able to convict her again. It sure seems like the spine of the case against her has been removed, though. And no matter how you look at it, she has already suffered consequences far in excess of her original sin, however you measure it. Please let this be over for her. The Dallas Observer has more.

State Bar complaint against Paxton to proceed

Mar 10th, 2022
by Charles Kuffner.
1 comment

Nice, but I’m still not expecting there to be consequences for him. I will be delighted to be wrong about that.

Best mugshot ever

A Texas State Bar complaint against Attorney General Ken Paxton is moving forward and will be heard by either a district court judge or an administrative panel, the complainants said Tuesday.

The complaint was filed in July 2021 by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar. It alleges that Paxton committed professional misconduct when he filed the December 2020 suit before the U.S. Supreme Court seeking to overturn the presidential election results in four battleground states. The complainants say the suit was frivolous, knowingly false and deceitful.

The deadline for a decision on whether there is just cause to move forward, prescribed by the Texas Rules of Disciplinary Procedure, was Sunday, and the complainants have not been notified of a dismissal.

“This is a big step because this rarely happens,” said Jim Harrington, one of the Texas lawyers who joined the complaint and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “I just know from being a lawyer for 50 years, this is very rare.”

[…]

Under the disciplinary rules, Paxton has 20 days to decide whether to request the case be heard by a district court, where proceedings are public, or by an evidentiary panel. If he chooses the evidentiary panel, the proceedings will be kept private unless public sanctions are imposed. Dismissals or private sanctions are not made public.

Harrington rejected the claim by Paxton that the complaint was guided by political bias.

“That’s the way he always is. Anyone who disagrees with him is on some sort of political witchhunt,” he said. “It doesn’t matter to me what a person’s politics are … We lawyers, it’s very clear we have an ethical responsibility. It’s very clear we have to follow the rules.”

See here for some background on the July complaint against Paxton. There was a similar complaint filed in June, to which Paxton responded in July. I do not know what the status of that complaint is – you’d think it would be ahead of this one in the queue, but as noted I don’t know how this process works. Last month, there was another complaint filed over Paxton’s thuggish attempt to intimidate the Court of Criminal Appeals for its rejection of his attempt to become the supreme prosecutor of all voter fraud allegations.

Anyway. Harrington states in the article that he believes it would be appropriate for Paxton to lose his law license over this, which is the maximum penalty the Bar can levy. I agree with that, but please note that would not disqualify him from being the Attorney General. It would just be humiliating, if it’s possible for Ken Paxton to be humiliated. My guess is that he’ll choose the evidentiary panel to proceed, but we’ll know soon enough. The Trib has more.

CCA will take up the question of where Paxton’s securities trial should be

Mar 7th, 2022
by Charles Kuffner.
Comments are off for this post

Time for an OG Paxton scandal update.

Best mugshot ever

The state’s top appeals court on Wednesday agreed to take up the question of where Texas Attorney General Ken Paxton should be tried for alleged securities fraud, a small victory for prosecutors pursuing the criminal cases against the Republican official.

The Texas Court of Criminal Appeals will settle whether Paxton’s trials should be held in Collin County, where the attorney general’s legal team would like to make their case, or in Harris County. Special prosecutor Brian Wice on Wednesday said a lower court decision to move the case to Collin County was a mistake.

“We’re confident today’s decision means the Court of Criminal Appeals will agree,” Wice said in a statement.

Paxton, a Republican, has been under active indictment for the majority of his time in statewide office.

[…]

In 2017, the cases against Paxton were moved after a judge previously presiding over the case agreed with prosecutors that they might struggle to get a impartial jury in Collin County, where the alleged crimes took place but also where Paxton lived and worked for decades.

Paxton’s lawyers took issue with the move to Harris County, which is more liberal politically. They challenged the decision by arguing that the judge’s time presiding over the case had already expired when he made it. In summer 2021, a Houston appeals court agreed with Paxton that Collin County was the proper venue for the cases against him and that any subsequent trials should be held there.

The prosecutors asked the Court of Criminal Appeals to reconsider that decision. It put the move on hold last year, and now will formally take up the issue and make the final decision on where the trials should be held.

See here for the previous update. If we’re lucky, maybe we’ll get a final determination about where the trial will be some time this year, though that’s probably too optimistic. In any event, this is now what appears to be the last obstacle in place before the trial itself can occur. If the original indictments of Ken Paxton were a person, it would now be old enough to be in first grade. Let’s hope we get a resolution to all this before it goes to high school.

Yet another State Bar complaint filed against Paxton

Feb 17th, 2022
by Charles Kuffner.
Comments are off for this post

Put it on his tab.

Best mugshot ever

Texas Attorney General Ken Paxton might have crossed an ethical line after inciting members of the public to pressure The Texas Court of Criminal Appeals into issuing a ruling in his favor.

Micheal Shirk, a retired Austin lawyer caught wind of what Paxton was up to and filed a complaint with the State Bar of Texas.

Paxton’s action violated his duty as a lawyer, his oath to defend the Texas Constitution, and a state law that requires attorneys to practice law honestly, according to a grievance filed Friday by Shirk, as reported by Austin American-Statesman.

Paxton, the Texas attorney general since 2015, requested the Texas Court of Criminal Appeals to reverse the 8-1 ruling that struck down the law that ended his ability to unilaterally prosecute election law violations.

After being rejected, Paxton turned to media outlets to solicit his followers’ help.

[…]

In his grievance to the State Bar, Shirk made three allegations that would result in Paxton losing his Texas law license:

  1. The Texas Disciplinary Rules of Professional Conduct, the ethics code governing conduct for judges and lawyers place strict limits on the contact attorneys can have with judges outside of court.
  2. Paxton supported calling the Legislature back for a special session to pass an identical or stronger law than the one struck down by the court.

    This would let him investigate and process voter fraud for at least several years until the Court of Criminal Appeals would “strike it down again,” as reported by Austin American-Statesman.  

    “This undisputed advocacy for an unconstitutional law is a basis for the revocation of Mr. Paxton’s bar license,” Shirk wrote. “There is no greater abuse of public office than to encourage the subversion and suspension of constitutional protections, even if for only ‘several years.’”

  3. When Paxton accused the court of having made the ruling because of political motivations, it was considered “systematic and coordinated misconduct.”

    “These unsupportable, perfidious, and demeaning assertions are especially grave when issued by the highest law enforcement officer in Texas,” Shirk told the State Bar.

See here, here, and here for the background. To say the least, Paxton is used to this. I’m not sure I can fully count all of the complaints that have been lodged against him. Here’s one from 2014, based on the facts that later turned into the everlasting securities fraud charges he’s faced since 2015. There were two from 2016 that were dismissed, one also about the securities issue and one about Paxton advising county clerks that they didn’t have to offer marriage licenses to same-sex couples following the Obergefell decision. There are still two active complaints against him relating to the egregious lawsuit he filed seeking to overturn the 2020 election. I don’t know where they are in the pipeline, but as of September Greg Abbott and Dan Patrick were whining about them on his behalf. The dude attracts trouble like garbage attracts flies.

Do I think any of these complaints are likely to lead to actual consequences for Paxton? No, I don’t. At least, not as long as he’s Attorney General, they won’t. Maybe if he gets bounced in the election, that could happen. If the FBI frog marches him out of his office at some point, maybe. For now, while he’s in a position of power, the furor that would result from him even getting slapped on the wrist is too much. It’s nice to think that the rules do apply to him, but from where I sit I don’t see that happening. The Chron has more.

Can the CCA withstand political pressure?

Jan 28th, 2022
by Charles Kuffner.
2 comments

Sure hope so.

Best mugshot ever

Texas Court of Criminal Appeals judges’ phone lines and email inboxes have been flooded for more than a week by callers angry about a ruling last month that stripped Attorney General Ken Paxton of the authority to prosecute election fraud cases without cooperation of the local district attorney or county attorney.

At least some of the calls were spurred by an automated phone message from Houston activist Dr. Steven Hotze that were sent to tens of thousands of Republicans statewide by his political action committee, Conservative Republicans of Texas. The pre-recorded message, a copy of which was obtained by Hearst Newspapers, included the phone number to the all-Republican court and urged them to call the judges.

“Leave a message that you want the court to restore Paxton’s right to prosecute voter fraud in Texas,” Hotze said. “If this decision isn’t reversed, then the Democrats will steal the elections in November and turn Texas blue.”

The group is also funding radio and TV ads on the subject, said Jared Woodfill, a spokesman and attorney for Hotze.

“It’s Dr. Hotze’s position that the electorate should be able to reach out to the officials they elect,” Woodfill said.

The court’s general counsel Sian Schilhab on Monday said the unusual flood of communications included one email was referred to the Texas Department of Public Safety, which investigates threats against state employees.

Paxton has requested a rehearing of the case, and Hotze and more than two dozen Texas Republican Congressmen, state senators and representatives are supporting him in friend-of-the-court briefs.

[…]

Paxton has publicly blasted the court’s Republican judges for the decision. He and other Republicans have also suggested Democratic district attorneys will not be vigilant against election fraud.

“Now, thanks to the Texas Criminal Court of Appeals, Soros-funded district attorneys will have sole power to decide whether election fraud has occurred in Texas,” Paxton wrote on Twitter at the time of the decision, referring to the Democratic mega-donor. “This ruling could be devastating for future elections in Texas.”

Other Republicans statewide have made similar comments in pushing for reconsideration.

“The Attorney General’s Office must be able to defend election integrity in our great state,” wrote Sen. Paul Bettencourt, one of 14 state senators who signed onto a friend-of-the-court brief, in a statement last week. “We cannot allow our elections to be manipulated.”

See here and here for the background. The Statesman story about this has the most precious sentence I think I’ve ever read, which is that Paxton’s urging people to call the justices’ office and demand that they change their ruling puts him “in an ethical gray area, if not in outright violation of the state’s rules of conduct for lawyers.” Oh heavens to Betsy, not an “ethical gray area”! Not our dear, super-upright Ken Paxton!

I guess I appreciate the fact that no one here is trying to hide their motives, that this is all very clearly about politics and giving Ken Paxton the unfettered power to attack political opponents (primarily Democrats, though you never-Trump Republicans better not sleep too easily either) in whatever fashion he sees fit. They do this by attacking the political motives of district attorneys, because accusing enemies of doing the things you want to do is how it’s done. There’s no way to remove the politics from the process of investigating and prosecuting politicians for alleged crimes, but one can at least be as professional and dispassionate about it as possible. If we had an Attorney General who could be trusted to act in such a fashion, then the likes of Sen. Bettencourt might be able to shepherd a constitutional amendment through the Lege to clarify that point of law that the CCA cited. He’d need to get some Democrats on board to clear the 2/3 majority requirement in each chamber for this, which will never and could never happen as long as the AG is Ken Paxton, or anyone who wants to emulate Ken Paxton. There is a way forward if we really want the AG to have this power, but you sure can’t get there from here.

As for the big question I asked in the title of this post, there’s this.

Randall Kelso, a professor at South Texas College of Law, said courts like the Court of Criminal Appeals tend to be reluctant to reverse to their decisions unless at least one of three conditions are met: There is a change in the facts at the core of the case, the ruling proves to be “unworkable in practice” or judges are persuaded that the decision was “substantially wrong.” Kelso said he did not see how the first two conditions apply to the current situation, and as for proving that the ruling was “substantially wrong,” he added, there is usually a “pretty high burden.”

“Just because the various Texas lawmakers are petitioning, I wouldn’t predict they’d just cave to them and say, ‘We’ve gotta change our minds,'” Kelso said. “It’d be unusual to do it unless” any of those conditions are met.

I sure hope so. If nothing else, I hope their ego kicks in to the point of them muttering “Those idiots don’t get to tell me how to do my job” for however long it takes. It may be our best hope.

Paxton still wants to be supreme prosecutor

Jan 7th, 2022
by Charles Kuffner.
Comments are off for this post

Please hold firm, CCA.

Best mugshot ever

Texas Attorney General Ken Paxton has asked the state’s highest criminal court to reconsider a recent decision that stripped his agency of the power to prosecute election law violations.

The Texas Court of Criminal Appeals, in an 8-1 ruling issued Dec. 15, struck down the state law that gave the attorney general’s office the authority to pursue criminal violations of the Election Code.

That 1985 law, the all-Republican court determined, violated the Texas Constitution’s separation of powers doctrine by granting Paxton’s executive branch office the prosecution authority that is reserved for district and county attorneys, who are members of the judicial branch.

Paxton, in a motion for rehearing filed electronically Sunday, asked the appeals court to reconsider, arguing that the ruling improperly stepped on the Legislature’s ability to delegate power to his agency.

[…]

In its December ruling, the Court of Criminal Appeals said the Texas Constitution gives district and county attorneys the power to prosecute criminal law violations, with the ability to seek help from Paxton’s agency if needed.

On the other hand, the court ruled, the constitution limits the attorney general’s powers to inquiring into charter rights of private corporations, suing in state court to prevent private corporations from exercising unlawful powers, seeking judicial forfeiture of charters, and providing legal advice to the governor and other executive officers.

“Notably absent from these enumerations is a specific grant of authority to the Attorney General concerning the prosecution of criminal proceedings,” said the ruling, written by Judge Jesse McClure III.

“In the Texas Constitution, the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally,” McClure wrote.

Paxton said the ruling upends about 70 years of practice and jeopardizes the prosecution of election law violations by leaving it to local prosecutors — including some who, he said, can’t be trusted with the job.

“Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” he said.

See here for the background. We all know what it is that Paxton wants to do, and I’m sure the CCA is aware as well. Their ruling was clear and it wasn’t close, and given Paxton’s plainly stated motivations, the only possible explanation for a reversal at this point – again, a reversal of their own 8-1 ruling, handed down less than a month ago – would be pure partisan politics. Is the CCA able to withstand that kind of pressure? I sure hope so.

CCA tells Ken Paxton he’s not the supreme prosecutor

Dec 16th, 2021
by Charles Kuffner.
2 comments

Cry me a river, Kenny.

Best mugshot ever

Texas’ highest court for criminal cases on Wednesday struck down a law that allows the attorney general to unilaterally prosecute election cases.

The state’s Court of Criminal Appeals issued an 8-1 opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said.

Attorney General Ken Paxton, a Republican who has been aggressive in trying to root out voter fraud, bashed the opinion from the all-GOP court. He said in a tweet that the ruling “could be devastating for future elections in Texas.”

At stake was a part of the election code that says the attorney general, the state’s top law enforcement officer, “may prosecute a criminal offense prescribed by the election laws of this state.”

The provision was thrown into jeopardy by a long-winding case involving Jefferson County Sheriff Zena Stephens. After the county district attorney declined to prosecute Stephens over campaign-finance allegations stemming from the 2016 election, Paxton’s office stepped in and obtained an indictment from a grand jury in neighboring Chambers County.

In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.”

Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

I don’t have any posts about this, but from reading the opinion, Sheriff Stephens, who was elected in 2016, was charged with making false claims on her finance report, specifically claiming that some $5,000 contributions were actually under $50. I don’t know what her explanation was, or why the JeffCo DA declined to prosecute. The rest of the opinion is pretty dense and technical, but the summary of what is at stake is quite simple. Here’s the opening paragraph from the opinion:

Zena Collins Stephens appeals both the court of appeals’ denial of a pretrial writ of habeas corpus and its reversal of the district court’s decision to quash Count I of the indictment. She presents the following question: May the Texas Legislature delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts? No. Because Texas Election Code section 273.021 delegates to the Attorney General a power more properly assigned to the judicial department, we conclude that the statute is unconstitutional. Therefore, we reverse the decision of the court of appeals and remand the case to the trial court to dismiss the indictment.

And here’s the section of the law in question, which is now null and void. Interestingly, that law passed originally in 1985, and was last modified in 1997. Either no AG had ever tried this before, or there are some people that have been prosecuted and maybe convicted under this statute that deserve some relief.

Anyway. I for one will sleep better tonight knowing that Ken Paxton does not have unfettered discretion to bring vote “fraud” charges against anyone he feels like. (I’m also old enough to remember when the main function of the AG’s office was civil enforcement and collecting child support. My aunt worked in that office in the 80s and 90s, and that was what her department did.) I’ll give the last word to these gentlemen:

I’ll take my wins where I can get them.

The filings I’m still looking for

Dec 13th, 2021
by Charles Kuffner.
3 comments

Today is Filing Deadline Day. By the end of today, we’ll know who is and isn’t running for what. While we wait for that, let’s review the filings that have not yet happened, to see what mysteries may remain.

Congress: Most of the potentially competitive districts have Democratic candidates in them. The ones that remain are CDs 22, 26, 31, and 38, though I have been told there is a candidate lined up for that latter slot. Of the rest, CD22 would be the biggest miss if no one files. I have to think someone will, but we’ll know soon enough.

For open seats, CD15 has five candidates so far, none of whom are familiar to me. CD30 has six candidates, with State Rep. Jasmine Crockett receiving the endorsement of outgoing Rep. Eddie Bernice Johnson. CD34 has six, with current CD15 Rep. Vicente Gonzalez the presumed favorite. CD35 has three serious contenders – Austin City Council member Greg Casar, former San Antonio City Council Member Rebecca Viagran, and State Rep. Eddie Rodrigues – and one person you’ve not heard of. CD37 has Rep. Lloyd Doggett and former CD31 candidate Donna Imam, in addition to a couple of low-profile hopefuls, but it will not have former CD25 candidate Julie Oliver, who has said she will not run.

Democratic incumbents who have primary challengers include Rep. Lizzie Fletcher in CD07 (I’m still waiting to see if Centrell Reed makes some kind of announcement); Rep. Veronica Escobar in CD16 (I don’t get the sense her challenger is a serious one); and Rep. Henry Cuellar in CD28, who gets a rematch with Jessica Cisneros, who came close to beating him last year. The Svitek spreadsheet lists some dude as a potential challenger in CD18 against Rep. Sheila Jackson Lee, but so far no filing. Reps. Al Green, Joaquin Castro, Sylvia Garcia, Colin Allred, and Marc Veasey do not appear to have any challengers as of this morning.

Statewide: Pretty much everyone who has said they are a candidate has filed. Frequent candidate Michael Cooper and someone named Innocencio Barrientez have filed for Governor, making it a four-candidate field. Two Harris County district court judges, Julia Maldonado and Robert Johnson, have filed for slots on the Supreme Court and CCA, respectively. The Svitek spreadsheet lists potential but not yet filed contenders for two other Supreme Court positions but has no listings for CCA. The one potential candidate who has not yet taken action is Carla Brailey, who may or may not file for Lt. Governor.

SBOE: As this is a post-redistricting year, all SBOE seats are on the ballot, as are all State Senate seats. Dems have four reasonable challenge opportunities: Michelle Palmer is running again in SBOE6, Jonathan Cocks switched from the Land Commissioner race to file in SBOE8, Alex Cornwallis is in SBOE12, and then there’s whatever is happening in SBOE11. The good news is that DC Caldwell has company in the primary, if he is actually allowed to run in it, as Luis Sifuentes is also running. I would advise voting for Sifuentes.

There are two open Democratic seats, plus one that I’m not sure about. Ruben Cortez in SBOE2 and Lawrence Allen in SBOE4 are running for HDs 37 and 26, respectively. There are two candidates in 2 and three candidates in 4, so far. Georgina Perez is the incumbent in SBOE1 but as yet has not filed. If she has announced that she’s not running, I have not seen it. There is a candidate named Melissa Ortega in the race.

In SBOE5, the district that was flipped by Rebecca Bell-Metereau in 2020 and was subsequently made more Democratic in redistricting, we have the one primary challenge to an incumbent so far, as a candidate named Juan Juarez has filed against Bell-Metereau. I’m old enough to remember Marisa Perez coming out of nowhere to oust Michael Soto in 2012, so anything can happen here. The aforementioned Perez (now Marisa Perez-Diaz) and Aicha Davis are unopposed so far.

Senate: Nothing much here that you don’t already know. Every incumbent except Eddie Lucio has filed for re-election, and none of them have primary opponents so far. Lucio’s SD27 has the three challengers we knew about, Sara Stapleton-Barrera, State Rep. Alex Dominguez, and Morgan LaMantia. A candidate named Misty Bishop had filed for SD07, was rejected, and has since re-filed for SD04; I’m going to guess that residency issues were at play. There are Dem challengers in SD09 (Gwenn Burud, who has run for this office before) and SD17 (Miguel Gonzalez), but no one yet for SDs 07 or 08.

House: Here’s the list of potentially competitive districts, for some value of the word “competitive”. Now here’s a list of districts on that list that do not yet have a filed candidate:

HD14
HD25
HD28
HD29
HD55
HD57
HD61
HD66
HD67
HD84
HD89
HD96
HD106
HD126
HD129
HD133
HD150

I’m told there’s someone lined up for HD133. We’ll see about the rest.

All of the open seats have at least one candidate in them so far except for HD22, the seat now held by Joe Deshotel. There’s a name listed on the Svitek spreadsheet, so I assume that will be sorted by the end of the day.

Reps. Ron Reynolds (HD27), Ana-Maria Ramos (HD102), and Carl Sherman (HD109) are incumbents who have not yet filed. No one else has filed yet in those districts as well. Svitek has a note saying that Rep. Ramos has confirmed she will file; there are no notes for the other two. There is the possibility of a last-minute retirement, with a possibly preferred successor coming in at the same time.

Here is a complete list of Democratic House incumbents who face a primary challenge: Rep. Richard Raymond (HD42) and Rep. Alma Allen (HD131). Both have faced and turned away such opponents in the past. If there was supposed to be a wave of primary opponents to incumbents who came back early from Washington, they have not shown up yet.

Rep. James Talarico has moved from HD52 to the open HD50 after HD52 was made into a lean-Republican district. Rep. Claudia Ordaz-Perez, the incumbent in HD76, will run in HD79 against Rep. Art Fierro after HD76 was relocated from El Paso to Fort Bend.

Harris County: Again, nothing new here. Erica Davis has not yet filed for County Judge. County Clerk Teneshia Hudpseth is the only non-judicial incumbent without a primary opponent so far.

Far as I can tell, all of the county judicial slots have at least one filing in them, except for a couple of Justice of the Peace positions. George Risner, the JP in Precinct 2, Place 2 (all JP Place 2 slots are on the ballot this year) has not yet filed, amid rumors that he is mulling a challenge to Commissioner Adrian Garcia. Incumbent Angela Rodriguez in JP precinct 6 has not yet filed. No Dem challengers yet in precincts 4 or 8.

Other judicial races: Sorry, I don’t have the bandwidth for this right now. I’ll review it after today.

And that’s all I’ve got. See you on the other side. As always, leave your hot gossip in the comments.

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

Dec 13th, 2021
by Charles Kuffner.
Comments are off for this post

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.

The fate of the Paxton trial location is once again with the CCA

Oct 12th, 2021
by Charles Kuffner.
Comments are off for this post

Best mugshot ever

As you recall, the very long-awaited securities fraud trail of Ken Paxton is ticketed to go back to Collin County after the First Court of Appeals denied a request for an en banc hearing to reconsider the court’s previous ruling that had upheld the Harris County district court judge’s ruling from last year (and was itself a confirmation of a previous ruling). Special prosecutor Brian Wice has argued that the reason for that ruling is in error, and as such has filed a petition for a writ of mandamus with the Court of Criminal Appeals to overturn the First Court and keep the trial in Harris County.

The main thrust of the petition is that the First Court erred in its ruling, and for a detailed explanation of why it erred can be found here. The TL;dr of that is basically that Team Paxton has been playing fast and loose with its arguments about the original judge’s appointment to the case – if you read that petition, you will see multiple uses of the word “sandbag” or “sandbagging” – and it makes heavy use of the dissenting judge’s opinion from that First Court case. The Court of Criminal Appeals is notoriously pro-prosecutor, except when it isn’t, so who knows what they’ll do and who knows how long it will take. But we are at a point in this ridiculously long and drawn-out saga where the next step will be for the question of where the trial should be is resolved, and we will presumably move on to fighting about the actual trial. (There are still questions about the pay for the special prosecutors, which is a whole ‘nother can of worms.)

Anyway. Since people like to make snarky comments on Facebook and Twitter about how long Ken Paxton has been under indictment without having gone to trial, the least I can do is update you on the legal bits and pieces as we wend our way every so slowly towards that day. You’re welcome.

First Court denies en banc hearing for Paxton trial move

Sep 10th, 2021
by Charles Kuffner.
Comments are off for this post

We’re at a point in the Ken Paxton criminal case where it’s hard to adequately summarize the most recent development in a headline-sized bite.

Best mugshot ever

Attorney General Ken Paxton’s securities fraud case can be tried in his home county in North Texas, an appeals court affirmed Thursday when it denied the prosecution’s plea to reconsider the decision.

The 1st Court of Appeals in Houston denied a motion by prosecutors to hold a hearing of the full nine-justice court to review the decision made by a three-justice panel of the court in May to move the case from Harris County back to Collin County, where Paxton lives. The order could have avoided further delays in the six-year-old criminal case against the sitting attorney general and returned the case to what is seen as a friendlier venue to the two-term Republican incumbent. But on Thursday, the prosecution said it would continue its appeals.

“Because we agree with the dissenting justices that there are critical errors in the majority’s decision, we will seek further review of it in the Court of Criminal Appeals,” special prosecutor Brian Wice said in a statement.

Justices Gordon Goodman and Amparo Guerra dissented to the court’s majority opinion and Justice April Farris did not participate. Goodman, who was part of the three-justice panel that sent the case back to Collin, had dissented in part to the original decision.

[…]

In May, the panel of three Democratic justices allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are well-known political figures.

But prosecutors had accused Paxton’s legal team of “sandbagging” the courts, by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County. Wice argued that Paxton’s legal team had waited until the presiding judge, Gallagher, of Tarrant County, had moved the case out of Collin County to bring up his expired term with the appeals court. Wice asked the full appeals court to reconsider the panel’s decision and determine whether Paxton’s legal team knew of Gallagher’s expired term earlier in the case.

The court’s majority denied that request.

See here, here, here, and here for the background. I had previously said that the First Court had granted the request for an en banc hearing, but all they had done at the time was ask for a response from Team Paxton to that request. I’ve always said I was not a lawyer, now you know why. Now we wait once again for the CCA process to play out.

The case against moving the Paxton trial back to Collin County just got more interesting

Jul 26th, 2021
by Charles Kuffner.
Comments are off for this post

Best mugshot ever

All right, settle in for a minute, this is going to take a bit of explaining, and there’s no accompanying published news story that I know of. Way back in March of 2017, visiting District Court Judge George Gallagher (from Tarrant County), who was appointed to preside over the Ken Paxton trial in Collin County after literally every other District Court judge there recused themselves, ordered the trial to be moved from Collin County. A couple of weeks later, in April, he set Harris County as the venue. There was a note in one of the news stories about this that I gave no real thought to at the time, which was that “Paxton respectfully advises the Court that he will not be giving the statutorily-required written consent… to allow the Honorable George Gallagher or his court staff to continue to preside over the matter in Harris County”.

Judge Gallagher declined to step down, but Team Paxton pursued the matter, initially repeating the assertion that they did not give permission for Gallagher to follow the case to Harris County, but later asserting that Gallgher was no longer able to be judge because his appointment had expired at the end of 2016. (Note that we are now in May 2017 in this timeline, this becomes important later.) At the end of May, the 5th Court of Appeals sided with Paxton and ordered Gallagher off the case, voiding his rulings after the one that moved the case to Harris County. In June, the case was officially reassigned to Criminal District Court Judge Robert Johnson in Harris County.

After that, we settled into a long fight about the pay for the special prosecutors, culminating in a muddled ruling from the Court of Criminal Appeals in June of 2019 – yes, now two full years after the case was moved to Harris County. The issue of prosecutor pay was before Judge Johnson, but before he could begin to get anywhere on it, Team Paxton asked for the case to be moved back to Collin County; we are now in July of 2019. In December of 2019, Judge Johnson said he would rule on that Real Soon Now. That turned out to be six months later, in June of 2020, though that ruling had to be affirmed in October by a different judge, because Judge Johnson recused himself after it was pointed out that Paxton’s office was representing Johnson (among others) in the ongoing cash bail litigation. (That was yet another weird sideshow in a saga that has been little but sideshow, but never mind that for now.) Ultimately, Judge Johnson agreed with Paxton that Judge Gallagher’s ruling that sent the trial to Harris County was invalid because Gallgher’s term had expired at the time he made that ruling. In May of 2021, a three-judge panel on the First Court of Appeals agreed.

Just a little recap here, Judge George Gallagher was appointed to preside over the Paxton trial in July of 2015 by the administrative judge of the Second Court of Appeals (Mary Murphy). That appointment expired on January 2, 2017, but no one said anything at the time. In April 2017, Judge Gallagher ordered the trial moved to Harris County, where he would preside, but Paxton declined to approve his continued service (as is required by state law in these matters) and then filed a motion in May to boot Gallagher from the case because his appointment had expired back in January. That motion was granted later in May, Judge Johnson was randomly selected by the Harris County District Clerk in June, and on we went. Then in 2019, Paxton filed a motion to move the case back to Collin County, claiming now that Judge Gallagher’s original ruling to move the case was also invalid, again because his appointment had expired. That motion was granted and was upheld on appeal, which is now on hold as the special prosecutors have requested and were granted an en banc hearing to reconsider.

OK, now that we are caught up, you may be wondering why there was a four-month gap between when Gallagher’s appointment expired and Paxton first filed a motion that was based on said expiration. You may also note that said motion came shortly (but not immediately) after Gallagher’s order moving the trial to Harris County. Is that timing maybe a little convenient? I’m glad you asked, because that very subject comes up in the reply filed by the special prosecutors. I would encourage you to read that filing – it’s not very long, and it contains high doses of shade thrown by the special prosecutors at Paxton. We have previously seen how lethal and entertaining they can be when served a pitch in the zone, and you will get a good laugh out of their efforts this time as well.

But what’s crucial is this: Errors like nobody noticing that Judge Gallagher’s appointment had lapsed happen. Remember, his appointment had been made more than a year before, and I guess no one put a reminder on their calendar to ask for it to be re-upped. Normally, such minor errors are trivially resolved, but the thing is that the law requires any objections made to such a lapsed appointment be made in a timely fashion, and at one’s earliest opportunity. Paxton claimed that’s what they did, and in the initial First Court ruling, it was noted that there was no evidence to suggest otherwise. Except, as it turns out, they did know, and in fact they knew ahead of time, and then sat on that information until it was convenient to them to wheel it out. How do we know that? Because, as it turns out and as the special prosecutors managed to discover in the interim, there was an email sent by Administrative Judge Mary Murphy to Paxton’s defense team on April 24, 2017 – after Paxton refused to give his consent to Gallagher’s continued service on the trial, but before he first claimed that Gallagher was no longer allowed to continue because his appointment had expired – that sent them copies of communications about Gallagher’s appointment from July 2015, and which they said they had previously sent in November of 2015. In other words, Paxton received an inadvertent reminder of the appointment expiration from Justice Murphy in April 2017, right before he started arguing about it. He had that information all along, but did not do anything about it. And then it landed in his lap again, and they took advantage.

Again, I urge you to read the filing (the Team Paxton filing, which preceded this by about a week, is here. They lay out the argument for why Paxton “sandbagged” the court (their words), and show all the opportunities Paxton had to object to Gallagher’s continued presence on the case after the expiration but didn’t do so. That, they argue, invalidates the later objections based on the lapsed appointment because they didn’t do it in a timely fashion, and what’s more they knew or should have known they weren’t timely. I just wanted to provide a longer-than-I-originally-planned review of how we got here. The bottom line is that the special prosecutors’ argument is that the original rulings that ordered the case back to Collin County were in error, and they have a new piece of evidence to show why it was in error. Now we just have to wait and see what the First Court of Appeals does with that information. As you can see from this post, we may be waiting for awhile. But hey, at least we’re used to that.

En banc request granted for Paxton trial moving issue

Jun 18th, 2021
by Charles Kuffner.
Comments are off for this post

Best mugshot ever

I don’t know if that headline makes sense, but it’s the natural next step after the special prosecutors in the Ken Paxton trial asked the First Court of Appeals to reconsider its ruling that would send the trial back to Collin County. The only news stories I have seen for this are behind paywalls – here’s the Statesman and here’s Law360 – but really all you need to know is in the two court orders. This one grants the temporary stay of the previous ruling pending the en banc hearing. This one says that Team Paxton has 30 days to file a response to the special prosecutors’ request.

After that, the full court will take however much time they will take and then issue their ruling. In theory, based on previous experience, we may get that ruling around the end of the year, give or take a month or two. And then, because we’ve seen this movie before and we know how it goes, whatever that ruling is will be appealed to the CCA. In other words, don’t expect there to be an actual trial any time soon.

Not so fast on moving the Paxton trial back to Collin County

Jun 11th, 2021
by Charles Kuffner.
1 comment

The special prosecutors have requested an en banc review of the three-judge panel ruling.

Best mugshot ever

Prosecutors in the felony fraud case against Attorney General Ken Paxton are asking the full 1st Court of Appeals to review a decision by a three-justice panel last month that moved the trial from Harris County back to Collin County, where Paxton lives, potentially adding another delay to a case that is nearly 6 years old.

In May, a panel of three Democratic justices in the 1st Court of Appeals in Houston allowed the case to return to Collin County on a vote of 2-1, ruling that the presiding judge who moved the case out of Collin County in March 2017 had no longer been assigned to the judicial region handling Paxton’s case. The ruling was a major victory for Paxton, who had asked the courts to be tried in his home county, a staunchly Republican area of the state where he and his wife, state Sen. Angela Paxton, R-McKinney, are major political figures.

[…]

In a court filing Tuesday, prosecutor Brian Wice accused Paxton’s legal team of “sandbagging” the courts by withholding information about the judge’s expired assignment so they could later raise the issue in an attempt to move the case back to Collin County.

Tarrant County Judge George Gallagher was handed the Paxton fraud case in August 2015 after the original judge in Collin County recused himself. At the time, Gallagher was temporarily assigned to the Collin County administrative judicial region, which is in a different region from Tarrant County. But his assignment only ran through Jan. 1, 2017.

Gallagher continued as the presiding judge after that date and issued his ruling to move the case out of Collin County in March 2017. That May, Paxton’s legal team asked an administrative court to block Gallagher’s ruling and remove him from the case because his temporary assignment had expired at the beginning of the year.

In his Tuesday request, Wice argued that Paxton’s team failed to bring up Gallagher’s expired term until after the change-of-venue ruling did not go in their favor, and asked the full 1st Court of Appeals to stay the three-justice panel’s decision until the full nine-justice court could review the ruling. Wice threw doubt on the idea that Paxton’s team came upon Gallagher’s expired temporary assignment only “by happenstance” and said the burden was on the attorney general’s defense team to show when it learned of the judge’s expired term.

The majority opinion had already rejected that argument, ruling that “nothing in the record shows a lack of reasonable diligence in bringing the challenge.” But Justice Gordon Goodman, who dissented in part, noted in his opinion that the court had no evidence as to “how or when Paxton’s counsel discovered that Gallagher’s assignment had expired.”

Wice argued that while a review of a panel decision by a full appeals court is usually not favored, it is the right move in this instance.

See here for the previous entry. As the story notes, it took the three-judge panel seven months to rule on the initial appeal, so if we’re lucky we might get a ruling from the full panel by the end of this year. The odds of getting Paxton into a courtroom to actually litigate the charges against him before November 2022 seem slim, but there’s no way to go but forward. Let’s hope the full 1st Court of Appeals hustles this thing along.

Paxton trial to head back to Collin County

May 28th, 2021
by Charles Kuffner.
Comments are off for this post

You can go home again, apparently.

Best mugshot ever

A panel of three justices ruled Thursday that Texas Attorney General Ken Paxton’s felony fraud charges should be held in Collin County — where he lives — instead of Harris County, after a yearslong back-and-forth over where his criminal case should be heard.

The lawsuit, now nearly six years old, has been shackled by procedural delays and has not yet gone to trial because of a number of appeals related to where the case should be heard and how much the prosecutors should be paid. The suit has loomed over Paxton for nearly his entire time as attorney general, including during his narrow reelection in 2018. If convicted, Paxton could face up to 99 years in prison.

Prosecutors in the suit claim Paxton persuaded investors to buy stock in a technology firm without disclosing he would be compensated for it back when he was a member of the Texas House. Paxton denies any wrongdoing and says the accusations are politically motivated.

A panel of three all-Democratic justices in the 1st Court Of Appeals in Houston on Thursday allowed the case to return to Paxton’s home county on a 2-1 vote because of a technicality, affirming a lower court’s decision after nearly seven months of deliberation.

The case was originally to be held in Collin County but prosecutors argued that having the trial there would be unfair because of his political ties in that region. Paxton represented Collin County in the Texas Legislature for years, and now his wife, state Sen. Angela Paxton, represents the region.

The dissenting justice, Gordon Goodman, said no matter where the case is held, it is time it goes to trial.

“At this point almost six years has elapsed since Paxton was indicted. Whichever district court ultimately receives these cases should move them to trial as expeditiously as possible,” Goodman wrote in his dissent. “Further delay is anything but expedient.”

See here for the last update, which was in October. I don’t think there is anything in nature that moves more slowly than the court proceedings for this case. The prosecutors are seeking an en banc ruling, which I can understand given the split among the three-judge panel, but honestly I’m with Justice Goodman. Let’s get this show on the road, if we finally can.

And on that note, a word about this.

“If it gets moved back to Collin County, that certainly is advantageous for Paxton for two reasons: One, it’s more likely to go to a Republican judge as opposed to a Democratic judge in Harris County,” said Mark Jones, a political science professor at Rice University who has studied the case, in an interview in 2019. “And any jury pool is going to be much more sympathetic to Paxton in Collin versus Harris.”

Yes, he’ll get a Republican judge in Collin County, though one would like to hope that the judge would be impartial regardless of where the trial was held. As for the jury, I think Professor Jones is overstating things a bit. Look at the numbers:

2016: Trump 55.6%, Clinton 38.9%
2020: Trump 51.4%, Biden 47.0%

2014: Paxton 66.0%, Houston 30.4%
2018: Paxton 52.7%, Nelson 44.7%

Paxton did worse than every other statewide Republican in Collin County in 2018 except for Ted Cruz, and he only beat Cruz by a tenth of a percentage point. It’s not crazy to think that Collin County could go for his opponent next year. It’s true that Collin County is considerably less Democratic than Harris County, and as such the jury pool will likely be Republican-leaning. It’s just nowhere near as Republican as it was when Paxton was first indicted in 2015. Maybe he should have gone for the speedy trial in the first place.

CCA to review Crystal Mason’s conviction

Apr 1st, 2021
by Charles Kuffner.
Comments are off for this post

Good.

The Texas Court of Criminal Appeals has agreed to review the illegal voting conviction of Crystal Mason, a Tarrant County woman facing a five-year prison sentence for casting a provisional ballot in the 2016 election while she was on supervised release for a federal conviction.

The state’s court of last resort for criminal matters granted Mason’s petition on Wednesday, elevating the profile of a case that could test the extent to which provisional ballots provide a safe harbor for voters amid questions about their eligibility. Her 2016 vote was never counted.

After discovering she was not on the voter roll, Mason submitted a provisional ballot in that year’s presidential election on the advice of a poll worker. Because she was still on supervised release for a federal tax fraud conviction, she was not eligible to participate in elections and her vote was rejected. Throughout the case, Mason has said she had no idea she was ineligible to vote under Texas law and wouldn’t have knowingly risked her freedom. But Tarrant County prosecutors pressed forward with charges, arguing Mason’s case came down to intent.

A trial court judge convicted her of illegally voting, a second-degree state felony, relying on an affidavit Mason signed before casting her provisional ballot. The affidavit required individuals to swear that “if a felon, I have completed all my punishment including any term of incarceration, parole, supervision, period of probation, or I have been pardoned.” Mason said she did not read that side of the paper.

The all-Republican court’s decision to review Mason’s case is notable. The Court of Criminal Appeals isn’t required to review non-death penalty convictions, and it rarely grants requests to do so. However, the court indicated it won’t hear oral arguments in the case and instead rely on legal briefs.

Mason turned to the Texas Court of Criminal Appeals late last year after a state appeals court panel affirmed the trial court’s judgement.

In her petition to the court, Mason’s lawyers argued the appeals court erred in upholding her conviction because the state’s illegal voting statute requires a person to know they are ineligible to vote and Mason did not. In its ruling, the three-judge appeals panel wrote that the fact Mason did not know she was ineligible was “irrelevant to her prosecution.”

“The State needed only to prove that she voted while knowing of the existence of the condition that made her ineligible,” Justice Wade Birdwell wrote in the court’s opinion. In other words, Mason’s knowledge that she was on supervised release was sufficient for an illegal voting conviction.

Mason’s lawyers argued that letting that finding stand “eviscerates” a voter’s right to cast a provisional ballot under the Help America Vote Act, which established provisional ballots as a way for people whose registration is in doubt to record their votes and allow local officials to later determine if those ballots should be counted.

“These issues have far reaching implications for Texas voters who make innocent mistakes concerning their eligibility to vote and could potentially be prosecuted for such mistakes, including the tens of thousands of voters who submit provisional ballots in general elections believing in good faith they are eligible to vote but turn out to be incorrect in that belief,” their brief read.

See here and here for some background. We can argue about whether Mason should have been convicted, and we can argue about whether people in Mason’s position should be able to vote (spoiler alert: my answers are “no” and “yes”, in that order), but if you believe a five-year prison sentence fits this “crime”, you’re just wrong. There are plenty of murderers and rapists who get off more easily than that. And by the way, if the various voter suppression worming their way through the Lege get passed, the state will have a lot more power to throw basically harmless people in jail for similar violations of made-up rules. The CCA is hardly known for being lenient on defendants, but I hope this time they do the right thing.

Precinct analysis: Fort Bend County, part 2

Feb 15th, 2021
by Charles Kuffner.
Comments are off for this post

Introduction
Congressional districts
State Rep districts
Commissioners Court/JP precincts
Comparing 2012 and 2016
Statewide judicial
Other jurisdictions
Appellate courts, Part 1
Appellate courts, Part 2
Judicial averages
Other cities
District Attorney
County Attorney
Sheriff
Tax Assessor
County Clerk
HCDE
Fort Bend, part 1

This post is going to focus on the judicial races in Fort Bend County. There are a lot of them – seven statewide, four appellate, five district and county – and I don’t want to split them into multiple posts because there’s not enough to say about them, nor do I want to present you with a wall of numbers that will make your eyes glaze over. So, I’m going to do a bit of analysis up top, then put all the number beneath the fold for those who want a closer look or to fact-check me. I’ll have one more post about the Fort Bend county races, and then maybe I’ll take a crack at Brazoria County, which will be even more manual labor than these posts were.

The point of interest at the statewide level is in the vote differentials between the three races that included a Libertarian candidate and the four races that did not. Just eyeballing the totals and bearing in mind that there’s some variance in each group, the Republican candidate got an increase of a bit more than half of the Libertarian vote total in each district, while the Democrats were more or less around the same level. That comports with the general thesis that Libertarians tend to take votes away from Republicans more than Democrats, though the effect here was pretty small. It’s also a small sample, and every county has its own characteristics, so don’t go drawing broad conclusions. For what it’s worth, there wasn’t anything here to contradict that piece of conventional wisdom.

For the appellate court races, the thing I have obsessed over is the incredibly small margin in the election for Chief Justice of the 14th Court of Appeals, which Jane Robinson lost by 1500 votes, or 0.06 percentage points. We saw in Harris County that she trailed the two victorious Democrats, Veronica Rivas-Molloy and Amparo Guerra, who were part of a trend in Harris County where Latino candidates generally out-performed the rest of the ticket. That wasn’t quite the case in Fort Bend. Robinson again trailed Rivas-Molloy by a little – in overall vote total, Robinson trailed Rivas-Molloy by about two thousand votes, while Republican Tracy Christopher did an equivalent amount better than Russell Lloyd. But unlike in Harris, Robinson outperformed Guerra, by about a thousand votes, and Guerra barely beat out Tamika Craft, who was farther behind the pack in Harris County. I don’t have a good explanation for that, it looks to me just like a weird result that has no obvious cause or correlation to what we saw elsewhere. It’s also the case, as we discussed in part one of the Fort Bend results, that if Dems had done a better job retaining voters downballot, none of this would matter all that much.

Finally, in the district court races (there were four of them, plus one county court), the results that grabbed my attention were in a couple of contests that appeared one after the other. Republican Maggie Jaramillo, running for the 400th District Court, was the closest member of Team GOP to win, as she lost to Tameika Carter by ten thousand votes. In the next race, for the 434th District Court, Republican Jim Shoemake lost to Christian Becerra by twenty-two thousand votes. This was the difference between a three-point loss for Jaramillo, and a six-and-a-half point loss for Shoemake. Jaramillo was the top performing Republican candidate in any race in Fort Bend, while Becerra was sixth best among Dems, trailing Joe Biden, three statewide judicial candidates, and Sheriff Eric Fagan. You may have noticed that they’re both Latinos, though the effect appears to have been a bit greater for the Republican Jaramillo. Becerra was the only Dem besides Biden to carry Commissioners Court Precinct 1, though that may not have been strictly a Latino candidate phenomenon – Elizabeth Frizell had the next highest percentage, with Veronica Rivas-Molloy and Tina Clinton close behind. (Amy Clark Meachum and Staci Williams, both in three-candidate races, came closer to carrying CC1 than any other candidates, but their percentage of the vote was lower.) Again, no broad conclusions here, just an observation.

Click on for the race data, and remember I had to piece this together by hand, so my numbers may be a little off from the official state totals when those come out. County races are next. Let me know what you think.

(more…)

Abbott appoints another statewide judge

Dec 29th, 2020
by Charles Kuffner.
1 comment

From before the holidays:

Judge Michael Keasler

Jesse McClure, a trial judge on a criminal court in Houston, will join the state’s highest court for criminal matters in the new year.

Gov. Greg Abbott appointed McClure, a Republican, to the Court of Criminal Appeals, where he will fill a seat being vacated by Judge Michael Keasler. Keasler, 78, is departing Dec. 31 under Texas’ mandatory retirement law for judges.

McClure was appointed to his current bench by Abbott in November 2019 but lost his reelection bid to Democrat Te’iva Bell last month in an election that saw Democrats sweep Harris County.

Previously, McClure worked as a prosecutor for the Texas Department of Insurance, as an attorney with the Department of Homeland Security and as an assistant district attorney in Tarrant County. He will serve the remainder of Keasler’s term, which lasts through the end of 2022, and then plans to seek reelection.

[…]

A Texas law that requires judges to retire within a few years of turning 75 forced Keasler to step down partway through his six-year term.

In Keasler’s case, the law caused a fair bit of confusion.

Last year, two Democrats pursued the nomination to run for Keasler’s seat, expecting an election, rather than an appointment, in a misunderstanding that even the Texas secretary of state’s office did not escape. Ultimately, given that Keasler served through the end of the year, the seat fell to Abbott to fill, not the voters.

Keasler said that did not influence his decision to serve through the end of the year.

“I know I’m in the fourth quarter, there’s no question about that, I just hope I’m not at the two-minute warning just yet,” he joked.

See here for the background on that confusion. I guess “within a few years of turning 75” does leave some room for interpretation. McClure was Abbott’s second appointment to a statewide bench in the last three months, following the well-timed resignation of now-former Supreme Court Justice Paul Green. For all the biennial debate we have about electing judges versus some other system for naming them, we sure do have a lot of judges on the Supreme Court and Court of Criminal Appeals who got there initially via gubernatorial appointment. Such selections come with no requirement for Senate confirmation, and in nearly every case the newbie judge gets two full years on the bench before having to face the voters. We can as always debate the merits of the system we have, but we should be honest about the way that system actually works.

Precinct analysis: Other jurisdictions

Dec 21st, 2020
by Charles Kuffner.
5 comments

Introduction
Congressional districts
State Rep districts
Commissioners Court/JP precincts
Comparing 2012 and 2016
Statewide judicial

You may be wondering “Hey, how come you haven’t reported on data from SBOE and State Senate districts?” Well, I’ll tell you, since the SBOE and Senate serve four-year terms with only half of the races up for election outside of redistricting years, the results in the districts that aren’t on the ballot are not discernable to me. But! I was eventually able to get a spreadsheet that defined all of the relevant districts for each individual precinct, and that allowed me to go back and fill in the empty values. And now here I present them to you. Oh, and as a special bonus, I merged the data from the 2012 city of Houston bond elections into this year’s totals and pulled out the numbers for the city of Houston for the top races. So here you have it:


Dist     Trump    Biden    Lib    Grn  Trump%  Biden%   Lib%   Grn%
===================================================================
SBOE4  110,192  350,258  3,530  1,787  23.66%  75.20%  0.76%  0.38%
SBOE6  371,101  391,911  8,796  2,157  47.95%  50.64%  1.14%  0.28%
SBOE8  219,337  176,022  4,493  1,185  54.69%  43.89%  1.12%  0.30%
								
SD04    55,426   25,561    936    145  67.54%  31.15%  1.14%  0.18%
SD06    61,089  123,708  1,577    770  32.64%  66.10%  0.84%  0.41%
SD07   232,201  188,150  4,746  1,216  54.47%  44.13%  1.11%  0.29%
SD11    77,325   51,561  1,605    389  59.08%  39.40%  1.23%  0.30%
SD13    38,198  166,939  1,474    753  18.42%  80.51%  0.71%  0.36%
SD15   110,485  208,552  3,444  1,045  34.15%  64.46%  1.06%  0.32%
SD17   110,788  140,986  2,706    720  43.41%  55.25%  1.06%  0.28%
SD18    15,118   12,735	   331     91  53.47%  45.04%  1.17%  0.32%

Hou    285,379  535,713  8,222  2,704  34.30%  64.39%  0.99%  0.32%
Harris 415,251  382,480  8,597  2,425  51.34%  47.29%  1.06%  0.30%


Dist    Cornyn    Hegar    Lib    Grn Cornyn%  Hegar%   Lib%   Grn%
===================================================================
SBOE4  110,002  330,420  8,479  5,155  23.62%  70.94%  1.82%  1.11%
SBOE6  387,726  359,196 13,130  4,964  50.68%  46.95%  1.72%  0.65%
SBOE8  220,500  164,540  7,608  2,770  55.76%  41.61%  1.92%  0.70%
								
SD04    56,085   23,380  1,405    393  69.02%  28.77%  1.73%  0.48%
SD06    59,310  115,620  3,609  2,257  32.80%  63.95%  2.00%  1.25%
SD07   237,216  173,948  7,682  2,796  55.64%  40.80%  1.80%  0.66%
SD11    77,887   47,787  2,508    854  60.36%  37.03%  1.94%  0.66%
SD13    39,386  157,671  3,502  2,149  19.43%  77.78%  1.73%  1.06%
SD15   114,616  195,264  6,065  2,657  35.43%  60.35%  1.87%  0.82%
SD17   118,460  128,628  3,892  1,603  46.42%  50.40%  1.53%  0.63%
SD18    15,268   11,859    554    180  54.80%  42.56%  1.99%  0.65%

Hou    297,735  498,078 14,537  7,021  36.43%  60.94%  1.78%  0.86%
Harris 420,493  356,080 14,680  5,868  52.75%  44.67%  1.84%  0.74%


Dist    Wright    Casta    Lib    Grn Wright%  Casta%   Lib%   Grn%
===================================================================
SBOE4  102,521  332,324  8,247  7,160  22.01%  71.35%  1.77%  1.54%
SBOE6  379,555  347,938 16,311  9,217  50.40%  46.21%  2.17%  1.22%
SBOE8  214,771  163,095  8,573  4,631  54.92%  41.70%  2.19%  1.18%
								
SD04    54,997   22,915  1,715    685  68.48%  28.53%  2.14%  0.85%
SD06    54,732  118,635  3,389  2,751  30.49%  66.09%  1.89%  1.53%
SD07   232,729  169,832  9,084  4,902  54.59%  39.84%  2.13%  1.15%
SD11    75,580   47,284  2,906  1,454  59.41%  37.17%  2.28%  1.14%
SD13    37,009  156,577  3,653  3,306  18.45%  78.08%  1.82%  1.65%
SD15   111,109  192,351  6,833  4,347  34.34%  59.45%  2.11%  1.34%
SD17   115,654  124,174  4,931  3,219  45.32%  48.66%  1.93%  1.26%
SD18    15,037   11,590    620    344  54.50%  42.01%  2.25%  1.25%

Hou    286,759  491,191 16,625 11,553  34.47%  59.04%  2.00%  1.39%
Harris 410,088  352,168 16,506  9,455  50.71%  43.54%  2.04%  1.17%

Dist     Hecht  Meachum    Lib  Hecht% Meachum%  Lib%
=====================================================
SBOE4  104,675  334,600 10,745  23.26%  74.35%  2.39%
SBOE6  387,841  349,776 17,294  51.38%  46.33%  2.29%
SBOE8  217,760  164,210  9,466  55.63%  41.95%  2.42%
						
SD04    55,773   22,920  1,721  69.36%  28.50%  2.14%
SD06    56,313  117,884  4,832  31.45%  65.85%  2.70%
SD07   235,317  172,232  9,800  56.38%  41.27%  2.35%
SD11    77,081   47,122  3,169  60.52%  37.00%  2.49%
SD13    37,495  158,731  4,500  18.68%  79.08%  2.24%
SD15   113,248  194,232  7,612  35.94%  61.64%  2.42%
SD17   119,941  123,630  5,196  48.21%  49.70%  2.09%
SD18    15,108   11,836    675  54.70%  42.85%  2.44%

Dist      Boyd   Will's    Lib   Boyd% Will's%   Lib%
=====================================================
SBOE4  104,397  336,102  8,832  23.23%  74.80%  1.97%
SBOE6  380,861  354,806 15,618  50.69%  47.23%  2.08%
SBOE8  217,360  164,288  8,525  55.71%  42.11%  2.18%
						
SD04    55,481   22,982  1,621  69.28%  28.70%  2.02%
SD06    56,932  117,444  4,132  31.89%  65.79%  2.31%
SD07   234,080  173,025  8,683  56.30%  41.61%  2.09%
SD11    76,633   47,377  2,834  60.42%  37.35%  2.23%
SD13    36,755  160,184  3,557  18.33%  79.89%  1.77%
SD15   111,564  195,699  6,798  35.52%  62.31%  2.16%
SD17   116,011  126,731  4,723  46.88%  51.21%  1.91%
SD18    15,162   11,755    627  55.05%  42.68%  2.28%


Dist     Busby   Triana    Lib  Busby% Triana%   Lib%
=====================================================
SBOE4  104,071  335,587  9,074  23.19%  74.79%  2.02%
SBOE6  389,317  343,673 17,392  51.88%  45.80%  2.32%
SBOE8  218,278  162,376  9,125  56.00%  41.66%  2.34%
						
SD04    55,864   22,402  1,739  69.83%  28.00%  2.17%
SD06    55,719  118,801  4,006  31.21%  66.55%  2.24%
SD07   235,948  169,843  9,532  56.81%  40.89%  2.30%
SD11    77,324   46,265  3,101  61.03%  36.52%  2.45%
SD13    37,498  158,536  3,962  18.75%  79.27%  1.98%
SD15   113,780  192,651  7,220  36.28%  61.42%  2.30%
SD17   120,435  121,393  5,349  48.72%  49.11%  2.16%
SD18    15,098   11,746    682  54.85%  42.67%  2.48%


Dist    Bland    Cheng  Bland%   Cheng%
=======================================
SBOE4  112,465  336,620  25.04%  74.96%
SBOE6  401,946  350,154  53.44%  46.56%
SBOE8  225,783  164,516  57.85%  42.15%
				
SD04    57,378   22,793  71.57%  28.43%
SD06    60,243  118,418  33.72%  66.28%
SD07   243,089  172,941  58.43%  41.57%
SD11    79,757   47,134  62.85%  37.15%
SD13    40,242  160,069  20.09%  79.91%
SD15   119,474  194,619  38.04%  61.96%
SD17   124,299  123,453  50.17%  49.83%
SD18    15,712   11,864  56.98%  43.02%


Dist     BertR  Frizell  BertR% Frizell%
=======================================
SBOE4  107,445  340,670  23.98%  76.02%
SBOE6  392,514  355,217  52.49%  47.51%
SBOE8  221,860  166,900  57.07%  42.93%
				
SD04    56,609   23,176  70.95%  29.05%
SD06    57,800  120,402  32.44%  67.56%
SD07   239,113  175,071  57.73%  42.27%
SD11    78,483   47,818  62.14%  37.86%
SD13    38,419  161,433  19.22%  80.78%
SD15   115,389  197,276  36.90%  63.10%
SD17   120,576  125,566  48.99%  51.01%
SD18    15,430   12,046  56.16%  43.84%


Dist     Yeary  Clinton  Yeary%Clinton%
=======================================
SBOE4  107,727  339,999  24.06%  75.94%
SBOE6  387,309  359,489  51.86%  48.14%
SBOE8  221,725  166,780  57.07%  42.93%
				
SD04    56,405   23,323  70.75%  29.25%
SD06    58,285  119,666  32.75%  67.25%
SD07   238,608  175,225  57.66%  42.34%
SD11    78,085   48,109  61.88%  38.12%
SD13    38,214  161,577  19.13%  80.87%
SD15   114,407  197,949  36.63%  63.37%
SD17   117,277  128,438  47.73%  52.27%
SD18    15,480   11,982  56.37%  43.63%


Dist    Newell    Birm  Newell%   Birm%
=======================================
SBOE4  110,449  336,329  24.72%  75.28%
SBOE6  392,944  352,514  52.71%  47.29%
SBOE8  223,453  164,440  57.61%  42.39%
				
SD04    56,669   22,936  71.19%  28.81%
SD06    59,575  117,944  33.56%  66.44%
SD07   240,463  172,769  58.19%  41.81%
SD11    78,816   47,161  62.56%  37.44%
SD13    39,166  160,126  19.65%  80.35%
SD15   116,700  195,074  37.43%  62.57%
SD17   119,849  125,464  48.86%  51.14%
SD18    15,608   11,810  56.93%  43.07%

To be clear, “Harris” refers to everything that is not the city of Houston. It includes the other cities, like Pasadena and Deer Park and so forth, as well as unincorporated Harris County. There are some municipal results in the 2020 canvass, and maybe I’ll take a closer look at them later – I generally haven’t done that for non-Houston cities in the past, but this year, we’ll see. Please note also that there are some precincts that include a piece of Houston but are not entirely Houston – the boundaries don’t coincide. Basically, I skipped precincts that had ten or fewer votes in them for the highest-turnout 2012 referendum, and added up the rest. So those values are approximate, but close enough for these purposes. I don’t have city of Houston results for most elections, but I do have them for a few. In 2008, Barack Obama got 61.0% in Houston and 39.5% in non-Houston Harris County. In 20122018, Beto reached a new height with 65.4% in Houston; that calculation was done by a reader, and unfortunately he didn’t do the corresponding total for Harris County. Joe Biden’s 64.39% fits in just ahead of Adrian Garcia in 2012, and about a point behind Beto. Not too bad.

SBOE4 is a mostly Black district primarily in Harris County with a piece in Fort Bend as well; Lawrence Allen, son of State Rep. Alma Allen and an unsuccessful candidate for HD26 in the Dem primary this year, is its incumbent. SBOE8 is a heavily Republican district with about half of its voters in Harris County and about a third in Montgomery County. It was won this year by Audrey Young over a Libertarian opponent, succeeding Barbara Cargill. Cargill was unopposed in 2016 and beat a Dem candidate in 2012 by a 71-29 margin, getting about 66% of the vote in Harris County. Like just about everywhere else, that part of the county is a lot less red than it used to be. SBOE6 was of course the focus of attention after Beto carried it in 2018. Biden fell a tad short of Beto’s mark, though Trump also fell short of Ted Cruz. No other Dem managed to win the vote there, with the range being about four to seven points for the Republicans, which does represent an improvement over 2018. Michelle Palmer lost by two points here, getting 47.38% of the vote (there was a Libertarian candidate as well; the victorious Republican got 49.76%), as the Dems won one of the three targeted, Beto-carried seats, in SBOE5. I presume the Republicans will have a plan to make the SBOE a 10-5 split in their favor again, but for now the one gain Dems made in a districted office was there.

I don’t think I’ve ever done a full accounting of State Senate districts in previous precinct analyses. Only three of the eight districts that include a piece of Harris County are entirely within Harris (SDs 06, 07, and 15; 13 extends into Fort Bend), and only SD17 is competitive. Beto and a couple of others carried SD17 in 2018 – I don’t have the full numbers for it now, but Rita Lucido won the Harris County portion of SD17 by a 49.4-48.8 margin in 2018, and every Dem except Kathy Cheng won SD17 this year, with everyone else except Gisela Triana exceeding Lucido’s total or margin or both. An awful lot of HD134 is in SD17, so this is just another illustration of HD134’s Democratic shift.

The other interesting district here is SD07, which Dan Patrick won by a 68.4-31.6 margin in 2012, and Paul Bettencourt won by a 57.8-40.3 margin in 2018. Every Dem had a smaller gap than that this year, with most of them bettering David Romero’s percentage from 2018, and Biden losing by just over ten points. It would be really interesting to see how this district trended over the next decade if we just kept the same lines as we have now, but we will get new lines, so the question becomes “do the Republicans try to shore up SD07”, and if so how? SD17 is clearly the higher priority, and while you could probably leave SD07 close to what it is now, with just a population adjustment, it doesn’t have much spare capacity. If there’s a lesson for Republicans from the 2011 redistricting experience, it’s that they have to think in ten-year terms, and that’s a very hard thing to do. We’ll see how they approach it.

Precinct analysis: Statewide judicial

Dec 15th, 2020
by Charles Kuffner.
1 comment

Introduction
Congressional districts
State Rep districts
Commissioners Court/JP precincts
Comparing 2012 and 2016

We’re going to take a look at the seven statewide judicial races in this post, with all of the districts considered so far grouped together. You’re about to have a lot of numbers thrown at you, is what I’m saying. I’m ordering these races in a particular way, which is to put the contests that included a Libertarian candidate first (there were no Green candidates for any statewide judicial position, or indeed any judicial position on the Harris County ballot), and then the contests that were straight up D versus R next. There were three of the former and four of the latter, and we’ll see what we can determine about the effect that a Libertarian may have had on these races as we go.


Dist    Hecht  Meachum    Lib  Hecht% Meachum%   Lib%
=====================================================
CD02  179,887  154,785  7,979  52.50%   45.17%  2.33%
CD07  154,058  149,348  6,725  49.68%   48.16%  2.17%
CD08   25,686   15,145  1,014  61.38%   36.19%  2.42%
CD09   37,479  119,471  3,516  23.36%   74.45%  2.19%
CD10  101,965   60,290  3,917  61.36%   36.28%  2.36%
CD18   58,684  179,178  5,906  24.07%   73.50%  2.42%
CD22   21,575   20,271  1,140  50.19%   47.16%  2.65%
CD29   48,349  101,662  4,049  31.38%   65.99%  2.63%
CD36   82,593   48,435  3,259  61.50%   36.07%  2.43%
						
HD126  38,883   33,427  1,726  52.52%   45.15%  2.33%
HD127  53,978   35,464  2,040  59.00%   38.77%  2.23%
HD128  48,000   22,103  1,606  66.94%   30.82%  2.24%
HD129  47,867   35,292  2,208  56.07%   41.34%  2.59%
HD130  69,884   32,443  2,440  66.70%   30.97%  2.33%
HD131   9,887   44,240  1,236  17.86%   79.91%  2.23%
HD132  50,149   48,527  2,544  49.54%   47.94%  2.51%
HD133  51,732   35,958  1,730  57.85%   40.21%  1.93%
HD134  50,646   56,804  2,018  46.27%   51.89%  1.84%
HD135  36,285   36,987  1,891  48.28%   49.21%  2.52%
HD137  10,333   20,930    827  32.20%   65.22%  2.58%
HD138  31,730   30,982  1,548  49.38%   48.21%  2.41%
HD139  15,475   44,630  1,365  25.17%   72.60%  2.22%
HD140   9,151   21,719    840  28.86%   68.49%  2.65%
HD141   6,824   35,967    981  15.59%   82.17%  2.24%
HD142  13,637   41,662  1,238  24.12%   73.69%  2.19%
HD143  11,821   24,338    938  31.87%   65.61%  2.53%
HD144  13,535   16,631    867  43.61%   53.59%  2.79%
HD145  14,758   26,918  1,255  34.38%   62.70%  2.92%
HD146  11,363   43,152  1,235  20.38%   77.40%  2.22%
HD147  14,973   53,050  1,799  21.44%   75.98%  2.58%
HD148  22,163   36,851  1,701  36.50%   60.70%  2.80%
HD149  21,616   30,814  1,133  40.36%   57.53%  2.12%
HD150  55,585   39,695  2,339  56.94%   40.66%  2.40%
					
CC1    92,529  278,828  8,580  24.35%   73.39%  2.26%
CC2   149,483  145,171  7,746  49.43%   48.01%  2.56%
CC3   228,402  210,197 10,006  50.91%   46.86%  2.23%
CC4   239,862  214,392 11,173  51.54%   46.06%  2.40%
						
JP1    93,898  163,620  6,237  35.60%   62.03%  2.36%
JP2    33,762   49,003  2,174  39.75%   57.69%  2.56%
JP3    51,276   68,138  2,733  41.98%   55.78%  2.24%
JP4   233,213  185,525  9,970  54.40%   43.28%  2.33%
JP5   204,389  214,695  9,945  47.64%   50.04%  2.32%
JP6     7,834   27,042  1,074  21.79%   75.22%  2.99%
JP7    18,495   99,632  2,600  15.32%   82.53%  2.15%
JP8    67,409   40,933  2,772  60.67%   36.84%  2.49%

Dist     Boyd Williams    Lib   Boyd%Williams%   Lib%
=====================================================
CD02  177,810  155,876  7,349  52.14%   45.71%  2.15%
CD07  149,700  152,887  5,923  48.52%   49.56%  1.92%
CD08   25,674   15,116    894  61.59%   36.26%  2.14%
CD09   37,235  120,311  2,810  23.22%   75.03%  1.75%
CD10  101,850   60,145  3,613  61.50%   36.32%  2.18%
CD18   57,552  180,778  5,054  23.65%   74.28%  2.08%
CD22   21,529   20,300  1,030  50.23%   47.36%  2.40%
CD29   48,900  101,209  3,423  31.85%   65.92%  2.23%
CD36   82,368   48,573  2,879  61.55%   36.30%  2.15% 

HD126  38,664   33,525  1,557  52.43%   45.46%  2.11%
HD127  53,700   35,556  1,891  58.92%   39.01%  2.07%
HD128  48,078   22,019  1,431  67.22%   30.78%  2.00%
HD129  47,371   35,620  2,000  55.74%   41.91%  2.35%
HD130  69,697   32,424  2,234  66.79%   31.07%  2.14%
HD131   9,814   44,580    937  17.74%   80.57%  1.69%
HD132  50,168   48,466  2,311  49.70%   48.01%  2.29%
HD133  49,946   37,393  1,520  56.21%   42.08%  1.71%
HD134  47,593   59,069  1,938  43.82%   54.39%  1.78%
HD135  36,215   37,075  1,607  48.35%   49.50%  2.15%
HD137  10,226   21,044    708  31.98%   65.81%  2.21%
HD138  31,413   31,231  1,372  49.07%   48.79%  2.14%
HD139  15,293   44,932  1,208  24.89%   73.14%  1.97%
HD140   9,270   21,715    677  29.28%   68.58%  2.14%
HD141   6,943   36,106    738  15.86%   82.46%  1.69%
HD142  13,649   41,816  1,006  24.17%   74.05%  1.78%
HD143  11,953   24,211    783  32.35%   65.53%  2.12%
HD144  13,712   16,444    757  44.36%   53.19%  2.45%
HD145  14,749   26,907  1,082  34.51%   62.96%  2.53%
HD146  10,957   43,683    985  19.70%   78.53%  1.77%
HD147  14,628   53,564  1,547  20.98%   76.81%  2.22%
HD148  21,551   37,172  1,616  35.72%   61.61%  2.68%
HD149  21,554   30,949    980  40.30%   57.87%  1.83%
HD150  55,473   39,693  2,090  57.04%   40.81%  2.15%
						
CC1    90,441  281,651  7,183  23.85%   74.26%  1.89%
CC2   149,519  144,951  6,793  49.63%   48.11%  2.25%
CC3   224,732  213,022  8,935  50.31%   47.69%  2.00%
CC4   237,926  215,574 10,064  51.33%   46.50%  2.17%
						
JP1    90,471  166,282  5,724  34.47%   63.35%  2.18%
JP2    33,968   48,891  1,877  40.09%   57.70%  2.22%
JP3    51,567   68,134  2,269  42.28%   55.86%  1.86%
JP4   232,446  185,828  8,942  54.41%   43.50%  2.09%
JP5   201,507  217,080  8,748  47.15%   50.80%  2.05%
JP6     7,848   26,989    935  21.94%   75.45%  2.61%
JP7    17,772  100,858  2,001  14.73%   83.61%  1.66%
JP8    67,039   41,136  2,479  60.58%   37.18%  2.24%

Dist    Busby   Triana    Lib  Busby%  Triana%   Lib%
=====================================================
CD02  180,619  152,062  8,019  53.01%   44.63%  2.35%
CD07  154,593  146,826  6,759  50.16%   47.64%  2.19%
CD08   25,758   14,928    955  61.86%   35.85%  2.29%
CD09   37,362  119,463  3,094  23.36%   74.70%  1.93%
CD10  102,251   59,298  3,908  61.80%   35.84%  2.36%
CD18   58,913  178,629  5,394  24.25%   73.53%  2.22%
CD22   21,575   20,090  1,118  50.43%   46.96%  2.61%
CD29   47,694  102,644  3,275  31.05%   66.82%  2.13%
CD36   82,901   47,695  3,069  62.02%   35.68%  2.30%

HD126  38,980   33,040  1,658  52.91%   44.84%  2.25%
HD127  54,112   34,934  2,025  59.42%   38.36%  2.22%
HD128  48,180   21,765  1,477  67.46%   30.47%  2.07%
HD129  47,955   34,683  2,230  56.51%   40.87%  2.63%
HD130  70,019   31,790  2,447  67.16%   30.49%  2.35%
HD131   9,827   44,382  1,012  17.80%   80.37%  1.83%
HD132  50,189   48,200  2,493  49.75%   47.78%  2.47%
HD133  51,870   35,055  1,814  58.45%   39.50%  2.04%
HD134  51,239   55,036  2,250  47.21%   50.71%  2.07%
HD135  36,361   36,664  1,790  48.60%   49.01%  2.39%
HD137  10,325   20,780    812  32.35%   65.11%  2.54%
HD138  31,761   30,656  1,497  49.69%   47.96%  2.34%
HD139  15,489   44,606  1,222  25.26%   72.75%  1.99%
HD140   8,987   21,995    659  28.40%   69.51%  2.08%
HD141   6,791   36,116    798  15.54%   82.64%  1.83%
HD142  13,605   41,732  1,042  24.13%   74.02%  1.85%
HD143  11,665   24,588    733  31.54%   66.48%  1.98%
HD144  13,471   16,721    744  43.54%   54.05%  2.40%
HD145  14,593   27,092  1,061  34.14%   63.38%  2.48%
HD146  11,412   42,928  1,129  20.57%   77.39%  2.04%
HD147  15,183   52,758  1,661  21.81%   75.80%  2.39%
HD148  22,402   36,229  1,688  37.14%   60.06%  2.80%
HD149  21,574   30,729  1,065  40.42%   57.58%  2.00%
HD150  55,675   39,155  2,284  57.33%   40.32%  2.35%
						
CC1    92,822  277,923  7,778  24.52%   73.42%  2.05%
CC2   149,446  144,793  6,922  49.62%   48.08%  2.30%
CC3   228,849  207,334  9,987  51.29%   46.47%  2.24%
CC4   240,549  211,588 10,904  51.95%   45.70%  2.35%
						
JP1    94,735  161,383  6,127  36.12%   61.54%  2.34%
JP2    33,518   49,255  1,882  39.59%   58.18%  2.22%
JP3    51,327   68,119  2,341  42.14%   55.93%  1.92%
JP4   233,635  183,442  9,668  54.75%   42.99%  2.27%
JP5   204,626  212,437  9,722  47.95%   49.78%  2.28%
JP6     7,711   27,250    875  21.52%   76.04%  2.44%
JP7    18,508   99,518  2,270  15.39%   82.73%  1.89%
JP8    67,606   40,234  2,706  61.16%   36.40%  2.45%

Dist    Bland    Cheng  Bland%   Cheng%
=======================================
CD02  186,706  154,725  54.68%   45.32%
CD07  159,574  149,326  51.66%   48.34%
CD08   26,540   15,186  63.61%   36.39%
CD09   39,465  120,736  24.63%   75.37%
CD10  105,349   60,323  63.59%   36.41%
CD18   62,985  180,105  25.91%   74.09%
CD22   22,415   20,441  52.30%   47.70%
CD29   51,670  102,080  33.61%   66.39%
CD36   85,490   48,367  63.87%   36.13%

HD126  40,209   33,586  54.49%   45.51%
HD127  55,788   35,414  61.17%   38.83%
HD128  49,423   22,087  69.11%   30.89%
HD129  49,640   35,394  58.38%   41.62%
HD130  71,946   32,493  68.89%   31.11%
HD131  10,622   44,674  19.21%   80.79%
HD132  52,183   48,781  51.68%   48.32%
HD133  53,308   35,720  59.88%   40.12%
HD134  52,985   55,899  48.66%   51.34%
HD135  37,544   37,368  50.12%   49.88%
HD137  10,776   21,212  33.69%   66.31%
HD138  32,815   31,243  51.23%   48.77%
HD139  16,488   44,881  26.87%   73.13%
HD140   9,808   21,860  30.97%   69.03%
HD141   7,537   36,159  17.25%   82.75%
HD142  14,573   41,837  25.83%   74.17%
HD143  12,622   24,375  34.12%   65.88%
HD144  14,320   16,647  46.24%   53.76%
HD145  15,721   27,079  36.73%   63.27%
HD146  12,136   43,482  21.82%   78.18%
HD147  16,299   53,306  23.42%   76.58%
HD148  23,760   36,701  39.30%   60.70%
HD149  22,218   31,229  41.57%   58.43%
HD150  57,472   39,861  59.05%   40.95%
				
CC1    98,928  280,012  26.11%   73.89%
CC2   156,101  145,437  51.77%   48.23%
CC3   236,143  210,982  52.81%   47.19%
CC4   249,022  214,861  53.68%   46.32%
				
JP1    99,802  162,942  37.98%   62.02%
JP2    35,454   49,274  41.84%   58.16%
JP3    53,615   68,275  43.99%   56.01%
JP4   241,226  186,223  56.43%   43.57%
JP5   211,577  216,054  49.48%   50.52%
JP6     8,598   27,274  23.97%   76.03%
JP7    20,093  100,384  16.68%   83.32%
JP8    69,829   40,866  63.08%   36.92%

Dist    BertR  Frizell  BertR% Frizell%
=======================================
CD02  182,683  156,878  53.80%   46.20%
CD07  154,962  152,062  50.47%   49.53%
CD08   26,171   15,356  63.02%   36.98%
CD09   38,285  121,530  23.96%   76.04%
CD10  103,856   61,112  62.96%   37.04%
CD18   60,147  182,281  24.81%   75.19%
CD22   22,094   20,602  51.75%   48.25%
CD29   49,588  103,742  32.34%   67.66%
CD36   84,033   49,223  63.06%   36.94%
				
HD126  39,527   33,961  53.79%   46.21%
HD127  54,907   35,913  60.46%   39.54%
HD128  48,755   22,498  68.43%   31.57%
HD129  48,845   35,746  57.74%   42.26%
HD130  71,099   32,881  68.38%   31.62%
HD131  10,143   45,055  18.38%   81.62%
HD132  51,129   49,476  50.82%   49.18%
HD133  51,832   36,580  58.63%   41.37%
HD134  50,395   57,371  46.76%   53.24%
HD135  36,941   37,669  49.51%   50.49%
HD137  10,540   21,336  33.07%   66.93%
HD138  32,162   31,590  50.45%   49.55%
HD139  15,861   45,360  25.91%   74.09%
HD140   9,330   22,296  29.50%   70.50%
HD141   7,087   36,609  16.22%   83.78%
HD142  14,019   42,335  24.88%   75.12%
HD143  12,089   24,821  32.75%   67.25%
HD144  13,871   17,022  44.90%   55.10%
HD145  15,087   27,539  35.39%   64.61%
HD146  11,553   43,886  20.84%   79.16%
HD147  15,480   53,890  22.32%   77.68%
HD148  22,624   37,382  37.70%   62.30%
HD149  21,970   31,301  41.24%   58.76%
HD150  56,572   40,268  58.42%   41.58%
				
CC1    94,471  283,329  25.01%   74.99%
CC2   152,430  147,946  50.75%   49.25%
CC3   231,007  213,789  51.94%   48.06%
CC4   243,911  217,725  52.84%   47.16%
				
JP1    94,825  166,188  36.33%   63.67%
JP2    34,572   49,950  40.90%   59.10%
JP3    52,322   69,282  43.03%   56.97%
JP4   237,425  188,270  55.77%   44.23%
JP5   207,011  218,653  48.63%   51.37%
JP6     8,115   27,625  22.71%   77.29%
JP7    18,911  101,267  15.74%   84.26%
JP8    68,638   41,554  62.29%   37.71%

Dist    Yeary  Clinton  Yeary% Clinton%
=======================================
CD02  181,198  157,995  53.42%   46.58%
CD07  151,549  154,946  49.45%   50.55%
CD08   26,274   15,252  63.27%   36.73%
CD09   38,213  121,550  23.92%   76.08%
CD10  103,978   60,908  63.06%   36.94%
CD18   59,656  182,560  24.63%   75.37%
CD22   21,975   20,676  51.52%   48.48%
CD29   50,071  103,069  32.70%   67.30%
CD36   83,847   49,311  62.97%   37.03%

HD126  39,406   34,008  53.68%   46.32%
HD127  54,799   35,974  60.37%   39.63%
HD128  48,866   22,330  68.64%   31.36%
HD129  48,336   36,186  57.19%   42.81%
HD130  71,143   32,784  68.45%   31.55%
HD131  10,107   45,059  18.32%   81.68%
HD132  51,349   49,189  51.07%   48.93%
HD133  50,252   37,973  56.96%   43.04%
HD134  47,809   59,740  44.45%   55.55%
HD135  36,998   37,557  49.63%   50.37%
HD137  10,513   21,328  33.02%   66.98%
HD138  31,954   31,731  50.18%   49.82%
HD139  15,775   45,409  25.78%   74.22%
HD140   9,482   22,099  30.02%   69.98%
HD141   7,189   36,455  16.47%   83.53%
HD142  14,134   42,173  25.10%   74.90%
HD143  12,173   24,673  33.04%   66.96%
HD144  13,989   16,866  45.34%   54.66%
HD145  15,119   27,441  35.52%   64.48%
HD146  11,410   43,976  20.60%   79.40%
HD147  15,255   54,067  22.01%   77.99%
HD148  22,154   37,759  36.98%   63.02%
HD149  21,889   31,344  41.12%   58.88%
HD150  56,659   40,145  58.53%   41.47%
				
CC1    93,178  284,268  24.69%   75.31%
CC2   152,526  147,534  50.83%   49.17%
CC3   228,374  215,887  51.41%   48.59%
CC4   242,683  218,581  52.61%   47.39%
				
JP1    92,164  168,445  35.36%   64.64%
JP2    34,638   49,779  41.03%   58.97%
JP3    52,563   68,943  43.26%   56.74%
JP4   237,318  188,099  55.78%   44.22%
JP5   205,042  220,128  48.23%   51.77%
JP6     8,132   27,549  22.79%   77.21%
JP7    18,576  101,549  15.46%   84.54%
JP8    68,328   41,778  62.06%   37.94%

Dist   Newell    Birm  Newell%    Birm%
=======================================
CD02  183,283  155,303  54.13%   45.87%
CD07  154,445  151,554  50.47%   49.53%
CD08   26,375   15,075  63.63%   36.37%
CD09   39,055  120,306  24.51%   75.49%
CD10  104,616   60,043  63.53%   36.47%
CD18   61,174  180,645  25.30%   74.70%
CD22   22,249   20,322  52.26%   47.74%
CD29   51,148  101,583  33.49%   66.51%
CD36   84,501   48,451  63.56%   36.44%

HD126  39,784   33,498  54.29%   45.71%
HD127  55,127   35,497  60.83%   39.17%
HD128  49,062   22,055  68.99%   31.01%
HD129  48,920   35,437  57.99%   42.01%
HD130  71,414   32,353  68.82%   31.18%
HD131  10,424   44,586  18.95%   81.05%
HD132  51,878   48,536  51.66%   48.34%
HD133  51,273   36,800  58.22%   41.78%
HD134  49,412   57,931  46.03%   53.97%
HD135  37,337   37,104  50.16%   49.84%
HD137  10,697   21,067  33.68%   66.32%
HD138  32,371   31,165  50.95%   49.05%
HD139  16,204   44,873  26.53%   73.47%
HD140   9,722   21,767  30.87%   69.13%
HD141   7,342   36,259  16.84%   83.16%
HD142  14,466   41,754  25.73%   74.27%
HD143  12,491   24,246  34.00%   66.00%
HD144  14,227   16,561  46.21%   53.79%
HD145  15,377   27,059  36.24%   63.76%
HD146  11,707   43,563  21.18%   78.82%
HD147  15,713   53,487  22.71%   77.29%
HD148  22,748   37,026  38.06%   61.94%
HD149  22,175   30,953  41.74%   58.26%
HD150  56,974   39,704  58.93%   41.07%
				
CC1    95,668  281,099  25.39%   74.61%
CC2   154,203  145,222  51.50%   48.50%
CC3   231,571  211,887  52.22%   47.78%
CC4   245,404  215,077  53.29%   46.71%
				
JP1    94,960  165,091  36.52%   63.48%
JP2    35,233   48,975  41.84%   58.16%
JP3    53,108   68,215  43.77%   56.23%
JP4   238,952  185,854  56.25%   43.75%
JP5   208,027  216,365  49.02%   50.98%
JP6     8,409   27,151  23.65%   76.35%
JP7    19,213  100,651  16.03%   83.97%
JP8    68,944   40,983  62.72%   37.28%

Another word about the order in which these races appeared. On the Harris County election returns page, they appeared in the order you’d expect: first was the Supreme Court Chief Justice race, then Places 6, 7, and 8, followed by Court of Criminal Appeals Places 3, 4, and 9. In other words, the order a random person off the streets might have put them in if they had been tasked with it. For whatever the reason, on the Secretary of State election returns page, the order is different: Chief Justice, then Supreme Court Places 8, 6, and 7, followed by CCA Places 4, 9, and 3. I have no idea why they did it this way.

What difference does it make? The answer is in the total number of votes cast. The generally accepted wisdom is that the farther down the ballot, the more likely it is that a voter will skip the race, presumably because they thought “well, that’s all the voting I have in me, I’m going to call it quits now”. This was the underpinning of the many breathless articles about the effect of not having straight ticket voting, which came with the implicit assumption that Democratic voters would have less endurance in them, thus giving Republican candidates farther down the ballot an advantage. You know how I felt about that.

That said, the dropoff effect was there, albeit in a small amount. Here are the turnout totals for each race, going by the order on the Harris County ballot, which I’m taking as the proper order for elsewhere in the state. (You can check other county election sites to check this, I’ve already spent too much time on it.)


Position      Statewide     Harris
==================================
President    11,315,056  1,640,818
Senate       11,144,040  1,614,525
RRC          11,000,982  1,594,345
SC Chief     10,997,978  1,596,369
SC Place 6   10,954,061  1,591,486
SC Place 7   10,961,811  1,590,486
SC Place 8   10,948,768  1,588,895
CCA Place 3  10,918,384  1,584,608
CCA Place 4  10,898,223  1,583,031
CCA Place 9  10,879,051  1,580,131

I included the other statewide races here for comparison. There is some dropoff, but it’s pretty small – at both the statewide and Harris County level, the last race still got more than 96% of the vote total of the Presidential race. The dropoff among just the state offices is much more minimal, which I can understand – if all you care about is who’s running the country, you’ll probably stop after President, Senate, and Congress, which will be the third race on your ballot. Note also that with one exception in each column, the totals comport with their order on the ballot. Someday I might like to meet the person who decides to get off the bus after voting in three of the four Supreme Court races, or one of the three CCA races. Today is not that day, however.

The other thing to talk about here is how the candidates in races with a Libertarian candidate did versus the ones in races without a Libertarian. My eyeball sense of it is that the Republican candidates in two-person races picked up more of the erstwhile Libertarian voters in the redder districts, and the effect was more diffuse in the Dem districts, but I can’t say that with any level of rigor. There are too many factors to consider, including the gender and race of the candidates and their campaign finances and tenure in office and who knows what else. Maybe someone with a PhD can create a viable model for this.

Beyond that, what we see in these numbers is what we’ve been seeing all along. CD07 was a slightly tougher environment than it was in 2018, with three of the seven Democratic candidates carrying it. CD02 is basically a seven- or eight-point Republican district. HD135 leaned slightly Democratic, while HDs 132 and 138 leaned slightly more Republican, and HD134 completed its journey to becoming a Democratic district. Commissioner Precincts 2, 3, and 4 were all slightly to slightly-more-than-slightly red, but it won’t take much in redistricting to flip that around, at least for precincts 2 and 3. Everyone carried Constable/JP precinct 5, while precinct 4 remains a bit of a stretch. Lather, rinse, repeat.

If you’re wondering why I haven’t included SBOE and State Senate districts in these reports before now, wonder no more. I’ll be delving into those next. Let me know what you think.

A closer look at county races, Part 2

Nov 17th, 2020
by Charles Kuffner.
Comments are off for this post

Part One is here. As before, this is about taking a closer look at the counties where Democrats made gains from 2016.

Collin County: Our reach may have exceeded our grasp, but it’s important to note that progress was made. A quick recap, comparing 2016: 


CD03: 61.2% - 34.6%
Statewides: GOP 59-62%, Dem 32-35%
HD33: 62.6% - 34.1%
HD66: 57.4% - 38.7%
HD67: 56.6% - 39.7%
HD70: 67.1% - 28.5%
HD89: 63.5% - 32.7%

No candidates for District Court, Commissioner’s Court, countywide offices, or Constable. One candidate for Justice of the Peace.

To 2020:


CD03: 55.1% - 42.9%
Statewides: GOP 54-57%, Dem 42-44%
HD33: 59.0% - 41.0%
HD66: 49.6% - 48.9%
HD67: 51.7% - 48.3%
HD70: 61.8% - 38.2%
HD89: 59.4% - 38.5%

Candidates for seven of nine District Court benches (all in the 42-44% range), County Tax Assessor (41%), and both Commissioners Court seats (41% and 39%).

Still no candidates for any of the four Constable races. Hard to say how competitive any of them might have been, at least until a full canvass is available, but in Constable Precinct 3, the unopposed Republican got 115K votes, with 88K undervotes. Given that unopposed candidates always get more votes than candidates with major party opponents, this was probably not far from a 50-50 race. I’d be eyeing this office in 2024 if I’m a Collin County Democrat. Overall, a shift of about six or seven points down for the GOP and up for the Dems.

Denton County: Same basic story as Collin, except that we held the one State Rep race we won in 2018. Here’s the same presentation, for 2016:


CD24: 53.7% - 42.0%
CD26: 65.2% - 30.7%
Statewides: GOP 60-62%, Dem 32-34%
HD63: No Dem
HD64: 61.6% - 38.4%
HD65: 56.3% - 43.7%
HD106: No Dem

One candidate for District Court (36.3%), no candidates for any county race.

And 2020


CD24: 45.9% - 50.4%
CD26: 59.5% - 38.4%
Statewides: GOP 55-58%, Dem 40-43%
HD63: 67.4% - 32.6%
HD64: 54.9% - 45.1%
HD65: 48.5% - 51.5%
HD106: 58.5% - 41.5%

Still just one candidate for District Court, getting 42.6%. Both County Commissioner races were challenged, but still no candidates for any of the six Constable spots. Here I can’t say which if any may have been competitive, as the election night returns don’t tell me the undervotes. No matter how you look at it, you want to get some Dem candidates in these races, to help with downballot turnout.

Hays County: Like Williamson, a flip to Dems, with some downballot success as well. The big prize here was HD45, where Rep. Erin Zwiener knocked off incumbent Jason Isaac in 2018, two years after Isaac had been unopposed for re-election. Rep. Zwiener easily held on against Carrie Isaac, winning with 53.3% of the vote. In 2016, Lamar Smith took the CD21 portion of Hays 53-39, Roger Williams won the CD25 portion of Hays 60-35, and statewide Republicans won with 47-49% over Dems with scores in the 40-44% range. Rebecca Bell-Metereau lost in SBOE5 49-46. There was one District Court race, with an unopposed Republican, the Democratic candidate for Sheriff lost by 13 points, and there was no Dem running for Tax Assessor. There were a mix of Dem and GOP winners, some unopposed, for Commissioners Court, Justice of the Peace, and Constable.

In 2020, Wendy Davis took the CD21 piece 49-46, while Julie Oliver held Roger Williams to a 57-41 edge. (There’s also a piece of CD35 in Hays County. Pound for pound, Hays is at least as sliced up at the Congressional level as Travis County is.) Statewide Dems were now universal winners in Hays, ranging from Chrysta Castaneda’s 49.8% to Elizabeth Frizell’s 53.1%. Rebecca Bell-Metereau won in SBOE5 50.5% to 44.8%. Hays County now had a second District Court seat, won by a Democrat, and a new County Court at Law seat, also won by a Dem. The same Republican judge who was unopposed in 2016 was unopposed in 2020 as well. Dems now had challengers for both Sheriff and Tax Assessor, and while they both lost it was 51-49 in each. Dems had a challenger for Commissioners Court in Precinct 3, losing 52-48 after not contesting the position in 2016. The Dem Constable who won Precinct 2 by 110 votes in 2016 was re-elected by 2,500 votes in 2020. I’d say Hays is a bit like Harris County in 2012, where Dems are the majority but they do better at the top of the ticket, and aren’t quite able to knock out Republican countywide officeholders. There are definitely opportunities here going forward.

Brazoria County: This is more a story of stasis than progress. Trump carried Brazoria County by 29K votes in 2016, and he carried it by 28K votes in 2020. I’d rather go this direction than the other one, but we’re not getting anywhere at that rate. If we pull the curtain back a little farther, here’s the margin of victory in Brazoria County for the Republican Presidential candidate in each election since 2004: 34,758 (04), 29,035 (08), 36,441 (12), 29,591 (16), 28,159 (20). The long-term arc is fine, it’s just slow.

Republican statewides won the county with leads in the 30-34K range in 2016, and roughly the same in 2020. The percentages are closer, because that’s how ratios work, but the absolute difference in votes is more or less the same. That’s why I always aim to report both figures in posts like this, because you need both dimensions to understand what is really happening. For what it’s worth, Sri Kulkarni lost the CD22 portion of Brazoria by 6K votes after Mark Gibson lost it by 14K in 2016, but in the end that didn’t amount to much. I see Brazoria as being similar to Fort Bend twenty years ago, with a lot of work needed to move it in the same direction that Fort Bend has gone.

That’s all I’ve got for this exercise. There are some opportunities out there, but nothing can be taken for granted. Broadly speaking, the key is to run candidates in these downballot races – for one, there’s winnable contests out there, and for two, this is a key component to building a bench of future candidates. And not to put too fine a point on it, but as we have seen in Harris County, having a good county government is a big win on its own.

A closer look at county races, Part 1

Nov 16th, 2020
by Charles Kuffner.
3 comments

In this series of entries, I’m going to take a trip through the local election results pages on some counties of interest, to get a closer look at how they went this year and how that compares to 2016. We know Dems didn’t make the kind of gains they hoped for in Congress or the Lege, but there are other races on the ballot. How did things look there?

Harris County: We know the basic story of Harris County, where Republicans have claimed to get their mojo back. I’m not going to re-litigate that, but I will note that while things were mostly at stasis at the countywide and legislative levels, Dems flipped JP Precinct 5, long held by Republicans, though Constable Precinct 5 remained Republican. Beto carried all eight JP/Constable precincts in 2018, and while Biden only carried six in 2020, there still remain opportunities for Dems to win offices currently held by Republicans in Harris County.

Tarrant County: At a macro level, Dems were far more competitive in judicial races in 2020 than they were in 2016. None of the statewide judicial candidates got as much as 41% of the vote in 2016, while the range for statewide judicials in 2020 was 46.13% to 47.91%. In 2016, Dems fielded only one candidate for a district court bench; he lost by 15 points. In 2020, Dems challenged in 9 of 11 district court plus one county court race, with all candidates getting between 46 and 48 percent. This is basically where Harris County Democrats were in 2004, with more candidates in these races.

A little farther down the ballot, and Democrats flipped two Constable offices, in Precincts 2 and 7. Neither Republican incumbent had been challenged in 2016.

Fort Bend County: We know the topline, that Hillary Clinton won Fort Bend County in 2016, by a 51-45 margin. But there was no downballot effect – none of the statewide Democratic candidates won a plurality (all statewide candidates were below fifty percent). None of the Courts of Appeals candidates won, and none of the countywide candidates won, though most were around 48 or 49 percent. State Rep. Phil Stephenson won the Fort Bend part of HD85 by six points. Republicans won back County Commissioner Precinct 1 by finally running an untainted candidate against two-term incumbent Richard Morrison. Fort Bend was on the precipice, but it seemed like it had been there before.

As we know, Democrats broke through in a big way in 2018, and 2020 was more of the same. It’s not just that Biden carried Fort Bend by over ten points. It’s that every statewide Dem took a majority in Fort Bend, as did every Courts of Appeals candidates and every countywide candidate. Dems did not win back CC1, though challenger Jennifer Cantu did a smidge better than Morrison had done, but they did win the Constable race in Precinct 4; this was an open seat, as previous incumbent Trever Nehls ran unsuccessfully for Sheriff. Nehls had been unopposed in 2016.

Bexar County: Bexar is reliably blue at this point, and Biden’s 58-40 win is almost exactly in line with the October countywide poll we got. The big difference I see between Bexar 2020 and Bexar 2016 is in the legislative races. Phillip Cortez won HD117 back in 2016 by two and half points after having been swept out in the 2014 debacle. He won in 2020 by over 13 points. Tomas Uresti won HD118 in 2016 by ten points; Leo Pacheco won it in 2020 by seventeen. Rebecca Bell-Metereau lost the Bexar portion of SBOE5 in 2016 by 42K votes; she lost it by 24K votes in 2020, which is to say by 18K fewer votes. She won the district by 17K total votes, mostly boosted by Travis County, but she needed it to be closer in Bexar and it was. By the same token, Sen. Carlos Uresti won the Bexar portion of SD19 over challenger Pete Flores in 2016 by 34K votes. Incumbent Pete Flores lost the Bexar portion of SD19 to Roland Gutierrez by 33K votes, and he needed that margin to be as good as it was considering how the rest of the district went for Flores by 23K; Uresti had won the rest of the district by 3K in 2016. However you feel about the 2020 election in Texas, you would feel much worse about it if Rebecca Bell-Metereau had lost and Pete Flores had hung on. So thank you, Bexar County.

Williamson County: WilCo made news in 2018 when Beto carried the county, with MJ Hegar doing the same in CD31. I’ll get to the 2020 results in a minute, but first let’s remind ourselves where things were in 2016. Trump won WilCo by nine points over Hillary Clinton, John Carter beat Mike Clark in CD31 by 19 points, other statewide Republicans led by 16 to 19 points, and Tom Maynard led in SBOE10 by 16 points. State Rep. Larry Gonzalez had only a Libertarian opponent in HD52, Rep. Tony Dale won HD136 by eleven points. Republicans running for countywide office were all unopposed. The one Democratic victory was for County Commissioner, Precinct 1, which Terry Cook took with 51%.

Fast forward to 2020. Biden won Williamson County by about a point and a half – more than ten points better than Clinton in 2016. As with Tarrant County, his win was a solo at the county level, but the Democratic tide was much higher. Hegar lost to John Cornyn by three points, Donna Imam by five in CD31, and the other statewide Dems trailed by three to seven points. Tom Maynard carried WilCo in SBOE10 again, but only by four points. Dems had flipped HDs 52 and 136 in the 2018 wave, and both freshmen Reps were easily re-elected, James Talarico by three points in HD52, and John Bucy by 10 in HD136. Dems lost the two District Court races they challenged, and they lost for County Attorney, but they did oust the scandal-tainted Sheriff, by a massive 12 points. Terry Cook was re-elected as County Commissioner in Precinct 1 with over 57%, and Dems won Constable Precinct 1, while coming close in Precincts 3 (losing by five) and 4 (losing by two). It’s not at all hard to see Williamson as the next Fort Bend.

The point of all this is twofold. One is a reminder that there are more races than just the state races, and there’s more ways to measure partisan strength than just wins and losses. The other is that these much less visible races that Dems are winning is exactly what Republicans were doing in the 80s and 90s and into the aughts. Every election it seemed like I was reading about this or that traditionally Democratic county that had gone all Republican. There is a trend here, and we’d be foolish to ignore it. To be sure, this is happening in fewer counties than with the Republican march of the previous decades, but there’s a lot more people in these counties. I’ll take population over land mass any day.

I’ll be back with a look at more counties next time. Let me know what you think.

UPDATE: While I was drafting this, I received a press release from the TDP congratulating three Democratic Sheriffs-elect, all of whom had won offices previously held by Republicans: Eric Fagan in Fort Bend, Mike Gleason in Williamson – both of which were mentioned in this post – and Joe Lopez of Falls County, which is adjacent to McLennan and Coryell counties to the east; basically, it’s east of Waco. Falls was Republican at the Presidential level, with Trump carrying it 4,177 to 1,899, so I assume there was some reason particular to that race that assisted Lopez in his victory.

A focus on the SCOTX races

Nov 3rd, 2020
by Charles Kuffner.
2 comments

With so much litigation over a variety of voting issues, the Supreme Court of Texas is in the news a lot these days. Will that mean more attention being paid to the four races for SCOTX positions?

Justice Gisela Triana

The sleepy contests for seats on Texas’ highest courts have taken on new energy this year as Democrats, bullish on their chances to claim seats on the all-Republican courts, seek to capitalize on a series of controversial pandemic- and election-related decisions.

Voters have the chance to choose four justices on the nine-member Texas Supreme Court, the state’s highest court for civil matters, and three judges on its sister body, the Texas Court of Criminal Appeals.

It’s notoriously difficult for judicial candidates, even those running for the state’s high courts, to capture voters’ attention, particularly with a hotly contested presidential race above them on the ballot. But this year, Democrats say they have something new to run against: decisions by the high court to end Texas’ eviction moratorium and election opinions that limited mail-in voting options.

“The Supreme Court has been in the news on almost a weekly basis over the last several months … with all the election shenanigans that are going on,” said Justice Gisela Triana, who serves on the Austin-based 3rd Court of Appeals and is running as a Democrat for a seat on the high court. “I think they’ve been complicit in allowing the Republican Party to try to make it harder for people to vote.”

For Republicans, meanwhile, the virus is an argument for sticking with the status quo. Chief Justice Nathan Hecht, who faces reelection this fall, said unprecedented challenges of access to justice and budget concerns during the pandemic would best be handled by a judge with experience running the court.

“We’re in such untraveled waters — dangerous, difficult, challenging times,” said Hecht, who has served on the court for more than three decades. “It takes some leadership not only to try to discern a wise course through all this, but to get the other branches to go along with you.”

[…]

Even as President Donald Trump runs an unusually tight race in Texas with Democratic nominee Joe Biden, less controversial Republicans lower on the ballot are expected to perform better in Texas. Republican U.S. Sen. John Cornyn, facing Democrat MJ Hegar, has shown a wider lead in polling than the president, and statewide judicial candidates outperformed U.S. Sen. Ted Cruz in 2018 and Trump in 2016.

Republicans say they’re confident Trump will carry the state — but that the judges could win even if he doesn’t.

Pollsters sometimes view statewide judicial races as pure tests of a voter’s partisan allegiance since so few Texans are familiar with the candidates.

“Even though we’re toward the top of the ticket, people don’t know much about who we are,” Hecht said.

[…]

Along with new attention to the high court comes the uncertainty about what the end of straight-ticket voting will mean for Texas. This Nov. 3 marks the first election in which Texans won’t have the option of voting for every candidate in a certain party with just one punch — a colossal change whose effects neither party can fully anticipate.

All that, coupled with a volatile presidential race, means “you just can’t tell” where the outcome may land, Hecht said.

“It’s just completely unpredictable,” Boyd said. A higher profile for the court could help him as an incumbent, he said.

“If people are seeing the coverage and thinking, ‘I need to do my homework on these races,’ I have full confidence that when they do their homework they’ll end up supporting me,” Boyd said.

Democrats see reason for optimism in early voting totals, which have shattered records, especially in large, blue counties like Harris. But Republicans are also turning out to vote early in high numbers.

And there may be more reason for Democrats to be hopeful. Keir Murray, a Democratic operative in Houston, said based on the statewide numbers he’s seeing, women are outvoting men by 10 points — a potentially major boon for an all-female Democratic slate for Supreme Court.

“Women usually outvote men, but not to that degree,” he said.

Let’s start with the obvious – the statewide judicial races are mostly affected by the Presidential race. It’s true that the Supreme Court has been in the news a lot recently and have made a number of consequential rulings that affect not just the election and how it is being conducted but also the COVID pandemic and how it is being handled. The story does a good job laying all this out, and I’d be willing to believe that a lot of people are at least aware of these things. How many of those people are more likely to vote, or are likely to change how they vote, as a result of these stories is a question none of us can answer, but my suspicion is that it’s pretty small. Makes for good speculation and the basis of stories like these, but that’s as far as we can go.

What about the claim that Republicans are likely to win the statewide judicial races even if Biden carries Texas? It’s kind of amazing that Republicans would advance that hypothesis instead of just laugh off the question, but a check of recent elections suggests they’re onto something. All of the Republicans running for statewide judicial office in 2016 won by a wider margin than Trump did, and all of the Republicans running for statewide judicial office in 2018 won by a wider margin than Ted Cruz did. If there are Republican voters who don’t vote for Trump like that, then that’s a plausible scenario. I feel like a lot of the people who avoided Trump but otherwise mostly voted R in 2016 were voting mostly D in 2018, but maybe I’m wrong about that. Keir Murray’s point about the electorate being disproportionately female so far means Dems are probably doing pretty well so far and that’s a boost for all Dem candidates, but it doesn’t tell us anything about how the court candidates may do compared to Trump. I don’t think the Cornyn/Hegar polling tells us all that much either, as there’s a name recognition component to that.

An alternate possibility is that some number of people who vote for Trump will peace out after that. Trump has spent plenty of time attacking Republicans, too, so some of his supporters are loyal to him but not the party. The 2016 experience suggests that’s unlikely, but maybe this year is different. I don’t think the lack of straight ticket voting will matter much. The Supreme Court Chief Justice election is the fifth race people will see on their ballots, following the three federal elections (President, US Senate, US House) and Railroad Commissioner. Maybe some people who aren’t strong partisans will skip those races because they don’t feel they know the candidates well enough, but it won’t be because they’re tired of all that voting.

Look, Democrats are motivated to vote, and they’re pissed at the rulings in some of these lawsuits, even if SCOTX maintained its integrity in the latest Hotze provocation. I think there’s a strong urge to vote all the way down. I just don’t know how to quantify that. I’ll know more after the election.

Paxton trial move back to Collin County on hold

Nov 1st, 2020
by Charles Kuffner.
1 comment

Delay is the natural state of being in this saga. I don’t know why we’d ever expect anything else.

Best mugshot ever

A Houston appeals court has pressed pause on a ruling that would have allowed Texas Attorney General Ken Paxton to stand trial for felony securities fraud in his hometown of Collin County.

That Oct. 23 ruling came three years after the case was first sent to Harris County, with prosecutors arguing they could not get a fair trial prosecuting Paxton in a part of the state where he and his wife, state Sen. Angela Paxton, are deeply politically connected.

Paxton is accused of persuading investors to buy stock in a technology firm without disclosing he would be compensated for it. He has maintained his innocence and dismissed the charges as politically motivated.

The 1st Court of Appeals in Houston has, for now, blocked the case from resuming in Collin County — likely further delaying the five-year-old case — as it considers the issues.

See here for the previous update. The Chron adds a few details.

The case was moved to Harris County after a judge ruled in 2017 that Paxton’s Republican political connections in Collin County would give him an unfair advantage at trial. But that decision has been under judicial review now for three years as Paxton’s defense team and the special prosecutors appointed in the case battle over the venue.

The prosecutors applauded the latest decision by 1st Court of Appeals Judge Gordon Goodman, a Democrat elected in 2018 as his party swept judicial races.

“The ruling of the court was not unexpected as the law and facts are very straightforward,” said Kent Schaffer, one of the prosecutors. “We are optimistic that the Court of Appeals will do the right thing, and Ken Paxton will face justice in front of a Houston jury.”

[…]

Paxton’s lawyers had argued that the case should have never been moved in the first place, because the judge made the decision after his assignment to the case had expired.

In June, Harris County state District Judge Robert Johnson ruled in Paxton’s favor and moved the case to Collin County. But the 1st Court of Appeals struck that order about a month later, after Johnson recused himself from the case because Paxton’s office is representing him in a separate suit.

The case was then reassigned to Harris County Jason Luong, a Democrat and former prosecutor with the Harris County District Attorney’s office.

Luong agreed the case should be sent back to Collin County based on his interpretation Johnson’s ruling, and he did not discuss where he believed Paxton would receive a fair trial.

The prosecutors had argued in their appeal that Luong misinterpreted the law.

Just to recap, and I’m totally relying on this Chron story rather than spending an hour digging through my own archives, but the case was first moved from Collin County to Harris County because the judge at the time, a Tarrant County jurist who had been appointed as a visiting judge precisely because no Collin County judge could handle the initial hearings, agreed with the prosecutors’ argument that Paxton would get preferential treatment in his home county. All the arguments since then have been about technicalities. It’s surely a safe bet that this current dispute will wind up before the Court of Criminal Appeals, just as the previous ones did. It’s not at all far-fetched to think that Paxton’s more recent legal troubles will see the inside of courtroom before this case does.

Idle yet hilarious thought: How much do you think Paxton will want to move the case back to Collin County if it flips blue and votes for Joe Biden this year?

Anyway. Settle in, or stay settled in if you never bothered to settle out. This will take awhile.

UH-Hobby: Trump 50, Biden 45

Oct 27th, 2020
by Charles Kuffner.
29 comments

Here’s a poll result that stands in contrast to the others we have seen lately.

President Donald Trump is leading Democratic presidential nominee Joe Biden by more than five points among likely voters in Texas, according to a poll released Monday by the Hobby School for Public Affairs at the University of Houston.

The poll, conducted between Oct. 13 and Oct. 20, found 50% of voters said they already had or will vote for Trump, while 44.7% said they had or will vote for Biden.

Trump and running mate Mike Pence carried Texas by nine points in 2016.

The Republican edge held for statewide contests down the ballot, including for U.S. Senate, Texas Railroad Commission and three statewide judicial races covered by the poll.

“Record turnout in early voting clearly shows the state’s Democrats are energized, but at least at the top of the ticket, that enthusiasm appears unlikely to overcome the Republican advantage among men, Anglos and older voters,” said Renée Cross, senior director of the Hobby School. “In fact, we found the Republican candidate leading by wider margins in statewide races farther down the ballot.”

Among the findings:

  • More than 40% had already voted at the time of the poll. Biden held a substantial edge among those voters, leading Trump 59% to 39%. Almost two-thirds of those who plan to vote on Election Day said they will vote for Trump.
  • Incumbent U.S. Sen. John Cornyn leads Democratic challenger MJ Hegar 48.9% to 41.6%.
  • Republican Jim Wright is leading in the race for an open seat on the Texas Railroad Commission, with 46.8% of the vote; Democrat Chrysta Castañeda has 38.4%.
  • Biden holds a slight edge among women, 49.5% to 46%. Trump is preferred among men by a notably larger margin, 54.3% to 39.5%.
  • While 63% of Anglos support Trump, and 87% of African-American voters back Biden, the gap is narrower among Latino voters: 56% support Biden, and 38% back Trump.
  • Republican Nathan Hecht leads Democrat Amy Clark Meachum 47.5% to 40% for Texas Supreme Court chief justice. For Supreme Court Justice Place 6, Republican Jane Bland leads Democrat Kathy Cheng 49.2% to 40.1%.
  • Republican Bert Richardson leads Democrat Elizabeth Davis Frizell 48.2% to 38.3% for Texas Court of Criminal Appeals Judge Place 3.

The full report is available on the Hobby School website.

The Hobby School did a primary poll in February and one Trump-Clinton poll around this time in 2016; they also did a couple of polls of Harris County in 2016. As noted in their introduction, this was a YouGov poll, so similar in nature to the UT/Texas Tribune polls. As I alluded to in the headline, this is the first poll we’ve had in awhile that was this positive for Trump, and it especially stands in contrast with that UT-Tyler poll that came out over the weekend. What does one make of this?

You can peruse the poll data as you wish. I’m going to note one thing that really stood out to me. The following is a list of how Independent voters went in each of the last nine polls over the past month for which that data was available (in other words, skipping the Morning Consult polls). See if you can see what I saw:


Poll      Biden   Trump
=======================
UH-Hobby     34      51
UTT/DMN      51      29
Q'piac Oct   50      39
DFP          40      36
PPP          60      35
UT-Trib      45      37
UML          43      39
NYT/Siena    41      37
Q'piac Sep   51      43

Yeah, that’s a very different result for independent voters than for basically every other poll we’ve seen. Note that the UT-Trib poll had Trump up by five, as did the Quinnipiac poll from September (both were 50-45 for Trump, in fact), and that UMass-Lowell poll had Trump up 49-46. As the song goes, one of these things is not like the others.

There are other things that can be said about this poll – I appreciate the “who has voted” versus “who has yet to vote” distinction, and I appreciate the inclusion of downballot races though I tend to discount those results because of the increase in “don’t know” responses – but this is the main thing I wanted to cover.

Links to the cited polls, and their data or crosstabs page where the numbers I included can be found:

UT-Tyler/DMN – data
Quinnipiac – data
Data for Progress – data
PPP – data
UT-Trib (data about indies in quoted excerpt)
UMass-Lowell – data
NYT/Siena – data
Quinnipiac – data

I will also note that Jim Henson and Joshua Blank have observed a shift in independents’ preferences in Texas towards indies this cycle. And now I will stop beating this horse.

Endorsement watch: Judicial races

Oct 13th, 2020
by Charles Kuffner.
Comments are off for this post

The Chron endorses two Dem challengers and one Republican incumbent for the Court of Criminal Appeals.

Judge Tina Clinton

A court’s legitimacy derives in part from its capacity to inspire trust in the minds of those who live by its rulings. “There cannot be a trust among the African American community that the system is fair when the judges dispensing that justice are all represented by just one group,” Judge Tina Yoo Clinton, a Dallas County district court judge whom we recommend for Place 4, said last month at a virtual forum organized by the Innocence Project of Texas. She was noting that there are currently no Black justices on the court, and just one of nine members is Latino.

It’s a valid point, but it’s also true that in the context of the Court of Criminal Appeals, diversity must also include a broader range of ideological perspective and of life experience. That’s because how a judge sees the law — and how he or she applies it to a particular case — is far more complex than sound bites about “activist judges” or labels such as conservative and liberal.

[…]

Place 4, Tina Yoo Clinton (D)
Tina Yoo Clinton, 50, has more than 14 years experience as a judge and 10 more as a prosecutor. She brings a combination of a veteran judge’s experience and the enthusiasm and fresh perspective of a newcomer. It’s exactly the mix the court needs.

For that reason, we recommend her over Justice Kevin Yeary, who has been on the court since 2014.

“Clearly when you look at what is going on in the United States within the criminal justice system, we have to recognize that even though we want justice to be colorblind, it is not colorblind,” Clinton said during last month’s candidate forum.

That’s a starting point that will help shape the discussions among the nine justices in ways that keep fairness at the center of the debate. Matched with her long experience and commitment to follow the law, we believe she will help render justice in which all Texans can have faith.

Place 9, Brandon Birmingham (D)
We recommend voters elect Dallas County criminal district court Judge Brandon Birmingham, 43, in Place 9, even at the high cost of losing Justice David Newell, whose voice on questions of actual innocence has been reasoned and refreshing.

But he adheres to the court’s overall emphasis on textualism, and approaches each case within a narrower view of what justice requires than would his opponent. The court’s nine members urgently need new perspectives, new sets of life experiences, and new vantage points from which to see the law and the facts in order to render decisions that have credibility with an increasingly skeptical public.

Birmingham would stretch the boundaries of that debate — and would do so using experience as a judge, a prosecutor and a change agent.

They also endorsed Justice Bert Richardson, who I will agree is a good judge, over challenger Elizabeth Frizell. At least here, the Chron did more than just nod in the direction of increasing the diversity of this court, as they did with the Supreme Court.

In the other judicial races, the Chron endorsed all four Republican incumbents on the First and Fourteenth Courts of Appeals, and five Dems and five Republicans (plus one abstention) for the district courts. I’m just going to say this: If there’s one thing we should take away from the Merrick Garland/Neil Gorsuch and Amy Coney Barrett experiences, it’s that the judiciary is to Republicans (with a huge push from the professional conservative movement) nothing but an expression of political power. Gorsuch was given, and Barrett almost certainly will be given, a lifetime tenure on the US Supreme Court, where they will consistently rule in favor of Republican and conservative positions, because the Republican-held Senate had the power to block Garland and install the other two.

Here in Texas, where we elect judges as part of the regular electoral process, there has been a call to move away from partisan elections of judges and towards some other, as yet undefined system, which may involve appointments or bipartisan panels or who knows what else. This push has emerged and grown as Democrats have begun to assert more political power in Texas – I’ve been documenting it since 2008, when we elected Democratic judges for the first time since the early nineties. What the voters want is more Democratic judges, and so it has become Very Important for the Republicans that still retain full power in this state to make sure they don’t get them.

As a matter of abstract principle, I would agree that we could do a better job picking judges than the current system we have, where judges are voted on by people who mostly have no idea who they are and what they do. I’m sure if we put a few sober and learned types in a room for a few hours, they would emerge with a perfectly fine system for selecting judges on pure merit. But we’ve had this imperfect system for a long time, and when it benefitted the Republicans it was just fine. It certainly benefits them right now, when questions about voting rights are being litigated. If more Democratic judges get elected this cycle, I consider that just to be some balance on the scales. When we get to a point of having solid Democratic majorities on the Supreme Court and the CCA, and there’s a Democratic Governor and Lt. Governor and Democratic majorities in the House and Senate, then come back with a fully-formed plan for non-partisan meritocratic judicial selections, and we can talk. Until then, I say elect more Democrats, including and especially Democratic judges. Politics has been a key part of this process from the beginning. The fact that the politics are slowly starting to favor the Democrats is not a compelling reason to change that. Quite the opposite, in fact.

A slightly less rosy view of Democratic prospects

Aug 1st, 2020
by Charles Kuffner.
1 comment

Here’s the latest race ratings from Texas Elects:

Texas Election Source has updated 27 race ratings based on the latest polling, July campaign finance reports and primary runoff results. Twenty of those races moved one column toward the Democrats’ advantage. Our complete ratings are located here. Thirteen Republican-held seats in the legislature or congressional delegation are rated Toss-up or Lean Democratic. No Democrat-held seat is rated below Lean Democratic after several seats formerly in the Toss-up column were shifted into the Lean Democratic column.

The most significant impact of the new ratings on our projections is in the Texas House. Democrats need a net of nine seats to retake a majority in the chamber. We project they will get six, up three from our April ratings, which would cut the Republicans’ advantage to 77-73 entering the 2021 legislative session. Seven more Republican-held seats are projected to be within 1.5 percentage points of the range we consider a toss-up race. Only two Democrat-held seats are projected to be within 1.5 percentage points of a toss-up.

Four Republican-held seats are rated Lean Democratic, listed from greatest to least lean:

  • HD134 – Rep. Sarah Davis (R-Houston) vs. Ann Johnson (D)
  • HD138 open – Lacey Hull (R) vs. Akilah Bacy (D)
  • HD108 – Rep. Morgan Meyer (R-Dallas) vs. Joanna Cattanach (D); and
  • HD66 – Rep. Matt Shaheen (R-Plano) vs. Sharon Hirsch (D).

Since 2010, the four House seats on the list have drifted an average of 7.3 percentage points bluer, relative to the state as a whole. Two seats in other chambers – CD23 and SD19 – are also rated Lean Democratic. They have gotten relatively redder but remained 3.9 and 9.1 percentage points bluer than the state as a whole in 2018. We are projecting SD19 to get another 1.4 percentage points redder, but even that keeps it just .07% from being labeled as Likely Democratic.

Incidentally, HD134 would rate as Likely Democratic but for Davis’s consistent over-performance of other Republicans in the district. In 2018, the average Democrat received 55% of the vote in her district measured head-to-head against the Republican, but Davis survived thanks to ticket-splitting voters. Longtime political observers will remember former Rep. Jim McReynolds (D-Lufkin) who held onto his district by finishing as much as 19 points better than the rest of the Democratic slate. He was overwhelmed by rising Republican leanings in 2010 but still over-performed the rest of the ticket by 12 points. We project Davis’s ability to win over ticket-splitting voters will not be enough this year.

Dallas Co. was the epicenter of the Democratic surge in 2018. Only two Republicans represent the county in the state House currently, and we project that number will be zero after November. Tarrant Co., home to five races rated Toss-up or Lean Republican, and Fort Bend Co., with three seats in the Lean and Likely Republican columns, are expected to be the chief battleground counties in the House this year.

There’s more, so go read the rest. Texas Elects has a lot of premium content, but the free stuff is worth checking regularly.

Unlike the exuberant Capitol Inside projections, Texas Elects has the Dems falling short of a majority in the House, though it does expect three Congressional seats and SD19 to flip, and it has all of the statewide races as “Lean Republican”. You might be wondering about the inclusion of some Dem-held seats on the table, but as noted before, HDs 31, 34, and 74 are three of the four most purple districts out there that were held by Dems prior to 2018. They could be vulnerable in a bad year for Dems, though I don’t think this is that kind of year. As for HD41 and HD144, I can’t say I’m worried about them.

As that Capitol Inside projection was ebullient for Dems, this one is more sober. It sounds a little crazy to say when you think of the decade in total, but a six-seat pickup by Dems in the Lege would feel disappointing. It’s well within the range of possibility, and if all we ever think about is the best case scenario we’re not being honest with ourselves. All projections are art as well as science, in that you have to decide which factors are the most important and by how much. Individual candidates and fundraising prowess mean a lot, but so does the national environment, and so do demographic trends.

As far as candidates mattering goes, read that analysis of the HD134 race carefully. I come back to this a lot, but the key thing that happened in HD134, and in CD07 (which includes almost all of HD134) is exactly that the Democratic shift from 2016 to 2018 went much deeper than the top of the ticket. The average Republican judicial candidate won CD07 by thirteen points in 2016, and won HD134 by eight. In 2018, the average Republican judicial candidate barely won CD07. I didn’t do the exact same analysis for the State House districts, because I spent so much time talking about straight tickets and undervoting, but in service of that analysis I did this sample of judicial races, and as you can see each Dem was over fifty percent in HD134, by varying amounts. The point is, the fundamental nature of HD134 has shifted from “a Republican district that will sometimes support specific Democrats” to “a Democratic district that has – at least till now – supported Sarah Davis”. That’s what she’s up against this year, not just her November opponent but the baggage of the entire Republican Party and the prospect of a Democratic Speaker. She could hang on, and for sure she should not be underestimated, but this year, for the first time, she’s the underdog.

Anyway. I love this kind of analysis because it makes me think about my own assumptions and expectations for the year. Go take a look and see what you think.

Move to Collin County on hold, Paxton judge recuses himself

Jul 12th, 2020
by Charles Kuffner.
1 comment

Stay with me here.

Best mugshot ever

The Harris County state district judge who handed Attorney General Ken Paxton a big win by moving his criminal case back to Collin County two weeks ago is now recusing himself because Paxton’s office is representing him in a separate suit.

Now Judge Robert Johnson’s quick exit is leading the attorneys prosecuting Paxton to question the decision to move the case back to Paxton’s home county.

Johnson, who did not respond to requests for comment, made the venue change decision on June 25. A day later, he and all 22 other Harris County felony judges were added as defendants in a lawsuit alleging that the region’s bail practices discriminate against poor defendants.

The Attorney General’s Office represents state agencies and individual employees of the state and officially became counsel to Johnson and 19 other judges on July 1.

[…]

Prosecutors in the case have appealed the move to Collin County, and the First Court of Appeals on Tuesday granted a motion for a stay of the proceedings during the appeal.

One of the prosecutors, Kent Schaffer, says the recusal raises questions about when Johnson knew he had a potential conflict of interest. He said he plans to look into the issue and will continue to push for the venue change to be voided.

“If we can show that he was already in conversations with the AG about representation, he should have recused himself at that point,” Schaffer said. “If he had a conflict, he shouldn’t have ruled on it to begin with.”

Johnson said in court documents on Monday that he was recusing himself out of a concern that his “impartiality might reasonably be questioned,” citing from the Texas Rules of Civil Procedure.

Philip Hilder, an attorney for Paxton, said Tuesday that he has no doubt that Johnson’s decision to move the case should stand.

“The judge’s ruling was completely based in following the law and facts and (he) made the right decision by sending the case back to Collin County,” Hilder said. “He did not need to recuse himself on the matter since it had been ordered back to Collin County and the allegations against Mr. Paxton do not involve his official capacity but rather his individual capacity that predates his election to that office.”

Johnson had agreed with Paxton that the judge who moved the case to Harris County in 2017 did so after his term had expired and the decision therefore should not stand.

The case is out of Johnson’s hands for now until the appellate court rules — either upholding the move to Collin County or sending it back to his courtroom.

See here for the background. I agree that the addition of district criminal court judges to the bail reform lawsuit, for which they will be represented by the Attorney General’s office, is a complicating factor, and that it would have been better if Judge Johnson had either ruled or recused himself before that happened. I can’t quite articulate what the conflict of interest may be here, but as a matter of general principle it would be best to separate the two cases. Given the reasons why the case was moved in the first place, maybe moving it to Bexar or Fort Bend or some other large-but-not-Collin county is the better way to go; I’d guess no one was advocating such a position, however. As usual, this case gives me a headache, so I’m just going to leave this here and wait till the First Court of Appeals makes its ruling.

Back to Collin County for the Paxton trial

Jun 26th, 2020
by Charles Kuffner.
Comments are off for this post

Where it all began.

Best mugshot ever

Years after it was sent to Harris County, the criminal case against Texas Attorney General Ken Paxton will move back to his native Collin County, a Harris County judge ruled Thursday.

Paxton, a Republican, was indicted in 2015 on felony securities fraud charges, but the case has yet to go to trial as side battles persist over the venue where he will be tried and the amount the special prosecutors will be paid.

A judge moved Paxton’s case to Harris County years ago, after prosecutors said they could not get a fair trial in Collin County, Paxton’s home and former district from his time in the state Legislature. His wife, state Sen. Angela Paxton, R-McKinney, now represents the region.

But Ken Paxton’s defense team argued last year that the judge who initially ordered the move to Harris County did not have the authority to do so, as his time overseeing the case had elapsed. The two attorneys prosecuting Paxton, Brian Wice and Kent Schaffer, disputed that at a December hearing and said the case belongs in Harris County. But Judge Robert Johnson, a Democrat, agreed with Paxton’s defense team in an order this week.

Wice pledged to appeal the decision.

“The only thing more wrong than the judge’s ruling is that it took him almost a year to make it,” he said. “We’re confident the court of appeals will set it aside and keep venue in Harris County where it belongs.”

See here for the previous update, and here for a full timeline of L’Affaire Paxton. Judge Johnson had said at that December hearing that he’d rule by the end of the month. I have no idea what happened with that, but here we are. As I said then, the only sure thing in all this is that it will eventually end up before the Court of Criminal Appeals. I don’t even have it in me to make a joke at this point. The Chron and the DMN have more.

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