Off the Kuff Rotating Header Image

Donald Trump

Precinct analysis: Looking back at the 2012 landscape

Mar 27th, 2023
by Charles Kuffner.
No comments yet

PREVIOUSLY: State House 2022

We’ve had our first look at the way the new State House districts performed, and while we can expect the 2024 election to be a little different, it’s clear at this time that there aren’t many swing seats out there, even with a fairly expansive definition of “swing”. That’s by design, of course, and it’s clear Republicans have gotten pretty good at doing what they do. But I think we all recall feeling similar emotions following the 2012 election, and while it took awhile, we did see some massive changes in how districts were perceived over time. So let’s wind the clock back a decade and see what the landscape looked like at first. We’ll start with the Republican seats as of this time in 2013, using the same “under 55%” and “55-60%” standards as before.


Dist  Romney   Rom%    Obama Obama%
===================================
023   31,282  54.6%   25,365  44.2%
043   25,017  52.0%   22,554  46.9%
052   30,763  54.7%   23,849  42.4%
054   25,343  52.9%   21,909  45.7%
102   29,198  53.0%   24,958  45.3%
105   23,228  52.1%   20,710  46.5%
107   27,185  51.8%   24,593  46.9%
113   27,095  52.5%   23,891  46.3%

Dist  Romney   Rom%    Obama Obama%
===================================
032   28,992  56.9%   21,104  41.4%
045   35,298  55.2%   26,757  41.8%
047   50,843  58.0%   34,440  39.3%
065   31,456  57.5%   22,334  40.8%
096   36,190  58.6%   24,838  40.2%
097   39,614  59.6%   25,881  38.9%
108   40,564  59.0%   27,031  39.3%
112   28,221  55.0%   22,308  43.5%
114   35,795  55.2%   28,182  43.5%
115   30,275  55.4%   23,556  43.1%
132   31,432  58.9%   21,214  39.8%
134   46,926  56.4%   34,731  41.7%
135   32,078  58.8%   21,732  39.8%
136   35,296  55.1%   26,423  41.2%
138   27,489  59.2%   18,256  39.3%

Ironically, the first two districts listed here are ones that quickly disappeared from the “competitive” rankings. Both HDs 23 and 43 trended red over the decade, and neither has had a serious Democratic challenge since 2014. (HD23 was won, for the last time, by Democrat Craig Eiland in 2012; HD43 became Republican after the 2010 election when its incumbent switched parties.) Most of the other districts in both tables above are now Democratic, with HD132 being Dem for one cycle after being flipped in 2018 and flipped back in 2020. HD107 was the first Dem takeover, in 2016, while HD134 turned blue in 2020. All the rest came over in 2018.

It should be noted that as of the 2012 election, there were only 55 Democrat-held districts. Three went red in the 2014 debacle, with two of those (HDs 117 and 144) plus HD107 flipping back in 2016. Dems have 64 seats now, and could with a bit of optimism get to the 67 that they had after the 2018 wave. After that, you’re relying on either a steady march of favorable demographic progress, or another shakeup in the national landscape that makes formerly unfriendly turf more amenable. Which is indeed what happened last decade – in the previous decade, it was more the march of demography – but past performance does not guarantee future results. The Republicans have made some gains in formerly dark blue turf, too, as they had in 2010 when they managed to finally win in historically Democratic rural areas. You can’t say from here which way or how far the wheel will spin.

In the end, there were 22 “competitive” seats by our metric as of 2013. Fourteen of them were won after then at least once by a Democrat, with thirteen of them net for Team Blue. I have 34 such seats in 2023. I’d say that’s a combination of Texas being modestly bluer overall – remember that Mitt Romney took 57% in 2012 while Donald Trump took 52% in 2020; Greg Abbott got 59% in 2014 and 54% in 2022 – with Republicans having to spread themselves a little thinner in order to hold as many of these seats as a result. We’ll just have to wait and see how it all ends up.

On the other side of the ledger, the “swing” Dem-held seats of a decade’s hence:


Dist  Romney   Rom%    Obama Obama%
===================================
034   19,974  44.2%   24,668  54.6%
078   19,013  44.0%   23,432  54.3%
117   20,036  46.7%   22,234  51.8%
144   11,606  47.9%   12,308  50.8% 

Dist  Romney   Rom%    Obama Obama%
===================================
041   14,906  42.3%   19,935  56.5%
048   32,025  39.5%   46,031  56.8%
050   22,906  38.8%   34,110  57.8%
074   16,738  41.5%   22,955  56.9%
118   17,824  43.3%   22,719  55.2%
125   19,004  39.5%   28,374  59.0%
148   16,296  41.1%   22,449  56.6% 
149   18,183  41.8%   24,839  57.1%

Not nearly as many as there are now, and basically none of them became more competitive over the course of the 2010s. HDs 117 and 144 did flip in 2014 but returned to the fold the following election. A couple of these districts, specifically HDs 34 and 74, are legitimately competitive now, at least by the statewide numbers, and of course HD118 was drawn to be considerably redder and is now Republican-held but tenuously so. While it’s on the Dem target list now, I expect it will be on the Republicans’ target list in two years.

I have a total of 19 competitive-by-this-metric seats as of now, but as noted I only expect a couple of them to truly behave that way. Dems will have more “real” targets, up until such time as they begin winning them. But maybe some of those South Texas seats will begin to drift away and we’ll be having a very different conversation in, say, 2026. Again, we’ll just have to see how it plays out. For now, it’s clear that there are more “competitive” seats in 2023 than there were in 2013. We’ll check back later to see how or if that changes.

Precinct analysis: State House 2022

Mar 20th, 2023
by Charles Kuffner.
2 comments

We have data.

Texas Democrats and Republicans are beginning to gear up for a presidential election cycle in which opportunities to flip seats for Congress and the Legislature appear limited.

It’s a natural outcome after Republicans redrew legislative and congressional district boundaries in 2021 to shore up their majorities for the next decade, stamping out most districts that had turned competitive by the end of the last decade. Most of the remaining competitive territory was in South Texas, which is predominantly Hispanic, and where the GOP poured almost all their resources in 2022 — to mixed results.

On paper, there are few obvious pickup opportunities based on an analysis of the governor’s race results in each district. Among U.S. House seats, Republican Gov. Greg Abbott and Democratic challenger Beto O’Rourke did not carry any districts that are currently held by a representative from the other party. The same was true in the Texas Senate. And among state House districts, Abbott and O’Rourke each won only one that is currently controlled by the opposing party.

The statewide election results often provide a helpful guide of how a district is trending given that they often represent the highest-turnout contest in a district.

The size of the battlefield in 2024 could depend on the top of the ticket, which will be the presidential race. President Joe Biden is expected to run for reelection, and the Republican frontrunner to challenge him is former President Donald Trump, whose 2016 and 2020 runs yielded some of the closest presidential races in Texas in recent history. His closest competitor for the nomination is Florida Gov. Ron DeSantis, who has not launched a campaign yet but is widely expected to jump in.

There are other factors for the down-ballot contests that remain to be seen.

Even though Abbott signed off on redistricting in 2021, the lines could still change for the 2024 election. Various groups are suing over the maps, alleging things like intentional discrimination and efforts to dilute voters of color, and they are currently awaiting a trial in federal court in El Paso. On the line in the case are boundaries for seats such as a San Antonio state House seat currently held by GOP Rep. John Lujan; that seat is a top battleground in the Texas House.

My initial view of the new map, which looked at the past elections of the decade, is here, and an index of my look at the results from the 2020 election under the old maps is here. I’ll look at the other types of results in future posts, but today we focus on the State House. The 2022 data for the new map is here.

The gist of this story is that the Republican redistricting was very effective and that there aren’t many competitive districts, which means we’re headed for some boring elections, much as we had in the first couple of cycles last decade. That’s slightly less true for the State House than it is for the other entities, and I think the 2024 environment will at least differ enough from last year to produce some variance.

I’m presenting the districts of interest in two groups. One is the competitive Dem-held districts, the other is the same for Republicans. I’ve sorted them further into districts where Abbott or Beto took less than 55%, and districts where they won between 55 and 60 percent. With all that said, here we go. First up are the closer districts currently held by Dems.


Dist  Abbott   Abb%    Beto   Beto%
===================================
022   17,170  44.5%   20,822  54.0%
034   18,285  47.0%   20,128  51.7%
070   27,581  45.9%   31,749  52.8%
074   18,915  48.7%   19,218  49.5%
080   20,611  51.9%   18,249  46.0%

035    9,867  39.9%   14,517  58.7%
036   10,835  39.0%   16,525  59.4%
039   12,056  40.0%   17,686  58.7%
041   17,364  43.5%   22,125  55.5%
045   26,119  38.9%   39,783  59.2%
076   20,148  39.8%   29,705  58.6%
078   21,133  41.4%   29,140  57.0%
092   14,217  40.2%   20,680  58.4%
105   13,086  42.1%   17,515  56.4% 
113   17,848  41.2%   24,854  57.4%
115   22,605  42.1%   30,334  56.5%
135   16,443  40.0%   24,121  58.6%
144   11,566  43.3%   14,683  55.0%
148   15,451  41.2%   21,460  57.2%

As the story notes, the Republicans somehow failed to field a challenger to Rep. Tracy King in HD80, an oversight I expect they’ll fix in 2024. They made the same mistake in 2010 with then-Rep. Allan Ritter in HD21, but Ritter, an old school conservative rural Dem, rectified their error by switching parties. King, whose district is considerably bluer than Ritter’s was, seems unlikely to follow suit; among other things, he’s been pushing to raise the age to buy automatic weapons from 18 to 21, which puts him at odds with Republican orthodoxy. Never say never, and if the district continues a trend towards the red King could be amenable to such overtures, but for now I don’t see that happening.

For the others, HD70 is a newly-drawn Dem district, and I’d expect it to get bluer over time. HD74, which Rep. Eddie Morales won by 11 despite its closeness at the statewide level, was modestly blue based on 2020 results and should be more so in 2024, though if that isn’t true then expect a bigger fight later on. HD34 was purple-ish before redistricting, and as with HD74 I think it will be bluer next year, but again keep an eye on it. The one district that I think will become more vulnerable over time is HD22, in Jefferson County, which has a declining population and much like Galveston County in the 2000s and 2010s a reddish trend over the past decade. I’d like to see some effort made to shore it up, but I don’t know enough about the local conditions to know how feasible that is. Feel free to chime in if you do.

None of the other districts concern me. The Latino districts, I’d like to see what they look like in 2024. They’re all actually pretty spot on to the 2020 numbers, which given the overall lackluster Dem showing in many areas is moderately encouraging. The rest of them are in overall strong Dem areas, and I don’t expect any reversion of past trends.

Now for the Republican-held seats that Dems might like to target:


Dist  Abbott   Abb%    Beto   Beto%
===================================
037   20,551  51.1%   19,202  47.7%
052   41,813  52.5%   36,500  45.8%
063   35,831  54.8%   28,630  43.8%
094   34,479  54.7%   27,557  43.8%
108   46,796  52.6%   41,022  46.1%
112   35,245  50.6%   33,467  48.0%
118   25,172  48.5%   25,952  50.0%
121   40,300  51.1%   37,368  47.4%
122   47,856  54.7%   38,491  44.0%
133   33,195  54.4%   26,971  44.2%
138   31,077  54.1%   25,464  44.3%

014   27,936  56.9%   20,207  41.1%
020   48,367  56.5%   35,743  41.8%
025   31,545  59.3%   20,785  39.1%
026   36,266  57.7%   25,683  40.8%
028   38,940  58.1%   27,061  40.4%
029   33,393  58.8%   22,579  39.7%
054   23,763  59.7%   15,463  38.8%
055   28,125  58.4%   19,322  40.1%
057   37,715  58.1%   26,311  40.5%
061   39,753  56.1%   30,211  42.7%
065   41,487  56.9%   30,451  41.7%
066   41,464  56.9%   30,421  41.8%
067   38,127  56.3%   28,647  42.3%
089   38,701  57.5%   27,643  41.1%
093   34,136  57.6%   24,310  41.0%
096   35,260  55.2%   27,877  43.6%
097   36,059  55.2%   28,336  43.4%
099   31,869  58.6%   21,719  39.9%
106   41,639  58.3%   28,875  40.5%
126   35,835  59.4%   23,627  39.1%
127   39,102  58.5%   26,791  40.1%
129   37,118  56.8%   27,144  41.5%
132   35,079  57.0%   25,603  41.6%
150   33,857  58.3%   23,303  40.1%

I think it’s fair to say that the failure to win back HD118 was a big disappointment last year. I’ll use a stronger word if we get the same result in 2024. HD37 remains the subject of litigation – if there’s anything on the agenda to address it in this legislative session, I am not aware of it at this time. It had a slight Democratic tilt in 2020 and will clearly be a top target next year. As will HDs 112 and 121, with 108 and 52 a notch below them, though 108 is starting to feel a bit like a white whale to me. All things being equal, Dems should be in position to make a small gain in the House next year, with some potential to do better than that, and given everything we’ve seen since the dawn of time, the potential to do a bit worse as well.

The farther-out districts are mostly those we had identified as targets following the 2018 election, with a few adjustments for the new map. They’re all in counties and regions that had been trending Democratic. For the most part, I expect that to continue, but that doesn’t have to be monotonic, nor does it have to be at a fast enough pace to make any of these places actually primed to flip. I’ve said before that the way Tarrant County was sliced up it gives me “Dallas County 2012” vibes, but whether than means that a bunch of districts eventually flip or they all hold on if by increasingly tight margins remains to be seen. We’ll know more after 2024.

In theory, there won’t be many truly competitive districts in 2024, like there weren’t last year. The national environment, plus the higher turnout context, plus whatever yet-unknown factors may be in play will surely affect that, by some amount. I’d like to see an optimistic view for next year and get as many strong candidates in as many of these districts as possible, but that’s far easier said than done. This is not that different than how things looked after the 2012 elections, and we know how things went from there. Doesn’t mean anything will go any particular way or on any timetable, it’s just a reminder that there’s only so much we can know right now. I’ll have some thoughts about the other district types going forward. Let me know what you think.

The unhinged abortion pill lawsuit hearing

Mar 16th, 2023
by Charles Kuffner.
Comments are off for this post

What a shitshow.

The future of medication abortion in the United States remains up in the air after a federal judge heard arguments Wednesday in a suit challenging the Food and Drug Administration’s long-standing approval of mifepristone.

U.S. District Judge Matthew Kacsmaryk said he would rule “as soon as possible” on the challenge brought by the Alliance Defending Freedom, a conservative, anti-abortion law firm.

ADF is asking Kacsmaryk to suspend — and ultimately withdraw — the FDA’s approval of the medication, which would have nationwide implications, especially in states where abortion remains legal. In the hearing, a lawyer for ADF conceded that this would be unprecedented, but argued that the court had the authority to intervene to prevent harm.

Lawyers for the Department of Justice and Danco Laboratories, the pharmaceutical company that produces generic mifepristone, argued that the lawsuit is meritless.

Granting a preliminary injunction would be “depriving patients and doctors of a safe and effective drug,” argued Julie Straus Harris, with the DOJ.

Since it was initially approved in 2000, mifepristone has been found to be overwhelmingly safe and effective for terminating pregnancies. Citing that body of evidence, the FDA has recently relaxed restrictions on the medication, which is used in the majority of the abortions in the United States.

In the suit, ADF is representing anti-abortion medical organizations and doctors who argue they have been harmed by having to treat patients who have experienced adverse effects from the medications — and that they anticipate increased harm as a result of these loosened restrictions.

They also argue the drug was initially approved improperly under an FDA regulation that fast-tracks drugs that treat serious illnesses.

“Pregnancy is not an illness,” said Erik Baptist, a lawyer for ADF, in Wednesday’s hearing. “Mifepristone doesn’t treat anything.”

Kacsmaryk, appearing to give weight to that argument, listed off all the drugs that were approved under this regulation before mifepristone, most of which treat HIV and cancer. Separately, he summarized Baptist’s argument as asking the court to “deem one of these not like the others.”

The hearing, which ran more than four hours in Kacsmaryk’s Amarillo courtroom, covered a wide range of arguments. But the central question before Kacsmaryk is not as much about abortion as it is about administrative procedure — and whether the plaintiffs have any right to bring this lawsuit at all.

See here and here for the background. I can’t overstate how ridiculous this all is, and that includes the extreme restrictions on coverage of the hearing, for which you literally had to be there or at a single courthouse in Dallas, but only a handful of people were allowed at the courtroom, and cellphones were banned, so no live-tweeting. All for a hearing at which one hand-picked judge could severely curtail access to abortion for millions of women across the country, based on vibes. I really hope I’m wrong, but I don’t see anything in the coverage I’ve read to suggest this guy will do anything other than what he clearly wants to do. We’ll find out soon. Jezebel, the Associated Press, Slate, Daily Kos, and NBC News have more.

UPDATE: From Slate, “If Kacsmaryk rewrites the history of mifepristone’s approval as grounds to pull it from the market, his decision should command no respect or acquiescence from anyone—not the FDA, not abortion providers, and certainly not the public at large.”

The hearing for that unhinged abortion pill lawsuit is today

Mar 15th, 2023
by Charles Kuffner.
1 comment

Like I said, brace yourselves.

A federal judge in Texas will hear arguments Wednesday in a closely watched dispute that could halt distribution of a key drug used for medication abortion and disrupt access nationwide, even in states where reproductive rights are protected.

The case before U.S. District Judge Matthew Kacsmaryk was brought in November by a conservative legal organization on behalf of anti-abortion rights medical associations and targets the Food and Drug Administration’s (FDA) decades-old approval of the drug mifepristone, one of two medications used to terminate an early pregnancy.

The associations have requested Kacsmaryk order the FDA to withdraw its 2000 approval of mifepristone, arguing the agency erred when it gave the green-light to the drug under a regulation that allows accelerated approval of medications for “serious or life-threatening illnesses.”

But the Biden administration has warned that such a step would harm patients who rely on abortion pills and further strain state health care systems, particularly in places with clinics already grappling with overcrowding as a result of abortion restrictions in neighboring states.

The parties will have two hours apiece to press their arguments before Kacsmaryk, and the judge laid out a host of issues for them to discuss Wednesday, including whether the associations have the legal standing to sue, whether an injunction would serve the public interest and the regulation under which mifepristone was approved.

Kacsmaryk could issue his decision on the associations’ request for a preliminary injunction any time after the hearing, though a quick appeal to the U.S. Circuit Court of Appeals for the 5th Circuit is expected.

[…]

In papers filed with the court, the anti-abortion rights groups claimed the FDA exceeded its regulatory authority to approve mifepristone and has over the years removed safeguards by changing the dosage and route of administration in 2016, and lifting an in-person dispensing requirement to allow the pills to be mailed in 2021.

“The FDA took these actions by running roughshod over the laws and regulations that govern the agency and, more importantly, protect the public from harmful drugs,” they argued.

The Biden administration countered that the challengers’ request for the court to withdraw approval of mifepristone is “extraordinary and unprecedented.” Administration lawyers said they have been unable to find any case where a court has “second-guessed FDA’s safety and efficacy determination and ordered a widely available FDA-approved drug to be removed from the market — much less an example that includes a two-decade delay.”

Taking aim at the associations’ claim that the FDA improperly accelerated approval of mifepristone without substantial evidence of its safety, Justice Department lawyers noted that the 2000 approval of the drug came more than four years after manufacturer Danco submitted its application.

The drug maker, too, told the court that forcing the FDA to withdraw its long standing approval of mifepristone would not only “seismically disrupt the agency’s governing authority as to whether drugs are safe and effective,” but also put Danco out of business.

“The public has no interest in a hastily cobbled together, and overtly political, attempt by private parties to wrest control of the drug approval process from the United States agency responsible for it — an agency that has acted deliberately, thoughtfully, and consistent with its authorizing statute and implementing regulations,” the company said.

See here for the background. Plenty of legal types have written at length about how specious and flimsy the plaintiffs’ arguments are, and how utterly lacking their claim of standing is, so I’ll just note that and move on. Whether any of that matters to this wingnut judge or not will only be known after his ruling. As for the coverage of this ridiculous lawsuit, TPM among others provided insight:

TPM has obtained, and is first to report, the transcript from the status conference, which was conducted over the phone.

The case centers on the Food and Drug Administration’s 20-year-old approval of mifepristone, a drug often prescribed with misoprostol to induce abortions. Anti-abortion groups are trying to get that approval revoked, which could send the drug’s availability into flux.

After some typical housekeeping, Kacsmaryk leans on the lawyers to keep the hearing quiet.

“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” he said. “This is not a gag order but just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received. We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”

He said that the case so far has brought “a barrage of death threats and protesters and the rest.”

“So we will have standard security protocols in place, but I’ll just ask as a courtesy that you not further advertise or Tweet any of the details of this hearing so that all parties can be heard and we don’t have any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding,” he added.

He then told the lawyers that he was going to purposefully keep the hearing off the docket until the day before the hearing, to keep it as under the radar as possible — a move that prompted questions and objections by observers when discovered. A Department of Justice lawyer on the call sought clarification about whether the hearing would be made public at some point Tuesday.

“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” Kacsmaryk replied. “So it may even be after business hours, but that will be publicly filed.”

The absolute best case scenario here is that in the end this was all a massive waste of time and energy. Here’s hoping. CNN, ABC News, and CNBC have more.

The unhinged abortion pills lawsuit will take place in darkness

Mar 13th, 2023
by Charles Kuffner.
3 comments

Nothing about this is good.

The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.

The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time.

Kacsmaryk scheduled the hearing during a call with attorneys Friday, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Kacsmaryk said he would delay putting the hearing on the public docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.

Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk’s apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening.

The lawsuit seeks to revoke Food and Drug Administration approval of mifepristone, one of two drugs used in a medication abortion. The case has garnered widespread attention and protests.

A decision by Kacsmaryk to suspend FDA approval of mifepristone would immediately prompt major changes in how many abortion clinics across the country provide care. Some are planning to immediately switch to a misoprostol-only protocol, while others are planning to offer only surgical abortions. Any decision would likely be appealed to the conservative U.S. Court of Appeals for the 5th Circuit, and possibly to the Supreme Court.

[…]

Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling.

Before and after the Friday phone call with lawyers, The Washington Post repeatedly called and emailed Kacsmaryk’s chambers seeking information about it, but received no response. Kacsmaryk’s chambers also did not respond to a request that reporters be allowed to join the call.

Kacsmaryk was nominated by President Donald Trump and is known for his conservative views on issues like same-sex marriage and abortion.

By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo. The remote, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state’s major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.

I noted this lawsuit when it was filed. There’s been a metric crap-ton of analysis and punditry and increasingly dire warnings about this lawsuit and the pernicious effect of court-shopping, and I’ll leave it to you to google around for all the screaming into the void you can handle. It’s possible that this maneuver means that Kacsmaryk has at least a dim idea that his actions have the potential to cause a massive shitstorm. It also may just be that he doesn’t care to deal with the media and he has the power to make his wishes come true. Either way, brace yourselves.

UPDATE: Chris Geidner has more.

So whose fault is the Sidney Powell lawsuit dismissal?

Mar 6th, 2023
by Charles Kuffner.
Comments are off for this post

My reaction to the news that the lawsuit brought by the State Bar of Texas against Trump nutcase lawyer Sidney Powell was being dismissed was that it was the State Bar’s fault for screwing up the paperwork. The DMN editorial board puts the blame elsewhere.

A local Republican judge’s decision to throw out the State Bar of Texas’ disciplinary case against former Donald Trump lawyer Sidney Powell on flimsy technical grounds was a disservice to the public the judge serves.

Collin County state District Judge Andrea Bouressa last week granted Powell’s motion for a summary judgment largely because of filing and clerical errors bar lawyers made. Among the mistakes Bouressa found so egregious were a mislabeling of the bar’s exhibits and a failure to file a sworn affidavit attached to a motion.

What a travesty of justice. Such errors occur in court cases often. And while not excusable, they shouldn’t be a basis for a judge to throw out such a serious case without considering evidence.

[…]

There’s no question the state bar made some careless errors in its brief asking the judge to deny Powell’s motion to dismiss the case for lack of evidence. Exhibits were clearly mislabeled and some were altogether missing.

But Bouressa’s heavy-handed ruling is concerning. First, it wasn’t rendered as part of an in-person hearing, during which the filing issues may well have been quickly resolved in open court.

Rather, her decision came after her private review of the parties’ documents. Her judgment says that she tried to contact the bar’s lawyers for clarification on their confusing exhibits, but it “responded that no corrective action was necessary.”

That’s puzzling. The court file revealed only one email exchange between Bouressa’s court coordinator and a legal assistant at the bar, and it involved only one question about one exhibit. The assistant answered the question.

We understand it’s within Bouressa’s right to rule against a party for clerical errors. But legal experts tell us that appellate courts lately have been frowning upon judges who dismiss cases based on filing mistakes rather than on actual evidence.

That’s what happened here. Eric Porterfield, associate professor at the University of North Texas Dallas College of Law and an expert in civil procedure, reviewed the judgment for us and said it’s clear that while the bar was sloppy, Bouressa’s decision wasn’t based on the merits of the case.

Instead, the regal Bouressa got hung up on what she called the “defects” of the bar’s documents. In doing so, she shut the door on the public’s right for a full hearing of the facts surrounding Powell’s outlandish conspiracy theories that threatened the peaceful transfer of the power of the presidency.

See here for the background. As I said, my initial inclination, made with admittedly limited information, was that the State Bar screwed it up. If this take is more accurate, then they were screwed by the judge. The good news there is that appealing the dismissal is an option and it has a decent chance of working. If they do that, then I retract what I said before about the State Bar.

A win for butterflies

Mar 6th, 2023
by Charles Kuffner.
Comments are off for this post

I’m sure this will end up in court, but it’s still a good thing.

The U.S. Fish and Wildlife Service on Monday declared the prostrate milkweed an endangered species and mandated new habitat protections for the plant, closing a chapter in a feud between environmentalists and those who advocate for unfettered border wall construction in South Texas.

The rare milkweed, which grows only in the Texas-Mexico borderlands, has for months been at the center of the fight between butterfly lovers and Texas officials. Texas Attorney General Ken Paxton, a Republican who supports new border wall construction, said last year that formally protecting the plant would create an “influx of illegal aliens” and endanger Texans. Environmental groups say the listing will help safeguard the charismatic migratory monarch butterfly, which has a deeply symbiotic relationship with the unassuming weed.

While the prostrate milkweed has a range of around 200 miles, only 24 populations of the species are known to still exist. Those are in Starr and Zapata counties in far South Texas, as well as in neighboring states of Nuevo León and Tamaulipas in northern Mexico.

It’s the rarest species of milkweed, and it’s a critical habitat for monarch butterflies as they head north from Mexico after the winter. Monarch caterpillars can only eat milkweed, and female monarchs only lay their eggs on milkweed. Toxic compounds in the plant, which monarchs consume, help protect the butterflies from predators and give them their signature orange hue. In turn, monarchs help pollinate and spread the plants.

Historically, the FWS said in its final rule on Monday, patches of prostrate milkweed along the Texas-Mexico border were all geographically linked. They were separated and are “very unlikely” to reconnect, the agency said, due to what it called “disturbance” in the region.

That disturbance has included herbicides, oil and gas pipelines and, most notably, border wall construction green-lit by former President Donald Trump.

The Trump administration spurred a firestorm in 2017 when it began bulldozing habitat at the National Butterfly Center in South Texas, damaging habitat used by monarchs and other species. Officials with the center said they weren’t properly notified about construction and publicly criticized the Trump administration. The situation pulled some butterfly lovers into an unlikely partisan battle, and the center was later forced to temporarily close following threats and conspiracies about human trafficking.

While Trump is no longer in office, Texas Governor Greg Abbott, a fellow Republican, has repeatedly said he also wants to build a wall. This year, he appointed a state border czar with a goal of speeding up that project.

In the process, the Texas state government became one of the biggest opponents of plans to list the prostrate milkweed as endangered, submitting multiple comments to the FWS. Among them was a comment from the state attorney general’s office warning the designation would have “a significant impact on national security by preventing Texas’s efforts to address the border crisis.” In response, the FWS said in its rule that prostrate milkweed is currently in danger of extinction and that the agency is therefore required to list the species as endangered.

[…]

The monarch butterfly has also been struggling, with population numbers dropping by 99.9% in some areas. The International Union for Conservation of Nature last year listed the monarch as endangered, citing declining milkweed populations as a factor, though federal officials have so far held off on making a similar ruling.

There are many factors behind the decline in milkweed, but one of the biggest is border wall construction, said [Tierra Curry, a senior scientist at the Center for Biological Diversity]. Even after a section of wall is constructed, there is an “ongoing disturbance” as border officials keep clear land near the wall and drive vehicles along it.

“You don’t just put up the wall and leave it there,” Curry said.

I’ve noted the plight of the monarch butterfly and the battle between Monarch conservation and the border wall before. As you might imagine, I’m happy to see this news. I’m also a hundred percent certain it will draw a lawsuit, and who knows what happens from there. I’m sure I’ll keep an eye on it. In the meantime, let’s be happy that the right thing was done. There will be plenty of time to worry about any negative consequences later.

Sidney Powell beats State Bar charges

Feb 25th, 2023
by Charles Kuffner.
1 comment

I’m upset about this on two levels.

A state district judge dismissed a Texas state bar disciplinary case against Dallas attorney Sidney Powell for her role in disputing the 2020 election results as a lawyer for former President Donald Trump.

The State Bar of Texas filed a petition last March accusing Powell of professional misconduct by filing “frivolous” voter fraud lawsuits in four states, making false statements to a court and knowingly presenting false evidence. Powell filed lawsuits in Georgia, Michigan, Wisconsin and Arizona accusing election companies of vote manipulation.

The petition asked the court to decide the appropriate sanction, which could have ranged from reprimand to disbarment.

In the decision signed Wednesday, Andrea Bouressa, a Collin County district judge who heard the case filed in Dallas County, found “defects” with filings from Powell’s accuser, the Commission for Lawyer Discipline.

The commission, she ruled, mislabeled exhibits of evidence and failed to correct the errors when pointed out. That left two exhibits and those failed to meet the burden of the case, the judge said in granting Powell’s motion to dismiss the complaint.

[…]

Although the Texas court handed Powell a victory, her reputation continues to take a beating as evidence emerges in a $1.6 billion defamation lawsuit against Fox News from Dominion Voting Systems.

Last week, the company revealed that Powell’s “evidence” for allegations of fraud in the 2020 presidential election stemmed from a bizarre email by an unidentified author who attributed her insight to an ability to “time travel in a semi-conscious state.”

Dominion said Fox executives harmed its business by knowingly allowing hosts and guests to voice baseless and false assertions linking it to nonexistent vote fraud.

In depositions, Fox host Maria Bartiromo called the email that Powell had provided “nonsense,” according to Dominion’s filing.

And David Clark, then Fox’s senior executive over weekend shows, said that — had he known that Powell’s “crazy” theories were based on that email — he “would not have allowed that claim to be aired.”

See here for the background, and be sure to read the judge’s decision, it’s short and to the point. I’m upset that Powell won’t be sanctioned for all the obvious reasons – it really seems impossible to hold terrible people to account for their terrible actions these days – but if the weight of the evidence did not support a finding of guilt, then so be it. What really chaps me is that the State Bar appears to have completely bungled this, by not including all the evidence they said they had, mislabeling the evidence they did include, and not taking the opportunity to fix their clearly flawed exhibits when given the chance. I’m trying to think of a reason for this that isn’t rank incompetence on their part, and I’m having a hard time doing so. Whatever the reason was, we the people deserved a hell of a lot better than this. Any remaining optimism I may have had for their case against Ken Paxton took a beating with this outcome. Reuters and Forbes have more.

State Bar lawsuit against Paxton survives motion to dismiss

Feb 2nd, 2023
by Charles Kuffner.
Comments are off for this post

Good news.

The only criminal involved

Texas Attorney General Ken Paxton must face an ethics lawsuit by state attorney regulators over a case he brought challenging results of the 2020 election, according to a court ruling posted on Monday.

Judge Casey Blair on Friday denied Paxton’s bid to dismiss the case on jurisdictional grounds. Blair said he was not ruling on the merits of the case.

[…]

The ruling is a setback for Paxton, who had argued that his work as the top Texas state lawyer was beyond the reach of Texas attorney ethics regulators. Potential penalties if the case succeeds could include suspension or disbarment.

The Texas State Bar, an agency that oversees licensed attorneys in the state, filed the lawsuit against Paxton in state court in Dallas last May. The complaint said Paxton made “dishonest” statements in a lawsuit that sought to toss 2020 election votes in four states.

The U.S. Supreme Court threw out the election challenge in December 2020.

Paxton’s lawyers told the Texas court that the bar’s allegations were tied to his “performance of his official duties” and that seeking to discipline him “is tantamount to a judicial veto over the exercise of executive discretion.”

The state bar countered that Texas attorney conduct rules “apply to any attorney engaged in the practice of law regardless of their position.”

Technically, this lawsuit was filed in Collin County, per State Bar rules. Both sides filed their briefs in July, and the hearing was in August. Paxton’s argument was basically that the State Bar had no authority over him in this matter, which the judge (a Republican from Kaufman County) rejected.

Assuming this doesn’t get appealed or is upheld on appeal, there will be a hearing on the merits. If that goes well, we may finally get some form of accountability for our lawless Attorney General. Note that a similar lawsuit filed against Paxton’s First Assistant Brent Webster was dismissed in September when the judge in that case bought the same argument about separation of powers. That ruling is under appeal; if there’s been any further news about it, I’ve not seen it.

So there you have it. Stay patient, there’s still a long way to go. MSNBC has more.

Can we finally end Ken Paxton’s egregious court-shopping?

Jan 30th, 2023
by Charles Kuffner.
Comments are off for this post

File this under “About damn time”, even if it eventually comes to naught.

The only criminal involved

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

As soon as President Joe Biden entered the White House, Texas Attorney General Ken Paxton launched an unprecedented campaign of obstruction to block his agenda in the courts. Paxton took advantage of a quirk—really, a loophole—in the federal judiciary: A state can pick the specific judge who will oversee its case by filing in a small division where only one judge sits. Using this strategy, Paxton has positioned his cases before a rotating cast of the same conservative judges, most of them nominated by Donald Trump. They have dutifully played their role in this pantomime of litigation, issuing an unending series of sweeping injunctions that block Biden administration policies nationwide for months or years.

On Thursday, the administration finally said: enough. In response to yet another Texas lawsuit exploiting this loophole, Biden’s Justice Department called out Paxton—and, implicitly, the judges playing along with his scheme. The DOJ highlighted Texas’ “blatant” and shameless “judge-shopping,” urging a transfer to another court “in the interests of justice.” Naturally, Trump-nominated Judge Drew Tipton is unlikely to oblige; that is, after all, why Paxton hand-picked him for this lawsuit. But the DOJ’s filing marks a new phase of battle against Republicans’ judicial gamesmanship: The Justice Department is playing hardball in the lower courts, forcing compromised judges to address their own complicity in a cynical partisan chicanery.

The underlying lawsuit in Texas v. Department of Homeland Security is another frivolous effort to shift control over border policy from the executive branch to a single federal judge. Paxton has pulled this off before: In August 2021, he persuaded another Trump-nominated judge, Matthew J. Kacsmaryk, to block Biden’s repeal of a Trump policy that forced U.S.-bound migrants to remain in Mexico. Kacsmaryk even forced U.S. diplomats to negotiate with Mexican officials under threat of sanctions. Texas’ new suit, filed on Tuesday, seeks to do something similar. The state is infuriated by a new agreement between the Biden administration and Mexico regarding migrants from Cuba, Nicaragua, Haiti, and Venezuela. (The U.S. cannot send these migrants back to their home countries.) The agreement compels most of these migrants to stay on the Mexican side of the border. But it allows a small number of them to enter the U.S. legally—and remain here for a limited period—if they are vetted and have financial supporters in the country already.

This policy, first implemented in December, has already contributed to a dramatic reduction in unlawful entry among migrants from the four relevant nations. But Texas is furious that the new rules will allow some migrants to enter the U.S. lawfully. So its lawsuit asks the judiciary to strike down the entire policy, blowing up negotiations between the Mexican and American governments.

Paxton strategically filed the suit in the Victoria Division of the Southern District of Texas, where exactly one judge sits: Tipton, not just a Trump nominee but also a longtime Federalist Society member. This is the seventh case that Paxton has positioned before Tipton. The first, filed two days after Biden’s inauguration, sought to block the new president’s 100-day halt on deportations. Tipton swiftly granted a nationwide injunction against the pause.

Paxton’s suit is also the 25th time he has exploited the single-judge loophole to get a case before an ideological ally in Texas, according to statistics meticulously compiled by law professor (and Slate contributor) Steve Vladeck. (That count shoots up when you factor in suits filed in other red states with single-judge divisions, like Louisiana.) This plot goes way beyond any Democratic forum-shopping under Trump. Democrats filed in favorable district courts and hoped they drew a left-leaning judge. Paxton, by contrast, zeroes in on a handful of divisions within districts where he is guaranteed to draw a hard-right judge.

The Justice Department is asking for the case to be moved to either Austin or Washington, DC, on the theory that as the plaintiff is the state of Texas and the defendant is the USA, the case should be heard where one of them “resides”, which is to say one of their capitals. Alternately, the Justice Department asks for the suit to be moved to another division within the Southern District of Texas, one that has multiple judges in it, so the case can be randomly assigned as per the norm, instead of going to one of Paxton’s pet judges by default. I have no idea what the likelihood of that is – clearly, Slate author Mark Joseph Stern isn’t optimistic – but it can’t hurt to ask, if only to see what kind of weak justification is given for denying the request. I don’t know if this is appealable, but if it is I’d expect the Justice Department to go for it, since why not. It’s worth the effort and if nothing else it may at least put a little sand in Paxton’s gears. Anything is better than what we have been doing.

Lawsuit filed to keep The Former Guy off the 2024 ballot

Jan 10th, 2023
by Charles Kuffner.
Comments are off for this post

Good luck with that.

Former president Donald Trump is facing a legal challenge to his 2024 bid for the presidency from a fellow Republican.

John Anthony Castro, an attorney from Texas and long-shot candidate for president in 2024, filed the lawsuit in federal court on Friday arguing that Trump was constitutionally ineligible to hold office under Section 3 of the 14th Amendment.

Known as the “Disqualification Clause,” the section prohibits anyone who engaged in “insurrection or rebellion” against the United States from holding “any office, civil or military, under the United States.” Castro is arguing that Trump’s involvement in the January 6th insurrection should disqualify him from holding public office again.

“The framers of Section 3 of the 14th Amendment intended the constitutional provision to be both self-executing and to provide a cause of action,” Castro, who’s representing himself, wrote in the complaint. “More specifically, the Union sought to punish the insurrectionary Confederacy by making their ability to hold public office unconstitutional.”

The Disqualification Clause mostly sat dormant since 1869 until last fall, when a New Mexico judge ousted Cowboys for Trump founder Couy Griffin from his position on the Otero County Commission for breaching the Capitol complex on Jan. 6.

Several advocacy groups, including Citizens for Responsibility and Ethics in Washington (CREW), have vowed to pursue similar legal action against Trump during his 2024 run.

“The evidence that Trump engaged in insurrection is overwhelming,” CREW President Noah Bookbinder wrote in a letter to the former president on Nov. 3, before he declared his candidacy. “We are ready, willing and able to take action to make sure the Constitution is upheld and Trump is prevented from holding office.”

Castro was among the giant herd of candidates who ran in the CD06 special election in 2021. He won 5.51% of the vote, which was probably in the top half of performers. I saw another story about this that described him as a “long shot candidate”, and I’d say that’s accurate. He filed this lawsuit in Florida, and ironically drew the Trump-toadiest judge out there, Aileen Cannon; he says he plans to disqualify her from hearing the case, which checks out. He also noted that the advocacy groups that intend to file their own lawsuits will do so later in the year, and he wanted to get out ahead of things. I don’t expect anything to happen with this lawsuit, but it ought to be fun to watch regardless. Bloomberg has more.

Yep, still no voter fraud found

Dec 21st, 2022
by Charles Kuffner.
2 comments

So says the official 2020 election audit.

Despite challenges posed by the COVID-19 pandemic, there was neither widespread voter fraud nor other serious issues in Texas’ 2020 elections, according to an audit of four of Texas’ largest counties released Monday evening by Secretary of State John Scott’s office.

While the 359-page report did find some “irregularities,” it nonetheless reinforced what election experts and monitors — including Scott, the state’s chief election official — have routinely said: that the 2020 contest was not riddled with widespread fraud, and Texans should be confident that future elections will be similarly secure.

“When the Texas Election Code and local procedures are followed, Texas voters should have a very high level of confidence in the accuracy of the outcome of Texas elections,” the report stated. “When procedures are followed, results of the election are trustworthy. Indeed, in most cases, the audit found that the counties followed their procedures and clearly documented their activities.”

[…]

The report found that “many of the irregularities observed” in 2020 were likely caused by the “extraordinary challenges” posed by the pandemic and ensuing staffing shortages. And, auditors said, such problems are even less likely to occur in future contests because of legislative changes, including those in Senate Bill 1.

Of the four counties the report analyzed, the Harris County general election had the most issues, including improper chain of custody of mobile ballot boxes at 14 polling locations. Auditors also found thousands of discrepancies between electronic pollbook records and audit logs.

See here for a bit of background. No one who doesn’t have to is going to read the entire 359 page report, but you can get a high level summary at the beginning of it. I have two points to add. One comes from the Chron story, which addresses some of the items raised in the audit about Harris County:

Harris County did not properly handle certain electronic voting records during the 2020 election, according to an audit from the Texas secretary of state’s office that uncovered numerous administrative mishaps but no evidence of widespread voter fraud in four of the state’s largest counties.

In a report released Monday evening, the state elections office found that Harris County failed to properly document the “chain of custody” — a required step-by-step accounting of voting records — for thousands of ballots across at least 14 polling locations. The finding was among those mentioned by state elections officials last month in a letter to the Harris County elections administrator, delivered days before the November midterms.

The report outlined a number of slip-ups across the four audited counties, which included Republican-controlled Collin and Tarrant counties and Democratic-run Dallas and Harris counties. It concluded that Texas voters “should have a very high level of confidence in the accuracy of the outcome of Texas elections” when counties follow the state election code and their own local procedures.

“Each of the four counties has detailed procedures and detailed forms to document compliance with the code and ensure that only lawful ballots are cast and counted,” the report reads. “When procedures are followed, results of the election are trustworthy. Indeed, in most cases, the audit found that the counties followed their procedures and clearly documented their activities. In some cases, however, they did not.”

When counties did not properly follow state law and local procedures, “discrepancies and irregularities ranging from small to large ensued,” the report said.

State officials singled out Harris County for “very serious issues in the handling of electronic media,” finding that the county lacked records to explain the origin of 17 “mobile ballot boxes” — the pieces of hardware that store vote tallies and transmit the data to and from polling places. The report also identified disparities between electronic records from the polls and “tally audit logs” at numerous locations.

Since the 2020 election, Harris County has switched to a new system that stores voting records on vDrives — a type of USB thumb drive — with “procedures in place to document proper chain of custody … in the event a vDrive fails,” the report reads.

[…]

Harris County Elections Administrator Cliff Tatum has pledged a complete assessment of the issues that arose during the midterm while warning the county is in “dire need” of improvements to the way it conducts elections.

Last month, Tatum penned a letter to state officials seeking to address the audit’s preliminary findings, including the chain-of-custody problems.

Writing to Chad Ennis, director of the secretary of state’s forensic audit division, Tatum said the issue with the 14 locations cited in the report arose when votes were “stranded” on devices used at Harris County’s drive-thru voting and other locations.

To read the “stranded” results, Tatum wrote, county officials had to create 30 “replacement” mobile ballot boxes.

“The number of cast votes on those 30 MBBs align with the expected number from the voting sites,” Tatum wrote to Ennis. “This explains why there were more than 14 MBBs created to read the results and why those initial 14 were not read into the tabulator.”

The poll book disparities, meanwhile, were the result of voting machines being moved from one location to another during the election.

“While this may have been done to address long lines at any of the vote centers during the 2020 election, this is a practice that our office no longer follows,” said Tatum, who was appointed elections administrator in July.

We have the joy of being “randomly” audited again for this November’s election, so we’ll see what they have to complain about this time.

The other point I would raise, which was mentioned in passing in that Chron story, was that this audit was released on Monday night (the Trib story published at 8 PM) during Christmas week. I don’t know about you, but I think that if they had something juicy to report, they’d have dropped it at a time when people would be actually paying attention. This has all the hallmarks of a “nothing to see here” report.

Electoral Count Act included in must-pass budget bill

Dec 21st, 2022
by Charles Kuffner.
Comments are off for this post

It’s not nearly enough to shore up voting rights, but it’s still vitally necessary and clearly the best we could do.

After months of negotiations, it now appears to be official: The Electoral Count Reform Act has hitched a ride on the much-anticipated 2023 omnibus funding package that was released Monday night, setting up a path for the legislation to pass the Senate.

“My two-word reaction is thank God,” said Matthew Seligman, a lawyer and fellow at Stanford Law School’s Constitutional Law Center who has tracked the reform effort closely. “I think this means that it’s virtually certain that it will be included in the final bill and the Electoral Count Reform Act will become law.”

Democrats and a handful of Republicans have been negotiating over how to reform the outdated 1887 law — which lays out how presidential electors are counted in Congress — for the past year. The effort to do so was prompted by vagaries in the text that former President Donald Trump and lawyer John Eastman sought to exploit to subvert the 2020 election.

Sen. Susan Collins (R-ME) and Sen. Joe Manchin (D-WV) announced they’d come to an agreement this summer, but it has been unclear for some time whether the legislation would garner the 60 Republican votes needed to clear a filibuster, and whether it would pass before Republicans take over control of the House next year.

But the end game is coming into focus: The Friday government funding deadline is coming up, lawmakers are aiming to pass the massive $1.66 trillion spending bill — and the ECA reform included in it — before then.

“We must finish passing this omnibus before the deadline on Friday when government funding runs out, but we hope to do it much sooner than that,” Majority Leader Chuck Schumer (D-NY) said on Tuesday morning. He added the first procedural votes in the Senate could happen as soon as today.

The ECA reform bill would clarify that the vice president’s role in certifying a presidential election is purely ceremonial and make it clear that they do not have the sole power to address disputes over electors. It would also raise the threshold for Congress to invalidate legitimate electors and for state legislatures to override the popular vote in their states.

This reform is “​​a critical step to strengthen the guardrails for our democracy and ensure that the will of the voters is upheld following a presidential election,” said Holly Idelson, a counsel with Protect Democracy.

It really is a shame that a much more robust reform package that included a renewed Voting Rights Act, redistricting restrictions, requirements for early voting, voting by mail, same-day voter registration, and more was not able to pass. I’ve ranted about that before, and all I can do at this point is hope that another opportunity comes up in the foreseeable future. At least this will make it harder for a bad actor to try to steal the next Presidential election. You take the wins where you can.

Precinct analysis: Beto versus the spread

Dec 19th, 2022
by Charles Kuffner.
1 comment

PREVIOUSLY
Beto versus Abbott

So last time we saw the numbers for the 2022 Governor’s race. But what numbers need in order to be meaningful is context, and that means other numbers to compare them to. We’re going to do that in a few different ways, and we’ll start with the numbers from the Texas Redistricting Council for these new districts. Specifically, the numbers from 2018 and 2020.


Dist    Abbott    Beto     Cruz    Beto
=======================================
HD126   35,835  23,627   38,851  26,028
HD127   39,102  26,791   40,573  28,326
HD128   31,983  13,915   32,586  15,892
HD129   37,118  27,144   38,281  29,112
HD130   44,983  20,891   42,747  20,968
HD131    5,963  25,387    5,628  33,440
HD132   35,079  25,603   32,220  23,431
HD133   33,195  26,971   34,930  30,329
HD134   29,592  51,010   32,114  54,514
HD135   16,443  24,121   16,162  27,762
HD137    7,860  13,421    8,713  19,309
HD138   31,077  25,464   32,754  28,778
HD139   11,643  32,115   11,599  38,842
HD140    5,717  13,400    5,393  19,532
HD141    4,549  20,922    4,459  28,096
HD142    8,666  25,793    8,265  29,705
HD143    8,420  16,047    8,751  23,602
HD144   11,566  14,683   12,511  21,278
HD145   12,631  32,765   12,101  37,672
HD146    8,511  33,610    9,227  40,111
HD147    8,952  37,366    9,575  45,020
HD148   15,451  21,460   16,281  26,815
HD149   12,068  19,844   12,097  27,142
HD150   33,857  23,303   33,084  23,466


Dist   Abbott%   Beto%    Cruz%   Beto%
=======================================
HD126   59.37%  39.14%   59.40%  39.80%
HD127   58.50%  40.08%   59.30%  40.00%
HD128   68.66%  29.87%   66.80%  32.60%
HD129   56.80%  41.53%   56.30%  42.80%
HD130   67.29%  31.25%   66.60%  32.70%
HD131   18.78%  79.96%   14.30%  85.20%
HD132   57.06%  41.64%   57.50%  41.80%
HD133   54.41%  44.21%   53.10%  46.10%
HD134   36.16%  62.34%   36.80%  62.40%
HD135   39.97%  58.63%   35.00%  64.40%
HD137   36.32%  62.01%   30.90%  68.40%
HD138   54.09%  44.32%   52.80%  46.40%
HD139   26.25%  72.41%   22.90%  76.50%
HD140   29.36%  68.82%   21.50%  78.00%
HD141   17.61%  80.98%   13.60%  85.80%
HD142   24.79%  73.80%   21.60%  77.80%
HD143   33.86%  64.53%   26.90%  72.50%
HD144   43.34%  55.02%   36.80%  62.50%
HD145   27.31%  70.85%   24.10%  75.00%
HD146   19.95%  78.80%   18.60%  80.70%
HD147   19.04%  79.49%   17.40%  81.90%
HD148   41.18%  57.19%   37.50%  61.70%
HD149   37.31%  61.36%   30.60%  68.70%
HD150   58.34%  40.15%   58.10%  41.20%

Greg Abbott got 490K votes in 2022, whereas Ted Cruz got 498K in 2018. It’s therefore not a surprise that Abbott generally matched Cruz’s vote totals in the districts, with a bit of variation here and there. Beto, meanwhile, got 595K votes in 2022 after getting 700K in 2018, a significant drop. You can clearly see that in the district data. What’s interesting to me is that Beto was pretty close to his 2018 performance for the most part in Republican districts. His dropoff was almost entirely in strong Democratic districts, which accounts for the decrease in vote percentage he got. This is consistent with reports that Republicans had the turnout advantage nationally, due in part to weaker Democratic turnout among Black voters.

You can shrug your shoulders about this or freak out for What It All Means for 2024 as you see fit. I tend to lean towards the former, but I will readily acknowledge that the job of working to get turnout back to where we want it for 2024 starts today. I’ll have more to say about this in future posts as well, but let me open the bidding by saying that the target for Democratic turnout in Harris County in 2024, if we want to make a serious run at winning the state for the Democratic Presidential nominee, is one million Democratic votes; it may actually need to be a little higher than that, but that’s the minimum. It’s doable – Biden got 918K in 2020, after all. Ed Gonzalez got 903K in his re-election for Sheriff. Really, we may need to aim for 1.1 million, in order to win the county by at least 300K votes, which is what I think will be needed to close the statewide gap. Whether we can do that or not I don’t know, but it’s where we need to aim.

I also want to emphasize the “Abbott got more or less the same number of votes in each district as Cruz did” item to push back as needed on any claims about Abbott’s performance among Latino voters. His improvement in percentage is entirely due to Beto getting fewer votes, not him getting more. That’s cold comfort from a big picture perspective for Democrats, and as we saw in 2020 a greater-than-expected share of the lower-propensity Latino voters picked Trump, so we’re hardly in the clear for 2024. All I’m saying is that claims about Abbott improving his standing with Latino voters need to be examined skeptically. Remember that if we compared Abbott to Abbott instead of Beto to Beto, he got 559K votes in 2018, so he dropped off quite a bit as well. He got fewer votes in each of the Latino districts in 2022 than he did in 2018:

HD140 – Abbott 6,466 in 2018, 5,717 in 2022
HD143 – Abbott 10,180 in 2018, 8,420 in 2022
HD144 – Abbott 13,996 in 2018, 11,566 in 2022
HD145 – Abbott 15,227 in 2018, 12,631 in 2022
HD148 – Abbott 18,438 in 2018, 15,541 in 2022

So yeah, perspective. I suppose I could have done the Governor-to-Governor comparison instead, but I was more interested in Beto’s performance, so that’s the route I took. Beto would look better from a percentage viewpoint if I had done it that way. There’s always more than one way to do it.

One last thing on turnout: In 2014, Wendy Davis led the Democratic ticket with 320K votes in Harris County. Beto was at over 401K even before Election Day. His total is almost twice what Davis got. We can certainly talk about 2022 being “low turnout”, but we’re in a completely different context now. 


Dist    Abbott    Beto    Trump   Biden
=======================================
HD126   35,835  23,627   50,023  35,306
HD127   39,102  26,791   53,148  38,332
HD128   31,983  13,915   46,237  21,742
HD129   37,118  27,144   51,219  38,399
HD130   44,983  20,891   58,867  29,693
HD131    5,963  25,387   10,413  42,460
HD132   35,079  25,603   46,484  35,876
HD133   33,195  26,971   42,076  40,475
HD134   29,592  51,010   38,704  66,968
HD135   16,443  24,121   26,190  40,587
HD137    7,860  13,421   12,652  24,885
HD138   31,077  25,464   42,002  37,617
HD139   11,643  32,115   17,014  49,888
HD140    5,717  13,400   10,760  24,045
HD141    4,549  20,922    8,070  38,440
HD142    8,666  25,793   13,837  41,332
HD143    8,420  16,047   15,472  28,364
HD144   11,566  14,683   20,141  25,928
HD145   12,631  32,765   18,390  45,610
HD146    8,511  33,610   12,408  51,984
HD147    8,952  37,366   14,971  55,602
HD148   15,451  21,460   24,087  34,605
HD149   12,068  19,844   21,676  35,904
HD150   33,857  23,303   45,789  34,151

Dist   Abbott%   Beto%   Trump%  Biden%
=======================================
HD126   59.37%  39.14%   57.80%  40.80%
HD127   58.50%  40.08%   57.30%  41.30%
HD128   68.66%  29.87%   67.10%  31.60%
HD129   56.80%  41.53%   56.20%  42.20%
HD130   67.29%  31.25%   65.50%  33.00%
HD131   18.78%  79.96%   19.50%  79.60%
HD132   57.06%  41.64%   55.60%  42.90%
HD133   54.41%  44.21%   50.30%  48.40%
HD134   36.16%  62.34%   36.10%  62.50%
HD135   39.97%  58.63%   38.70%  59.90%
HD137   36.32%  62.01%   33.20%  65.40%
HD138   54.09%  44.32%   52.00%  46.60%
HD139   26.25%  72.41%   25.10%  73.70%
HD140   29.36%  68.82%   30.60%  68.30%
HD141   17.61%  80.98%   17.20%  81.80%
HD142   24.79%  73.80%   24.80%  74.10%
HD143   33.86%  64.53%   34.90%  64.00%
HD144   43.34%  55.02%   43.20%  55.60%
HD145   27.31%  70.85%   28.30%  70.10%
HD146   19.95%  78.80%   19.00%  79.80%
HD147   19.04%  79.49%   20.90%  77.60%
HD148   41.18%  57.19%   40.50%  58.10%
HD149   37.31%  61.36%   37.20%  61.70%
HD150   58.34%  40.15%   56.50%  42.10%

Obviously, the vote totals don’t compare – over 1.6 million people voted in 2020, a half million more than this year. But for the most part, Beto was within about a point of Biden’s percentage, and even did better in a couple of districts. Abbott did best in the Republican districts compared to Trump. As we’ll see when we look at the other statewide races, Abbott (and Dan Patrick and Ken Paxton) was one of the lower performers overall among Republicans, as was the case for Trump in 2020, but maybe there were slightly fewer Republican defectors this year.

It will take an improvement on the 2020 Biden and 2018 Beto numbers for Dems to put any State Rep districts into play, with HD138 being the first in line; remember that HD133 was a bit of an outlier, with a lot of Republican crossovers for Biden. Incumbency has its advantages, and as we have seen Dem performance can be a lot more variable downballot than at the top, especially when the top has the most divisive Republicans, so it will take more than just (say) Biden getting 50.1% in HD138 for Rep. Lacy Hull to really be in danger. It’s more that this will be another incentive to really work on boosting overall turnout. Having a good candidate in place, which I think Stephanie Morales was this year, and making sure that person has the financial and logistical support they need (which she didn’t have) will be key.

I’ll have more to say as we go along. Please let me know what you think and ask any questions you may have.

Ken Paxton’s hatred of LGBTQ+ people continues unabated

Dec 15th, 2022
by Charles Kuffner.
3 comments

Item #1: Texas attorney general’s office sought state data on transgender Texans.

The only criminal involved

Employees at the Texas Department of Public Safety in June received a sweeping request from Republican Attorney General Ken Paxton’s office: to compile a list of individuals who had changed their gender on their Texas driver’s licenses and other department records during the past two years.

“Need total number of changes from male to female and female to male for the last 24 months, broken down by month,” the chief of the DPS driver license division emailed colleagues in the department on June 30, according to a copy of a message obtained by The Washington Post through a public records request. “We won’t need DL/ID numbers at first but may need to have them later if we are required to manually look up documents.”

After more than 16,000 such instances were identified, DPS officials determined that a manual search would be needed to determine the reason for the changes, DPS spokesperson Travis Considine told The Post in response to questions.

“A verbal request was received,” he wrote in an email. “Ultimately, our team advised the AG’s office the data requested neither exists nor could be accurately produced. Thus, no data of any kind was provided.”

Asked who in Paxton’s office had requested the records, he replied: “I cannot say.”

[…]

Public records obtained by The Post do not indicate why the attorney general’s office sought the driver’s license information. But advocates for transgender Texans say Paxton could use the data to further restrict their right to transition, calling it a chilling effort to secretly harness personal information to persecute already vulnerable people.

“This is another brick building toward targeting these individuals,” said Ian Pittman, an Austin attorney who represents Texas parents of transgender children investigated by the state. “They’ve already targeted children and parents. The next step would be targeting adults. And what better way than seeing what adults had had their sex changed on their driver’s licenses?”

[…]

The records obtained by The Post, which document communications among DPS employees, are titled “AG Request Sex Change Data” and “AG data request.” They indicate that Paxton’s office sought the records a month after the state Supreme Court ruled that Paxton and Abbott had overreached in their efforts to investigate families with transgender children for child abuse.

Paxton’s office bypassed the normal channels — DPS’ government relations and general counsel’s offices — and went straight to the driver license division staff in making the request, according to a state employee familiar with it, who said the staff was told that Paxton’s office wanted “numbers” and later would want “a list” of names, as well as “the number of people who had had a legal sex change.”

During the following two months, the employee said, the DPS staff searched its records for changes in the “sex” category of not only driver’s licenses but also state ID cards available from birth, learner’s permits issued to those age 15 and up, commercial licenses, state election certificates, and occupational licenses. The employee spoke on the condition of anonymity to avoid retaliation for describing internal state discussions.

DPS staff members compiled a list of 16,466 gender changes between June 1, 2020, and June 30, 2022, public records show. In the emails, DPS staff members repeatedly referred to the request as coming from the attorney general’s office as they discussed attempting to narrow the data to include only licenses that had been altered to reflect a court-ordered change in someone’s gender.

DPS staff members did spot checks on the data, examining records that included names of specific individuals, according to records and the state employee familiar with the inquiry. But it was hard to weed out driver’s licenses that had been changed in error, or multiple times, or for reasons other than gender changes.

“It will be very difficult to determine which records had a valid update without a manual review of all supporting documents,” an assistant manager in the DPS driver’s license division wrote in an email to colleagues on July 22.

On Aug. 4, the division chief emailed staff members, “We have expended enough effort on this attempt to provide data. After this run, have them package the data that they have with the high level explanations and close it out.” On Aug. 18, a senior manager emailed to say a data engineer had “provided the data request by the AG’s office (attached).”

Last month, The Post made a request to Paxton’s office for all records the attorney general’s office had directed other state offices to compile related to driver’s licenses in which the sex of the driver was changed, as well as related emails between Paxton’s office and other state agencies.

Officials indicated that no such records existed.

“Why would the Office of the Attorney General have gathered this information?” Assistant Attorney General June Harden wrote in an email to The Post, later adding, “Why do you believe this is the case?”

If it did, Harden said, any records were probably exempt from release because of either attorney-client privilege or confidentiality.

Marisol Bernal-Leon, a spokesperson for the attorney general’s office, later emailed that the office “has reviewed its files and has no information responsive to your request” for either records it had requested from DPS or emails between the attorney general’s office and DPS.

Separately, DPS provided The Post with a half-dozen documents spanning three months that referenced the request by Paxton’s office.

When The Post shared copies of the records that had been provided by DPS, Assistant Attorney General Lauren Downey noted that “none of the records provided by the Texas Department of Public Safety are communications with the Office of the Attorney General. Our response to your request was accurate.”

Downey did not reply to questions about why the DPS emails refer to the request as originating from the attorney general. Paxton’s office has yet to respond to another public records request for any records of its contact with DPS concerning driver’s license changes via means other than email, including phone calls, video meetings and in-person exchanges.

It’s the brazen lying about it that really kicks this up a notch. I can’t think of a good reason for a public official to need this data, or to bypass the normal channels for requesting it, but there are plenty of bad reasons for it. Because data tends to be messy, you can see how potentially thousands of people who were not Paxton’s intended targets could have been caught up in whatever malevolent scheme he cooked up for them. In a way it’s too bad this came to light before that could have happened, because the harassment of such a large number of people might have been an actual scandal that could damage him. Now it’s just another unfair MSM hit piece that Paxton’s enablers can ignore.

And in case that wasn’t enough, we also got news item #2: Texas fights federal rule that would outlaw LGBTQ discrimination in state adoptions and foster care.

Attorney General Ken Paxton is suing the federal government to preserve Texas’ ability to include religious groups that won’t place kids with same-sex couples in the state’s adoption process without losing federal funding.

With his lawsuit filed Monday in federal court in Galveston, Paxton continued a yearslong, cross-country legal fight over anti-discrimination rules for adoption and foster programs drafted under the Obama administration that languished under former President Donald Trump and have never been enforced.

The rule on Sexual Orientation and Gender Identity Discrimination, known as the SOGI rule, prohibits recipients of federal funds for adoption and foster programs from discriminating on the basis of age, disability, sex, race, color, national origin, religion, gender identity, sexual orientation or same-sex marriage status.

A Texas law passed in 2017 allows religious organizations that contract with the state to refuse to work with LGBTQ couples who are seeking to foster or adopt. The law requires the state to ensure there are other providers to work with LBGTQ children or families who are refused help by a religious provider, although there is no specific process for ensuring that happens.

Losing federal funding would be a major blow for Texas’ foster care budget. Federal money accounts for nearly a quarter of the $550 million the state spends on residential care each year, and another $58 million supports case work for foster children who qualify for the funds, according to the attorney general’s complaint.

[…]

The anti-discrimination rule has been the subject of court battles. In 2019, Texas joined the Archdiocese of Galveston-Houston to sue the federal government over the rule, arguing it would prevent the religious group from becoming a provider of child welfare services. Shortly after the suit was filed, the Trump administration announced a rollback of the rule.

But Paxton is now seeking to have the rule thrown out preemptively as other groups are suing to compel its enforcement.

[…]

Bryan Mares, the government relations director at the National Association of Social Workers Texas, said the state law allowing religious providers to refuse services to LGBTQ couples creates a supply issue for the LGBTQ children in the foster system who need affirming homes.

“It makes it much more difficult to find families who might already identify as part of the LGBTQ community to bring children that are in the system into their home,” Mares said of the law. “It really just impedes our ability to prioritize LGBTQ youth placements into homes where they are being supported in a way that they need.”

A 2018 analysis of Texas licensed child-placing agencies by the Center for American Progress found that nearly half of them had statements of faith listed on their websites, but only 10% had expressed specific willingness to work with LGBTQ foster and adoptive parents. “Given this landscape, and the religious exemptions and lack of legal protections … prospective parents may understandably become discouraged about finding a welcoming agency and choose to abandon their efforts,” the report concluded.

Pretty sure that’s the intent. I’ve run out of accurate descriptors for Paxton and his shameless hate. At this point, I don’t know what can be done to stop him. He certainly acts as though there is nothing in his way and no possible consequences for anything he does.

Precinct analysis: How the 2022 Harris County State Rep candidates did versus the 2020 and 2018 results

Nov 28th, 2022
by Charles Kuffner.
1 comment

I still don’t have a full canvass of Harris County, so I’m looking around to see what kind of analyses I can do in the meantime. For this post, I’m comparing how the candidates in the contested State Rep contests did against the 2020 and 2018 numbers that we saw in the redistricting reports. This isn’t my preferred kind of comparison – there are too many uncontested races, some “contested” races really aren’t because of poor candidate quality, incumbents tend to have a bit of an edge – but it’s what we’ve got for now. My impressions of the numbers for the new State Rep districts are here, and the Texas Legislative Council reports can be found here for 2020 and here for 2018. First up is 2020:


Dist   Biden   Trump   Hegar  Cornyn     Dem     Rep
====================================================
128    31.6%   67.1%   30.6%   67.2%   29.5%   70.5%
129    42.2%   56.2%   39.4%   58.0%   39.2%   60.8%
131    79.6%   19.5%   77.3%   19.9%   80.5%   19.5%
132    42.9%   55.6%   40.0%   57.6%   40.3%   59.7%
133    48.4%   50.3%   43.2%   54.9%   36.4%   61.4%
134    62.5%   36.1%   56.6%   41.7%   61.6%   37.1%
135    59.9%   38.7%   57.5%   39.4%   57.6%   42.4%
138    46.6%   52.0%   42.8%   55.0%   42.9%   57.1%
145    70.1%   28.3%   66.2%   30.8%   71.3%   28.7%
148    58.1%   40.5%   55.3%   41.7%   55.5%   42.6%
149    61.7%   37.2%   59.7%   37.5%   59.8%   37.7%
150    42.1%   56.5%   39.5%   57.9%   39.3%   60.7%

Biden generally outperformed the rest of the ticket by two or three points, more in some places like HDs 133 and 134. It’s clear he drew some crossover votes, so matching his performance is a sign of great strength. MJ Hegar was more of a typical Dem performer, and ideally a Dem in 2022 would do at least as well as she did. Note that most of the individual State Rep races were straight up D versus R, but in the cases where the percentages don’t add up to 100, assume there was a third party candidate as well. Most Dems met the Hegar standard, with incumbent Reps. Alma Allen (HD131) and Christina Morales (HD145) outdoing even the Biden number. On the other side, HD133 GOP candidate Mano DeAyala easily stomped a Democrat whose existence even I didn’t know about.

On to 2018:


Dist    Beto    Cruz  Valdez  Abbott     Dem     Rep
====================================================
128    32.6%   66.8%   29.1%   69.7%   29.5%   70.5%
129    42.8%   56.3%   36.8%   61.5%   39.2%   60.8%
131    85.2%   14.3%   80.4%   18.5%   80.5%   19.5%
132    41.8%   57.5%   36.2%   62.3%   40.3%   59.7%
133    46.1%   53.1%   37.9%   60.3%   36.4%   61.4%
134    62.4%   36.8%   52.5%   45.3%   61.6%   37.1%
135    64.4%   35.0%   59.4%   39.2%   57.6%   42.4%
138    46.4%   52.8%   39.6%   58.7%   42.9%   57.1%
145    75.0%   24.1%   67.5%   30.4%   71.3%   28.7%
148    62.7%   37.5%   56.1%   42.4%   55.5%   42.6%
149    68.7%   30.6%   64.0%   34.8%   59.8%   37.7%
150    41.2%   58.1%   36.3%   62.4%   39.3%   60.7%

Beto and Valdez represented the top and bottom of the scale for Dems this year. It’s clear that Dems fell short of the 2018 standard this year, with the 2022 version of Beto being somewhat above the Valdez line. In general, Biden did about as well in most districts as Beto had done two years before, though there are exceptions, of which HDs 135 and 149 are the most interesting. I don’t want to read too much into any single number here – this was a year I’d classify as an underperforming one for Dems overall, though at a much higher baseline than we were used to for off years, and I’d expect better numbers in 2024. Dems have the same targets as before in HDs 132 and 138, while if I were the Republicans I’d take a closer look at what’s going on in 135 and 148. The actual me really wants to see the full canvass data to see how the broader ticket did in these districts. Let me know what you think.

We do need to find someone to run against Ted Cruz

Nov 27th, 2022
by Charles Kuffner.
6 comments

I don’t know who that ought to be yet, but surely someone is out there.

Not Ted Cruz

Ted Cruz said on Saturday that he would seek a third term in the U.S. Senate in 2024, though he also did not rule out running for president.

“I’m running for reelection in the Senate, I’m focused on the battles in the United States Senate,” Cruz told reporters after addressing the Republican Jewish Coalition’s annual leadership meeting in Las Vegas. He said he was also focused on the Senate runoff in Georgia on Dec. 6, according to a video of his discussion with reporters posted by Fox News.

The Texas Republican reiterated his disappointment that his party failed to take control of the Senate in this month’s midterm elections, a setback he blamed on a lack of determination within the party.

Cruz was one of 10 Republican senators who voted against the reelection of Sen. Mitch McConnell, R-Kentucky, as minority leader on Wednesday. McConnell easily fended off a challenge from Sen. Rick Scott, R-Florida, by a vote of 37-10.

I know I just said that I don’t want to engage in wischcasting for this, and I still don’t. But we do need to be prepared to think about who we want to see run for this nomination, and the sooner the better. It’s still the case that no Texas Republican has come as close to losing statewide this century as Cruz did in 2018, and it’s still the case that all decent people loathe Ted Cruz. I’m sure there are some people who will relish the opportunity.

I know we just came off a mediocre at best election, but the optimistic view is that Dems have been steadily gaining ground overall, and we’ve done better in Presidential years. The lunatic fringe of the Republican-majority House will make a very easy foil for President Biden, and Donald Trump will either be the Republican nominee – and nobody has done more for Democratic turnout efforts over the past three cycles than he has – or will be enraged and embittered over not being the nominee – and nobody has done more to sow division and turmoil in the Republican Party over the past six years than he has. There are any number of ways that things could be bad, and that’s before we consider whether Biden should be running for a second term, but there is a very plausible optimistic case to be made. Of course, I said the same thing about 2022 not long after Biden was inaugurated, so take all that into account. The point still is, at least at this time, there’s no need to fear running in 2024.

As to who, we can debate that as we see fit. Maybe Julian Castro, if he hasn’t reached his sell-by date. Maybe a current (Ron Nirenberg, Eric Johnson) or recent (Annise Parker) Mayor might want to take a step up. Maybe a State Senator who wins the draw to not be otherwise on the ballot in 2024. Who knows? My argument is simply that this is an opportunity that someone should want to take. We know we can raise enough money for whoever it is. Just think about it, that’s all I’m asking.

A True the Vote twofer

Nov 7th, 2022
by Charles Kuffner.
1 comment

An update on a different lawsuit they’re involved in.

A disgruntled supporter of the True the Vote campaign to find voter fraud in the 2020 election preserved a claim on appeal, at least temporarily, against the organization’s law firm.

While True the Vote founder Catherine Engelbrecht remains in custody for contempt in a separate lawsuit, the Fourteenth Court of Appeals delivered its opinion in Eshelman v. True the Vote.

In this case, North Carolina millionaire Fredric N. Eshelman donated $2.5 million to Engelbrecht’s organization on the understanding the funds would support investigations, the production of whistleblowers and litigation concerning voter fraud in the 2020 election, according to court filings.

After True the Vote identified no whistleblowers and the four lawsuits in four states were filed without substantial evidence and then voluntarily dismissed, Eshelman demanded his money back.

The donor brought suit against all parties who received some of the funds, including True the Vote partner OPSEC Group, headed by Gregg Phillips, and the nonprofit’s general counsel, The Bopp Law Firm of Terre Haute, Indiana, and attorney James Bopp Jr.

The Bopp Law Firm‘s marketing material show it has played a role in GOP-led campaigns to stir doubt about the 2020 election, and about election administration integrity in general.

At trial court in Travis County, Engelbrecht and most of the defendants asserted Eshelman lacked standing. Their responses claimed the alleged oral agreement of the gift being conditioned on certain acts never occurred, and Eshelman couldn’t sue over a contribution to a charitable organization and its operations.

“These assertions were supported by Catherine Engelbrecht’s declaration that ‘there was no discussion or suggestion of any sort between Mr. Eshelman and myself, or his agents … and myself, that Eshelman’s gift was conditional in any way,’” the Fourteenth Court noted in its opinion.

Because those parties produced evidence that there were no conditions on Eshelman’s donation, the burden shifted to Eshelman and he failed to support his allegation with any evidence, the appeals court said.

The trial court dismissed Eshelman’s claims against all defendants, and the appeals court affirmed that decision in part.

Circumstances with the Bopp Law Firm and James Bopp were different, though, since they only challenged Eshelman’s pleading, not his allegation of a conditional use.

“This is a crucial distinction, because if the movant produces no controverting evidence, we assume the plaintiff’s factual allegations are true,” the appeals court found.

Eshelman’s causes of action against the Bopp defendants are for conversion, declaratory relief, and for money had and received.

“Eshelman has standing to assert his private interest in enforcing his agreed-upon right to recover damages for breach of the parties’ oral agreement,” the Fourteenth Court concluded.

See here for the background. This is actually a bit of good news for True the Vote, which could use it while Engelbrecht and Phillips sit in the pokey. I don’t know why attorney Bopp and his firm didn’t make the same arguments that succeeded for the other defendants – if that is spelled out in the opinion then please forgive me as I didn’t read it because it was too technical and my eyes glazed over – but I assume he can do so at trial. This is one of those situations where you root for everyone to lose, but you can’t always get what you want.

Meanwhile, the end of the story included this bit of information regarding our TTV protagonists:

Company founder Eugene Yu alleged that people working with True the Vote took possession of Konnech data concerning the identities of poll workers throughout the United States, that they are “engaged in an attack against Konnech,” claiming the company and its president are Chinese operatives working for the Chinese Communist Party to interfere with U.S. elections.

In a preliminary injunction order signed Monday by U.S. District Judge Kenneth Hoyt of the Southern District of Texas, the court recognized Yu and his family have been personally threatened, and statements of intent by True the Vote to release confidential data would destroy public trust in government entities and trust between those entities and Konnech.

The defendants were enjoined from making any use of data in their possession and ordered to return it.

This was happening on the same day that Engelbrecht and Phillips were tossed in jail for contempt of court. I’d like to specify exactly what they were ordered to do and not to do, as taken from the linked opinion:

Therefore, it is ORDERED that a preliminary Injunction issues, ENJOINING the defendants, their agents and assigns:

(i) from accessing or attempting to access Konnech’s protected computers;

(ii) from using, disclosing, or exploiting the property and data downloaded from Konnech’s protected computers; and further, they are;

(iii) ordered to identify each individual and/or organization involved in accessing Konnech’s protected computers;

(iv) ordered to return to Konnech all property and data obtained from Konnech’s protected computers, whether original, duplicated, computerized, handwritten, or any other form, whatsoever obtained from any source;

(v) ordered to preserve, and not to delete, destroy, conceal or otherwise alter, any files or other data obtained from Konnech’s protected computers;

(vi) ordered to confidentially disclose to Konnech how, when, and by whom Konnech’s protected computers were accessed; and

(vii) ordered to identify all persons and/or entities, in defendants’ knowledge, who have had possession, custody or control of any information or data from Konnech’s protected computers.

Yeah, that doesn’t look good for our, um, heroes. Maybe the longer they sit in their cells, the longer they can put off the seemingly inevitable butt-kicking that awaits them at the end of these proceedings. Doesn’t seem like a great plan, but it may be the best they can do. Poor babies.

John Scott keeps wanting to have it both ways

Nov 3rd, 2022
by Charles Kuffner.
3 comments

You’re kind of close to getting it, John. You do need to do better, though.

Speaking in July to a group of concerned conservative voters in Dallas, Texas Secretary of State John Scott declared that Texas elections were the nation’s most secure.

But just a few minutes earlier, he was joking with the crowd about a Texas county with more voters than residents, rumors of dead men voting and stories of electioneering dating back to Lyndon B. Johnson’s 1948 senatorial campaign.

“Cheating is not something that’s isolated to Democrats or Republicans,” Scott said to members of the Dallas Jewish Conservatives that summer evening. “People have been cheating in elections for as long as there’s been elections. The trick is to try and catch them.”

Then, Scott fielded questions from the group who expressed serious skepticism about the legitimacy of the 2020 presidential election results. Over the next hour and a half, Scott batted down disproven claims of widespread fraud and, in one instance, briefly defended himself from insinuations that he too was part of the anti-democratic scheme that audience members were convinced was happening in real time.

The evening was in many ways emblematic of Scott’s tenure as the state’s chief elections officer, marked by occasional mixed messages in an effort to build trust in an election system without alienating a base of voters who increasingly view election denialism as a party platform.

[…]

In an interview last week, Scott expressed some regret about his choice of words when talking to the Dallas Jewish Conservatives group earlier this year. But Scott said he has not spread election misinformation, whether that night or throughout his yearlong tenure. Rather, he said, he has sought to meet people where they are as a means of gaining trust and assuage their concerns through transparency.

“Am I probably more flippant than most? Yes,” he said. “Are there better public speakers? I’m sure there probably are. Are there better messengers? Yeah, I’m sure there’s better messengers. But I don’t know that there’s a better way to convey a message to someone that may not necessarily be open to your message other than being a little understanding of, potentially, how they got where they are.”

Over the course of his tenure, Scott has repeatedly insisted that Joe Biden is the rightful president and that Texas’ elections are and have been free, fair and secure.

“Our elections are more accessible and safer than they’ve ever been,” he told The Texas Tribune last week.

At the same time, Scott has on occasion given oxygen to the very misinformation that he now battles full time, including through his office’s audits of elections in four of the state’s largest — and mostly Democratic-leaning — counties. Those audits are rooted in false claims that the 2020 election was stolen, and have yet to produce any evidence of serious fraud. Yet Scott has continued to justify the reviews by saying they will provide transparency and assuage the concerns of those who’ve bought in to disproven conspiracy theories.

Voting rights groups see it otherwise and fear his pronouncements on election integrity are too little, too late. They say Scott’s ties to myth-spreading Republican leaders — and his willingness to go along with audits — have needlessly injected more doubt into an already skeptical electorate ahead of a consequential midterm election. And they worry that Scott has helped lay the groundwork for a new round of even stricter voting rules — enhancements of laws that have already disenfranchised many Texans.

“He’s supposed to act as an arbiter of truth when it comes to elections,” said Alice Huling, senior legal counsel for voting rights at the Campaign Legal Center, a watchdog nonprofit founded by the former Republican chair of the Federal Election Commission that has previously sued Scott’s office over voting laws.

Huling said election officials across the country need to be much more vocal in denouncing those in their own party who have spread misinformation.

“It is not sufficient to just throw your hands up and say, ‘I’m not pushing conspiracy theories,’” she said.

It’s like I was saying. I like making jokes as much as anyone, but sometimes they’re just inappropriate. And while Scott might claim that his jokes were bipartisan in nature – the aforementioned “county with more voters than people” is the famously Republican Loving County – unless he spelled it out very clearly it’s likely that his audience took it as further evidence of rampant cheating by Democrats. Being extremely consistent in delivering the message that elections are handled with care and integrity around the country, not just in Texas, is what is needed now.

And the problem isn’t just misplaced humor, either:

But voting rights groups say Scott should have better used the bully pulpit of his office to push against those doing the duping. They say that Scott’s proximity to prominent election-deniers has made it difficult to trust what he says — and has created ambiguity that fuels fraud myths.

For example: At the July event with the Dallas Jewish Conservatives, much of the conversation centered around “2000 Mules,” a widely debunked propaganda film by longtime GOP political operative Dinesh D’Souza that alleges there was serious fraud at drop-off ballot locations in 2020. The film has been promoted by top Texas Republicans, including Agriculture Commissioner Sid Miller, Lt. Gov. Dan Patrick and Attorney General Ken Paxton’s office, which oversees the exceedingly rare number of voter fraud prosecutions in the state. At the event, Scott spoke alongside Texas Sen. Bryan Hughes, R-Mineola, who also represented Trump and has been a key driver of more restrictive voting laws.

While Scott did note that the premise of the film was not applicable to Texas because the state does not use drop-off balloting, he did not reject D’Souza’s debunked theory outright.

“It’s really amazing,” Scott said of the film, which he said he had recently watched. “You get an enormous amount of information … and I guess it’s scary, right? It leaves you a little angry, a little scared that that’s going on.”

Scott has since explained those comments: “My point is that none of that stuff took place in Texas,” he said last month. “I didn’t do a great deal of research on what happened in other states. So I don’t know if voter fraud was widespread or not.”

[…]

Some of the harassment has been directed at Scott, too. In an interview last month with Texas Monthly, Scott again proclaimed that the 2020 election was not stolen and disputed the findings of “2000 Mules.” His office was immediately inundated by angry voters, some of them threatening.

“You little RINO piece of shit,” one man said in a voicemail that Scott’s office provided to the Tribune. “We want everyone in this country to see what you goddamn bastards did to this country. … There’s a reason Trump reinstituted capital punishment as hanging and firing squads.”

Scott said he’s been surprised by the vitriol that’s been flung at his office and other county elections administrators over the last year.

“I think there’s a group of people that make a living off of spreading misinformation,” Scott said last week. “I think that there are some people that are absolutely mentally disturbed out there, and this gives them a purpose.”

He added that the issue didn’t emerge overnight or even in the past year — it has been “getting more and more aggravated, probably over the last six years.”

“I probably was informed enough to know that it was not necessarily going to be a clover patch here. But I don’t know that I was fully anticipating as much venom,” he said.

I mean, this is “the dog ate my homework”-level excuse-making, plus a feigned innocence that just beggars belief. If you have to be told to stay away from widely-debunked propaganda, and even worse fail to understand why it’s propaganda, then you really are completely unqualified for this job. You just can’t be trusted. I don’t know what else to say.

Univision: Abbott 46, Beto 42

Oct 27th, 2022
by Charles Kuffner.
Comments are off for this post

Another registered voters poll, with a supersample of Latino respondents.

Republican Governor Greg Abbott leads Beto O’Rourke in the Texas governors’ race by more than four points, even though the Democrat has more support among Latinos and Blacks.

The increase in the cost of living dominates the concerns of registered voters in Texas for the November 8 elections and is emerging as a decisive factor, according to a survey by Univision News and the Lyndon B. Johnson School of Public Affairs of the University of Texas.

Half of the 1,400 respondents – including Hispanics, Whites and African-Americans – considered inflation to be the biggest problem facing the administration and the new Congress that will emerge from the elections to be held in two weeks time.

[…]

Overall, Latinos in Texas represent about 25% of the state’s registered voters and lean towards the Democratic Party candidates. White voters remain the majority and are more likely to be Republican.

This is clearly seen in the gubernatorial race. Some 58% of Latinos and 70% of African-Americans say they will vote, or are inclined to vote, for O’Rourke. Meanwhile, Abbott, the current governor, has the support of 63% of White voters, giving him a four-point overall lead (46% – 42%).

The same goes for polling in the congressional election in November which could redraw the balance of power at the federal level. Although the preference of Latinos and African-Americans on the performance of the current Congress largely favors Democratic Party candidates, Republicans have the overall advantage.

While 55% of Latinos and 75% of African Americans say they will vote for Democratic candidates for the House of Representatives, only 25% of Whites say they will do the same, and 63% will vote for Republican candidates. That gives Republicans a seven-point advantage (47% vs. 40%) in overall voter intention in the state.

President Joe Biden’s popularity isn’t helping Democratic Party candidates. The weakness in the economy is due to many factors – the hangover from the pandemic and the war in Ukraine, among others – but historically voters always blame the incumbents.

Overall, 55% of registered Texas voters have a poor image of Biden, while 40% view him favorably. Among Latinos the numbers are reversed (40% – 55%), but the percentage who view him “very favorably” (26%) is nearly equal to those who view him “very unfavorably” (24%).

This is a trend that Univision News polling has observed since the beginning of the year.

Donald Trump, meanwhile, has a 49% favorability rating among registered voters in Texas. It is much lower among Latinos, at 34%.

Crosstabs are available here. They also did a poll of Nevada, which I didn’t look at. The last Univision poll I blogged about was from late October 2020, in which they had Trump up by a 49-46 margin. Trump actually won by five and a half points, 52.0 to 46.5, so while they were a bit off it’s pretty close.

There are two main takeaways from this poll for me. One is that it is further evidence of a significant split between “likely voter” (and “Extra Supersized Likely Voter”) polls and simple “Registered Voter” polls, following on the heels of the Beacon poll, the Marist poll, and the LV-screened UT/TPP poll. Maybe we will find that the LV screens were off, maybe we will find that a lot of voters who said they preferred Dems didn’t vote, maybe we won’t know what difference it made. The point here is that whatever we think, we should acknowledge that these differences in approach are yielding differences in result. We don’t know yet if one is superior to the other. Maybe the final totals will end up in the middle. This is a weird year with a lot of uncertainty. It’s foolish to put all your chips on one particular outcome.

The other is that as was the case in 2020, we are getting very different signals about how Latinos will vote across the polls. This poll, which has Beto carrying Latinos by a 58-28 margin, is the best result for him we have seen. Like the Telemundo poll, this one has an actual survey-sized sample of Latinos, with a standard-sized margin of error, which ought to make it more accurate. That said, they were too rosy on Democratic prospects for Latinos in 2020, and their story makes it clear that Republicans have an edge on at least the economy right now, so who knows what could happen. I am trying to stay hopeful without being a chump.

One last point is that both Abbott and The Former Guy are in positive approval territory, while Beto and Biden are negative. Given that, the closeness of this poll is remarkable. That also may be an indicator of a difference in voter enthusiasm, which would be in Republicans’ favor. Just noting it for the record.

State Bar complaint against Ted Cruz was dismissed

Oct 19th, 2022
by Charles Kuffner.
Comments are off for this post

This story ran a few days ago.

Not Ted Cruz

A lawyer group that brought ethics complaints against Trump attorneys is trying to make it tougher for lawyers to use the legal system to overturn elections.

The group, called the 65 Project, aims to change bar rules of professional conduct in 50 states and the District of Columbia to eliminate “fraudulent and malicious lawsuits” against fair election results.

“Lawyers purport to be self-regulatory and special stewards of the rule of law,” Paul Rosenzweig, a group advisory board member, told reporters Wednesday. “They failed in that responsibility” with the 2020 election.

The effort is a new front in the group’s self-described battle to protect democracy from abuse of the legal system. 65 Project has already filed 55 state bar ethics complaints against lawyers for former President Donald Trump over their efforts to overturn the results of the 2020 election.

The group’s targets have included former Foley & Lardner partner Cleta Mitchell, Sen. Ted Cruz (R-Texas) and lawyers Joseph diGenova and Boris Epshteyn.

Part of 65 Project’s new effort includes proposing rules to prevent attorneys in public office from violating attorney standards by amplifying false statements about elections.

The group is focusing initially on about a dozen states, including Ohio, Wisconsin, Texas, and Pennsylvania, and DC, said Michael Teter, a former Utah assistant attorney general who is Project 65’s managing director.

See here for the background. The Bloomberg Law story says that all of the 65 Project’s complaints are active, but that is not accurate. According to the DMN, which I was able to quickly peruse before the paywall came up, the complaint was dismissed by the State Bar of Texas on June 13, a few weeks after it was filed. The reason, as noted in the sub-head of the story, is that the State Bar said they lacked oversight since Cruz was acting as a Senator and not a lawyer; their dismissal letter didn’t address the merits of the complaint. A minor consolation, that. We are still waiting for a ruling in the complaint against Ken Paxton; a ruling by a different judge in the case against Paxton deputy Brent Webster does not bode well for the complainants, but I suppose it’s not over till it’s over. There’s still a possible appeal of that ruling, which as far as I know has not yet been filed. I fear all of them will get away with it, which is too depressing to contemplate. We’ll know soon enough.

You can be gay, you just can’t act gay

Oct 9th, 2022
by Charles Kuffner.
Comments are off for this post

So rules a notoriously anti-gay Trump judge, narrowing a SCOTUS ruling from just two years ago at the behest of the usual suspect.

A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

[…]

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

I wonder sometimes how Ken Paxton would do if instead of being able to pick his judges he always had to argue his cases in front of a judge that, you know, ruled on the law and the merits of the case rather than on what they felt like. Probably would have a lower batting average, I’m thinking. Anyway, that ruling was 6-3, with Gorsuch the author and Roberts joining him and the (at the time) four liberals. That means that five judges who ruled for the plaintiffs are still there. It’s certainly possible, maybe even likely, that the Biden administration read that ruling in as expansive a manner as they thought they could, and as such they could have overstepped what SCOTUS had in mind. I suppose we’ll get to find out, once the Fifth Circuit does its duty of upholding the ruling. We know that in general this SCOTUS doesn’t give a crap about precedent, but maybe they’ll feel differently when it’s their own precedent.

The professional vote-deniers are out there

Oct 5th, 2022
by Charles Kuffner.
1 comment

They’re probing the systems for weaknesses, a line that reminds me of the velociraptors in the original Jurassic Park. Except that the ‘raptors were sleek and efficient predators, while these guys are basically Pennywise with canned scripts and a huge wingnut-funded budget. The malice is still there, though.

Two of Donald Trump’s most prominent allies in his fight to overturn the 2020 election are leading a coordinated, multi-state effort to probe local election officials in battlegrounds such as Michigan, Arizona, and Texas ahead of the November election.

The America Project, an organization founded by Michael Flynn, a retired three-star general and former national security adviser, and former Overstock CEO Patrick Byrne, has so far interviewed or attempted to interview officials in nearly 200 counties across eight swing states, according to copies of notes, recordings of the interviews, and other documents Votebeat found on web pages associated with the organization. The survey questions reflect the same debunked conspiracies and misleading information about elections that Flynn and Byrne have been propagating for years.

The survey questions appear intended to detect potential weaknesses in local election systems and gather detailed information about how elections are run. Election experts say the information could easily be used to fuel misinformation campaigns, disrupt voting, or challenge results.

“It seems consistent with their efforts to really understand how to manipulate the machinery of election administration in this country,” said Ben Berwick, counsel at national nonprofit Protect Democracy, a research and advocacy group.

In 2020, Byrne and Flynn were among the Trump loyalists who devised a plan to seize voting machines across the country and dig up enough evidence of fraud to persuade state lawmakers, Congress, or the vice president to overturn the election results. Now, they are focusing their efforts on the midterm election, with new strategies. A group backed by The America Project, for example, is attempting to purge voter rolls in Georgia ahead of the election.

The surveys are part of The America Project’s latest mission, dubbed “Operation Eagles Wings,” which is organized on foramericafirst.com, with web pages for each of the swing states the group is focused on. Key to the effort is building relationships with local election officials, according to two manuals for local volunteers on the organization’s websites. The officials are asked their opinions on debunked conspiracy theories, perhaps to determine whether they are like-minded individuals. Interviewers are also marking down which clerks are particularly helpful.

Berwick points out that it’s the mission of prominent Trump supporters to fill positions of power — from governors down to local clerks — with people who believe their allegations of election fraud and improprieties. Noting who does and does not support the cause, he said, may be the group’s way of determining “who will be sympathetic to their efforts in the future.”

Election officials have generally been friendly to their interviewers, but have also repeatedly assured them that their elections are fair, voting machines are secure, and voter rolls are accurate.

[…]

A key goal of Operation Eagles Wings is to create small volunteer teams across the country who observe the entirety of the election process, starting in part with the surveys, according to the manuals Votebeat found.

It’s the expansion of what they have dubbed “the Virginia model,” which refers to the work of Cleta Mitchell’s Election Integrity Network in Virginia to create a network for the state’s 2021 election, according to the manuals.* The America Project provided funding to that effort.

The larger Operation Eagles Wings initiative is aimed at educating “election reform activists on everything from grassroots training to election canvassing and fundraising,” according to The America Project’s website. The site claims the group provides training “for Americans who want to make sure there are no repeats of the errors that happened in the 2020 election.”

“We need to do everything in our power to protect the voting process from election meddlers who care only about serving crooked special interest groups that neither respect nor value the rule of law,” the homepage says.

Along with the surveys, the initiative encourages election skeptics to serve as poll workers and observers, perform in-person “voter registration audits,” and to visit “large farms, factories, businesses and especially care homes,” and ask residents whether anyone is forcing them to vote, according to the manuals.

It’s a long story and Votebeat does its typically thorough job of documenting the atrocities. I don’t know what the best way to respond to this is, but I do know that if we don’t figure it out, and find a way to fund it, we’re going to be screwed.

District court judge dismisses State Bar complaint against Brent Webster

Sep 21st, 2022
by Charles Kuffner.
Comments are off for this post

This is a bad ruling, and it needs to be appealed.

A Texas district judge has dismissed a professional misconduct lawsuit against a top aide of Attorney General Ken Paxton seeking to discipline them for their effort to overturn the 2020 presidential election.

Milam County Judge John W. Youngblood ruled last week that his court lacked the jurisdiction to rule on the matter, agreeing with the attorney general’s argument that doing so would violate the separation of powers doctrine by interfering in an executive branch matter.

“To find in the commission’s favor would stand for a limitation of the Attorney General’s broad power to file lawsuits on the state’s behalf, a right clearly supported by the Texas Constitution and recognized repeatedly by Texas Supreme Court precedent,” Youngblood wrote.

A similar case filed by the State Bar against Paxton is still before a Collin County judge and has not yet been decided.

[…]

Jim Harrington, a member of Lawyers Defending American Democracy, a coalition of lawyers including two former State Bar presidents, who filed a friend-of-the-court brief in support of the State Bar, called the ruling a “legal charade.” The group also filed complaints that prompted the bar to file suits against Paxton and Webster.

“The logic of the judge’s decision is that, if a lawyer works for the Attorney General, there is no way to hold the lawyer accountable for ethical violations and professional misconduct,” Harrington said in a statement. “In other words, the attorney general’s office is above the law. That is contrary to the principle of the Constitution, and we hope the State Bar will appeal the ruling.”

Ratner, a co-founder of the group and a Maryland attorney, said he, too, was disappointed in the ruling and added that it misconstrued the premise of the suit.

“While separation of powers authorizes the Attorney General to decide what lawsuits to file on the State’s behalf, we believe it does not authorize him to make misrepresentations and dishonest statements to a court in violation of his duties as a Texas-licensed lawyer,” Ratner said. “That’s what’s involved here.”

See here for the background, and here for a copy of the letter the judge sent. Not a formal opinion, though I suppose he could still write one, just a one page letter. Obviously, if this judge fully bought into Ken Paxton’s sleazy and self-serving line of defense, it doesn’t bode well for the complaint against him. I think Jim Harrington has this exactly right, and I hope the State Bar has the wisdom and the guts to appeal this. Anything less would be a dereliction of their duty. The Trib has more.

Echelon Insights: Abbott 48, Beto 46

Sep 14th, 2022
by Charles Kuffner.
2 comments

Make of this what you will. It’s a national poll plus samples of likely voters in a variety of states, some red and some blue and some purple, including Texas. The numbers of interest for us:

Do you have a favorable or unfavorable view of Joe Biden?

Very favorable = 20%
Somewhat favorable = 21%
Somewhat unfavorable = 13%
Very unfavorable = 44%
Other/Unsure = 0%

Do you have a favorable or unfavorable view of Donald Trump?

Very favorable = 26%
Somewhat favorable = 20%
Somewhat unfavorable = 9%
Very unfavorable = 44%
Other/Unsure = 2%

Do you have a favorable or unfavorable view of Greg Abbott?

Very favorable = 27%
Somewhat favorable = 22%
Somewhat unfavorable = 10%
Very unfavorable = 36%
Other/Unsure = 5%

Do you have a favorable or unfavorable view of Beto O’Rourke?

Very favorable = 28%
Somewhat favorable = 18%
Somewhat unfavorable = 10%
Very unfavorable = 38%
Other/Unsure = 6%

If the election for Governor were held today, would you vote for

Abbott = 48%
Beto = 46%

If the 2024 presidential election were being held today, would you vote for

Trump = 48%
Biden = 43%

If the election for U.S. House of Representatives in your district were held today, would you vote for

The Republican = 50%
The Democrat = 43%

I’m not familiar with this pollster. In the states like Arizona and Pennsylvania, they have pretty enthusiastic leads for Democratic candidates, but in the states where you’d expect Republicans to win they have them up by expectedly large margins. The Abbott/Beto race is the closest we’ve seen in any poll so far, but it’s not really an outlier. Abbott’s level of support is pretty consistently around 47-49 – he rarely if ever tops 50% in the polls – while Beto is usually around 42 or 43. It’s plausible to get this result just by the “don’t know” respondents leaning towards Beto. Note that this poll did not name either of the third party candidates, as some other polls have, so that could have a boosting effect for both Abbott and Beto as well. This is an optimistic result, and I’d like to see more like it before I fully bought in, but it’s not a bolt out of the blue. The Trump approval and 2024 numbers, the generic Congressional numbers, the Biden approval numbers, they’re all in line with other polls or in the case of the Congressional one leaning a bit Republican. Like I said, make of this what you will. See Lakshya Jain’s Twitter thread for more.

More on the Gillespie County elections office resignations

Aug 31st, 2022
by Charles Kuffner.
Comments are off for this post

From Votebeat, how this mess got started.

Last November’s sleepy constitutional amendment election nearly came to blows in Gillespie County, a central Texas county known for its vineyards. A volunteer poll watcher, whose aggressive behavior had rankled election workers all day, attempted to force his way into a secure ballot vault.

The burly man was repeatedly blocked by a county elections staffer. Shouting ensued. “You can’t go in there,” the staffer, Terry Hamilton, insisted to the man, who towered over Hamilton. “We can see anything we want!” the poll watcher and his fellow election integrity activists yelled, according to an election worker who witnessed the scene. They accused Hamilton and Elections Administrator Anissa Herrera of a variety of violations of the state elections code, which they quoted, line by line.

“Oh Lord, they can cite chapter and verse,” recalled Sue Bentch, a Fredericksburg election judge who saw the confrontation that night. “But you know, just as the devil can cite scripture for its own purposes it seemed to me that it was often cited out of context and misinterpreted.”

“Finally, I called the sheriff’s officer,” said Bentch. The officer barred the activists from the vault. “Poor Terry was coming to fisticuffs.”

Previous elections had been no better. In 2020, a poll watcher called the cops on Herrera and filmed election employees in a dark parking lot. The same year, Herrera received a clutch of obscene, often racist, emails. And in 2019, a group of activists filed suit after Fredericksburg voters overwhelmingly rejected an obscure public-health ballot measure. That election, the activists argued, had been irrevocably tainted by fraud.

Three years of these hostilities were clearly enough for Herrera, who resigned this month.

The rest of the office staff — one full-time employee and one part-time employee — also departed, leaving the elections office completely vacant.

Recent media coverage of the exodus attributed it to threats of the type that have become common since the 2020 presidential election. In fact, Votebeat’s review of court documents, emails, and social media postings show Herrera and others struggling to combat fringe election conspiracy theories in Gillespie County long before former President Donald Trump encouraged his supporters to question the integrity of the 2020 vote.

In Gillespie County in 2019, the fringe was focused on fluoride.

See here for the background, and go read the rest, there’s a lot more. This is a reminder that shitty paranoid conspiracy theories existed well before The Former Guy, but as with most other bad things, he amplified and intensified them, in this case with some generous assistance from the Gillespie County Republican Party. I have no idea what a good way forward for Gillespie County is, but it’s not my problem to solve. I feel bad for the people of good faith who are trying to solve it. The problem is a lot bigger than they are.

What do we expect from CD23?

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

It was the perennial razor-close high-dollar swing district all last decade. Will Hurd won it three times, but never reached 50% in any of the three elections. It moved a few points towards the GOP in 2020 when Tony Gonzales won it, and redistricting made it a bit redder still, but it remains the closest Republican-held seat and may never fade as a perennial battleground. But that may depend on this year, when Gonzalez will have an easier time of it at least financially. I don’t know yet what I expect from that race.

Gonzales remains the favorite for a second term — given the new political makeup of the district and his stark financial advantage — but he said he is taking the race “extremely seriously” and treating it like he was still running under the famously competitive boundaries that were in effect before redistricting.

“The [elected officials] that don’t have to fight, that are just there as long as they want it — they’re like declawed indoor cats that get fancy meals when the bell rings out,” Gonzales said in an interview. “I think Texas [District] 23 — you’re like an alleycat that has to scrape and claw and fight for everything, and I think that just makes you just different. Like, you’re fighting for your life.”

This cycle, Gonzales said, he wants to “run up the score” and “take this seat off the table completely.”

A former Navy cryptologist, Gonzales won the seat in 2020 by 4 percentage points, a wide margin by the razor-thin standards of the 23rd District. He was the successor backed by U.S. Rep. Will Hurd, R-Helotes, a moderate who had built his own reputation for breaking with his party, perhaps most notably opposing former President Donald Trump’s push for a border wall.

Trump carried the 23rd District by 2 points in 2020. But redistricting morphed it into a district that Trump would have won by 7 points, and in March, the Democratic Congressional Campaign Committee officially removed the seat from its list of targeted races.

[Democratic candidate John] Lira argued redistricting “didn’t do Gonzales that many favors,” noting the Cook Political Report, an election forecaster, only increased the Republican advantage of the district by 3 percentage points. And he said he is encouraged by the cracks in Gonzales’ Republican support, the political fallout from the Uvalde shooting and the strength of Beto O’Rourke’s gubernatorial campaign at the top of the ticket.

As for the case against Gonzales, Lira said, “he’s got Will Hurd’s playbook in his back pocket and he’s trying to see how he can play both sides.”

While national attention has faded from the race, Lira recently got the backing of O’Rourke, who rarely issues formal down-ballot endorsements. Lira also has the support of the political arm of the Congressional Hispanic Caucus, which endorsed him after the district was redrawn.

[…]

“I do think the district is going to be a little more competitive than most people anticipated — now how competitive, I don’t know,” said Jeff McManus, chair of the Bexar County GOP. “We sort of have a three-way race going,” with the independent challenger from the right.

McManus said he wishes Gonzales “were a stronger conservative.” The two were on opposite sides of the county party chair election in May, when Gonzales backed the incumbent, John Austin, that McManus defeated.

The independent candidate is Frank Lopez Jr., a former U.S. Border Patrol agent who had to give up his position as chair of the Val Verde County GOP to run. He and Gonzales are very familiar with one another: Lopez was the campaign manager for Raul Reyes, Gonzales’ bitter rival in the 2020 Republican primary runoff for the 23rd District.

Lopez said he ran as an independent, not in the GOP primary, after seeing “the way Raul lost” at the hands of the party’s establishment, which had coalesced behind Gonzales.

“Texans are tired of these dangerous Democrat policies,” Lopez said in an interview, “but they’re also tired of the pandering and games from the RINOs, establishment and globalists in the Republican Party. I had to give Texans a true choice.”

Lopez added that he sees a “perfect storm” for his candidacy, citing the recent intraparty blowback Gonzales has faced and Democrats he meets who say they are looking for a new political home.

Gonzales jokingly asked “Who?” when asked about Lopez in an interview. More seriously, he said the 23rd District has always had a third candidate in November who gets 3% to 5% of the vote and that he expected Lopez would be no different. Still, he said he is not taking Lopez for granted and that it “helps me stay sharp.”

Most of the rest of the story is about Gonzales’ votes in favor of the Cornyn gun control bill and the House bill to protect same-sex marriage, both of which has drawn him some criticism and two censure votes from aggrieved county GOPs (a third, in Bexar County, failed to pass). Good for him and all, but that’s not what I’m here to talk about. I’m here for the numbers.

For what it’s worth, Trump carried CD23 by seven points in 2020. The next two closest districts are both Dem-held (CD15, Trump +3; CD28, Biden +7), and after that it’s all double digits, with CDs 24 (Trump +12), 03 (Trump +14), 22 (Trump +16), 26 (Trump +18), and 38 (Trump +18) next in line. The main difference between CD23 and these other districts is that the latter all moved strongly towards Dems since 2012, with Mitt Romney carrying them by 38 to 44 points. It would not shock me if Beto does about as well in CDs 03 and 24 as he does in CD23. I don’t think Gonzales is going to achieve his goal of taking CD23 off the table, but I could easily see him winning by 10-12 points and discouraging any serious competition in the near term future. I could also see him winning by about the seven points that Trump won it by and remaining in the same position. He has some big advantages, but this is officially a Very Weird Year, and I’m not making any predictions about it. Long term I think this district remains on the radar, but maybe not at the front of the pack. We’ll see.

Cheney versus Cruz

Aug 27th, 2022
by Charles Kuffner.
2 comments

Pop your popcorn, this should be fun.

Not Ted Cruz

U.S. Rep. Liz Cheney, one of the GOP’s highest-profile critics of former President Donald Trump, plans to set her sights on U.S. Sen. Ted Cruz and other Republicans who she says “made themselves unfit for future office” by going along with Trump’s false claims about the 2020 election.

The Wyoming Republican, who lost a primary this month to Trump-backed attorney Harriet Hageman, launched a political action committee with her campaign funds and now says she plans to use the PAC to go after “election deniers.”

Cheney, a leading member of the House committee investigating the Jan. 6 Capitol riots, told the Wall Street Journal that her first targets include Cruz, who she said “took steps that fundamentally threatened the constitutional order and structure in the aftermath of the last election.”

Cruz led an effort in the Senate to delay certifying President Joe Biden’s election win and objected to Arizona’s electoral votes less than an hour before demonstrators breached the Capitol on Jan. 6, 2021, pointing to “unprecedented” — and unproven — allegations of voter fraud. Cruz at the time was pushing for an “emergency audit,” which he has argued could have provided the final say Trump supporters needed to accept the results.

Cruz’s Senate term runs through 2024. The Texas Republican has said he would run again for president “in a heartbeat” after coming in second to Trump in the 2016 GOP primary.

Just so we’re clear, I don’t expect this effort to make much difference politically. I respect Liz Cheney for her principled stand for democracy and truth in the face of all kinds of resistance, but I’m under no illusions that she’s suddenly a force for progressive politics. I’m just hoping she’ll land some punches on a guy who needs to be regularly punched. I have no expectations beyond that.

Paxton’s State Bar disciplinary hearing

Aug 26th, 2022
by Charles Kuffner.
2 comments

We are slowly moving towards finally having some kind of result in this saga.

Best mugshot ever

Lawyers for Texas Attorney General Ken Paxton argued Wednesday that a Kaufman County judge should toss a lawsuit alleging he acted unethically in a legal challenge that sought to overturn the 2020 presidential election.

The first public hearing in the case inside a near-empty Kaufman County courtroom was not to determine the merit of the lawsuit lodged by a disciplinary commission of the state bar, but whether the group can seek sanctions against Texas’ top lawyer.

Paxton’s lawyers said the case, which could threaten his law license, is an unconstitutional attempt to control his office’s work and could have a chilling effect on future attorneys general. But an attorney for the commission countered that all lawyers should be subject to the same rules of professional conduct, no matter their position.

Judge Casey Blair, a Republican, did not issue a decision from the bench Wednesday. The outcome could establish the limits of the commission’s power to sanction lawyers who serve in high-ranking elected positions.

Any ruling will likely be appealed, meaning it could be months before the bar’s complaint over Paxton’s 2020 election lawsuit is heard in court, if ever.

[…]

In the hearing Wednesday, Christopher Hilton, a state attorney representing Paxton, argued that if the court allows the lawsuit to go forward, then “every future attorney general will have to fear for their law license rather than represent the state of Texas to the best of their ability and the way their voters expect that they would do.

“They would be hamstrung on unelected bureaucrats,” he said.

Royce LeMoine, a lawyer for the commission, said Paxton is being sued for his actions as a lawyer, not as the state’s attorney general, and that this is not a “select prosecution.”

“The commission’s disciplinary rules do not violate the respondent’s ability to advocate for his clients and the state of Texas,” LeMoine told the judge.

See here, here, and here for the previous updates. The Chron had a preview story on Tuesday.

“I hope it proceeds,” said Jim Harrington, one of the Texas lawyers who filed the State Bar complaint. “I hope [the judge] bites the bullet and denies the plea because it’s the right thing to do.”

[…]

In seeking to dismiss the disciplinary case, Paxton’s lawyers argue that it would violate the separation of powers doctrine for the Texas courts to “police” what they say was an executive branch decision. They also claim Paxton is protected by sovereign immunity, the legal principle that generally shields public officials from lawsuits.

In a separate motion, the attorney general’s office is asking the judge to allow the agency to intervene in the case on Paxton’s behalf.

The 2020 suit was not “dishonest, fraudulent, or deceitful,” they write in filings, and the State Bar’s issues with it essentially amount to a “political disagreement.”

“If Texans disapprove of the how the Attorney General exercises his authority, the remedy is to vote him out of office,” Paxton’s attorneys write. “The bar has no veto over how the Attorney General exercises his constitutional authority.”

Paxton was not the first attorney general to be asked to spearhead the case, and lawyers in his own office, including then-Solicitor General Kyle Hawkins, had argued against it, according to the New York Times. Hawkins, who would normally represent the state in such litigation, had no involvement in the case when it was filed and resigned within a month.

Top lawyers at the Florida attorney general’s office ridiculed the suit as “bats—t insane,” emails revealed.

Recent polls have shown the attorney general’s race is highly competitive between Paxton and his Democratic opponent Rochelle Garza, a former ACLU attorney. Garza, who has portrayed herself as the candidate who will bring integrity to the attorney general’s office, isn’t buying Paxton’s legal argument in this case.

“Political disagreements have to do with policies, not facts,” Garza said in a statement. “Even first-year law students know that legal accusations of wrongdoing require evidence, yet two years later, Paxton continues peddling his baseless lies about the 2020 election. Texans deserve an attorney general who believes in the rule of law and ethically uses the power of the office to serve Texans, not for their own political ends.”

Any decision in the case could foreshadow the result of a suit filed against Paxton’s First Assistant Attorney General Brent Webster by the Texas Bar for his involvement in the 2020 Supreme Court petition. Webster is also seeking to dismiss his case, and a hearing will be held Sept. 6 in Williamson County.

Paxton and Webster are being represented by lawyers from the attorney general’s office, as well as outside counsel. The office has not responded to questions about why they need both. The cost to taxpayers so far is over $46,000, and that’s before today’s initial proceedings.

The attorney general’s office has said the four in-house attorneys working on the case are not keeping track of their billable hours. The office did not explain why no timekeeping was done, despite its policy of doing so for other types of cases.

“To me, it’s really outrageous they’re using taxpayer money,” Harrington said. “This has nothing to do with his role as attorney general, absolutely nothing. It’s only his role as an attorney. Even if the State Bar disbars him, it has no effect on him being attorney general.”

You will not be surprised to know that I am on the State Bar’s side in this dispute. Paxton’s argument has merit to the point that elected officials should not be held accountable for political decisions by non-political offices like the State Bar. Where that falls apart is that he was also acting as a lawyer, and in doing so was violating the ethical and professional rules that lawyers are supposed to abide by. The evidence for that is overwhelming, from the sheer brazen falsity of the the claims he was making to the way similar lawsuits had been routinely batted aside by a myriad of courts to the fact that his own Solicitor General, whose job it is to make these arguments in court, refused to participate. If he can’t be held accountable for that then he has a blank check to do anything. That cannot be the right answer.

Anyway. If Paxton is found guilty, he will be subject to discipline from the State Bar, which could be anything from a scolding to being disbarred. While the latter seems unlikely to me – from what I have observed, it’s usually lawyers that do things like misappropriate clients’ money that get the boot – I don’t think it would be inappropriate given the seriousness of the issue. If that did happen, Paxton would still be able to hold the office of Attorney General. We’re not getting rid of him that easily. I don’t know what to expect and I don’t know how long it might take. With Paxton, we’re used to waiting on these things. Reform Austin has more.

Let’s name a few legislative battlegrounds

Aug 22nd, 2022
by Charles Kuffner.
Comments are off for this post

It’s getting to be that time of the election cycle.

Mihaela Plesa

Two years ago, Democrats were gearing up for a rare opportunity in modern times: capturing the Texas House majority.

But after they came up woefully short — and Republican-led redistricting reduced the number of competitive races — the battlefield heading into November is notably smaller.

Still, both sides see important stakes in the state House races this time around. While the majority is not on the line, the hottest races are unfolding in key areas that each party understands is critical to their growth for the next decade.

Look no further than the three districts that both Democrats and Republicans see as their highest priorities. Two of them are in South Texas, where Republicans are working to make inroads with Hispanic voters, while the other is in North Texas’ Collin County, a place emblematic of the fast-growing suburbs where Democrats have gained ground over the last few election cycles.

The GOP is especially serious about the two seats in South Texas — House District 37, a new open seat in the heart of the Rio Grande Valley, and House District 118, a San Antonio-based seat that Republican John Lujan flipped last year in a special election. House Speaker Dade Phelan, R-Beaumont, and the Republican State Leadership Committee, a national group that works to elect Republicans to state legislatures, are announcing Monday that they are funding $360,000 in TV ads aimed at the two districts, a substantial opening salvo on the battlefield.

[…]

Millions of dollars are expected to pour in to HD-37 and HD-118 — the two South Texas seats — and then HD-70, the one in Collin County. President Joe Biden would have carried each of the three seats over Donald Trump in 2020, but only by margins of 2 to 11 points, which gives them battleground status in the current environment, according to operatives. HD-37, which Republicans rammed into the map overnight during redistricting, is the closest on paper, with a Biden margin of only 2 percentage points.

Lujan is easily the most endangered Republican incumbent, but a few others can be expected to have competitive races, including Reps. Steve Allison of San Antonio, Morgan Meyer of Dallas and Angie Chen Button of Richardson. However, all three have had tough general elections before — especially Meyer and Button — and Republicans have faith in their ability to defend themselves.

There are also some additional open seats that the GOP will have to monitor, like the Houston seat where Republican state Rep. Jim Murphy is retiring.

On the Democratic side, the most endangered incumbent may be Rep. Eddie Morales of Eagle Pass, who represents a massive district covering most of the Texas-Mexico border.

As for the issues, the GOP messaging is set to take on a national tone, seeking to tap into Biden’s deep unpopularity in Texas, especially on border security and inflation. The House Democratic Campaign Committee said its candidates are focusing on “good jobs, strong public schools and access to affordable health care.”

“In contrast, Republicans are obsessed with banning abortion with no exceptions and making sure anyone can carry a gun with no training or license,” an HDCC spokesperson, Stella Deshotel, said in a statement.

With the primaries over, candidates across the races are sounding notes of independence and bipartisanship. Mihaela Plesa, the Democratic nominee for HD-70, said in an interview it was important for representatives to go to Austin and “not just be another vote for the party line.” Her Republican opponent, Jamee Jolly, said she was optimistic she would appeal to the Biden voters in the district, which he would have carried by 11 percentage points.

“I think a lot of people chose Biden because they didn’t like the Republican option. I know that for a fact because I have friends who have said that,” Jolly said, adding that her friends found Trump “divisive” and that she would legislate as “much more of a convener, a solutions-seeker,” reaching across the aisle.

Plesa said the No. 1 issue she hears about is public school finance, along with concerns about the “social wars” that are erupting in the classroom. But she said she is also hearing a lot about abortion after the Roe v. Wade decision, which triggered a ban without exceptions in Texas. Jolly said that her focus is now on “how we continue to support maternal health care.”

First and foremost: San Antonio is not South Texas, and I will die on that hill. I am begging you to be more precise in your geographical descriptors.

Second, just to provide some perspective, here are the 2020 Biden/Trump numbers for all of the districts name-checked in this story:


Dist  Biden   Trump Biden% Trump%
=================================
037  27,740  26,576  50.6%  48.4%
070  45,111  35,989  54.7%  43.6%
074  31,415  28,538  51.7%  46.9%
108  54,481  55,364  48.9%  49.7%
112  44,881  45,370  48.9%  49.4%
118  36,578  34,584  50.6%  47.9%
121  50,133  52,533  48.1%  50.4%
133  40,475  42,076  48.4%  50.3%

Most of these districts got more Democratic between 2012 and 2020, often much more Democratic. HDs 37 and 74 are the exceptions in that list. You can go read that earlier post for all the context. HD70 is a current Republican district that was redrawn to be Democratic, whose incumbent is not running for re-election, and should be the most likely of the bunch to flip. I don’t think I’m going out on a limb here to say that if Dems don’t pick up HD70, it will have been a disappointing Election Day. It’s impossible to imagine a good overall result if the Republicans can hold that one. Republicans flipped HD118 in a low-turnout special election, which is a thing they had done before as well. Dems won it back that November, but HD118 was a more Democratic district in the previous map. Bexar County moved strongly Democratic overall last decade, though (Pre-redistricting) HD118 was at the bottom of the progress list. I also feel confident saying that Dems will be disappointed if they don’t take this one back.

Fundraising numbers are also a factor, and likely a reason some other relatively even districts were not mentioned in this Trib story. HD70 Dem candidate Mihaela Plesa has done pretty well, while HD118 candidate Frank Ramirez, who fell short in the runoff of that earlier special election, has done less so. I’ll want to take a look at the 30-day numbers in some of these races to see what other signals there may be.

I don’t want to get too deep into all this, as I don’t know much about these races beyond the numbers. I do believe that we will see a different, perhaps broader, class of contested races in 2024, partly because a lot of Republican seats were drawn with relatively tight margins, and partly because this year may tell us something new about the trends we have been seeing in the past three elections. There are always some districts that over- or under-perform their expected numbers, and this time should be no exception.

All of Gillespie County’s elections staff resigns

Aug 17th, 2022
by Charles Kuffner.
1 comment

Who could blame them?

Citing threats and even stalking, all three employees at the Gillespie County elections office have resigned from their positions, leaving the office empty with less than three months before the primary election in November.

The Fredericksburg Standard-Radio Post first reported the wave of resignations last Wednesday, after staff say they received numerous threats and in some cases, even stalking. Now former Gillespie County Elections Administrator Anissa Herrera told the Standard that after the 2020 election she was threatened, stalked and called out on social media.

“The year 2020 was when I got the death threats,” Herrera told the Post. “It was enough that I reached out to our county attorney, and it was suggested that I forward it to FPD (Fredericksburg Police Department) and the sheriff’s office.”

[…]

Josh Blank, director of research at the Texas Politics Project at the University of Texas at Austin, says that with the threats election workers are facing — coupled with an already difficult job — it is more surprising that additional election workers have not yet resigned.

“You’re asking people to do more work under greater scrutiny, and now, threats of physical violence. So it’s not so surprising that this sort of, you know, election workers has decided to resign.” Blank said.

Gillespie County voter Victoria McClurd says that she was both shocked and not shocked that resignations occurred.

“If they’ve been receiving death threats, then I would too, because we’ve gotten to a point where the threats are not benign,” McClurd said. “[In] the last election I was going to be a poll person, and they were talking to us about what to do if someone comes in and is violent. That’s not what happens in a civilized society.”

Sam Taylor, the assistant secretary of state for communications, said the state is already working with Gillespie County officials to help them move forward and prepare for the upcoming election.

“We have already committed to sending trainers from our office to ensure that the County will have the tools and resources they need to conduct a successful election in November,” he said in an email statement.

As we know, it’s not just in Gillespie County that election workers are being terrorized. These folks were just the highest profile to date to say screw it, my life and my family’s life aren’t worth this shit. Note that Gillespie County voted 79% for The Former Guy in 2020. At the risk of trying to impute rational thought on these idiots, what exactly do you think was going on there?

Obviously, the bulk of the blame here lies with our felonious ex-president, but it certainly doesn’t stop there. Every statewide elected Republican that has ever dabbled with election conspiracies, unsubstantiated claims about voter “fraud”, casting suspicion on mail ballots or ballots cast in Democratic counties, they all share the blame for this. State Rep. Kyle Biederman, who “represents” Gillespie County, is one of the worst offenders out there. If they would like for their own elections to be handled in a smooth and competent manner, now would be a good time to say something to push back on the paranoia and rage that they’ve been stoking. Greg Abbott could ask the Texas Rangers to step in and investigate the threats made against Anissa Herrera and her colleagues. Ken Paxton could personally vow to prosecute whoever gets arrested to the fullest extent of the law. Dan Patrick could promise to pass a law that would offer more protection to election workers and provide harsher penalties for making these kinds of threats. That won’t undo their damage but it ought to make the jackals doing the threatening think twice about it. It would also be the right thing to do, and might help turn the temperature down a bit.

This is a five-alarm fire. For once, the arsonists have a chance to try to atone for their sins. What are they going to do about it?

UPDATE: From the Express News, as carried by the Chron:

Gillespie County Judge Mark Stroeher told the Standard-Radio Post that the entire staff resigned for similar reasons, leaving the county in a dire situation for the upcoming November election.

He said that the county has “some people who are pretty fanatical and radical about things” and drove out Herrera and the staff. Stroeher said that the job became more difficult than it probably should be “because of some individuals who are continuing to question how they are doing things,” according to the Standard-Radio Post.

“Elections are getting so nasty and it’s getting dangerous,” Stroeher said to the Standard-Radio Post.

Stroeher told the outlet that he will be contacting the Texas secretary of state for guidance about holding the November elections.

“It’s unfortunate because we have candidates that need to be elected, and we have voters who want their voices to be heard by the ballots,” Stroeher said. “I don’t know how we’re going to hold an election when everybody in the election department has resigned.”

And what have you been doing to combat that fanaticism and radicalism you mention, Judge Stroeher? This is your responsibility, too.

Election officials and workers need our help

Aug 14th, 2022
by Charles Kuffner.
2 comments

We’ve identified the problem. That’s good. Now let’s do something to fix it.

Misinformation about elections has led to violent threats against election workers in Texas and other states — including one who was told “we should end your bloodline” — according to a new report released by a House panel Thursday.

The House Committee on Oversight and Reform heard from one county election official in Texas that he received death threats after being singled out by out-of-state candidates who claimed the 2020 election was stolen. Those threats quickly escalated and eventually included his family and staff.

Tarrant County Elections Administrator Heider Garcia received social media messages including, “hunt him down,” “needs to leave Texas and U.S. as soon as possible,” and “hang him when convicted for fraud and let his lifeless body hang in public until maggots drip out of his mouth.”

The report said Garcia had to call law enforcement when his home address was leaked and calls for physical violence against himself and his family increased — eventually leading to threats against his children that included “I think we should end your bloodline.” Law enforcement determined that none of the threats broke the law, but they did provide coordination and additional patrol around his neighborhood.

The findings are the latest evidence of how former President Donald Trump’s unfounded claims that the 2020 election was rigged against him have taken root as they have been echoed by his supporters, including Texas Republicans who passed new voting restrictions last year.

The report comes as polling released this week indicates two-thirds of Texans who identify as Republicans still do not believe the 2020 election was legitimate. The June survey by the Texas Politics Project at the University of Texas at Austin found 66 percent of Texas Republicans said they don’t believe President Joe Biden legitimately won the election. That was unchanged from February when they were asked the same question.

The report is part of a longrunning effort by congressional Democrats to push back on Trump’s claims and new voting restrictions in states, including Texas.

“Election officials are under siege,” said U.S. Rep. Carolyn Maloney, a New York Democrat who chairs the oversight panel. “They face growing campaigns of harassment and threats, all driven by false accusations of fraud.”

[…]

Garcia wrote that Sidney Powell, Trump’s former lawyer who sought to overturn the 2020 election, appeared on Fox News pushing bunk claims about voting machines turning Tarrant County blue. Garcia was also targeted by Michelle Malkin, a conservative commentator on Newsmax, and far-right website The Gateway Pundit.

Their attacks on Garcia came when Biden won the typically red county by 0.2 percentage points after Trump had led the initial count on election night, before late absentees and provisional ballots were included.

“What followed in the next 4 to 6 weeks was a terrible time of threats and concerns for the safety of my family, my staff and myself,” Garcia wrote.

The House panel in April sent letters to elections administrators in Texas, Arizona, Florida and Ohio asking how misinformation had impacted their work. The report’s findings are based, in part, on responses by Remy Garza, a Cameron County election official who is president of the Texas Association of Election Administrators.

Garza told the committee that during debates in the legislature over proposed changes to voting laws, public testimony frequently included “broad generalizations of alleged fraud” and “repeated misleading information about actions taken by the Harris County clerk responsible for the November 2020 election.”

Garza said the bills Texas Republicans passed were inspired by “false information” and were also sometimes impossible for elections administrators to implement. For instance, the state Legislature enacted a requirement for voting machines to produce a paper record without providing the necessary funds to cover the costs of converting existing equipment to comply, as well as other requirements that are not possible in counties that don’t have certain elections systems.

I have a hard time understanding how those threats against Heider Garcia’s family would not be considered violations of the law. If that’s the case, then the law needs to be updated, because we just can’t have that in a world where we also want free and fair elections run by competent people. Various provisions to offer protection to election officials were included in the voting rights bills that passed the House but were doomed by the filibuster in the Senate. I’m hopeful we’ll get an update to the Electoral Count Act of 1877 to shore up the weaknesses that Trump tried to exploit in 2020, but I seriously doubt that an amendment to include those election official protections could be added, for the same filibuster-related reasons. We’re going to need the same “hold the House and expand the Dem majority in the Senate” parlay to have some hope for this next year. I hope we can wait that long. The Trib has more.

Who audits the auditors?

Aug 4th, 2022
by Charles Kuffner.
3 comments

A novel idea. Not sure it will get anywhere, but it does send a message.

Harris County Commissioners Court, by a 3-2 partisan vote, agreed to explore legal options, including a possible lawsuit, to challenge the results of a random drawing by the Texas Secretary of State’s Office that means another round of election scrutiny for Texas’ largest county.

“It ought to be the state of Texas that is audited,” said Precinct 1 Commissioner Rodney Ellis, who proposed the lawsuit. “This place has gone back to the bad old days.”

Harris County learned last week it was one of two large counties chosen for an election audit by state officials, under new procedures lawmakers approved for election scrutiny. It is the second audit of Harris County, after another approved weeks following the 2020 general election.

[…]

Harris and Cameron counties were the two large ones chosen in a drawing from a bucket, the Secretary of State’s office announced; Eastland and Guadalupe counties were the two small counties selected.

Harris County Attorney Christian Menefee, however, questioned the authenticity of the drawing, saying the broadcast of the drawing “looks like a video out of a sketch comedy show.”

“The camera does not show the slips going into the bucket,” Menefee said, noting various aspects of the drawing that are not filmed. “They don’t even show the slips to the camera.”

See here for the background. Just as a reminder, while there have been issues in other elections in Harris County, the November 2020 election ran incredibly smoothly. And the SOS has already done an “audit” of that election, even if they never bothered to release a report on their “audit”.

My guess is that this doesn’t go anywhere, because I can’t see what grounds there are to sue. (Remember: I Am Not A Lawyer. There is an excellent chance that I am full of beans here.) One could argue that Harris County should have been exempted from this year’s drawing, as the law states that counties cannot be subjected to this audit in consecutive cycles. But the previous audit was not done under the auspices of that law, so the legal response to that would be some form of “tough luck”. Again, I don’t know what the actual attorneys who will be looking into the legal possibilities may find here, so take all this with an appropriate amount of skepticism. But if you were to bet me a dollar right now that 1) Harris County would file a suit as threatened, and 2) it would result in a temporary restraining order, I would take that bet.

If on the other hand the point of this is to denigrate the audit process, which was created in response to Big Lie mania, I’m fine with that. If the idea is to suggest that the state can’t be trusted to conduct a fair random drawing, let alone a fair audit process, that works for me. Judge Hidalgo spoke about the need to combat Big Lie hysteria, which is doing immense damage to the election process and a whole lot more, in the story. That’s a worthwhile mission. If it turns out there really is more to it than that, I’ll be happy to have been proven wrong.

Fraudit 2.0

Jul 29th, 2022
by Charles Kuffner.
6 comments

Here we go again.

Harris County will be one of four Texas counties to undergo an audit of its upcoming November election results by the Texas secretary of state’s office.

It will be the second election audit in two years for Harris County, though the first to be conducted under election law the state legislature passed in 2021.

Eastland, Cameron and Guadalupe counties were selected for the audit process, as well.

By state law, four counties are to be audited at random every two years, two with a population greater than 300,000 and two counties with smaller populations. There are 18 Texas counties with populations greater than 300,000, meaning the state’s large urban counties will face the most audits. Texas has 254 counties.

The audits are to be conducted after November elections in all even-numbered years, and they will look at elections in the four selected counties from the preceding two years. The counties selected will not have to pay for the audits.

On Twitter, Harris County Attorney Christian Menefee questioned the randomness of the selection process. In response, the secretary of state’s office tweeted a link to a video on Facebook that showed the process — the names of large counties and smaller counties are printed on individual labels, and then the four counties are drawn from a bucket. When an employee drops the labels of the large counties into the bucket, it does not happen on camera.

Menefee’s office put out a statement in which the county attorney called the latest audit a ‘waste of time.”

“Harris County will comply, as we’ve always done,’ Menefee said. “But this is a waste of time. Last year the state coincidentally launched an audit of the county’s 2020 election just hours after former President Trump called on the governor to do so. That audit has been consuming the resources of our Elections Administrator’s office at a time where they’ve had to hold a record number of elections. By the way, that audit has still not been completed.

“Now, the state has ‘randomly’ selected Harris County to be audited for the 2022 election,” the statement continues. “Voters should be asking themselves what purpose these audits serve beyond wasting taxpayer money. As has been shown time and again, our elections are secure. The entire premise of these audits—that there is widespread fraud in our elections—is false.”

[…]

In September 2021, the secretary of state’s office announced it had begun a “full and comprehensive forensic audit” of the 2020 election in four Texas counties, including Dallas, Harris and Tarrant — the state’s three largest counties, all of which voted for President Joe Biden. The audit also encompassed Collin County, the largest in Texas carried by former President Donald Trump.

State law establishing the new audit process specifies: “a county selected in the most recent audit cycle may not be selected in the current audit cycle.” Though Harris County’s 2020 election results currently are being examined under a “forensic audit” by the state, the county still is eligible for a new audit in the current cycle because they are separate audit processes, according to Texas Secretary of State spokesperson Sam Taylor. He confirmed Harris County will not be eligible for an audit in the following election cycle.

See here for all my previous blogging on this topic. The video in question can be found here; it was posted by someone at the SOS office in response to a snarky tweet by Christian Menefee. There was a preliminary result from that first “audit” posted in January of 2021 – I can say I’m not aware of any followup stories about that. This is a bullshit law passed to satisfy the Big Lie, and it’s on the list of laws that have got to go when Dems get a turn.

(There’s also an unofficial “audit” of 2020 primary ballots going on in Tarrant County. I can’t even read that story, I start seeing red two sentences in.)

← Earlier Posts