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You (probably) still have to get vaxxed if you work in Houston

I’m glad to see this, but there’s a huge question that this story doesn’t address, much less answer.

Local companies say they will maintain their vaccination policies despite last week’s Supreme Court ruling that struck down the Biden administration’s vaccination mandate for firms with more than 100 employees.

The Houston software company Hewlett Packard Enterprises, for example, said vaccinations are still required for employees to enter offices, work at clients’ sites, travel for business, or required for team members to enter work sites, work at third-party sites, and to travel or attend events on business. Those who decline to be vaccinated are required to work from home.

More than 90 percent of the company’s workforce is vaccinated, a company spokesperson said. The company has not yet decided whether to require booster shots.

[…]

The Houston chemical company LyondellBasell and CenterPoint, the Houston utility company, have not adopted vaccine mandates. They said they have COVID protocols in place and will continue to monitor them.

Corporate vaccine requirement increased the rate of vaccination among employees by 20 percent, according to a recent survey by the National Safety Council. The survey found 95 percent of workers at businesses with vaccine mandates were inoculated, compared to 75 percent among those at businesses without requirements.

At BakerRipley, employees are required to get vaccinated or tested weekly, the Houston charity said. Nearly 90 percent of its 1,200 employees are fully vaccinated.

Camden Property Trust, a national real estate company headquartered in Houston, put in vaccine requirements over the summer before Biden announced the mandate. Of its 746 Texas employees, 718, or about 96 percent, are vaccinated, said Ric Campo, CEO of Camden Property Trust said.

“We just had this discussion about safety and it’s about keeping teammates safe. We’ve done all the analysis and that’s what we think,” Campo said, “And once people had a rational discussion, and it wasn’t political, and it wasn’t ‘You do this or else’ people chose to vaccinate.”

The few who aren’t vaccinated must wear masks at work, Campo said.

Whether to require vaccinations is now in the hands of companies, said Seth J. Chandler, a professor at the University of Houston Law Center. It’s unlikely that Congress would pass new laws to give OSHA the authority that the Supreme Court says it now lacks to impose workplace vaccination requirements.

The story is about the effect of the SCOTUS ruling that blocked the Biden employer vaccination mandate. I’m happy that employers are mostly moving forward with whatever vaccine policies they already had in the works, but I have to ask: What about the state ban on such mandates? The original story line was that employers would be caught between conflicting orders, but that’s no longer the case. The thought that these employers are ignoring Abbott or have found a way around him is delightful, but how is it possible? What are their legal risks here? Is there a lawsuit against the Abbott’s order?

So I did some googling. While Harris County Attorney Christian Menefee urged businesses to sue Abbott over this order, as far as I can tell none have done so yet. Maybe they were waiting to see what happened with the federal mandate first. On the question of what Abbott’s order actually means, I found some interesting writing. For example:

The Order provides enforcement via fines. Specifically, non-compliant entities may be fined up to $1,000 per offense, while jail time is specifically excluded as a penalty. The Order’s language makes no exception for health-care providers such as hospitals and other related entities.

The Order also contemplates its own sunset upon the passage of overlapping legislation. Specifically, in the Order, Governor Abbot states that he is “adding this issue to the agenda” for an upcoming session of the Texas legislature, and that he “will rescind this [Order] upon the effective date of such legislation[.]”

Notably, the Order contradicts both the Governor’s own statements on the rights of private businesses within the state, and legal consensus regarding the ability of employers to mandate vaccinations in most cases. For example, in August, Governor Abbot issued an executive order banning public and governmental entities from enacting vaccine mandates, but explicitly left private entities to make their own decisions regarding the matter. At that time, a spokesman for the Governor’s office also commented that private businesses would be left to make their own decisions regarding the matter. The Order essentially closes that loophole.

The Order also contravenes existing legal precedent within the state regarding employer vaccine mandates. For example, in June 2021, the Federal District Court for the Southern District of Texas dismissed a lawsuit by 117 employees of Houston Methodist Hospital; who claimed Methodist’s policy requiring employees to be vaccinated against COVID-19 amounted to wrongful termination under the law, because the vaccine(s) are “experimental and dangerous.” Bridges v. Houston Methodist Hosp., CV H-21-1774, 2021 WL 2399994, at *1 (S.D. Tex. June 12, 2021). In no uncertain terms, the Order squarely contradicts the holding in Bridges.

[…]

The immediate impact of the Order on businesses who implemented vaccine mandates is unclear—especially in light of conflicting Federal mandates. For example, Texas-based Southwest Airlines and American Airlines have stated publicly that—regardless of the Order—they will continue to implement plans requiring employees be vaccinated, citing federal mandates for contractors and the forthcoming OSHA rule for private business with 100 or more employees. While nothing is certain, it is somewhat likely that OSHA rules and regulations would preempt the Order. But Texas businesses with fewer than 100 employees would still be subject to the Order, or future, related State legislation.

Regardless, in light of the Order’s language, any Texas business entity that previously required employees or customers be vaccinated should seek counsel and reexamine its accompanying policies or risk non-compliance with the Order. At a minimum, Texas businesses should—for now—consider adding exemption language to vaccine policies that mimic the Order’s “personal conscience” and “prior recovery from COVID-19” carve outs.

The fact that the order only calls for what appears to be a modest fine (though that may depend on how an “offense” is counted; if it’s per employee, that would quickly add up) and conflicts with an existing federal court ruling may be the reason for the lack of action on it. Here’s more:

Additional questions loom, such as whether the governor’s Order exceeds his authority – his prior Executive Orders regarding vaccinations and so-called vaccine passports governed only public employers and private companies who were receiving state funds. Additional uncertainties include likely legal challenges to the Order; possible conflicts with federal law; and how and to what extent EO-40 will be enforced. It is also unclear to what extent, if any, the State will actually enforce EO-40, which provides for fines of up to $1,000 per violation.

Companies with employees in Texas who have already begun requiring vaccinations can take a relatively low risk approach to dealing with the governor’s Order by modifying their policies to provide accommodations to employees who object to being vaccinated on the basis of “personal conscience” (which is not defined in EO-40) and for “prior recovery from COVID-19.” These practices can be modified as new federal rules are issued and/or legal challenges play out. Other options for responding the Order are discussed in more detail below.

[…]

EO-40 departs from the governor’s prior orders in other ways. The Vaccine Passport Ban prohibits state agencies from adopting policies or requiring proof of vaccination as a condition of receiving services. In a notable contrast, EO-40 does not expressly forbid proof of vaccination as a condition of employment. Instead, it specifically forbids an entity from “compelling receipt of a COVID-19 vaccine.” By aiming squarely on the act of receiving a vaccination as opposed to policies requiring proof of vaccination, the Order gives rise to more ambiguity. In other words, employers may argue that they are not “compelling receipt” of a vaccine so long as that they do not intend to strap an employee down to a chair and force a vaccine needle into a worker’s arm, which they do not. Instead, that worker always has a choice: they can refuse to get vaccinated, but the consequence is that they will lose their job. Thus, another question is whether employer policies requiring vaccination as a condition of employment would be considered coercive enough to be deemed a violation of EO-40’s bar on compelling receipt of a COVID-19 vaccination.

In a larger context, considering the Texas’ at-will employment environment and the narrow availability of a “wrongful termination” cause of action in Texas, it is not clear that an employer “compels” an individual to be vaccinated by making it a condition of employment.

That last bit was a key component of that Methodist vaccine lawsuit. My interpretation of all this – and you lawyers out there, feel free to tell me why I’m wrong – is that businesses that want to get their employees vaccinated see a way forward, and so far the state hasn’t tried to make an example out of anyone. Abbott’s order was primarily about politics and his need to appear maximally troglodytic for the primary. If he scares a few businesses into abandoning any pro-vaccination plans, so much the better, but the point was to make the order. Optics come first, and on that score Abbott got what he wanted. The details don’t matter. Very much on brand for him, in other words.

It would seem that the San Marcos Police Department has some major problems

Geez.

The city of San Marcos admits in new court documents to text exchanges among its police officers about the Joe Biden bus incident in October 2020.

But it denies what it calls a “characterization” of the exchanges by the original complainants.

In documents filed in federal court Dec. 30, attorneys for the defendants denied almost all of the 173 allegations laid out in the original complaint. The defendants include the city’s public safety director, Chase Stapp; an assistant police chief, Brandon Winkenwerder; a police corporal, Matthew Daenzer; and the City of San Marcos.

In the lawsuit, which originally was filed in June 2021 by campaign staffers and volunteers for then-presidential candidate Joe Biden, the plaintiffs say the Police Department refused to provide a police escort or assistance for their campaign bus after it was surrounded by a pro-Trump caravan on Interstate 35 in October 2020.

The lawsuit alleges that Biden staffers called 911 and “begged” for help from police, but the police “privately laughed and joked about the victims and their distress, including by calling them ‘tards,’ making fun of a campaign staffer’s ‘hard’ breathing, and retorting that they should just ‘drive defensively’ or ‘leave the train.’”

Attorneys for the campaign staffers and volunteers obtained text messages via a public records request between Stapp, Winkenwerder, Daenzer and other police officers that they said showed the officials mocking and laughing at the bus occupants.

In the defendants’ response to the complaint filed last week, attorneys for Stapp, Winkenwerder, Daenzer and the city denied almost all the allegations in the lawsuit or said that they did not have enough “knowledge or information sufficient to form a belief” about them.

They did admit that the text exchanges occurred, but they denied the “characterization of the communication” contained in the complaint.

In one text exchange, an officer asked “did Kamala show?” — a reference to Biden’s vice presidential running mate, Kamala Harris — and another officer answered, “no, just a couple other yards,” which the plaintiffs’ lawyers claim was a misspelling of his intended word, “tards.” Lawyers for the city denied that characterization.

In another text, Stapp said: “from what I gather, the Biden bus never even exited I-35 thanks to the Trump escort.” Lawyers for Stapp and the city admitted that text was factual.

See here and here for the background. I have nothing against the city of San Marcos, but they have a real problem on their hands, and they need to do something about it. The trial is scheduled for November. I’ll be rooting very hard for the plaintiffs. The Current has more.

Sheriff Gonzalez re-nominated for ICE

Take two.

Sheriff Ed Gonzalez

Harris County Sheriff Ed Gonzalez is still President Joe Biden’s pick to lead U.S. Immigration and Customs Enforcement, even after the Senate failed to confirm him last year.

Biden renominated Gonzalez for the ICE director on Tuesday. His initial nomination, from April, expired earlier this week.

Gonzalez still faces an uphill battle in the Senate, which is evenly split and has been moving through Biden’s nominees at a glacial pace amid Republican opposition. ICE — a particularly polarizing agency — has been without a permanent director for five years.

“He’s likely to face the same result in 2022 that he has in 2021,” said Rice University political science professor Mark Jones. “He’s received quite a bit of flak from the left and the right. The right has attacked him because of his because of his past criticism of ICE, but the left has attacked him because of his support for border security and the rule of law at the border.”

Gonzalez is one of many Biden nominees who Democrats have struggled to get confirmed, reflecting shifting norms in the Senate and the growing difficulty of confirming political appointees in recent years, said Max Stier, CEO of the Partnership for Public Service, a nonpartisan organization that promotes effective government.

See here for the background. With all due respect to Professor Jones, if Gonzalez lacked support from even one Democratic Senator, he’d be toast. There are progressive critics of his, though I’d say that criticism is more about ICE as an agency, but if that had been enough to sway any votes in the Senate, someone else would be getting nominated. As both this story and the previous one note, the main issue here is the extreme slowness in getting presidential nominees approved by the Senate, for a variety of reasons in that profoundly broken institution. Either Leader Schumer is able to get a floor vote for him on the calendar, without negatively affecting any higher priorities, or we face the same situation next year, possibly with a Republican-controlled Senate that will make the matter entirely moot. Good luck.

Three comments about three vaccine mandate news stories

Item one:

A U.S. district judge in North Texas has blocked a mask mandate and vaccine requirement for staff and students in the Head Start program that was issued by President Joe Biden.

Head Start is a federal school readiness program for young kids in low-income families that is administered nationally by the federal Health and Human Services department, but run locally by nonprofits or schools. Biden previously ordered that staff running Head Start programs must be vaccinated and all students over the age of 2 had to wear masks. Texas Attorney General Ken Paxton and Lubbock ISD sued the Biden administration to stop enforcement of that order.

U.S. District Judge James Wesley Hendrix, a 2019 appointee of Republican President Donald Trump, ruled Friday that the Biden administration could not enforce its mask and vaccine mandates for the Head Start program in Texas, although the mandates would continue in other states.

Hendrix wrote that the process by which the Biden administration implemented the mask and vaccine rules was in violation of federal law because such rules could only be put in place through a detailed process or with the authorization of Congress. The order applies until the judge holds a trial and issues a final decision on the full merits of the case, or if it is lifted by a higher court.

Item two:

In the state’s latest push against federal vaccine mandates, Gov. Greg Abbott on Tuesday announced plans to sue the Biden administration for requiring Texas National Guard members to get vaccinated against COVID-19.

The suit would be the latest in what has been a slew of litigation against federal vaccine mandates that Texas has either brought forth or taken part in during the pandemic.

In a letter issued Tuesday to Maj. Gen. Tracy R. Norris, the adjutant general of the Texas National Guard, Abbott claimed authority to exempt Texas guard members from receiving the vaccine.

Item three:

A federal judge in Fort Worth granted an injunction Monday against the Department of Defense and the Biden Administration that temporarily halted the U.S. Navy’s COVID-19 vaccine mandate.

The mandate is challenged by a group of U.S. Navy SEALs and other Naval special warfare personnel who say the mandate violates their religious freedom and they have been denied religious exemptions from receiving the vaccine.

U.S. District Judge Reed O’Connor of the Northern District of Texas signed the injunction order after hearing testimony from several Navy SEALs in December as part of the group’s lawsuit. The suit is against President Joe Biden, the Department of Defense, the Secretary of Defense and the Secretary of the Navy Carlos Del Toro.

My comments:

1. It is impossible to overstate how much Greg Abbott and Ken Paxton are on the side of the COVID virus. They themselves are vaccinated, because they are not stupid and want to stay alive, but they absolutely do not care how many people die as a result of COVID. They see only political advantage in making the pandemic worse.

2. They will always be able to find Trumpy judges to plead their cases to, and will generally get favorable rulings from them as a result.

3. The only way to stop the state of Texas from filing these lawsuits is to elect a Democrat as Attorney General. Electing Beto O’Rourke as Governor would also help, as he would be less likely to impose pro-COVID executive orders.

Any questions?

Sheriff Gonzalez’s status

Two words: In limbo.

Sheriff Ed Gonzalez

The Senate has yet to confirm Harris County Sheriff Ed Gonzalez as director of U.S. Immigration and Customs Enforcement, meaning he will likely need to be nominated again and will face an uphill battle to be confirmed in that role.

The Senate must agree unanimously before Jan. 3 to hold over the nomination of Gonzalez or nominate him during the 2022 legislative session.

Even if Gonzalez is held over — or nominated a second time — a number of political obstacles remain in the way of confirmation.

“The prospects for the confirmation of Sheriff Gonzalez in 2022 would not be very auspicious were Biden to nominate him again,” said Rice University political science professor Mark Jones, who noted the confirmation process would essentially start over from scratch in that case.

“The fact that there was a hold that remained now suggests that if Biden nominates Gonzalez again, he’s likely to face the same result in 2022 that he has in 2021,” Jones said.

The struggle to confirm Gonzalez reflects shifting norms in the Senate and increasing difficulty to confirm political appointees in recent years, aid Max Stier, CEO of the Partnership for Public Service, a nonpartisan nonprofit that promotes more effective government.

“Everything is becoming harder and slower, and you have even fewer people actually being confirmed for very important positions,” said Stier.

As of Dec. 30, just 266 of Biden’s political appointees had been confirmed, according to the Partnership for Public Service and the Washington Post, compared to 383 during the Obama administration.

The position of ICE director is especially challenging to confirm, considering the polarizing beliefs on immigration law enforcement and the 50-50 split of party control in the Senate.

“The position itself in this instance, ICE director, is one that’s become a bigger lightning rod, a more controversial position,” said Stier.

Trump failed to secure someone in that role during his entire term.

Mark Jones said he doesn’t believe the Senate’s failure to confirm Gonzalez has much to do with his ability to lead the agency, but much more to do with how Republicans are likely to utilize the hot-button issue of immigration during the 2022 midterm elections.

Gonzalez “still has a long track record of criticizing ICE, which means that during a time when Republicans realize that immigration policy is an advantageous one for them, they’re unlikely to support his confirmation. Even though from a policy perspective, his position is not nearly as far from their position,” Jones said.

Republicans have questioned the Democratic sheriff’s commitment to immigration enforcement since he was tapped for the role in April.

As a reminder, Sheriff Gonzalez was nominated in late April, and was approved by the Senate committee in early August. It’s not clear what the actual holdup is here, as Gonzalez would get through if he has full Democratic support. It may be that one or more Democratic Senators are not on board with him, or just don’t want to confirm anyone to this position without some action on immigration in general or ICE in particular, or it may be that this was just another thing moved to the back burner while everyone was chasing Joe Manchin to get his vote on Build Back Better. If it’s the latter, then I think there’s a decent chance Sheriff Gonzalez eventually gets confirmed next year. If not, then we’ll know when he eventually withdraws his name from consideration.

Our year in COVID

It was bad. How it is next year is at least partially up to us.

Speaks for itself (Source: DSHS)

Texas recorded a 35 percent increase in COVID-19 deaths in 2021, compared to the first year of the pandemic, even though vaccines have been available for all adults since March.

The climbing toll, public health experts said, is almost entirely driven by people who are unvaccinated. From mid-January through October, just 8 percent of Texas virus deaths were among inoculated residents.

Memorial Hermann Chief Physician Dr. James McCarthy said it makes sense there would be more virus deaths in 2021, the first full year of the pandemic, though the highly transmissible delta variant coupled with a low vaccination rate and the decline of safe practices made fatalities worse than they otherwise would have been. And as the ultra-contagious omicron variant spreads rapidly in Houston, the pattern could continue.

“The real reason it’s worse this year is we stopped all the mask-wearing protection activities we had with a large portion of the population still unvaccinated and vulnerable to infection, hospitalization and death,” McCarthy said.

Texas this year had recorded 42,100 virus deaths through Dec. 13, according to data from the state health department, compared to 31,309 in 2020. The pandemic was declared in March 2020.

The share of fully vaccinated Texans is 56 percent, the 29th-highest rate in the country. Its large population means Texas has more unvaccinated residents — 12.8 million — than any state except California.

Four of the six deadliest months of the pandemic in Texas were in 2021. The most populous cities and counties have had the most virus deaths.

[…]

At this pace, Texas would not reach 70 percent until late May of 2022, the Centers For Disease Control and Prevention projects.

Harris County is outperforming the state average vaccine rate. Through Dec. 16, 59 percent of county residents were fully inoculated.

In other words, there’s still a lot of room for the next surge to rip through and infect, hospitalize, and kill unvaccinated people. Vaccinated people will also get sick, but they will be far less likely to get sick enough to be in danger.

We’re not going to get any help from the state government. The federal government is making more tests available and has ordered vaccine mandates, which really will do a lot to improve things, but of course our state leaders are fighting them as if they had stock in COVID itself. I don’t have anything original to say, but do go read the Department of State Health Services report that provided a lot of these numbers. And do what you need to do to protect yourself and your family.

The “prison gerrymandering” lawsuit

Of the many lawsuits filed so far over Texas redistricting, this is the one I know the least about.

Nearly a quarter of a million people were incarcerated in Texas when the Census was taken last year. When lawmakers redrew the state’s voting maps this fall, these inmates were counted in the prison towns where they were locked up, rather than where they lived beforehand.

A Dallas Morning News analysis of Census and prison data found this practice, which opponents call “prison gerrymandering,” inflates the political power of Republican districts while draining clout from Democratic strongholds. It also makes more conservative, rural areas of the state look larger and more diverse than they truly are.

Republicans say the maps are legal and fair. They argue there isn’t a viable alternative for counting prisoners, and changing that won’t shift the balance of power in Texas to Democrats.

But The News found the state’s new legislative maps would look significantly different if Texas stopped this practice. Reallocating prisoners to the place where they were charged would cause nearly one in five counties — most of which went for Donald Trump last year — to lose population to more urban, liberal areas. Not counting prisoners at all would throw more than two dozen House districts out of population boundaries, making them subject to court challenge.

Experts say The News’ findings raise questions about diluting the minority vote, fair representation and the principle of “one person, one vote.” Incarcerated people in effect become ghost constituents, they said, unwittingly boosting the power of prison towns, and helping Republicans stay in power, while largely lacking the right to vote.

[…]

Including jails, federal and state prisons and detention centers, Texas incarcerated more people than any other state, last year’s Census data show.

Counting these people at their place of confinement helped Republicans, The News analysis found. It’s impossible to know how these incarcerated people would vote. But while many inmates in state prisons were charged in urban areas, and most are not white, the vast majority were drawn into GOP districts.

According to The News’ analysis, Republicans in the state Legislature will represent two-thirds of incarcerated people under the newly redrawn maps. The number is even higher for the U.S. Congress: 76% of people incarcerated at Census time were drawn into districts represented by a Republican in Washington.

Two state lawmakers saw their district numbers inflated most by the count of incarcerated people: Rep. Kyle Kacal of College Station and Cody Harris of Palestine, both Republicans. One in 10 people in Kacal’s district, where death row and the prisons department headquarters is located, is behind bars.

In Harris’ district, which includes Tennessee Colony in Anderson County and all or part of three other counties in East Texas, nearly 8% are incarcerated.

The News analyzed how the state’s new electoral maps would be affected if incarcerated people were counted differently. We used data on more than 140,000 inmates incarcerated in state-run jails and prisons when the Census was taken. This analysis does not include the effect of moving federal inmates or those housed in local jails or ICE detention centers.

Of the 232 counties that went for Donald Trump in the 2020 election, 46 would shrink in population if incarcerated people were counted in the county where they were charged. This is the best measure The News could use for previous residence, since state and federal prison agencies declined to release comprehensive data on inmates’ previous home addresses.

The 46 counties would lose more than 104,000 people, The News’ analysis shows. When added together, pro-Trump counties would lose nearly 52,000 people. Nearly all of them — 49,667 people — would be reallocated back to one of the state’s five largest counties, which all went for President Joe Biden last year, with more than 11,000 going to Dallas County.

The News analysis also found counting incarcerated people at their prison address hurts GOP counties without lockups. McLennan, Smith and Montgomery Counties, all of which went for Trump in 2020, would gain more than 2,500 people each if incarcerated people were moved back to the county where they were charged.

If prisoners were excluded from population counts altogether, The News found that 29 state House districts might need to be redrawn. This is because every Texas legislative district is meant to represent roughly the same amount of people, and there should be no more than a 10% difference in population between the smallest and largest districts.

Those that don’t meet this requirement could be challenged in court; they are about equally split between Democrats and Republicans.

[…]

Experts acknowledge that Texas won’t suddenly turn blue if “prison gerrymandering” is banned.

In a state of 29 million, incarcerated people account for less than 1% of the population. Plus, as the party in power, Republicans could simply tweak district boundary lines to make up for a few thousand prisoners here or there.

But critics note it’s one of several tools the GOP uses to maintain power in a rapidly changing state. While they are a fraction of the population, there are more incarcerated people than needed for an entire House district and nearly one-third of a congressional district.

“The dynamics just described obviously favor white, rural Texas,” said Rep. Chris Turner of Grand Prairie, chairman of the Texas House Democratic Caucus. “[It] real questions of fairness.”

Rory Kramer, an associate professor at Villanova University who is completing a nationwide analysis of incarceration and redistricting, said The News’ findings did not surprise him.

“As your analysis demonstrates, this harms equal representation for people who live in neighborhoods with high incarceration rates,” Kramer said. “There’s no reason why living near a prison should mean some Texans have greater voices in the state legislature than other Texans.”

Mike Wessler, communications director for criminal justice advocacy group the Prison Policy Initiative, echoed Kramer’s concern: “It distorts political representation at all levels of government.”

This is related to the lawsuit that I mentioned here filed by inmate Damon James Wilson. This Courthouse News story is still the only writeup I have found about it. The key factor here in terms of drawing legislative districts, especially State House districts where the county line rule makes it harder for rural areas to dip into urban counties for help filling out district populations, is that there would just be fewer people in rural counties, and the net effect might be to force one or more fewer districts that are entirely or mostly within those counties. Add enough people back into Harris County and maybe you have to give it a 25th district again, as it had up to the 2011 reapportionment. West Texas lost a legislative district at that same time because the region didn’t have enough people to justify the higher number. Counting prison inmates in their home counties instead of where they are incarcerated might change the partisan balance by a district or two – it’s really hard to say, and the story doesn’t try – but in the end it’s more a matter of counting them where they consider their home to be, which by the way is the standard for residency and voter registration.

The other point, which I didn’t include in my excerpt, is that while inmates like Wilson are counted in the rural counties where they are locked up for the purposes of drawing legislative maps, they are not counted as residents of those counties when it comes to county-level redistricting.

Just as state lawmakers are in charge of legislative and congressional maps, local officials draw new county districts for positions like commissioners court, justices of the peace and constables after each Census. Many smaller, conservative counties with large inmate populations have long chosen to exclude incarcerated people when redrawing local maps because prisoners would skew their demographics.

Anderson County Judge Robert Johnston said counting the local 13,344 prisoners as constituents would inflate his actual population and result in one of his four commissioners representing only a handful of people outside the prison walls.

“[Prisoners are] not out roaming the streets, spending money in my county,” he said.

Mighty convenient, no? Just for the sake of consistency, there ought to be one standard. Perhaps as a result of this lawsuit there will be. Daily Kos has more.

Precinct analysis: The new SBOE map

Previously: New State House map, New Congressional map

I probably care more about the SBOE than most normal people do. It’s not that powerful an entity, there are only 15 seats on it, and their elections go largely under the radar. But the potential for shenanigans is high, and Democrats had about as good a shot at achieving a majority on that board as they did in the State House in 2020. Didn’t work out, and the new map is typically inhospitable, but we must keep trying. And if this nerdy political blog doesn’t care about the SBOE, then what’s even the point?

You can find the 2012 election results here and the 2020 results here. I didn’t use the 2016 results in my analysis below, but that data is here if you want to see it.


Dist   Obama   Romney Obama%Romney%     Biden    Trump Biden% Trump%
====================================================================
01   247,686  187,075  56.2%  42.4%   378,468  283,822  56.3%  42.2%
02   228,834  185,412  54.6%  44.2%   291,278  291,716  49.4%  49.4%
03   264,311  232,068  52.5%  46.1%   388,240  305,696  55.1%  43.4%
04   308,644  120,097  71.2%  27.7%   403,177  148,981  72.2%  26.7%
05   300,483  239,166  53.8%  42.8%   570,541  301,308  64.1%  33.8%
06   181,278  386,445  31.5%  67.1%   368,830  466,577  43.5%  55.0%
07   224,393  362,617  37.8%  61.1%   340,566  472,253  41.3%  57.3%
08   176,409  303,391  36.3%  62.4%   298,068  395,563  42.4%  56.3%
09   199,415  406,195  32.5%  66.3%   283,337  493,792  36.0%  62.7%
10   169,390  393,365  29.6%  68.6%   303,528  543,023  35.2%  63.0%
11   190,589  395,936  32.0%  66.5%   340,611  492,562  40.2%  58.2%
12   189,192  408,110  31.2%  67.3%   370,022  505,840  41.6%  56.8%
13   335,799  130,847  71.2%  27.7%   441,894  151,002  73.5%  25.1%
14   165,093  377,319  30.0%  68.5%   316,606  503,706  38.0%  60.4%
15   126,093  440,745  21.9%  76.7%   162,347  533,181  23.0%  75.5%

You can see the new map here, so you can visualize where these districts are. The current and soon-to-be-obsolete map is here, and my analysis of the 2020 election under that map is here.

You might note that none of the new districts look all that crazy. For the most part, the districts encompass entire counties. It’s mostly a matter of which counties are joined together. A good example of that is SBOE12, which used to be Collin County plus a slice of Dallas. In the days when Collin was deep red, that was more than enough for it to be safe Republican, but now that Collin is trending heavily Democratic – SBOE12 was a four-point win for Joe Biden last year – that won’t do. Now SBOE12 is a sprawling district that still has all of Collin but now a smaller piece of Dallas, the top end of Denton, and a bunch of smaller North Texas counties that had previously been in districts 09 and 15. In return, the formerly all-rural district 9 picks up about a quarter of Dallas, in a mirror of the strategy we’ve seen in the other maps to put heavily Democratic urban areas in with deeply Republican rural ones, to neutralize the former. District 11, which had previously been pieces of Dallas and Tarrant plus all of Parker and is now all of that plus Hood and Somervell and part of Johnson counties, is another example.

The other strategy that we see echoes of here is the more careful placement of dark red suburban counties. SBOE6, which used to be entirely within Harris County, is now hiked up a bit north to include a generous piece of Montgomery County, much as was done with CD02 and SD07, to flip it from being a Biden district back to a Trump district. Ironically, this has the effect of making SBOE8, which used to have all of Montgomery plus a lot of the counties east of Harris, more Democratic as it now wears both the eastern and western ends of Harris like earflaps. (Mutton chops also come to mind as I look at the map.) SBOE8 also picks up a piece of bright blue Fort Bend County, which had previously been in district 7. Meanwhile, over in Central Texas, SBOE5 jettisoned Comal County after it could no longer keep that district red; Comal wound up in district 10, which excised all of its Travis County population in return.

As far as the numbers go, there’s not much to say. Whether Democrats can win five or six districts will depend in the short term on whether they can hold district 2, which is actually a bit more Democratic in this alignment. In the longer term, districts 6, 8, 11, and 12 could all become competitive. District 3 is no more Democratic than any of those are Republican, but as you can see it trended a bit more blue over the decade, and it’s anchored in Bexar County, which should keep it from falling. 2022 is the one year when every district is up for re-election, and that will tell us something about how the trends we saw in 2020 are going. Maybe we’ll need to re-evaluate the prospects for change in this map, or as we’ve said before, maybe we’ll end up cursing the evil genius of it all. I mean, even as SBOE6 moved strongly towards Dems, the deficit to make up is still 100K votes. Nothing is going to come easy, if it comes at all.

Biden employer vaccine mandate back on

For now, at least.

A federal appeals court panel on Friday allowed President Joe Biden’s COVID-19 vaccine mandate for larger private employers to move ahead, reversing a previous decision on a requirement that could affect some 84 million U.S workers.

The 2-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a federal judge in a separate court that had paused the mandate nationwide.

The mandate from the U.S. Occupational Safety and Health Administration was to take effect Jan. 4. With Friday’s ruling, it’s not clear when the requirement might be put in place, but the White House said in a statement that it will protect workers: “Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

[…]

“Given OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace,” Judge Julia Smith Gibbons, who was nominated to the court by former President George W. Bush, a Republican, wrote in her majority opinion.

“Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace,” she wrote.

Gibbons noted that the agency’s authority extends beyond just regulating “hard hats and safety goggles.” She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

She was joined in the majority decision by Judge Jane Branstetter Stranch, an appointee of former President Barrack Obama, a Democrat.

The case was consolidated in the 6th circuit, which is dominated by Republican-appointed judges. Earlier this week, the circuit’s active judges rejected a move to have the entire panel consider the case, on an 8-8 vote.

The dissent in Friday’s ruling came from Judge Joan Larsen, an appointee of former President Donald Trump, who said Congress did not authorize OSHA to make this sort of rule and that it did not qualify as a necessity to use the emergency procedures the agency followed to put it in place.

Larsen also argued that vaccinated workers “do not face ‘grave danger’ from working with those who are not vaccinated.”

Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. At least two conservative advocacy groups said they had already appealed to the nation’s highest court.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

See here, here, and here for the background. Who even knew that it was possible to get a decent result from an appeals court? It appears the Sixth Circuit, or at least the two justices in the majority opinion, were perhaps not all that impressed by the ruling handed down by their Fifth Circuit colleagues.

Spicy. As noted, in the story, the death eaters among the Attorneys General, including our own, will be appealing to SCOTUS, so keep a firm grip on your expectations. For now at least, there’s a bit of sanity. Happy holidays and all that. Slate has more.

FDA lifts restrictions on medical abortion

Long overdue

The Biden administration on Thursday ended a long-standing restriction on a medication used to terminate early stage pregnancies, even as politicians across the United States intensified efforts that represent the most serious challenge to abortion rights in decades.

The elimination of the rule by the Food and Drug Administration means abortion pills can be prescribed through telehealth consultations with providers and mailed to patients in states where permitted by law. Previously, the pills could not be mailed, though that regulation had been temporarily suspended by the FDA.

In large swaths of the nation, however, strict state rules will dampen the impact. Several states ban sending abortion pills by mail and impose other restrictions.

The medication, mifepristone, was approved by the FDA in 2000 for what’s known as medication abortion. It is used with a second drug, misoprostol. The FDA required patients to pick up mifepristone in person at a hospital, clinic or medical office. There is no FDA requirement that the medication, also known as RU-486, be taken in a clinical setting, and most patients take it at home.

In April, the FDA waived the in-person dispensing requirement during the pandemic, saying research showed the action did not raise “serious safety concerns.” It then launched a scientific review to see whether restrictions on mifepristone should be lifted permanently, with Thursday as the deadline.

The agency, writing to a medical group that had sued the FDA over the rule, said it was dropping the in-person dispensing requirement “to minimize the burden on the health care delivery system” and “to ensure that the benefits of the drug outweigh the risks.” The FDA did not give an effective date for the change.

[…]

Loosening the federal restrictions will not change abortion access in many states with stricter regulations on the pills. Nineteen states have banned receiving the drugs through telehealth appointments, making the relaxed FDA rules irrelevant in places including Alabama, Arizona and Missouri. Some states impose other limitations on medication abortion, including allowing only physicians to prescribe the drug and mandating that patients take the pills under a doctor’s supervision rather than at home.

As federal officials have moved to ease restrictions on the drug, many states have tightened access. At least 16 states have proposed new restrictions on medication abortions this year, said Elizabeth Nash, state policy analyst for the Guttmacher Institute.

“State legislatures have been watching very carefully what happens at the federal level,” Nash said.

The highest-profile limitations were enacted in Texas, where lawmakers made it a felony to provide abortion pills after seven weeks of pregnancy and outlawed sending the drugs through the mail. Texas also banned nearly all abortion within the state by making any form of abortion illegal after about six weeks of pregnancy, though that law is being challenged in the courts.

The differing rules have the potential to widen disparities in abortion access, Nash said.

“Access looks very different depending on where you live,” Nash said. “Abortion access will continue to be very limited in states in the South, in the Plains and in the Midwest, and more accessible in states along the West Coast and the Northeast. … That’s problematic in and of itself, and could become an even bigger divide.”

Yeah, it sure is an issue here in Texas. The main question I have is how effectively will Texas be able to enforce its restrictions. It seems to me that there will be a lot of effort put into avoidance, and as such the only way to really make that law work as intended is to be pretty darned invasive. I don’t know how that will work.

Restrictive state laws are spurring an increase in some areas of what’s known as “self-managed abortions” in which patients buy illegal medication on the Internet and terminate pregnancies without interacting with the health-care system.

While some see this as a dangerous trend, others say the situation is sharply improved from decades earlier — because of the abortion pills.

Abigail Aiken, assistant professor of public affairs at the University of Texas at Austin, said she is often asked whether the country is headed to “back-alley abortions and infections” if Roe v. Wade is struck down.

“One of the things we have that we didn’t have in the ’60s and ’70s is access to abortion pills that are very safe, very effective if you have the right instructions,” Aiken said. “Self management is a safety net. And it’s also an ability to take your health care into your own hands when the state legislature is trying to block access.”

That sounds logical to me. And it should be known, this way around the law has been in use for some time. Again, the question to me is how vigorously Texas will try to crack down on that, and how heavy-handed such enforcement will be. I feel very confident saying that the zealots who pushed the bounty hunter law will not be satisfied by anything other than an all-out crackdown, whatever the consequences. If you think I’m being alarmist, look at where we are now and tell me honestly it’s not far worse than you thought it would be. The 19th and Mother Jones have more.

Quinnipiac: Abbott 52, Beto 37

Brutal, but remember what we say about every poll result, whether good, bad, or indifferent: It’s one data point.

Gov. Greg Abbott has a commanding lead over Democrat Beto O’Rourke in a new public poll released on Wednesday.

Abbott, a Republican, leads O’Rourke 52 percent to 37 percent according to the Quinnipiac University poll of 1,224 registered voters.

A big problem for O’Rourke lies in the poll findings, in which 54 percent of respondents say the former El Paso congressman is too liberal.

The poll also shows that Abbott’s approval rating has rebounded since the summer, when Quinnipiac last surveyed the state. The new poll shows 53 percent of Texas approve of the job Abbott has done as governor, up from 49 percent in June. Conducted December 2 through December 6, the survey has a margin of error of 2.8 percentage points.

The Quinnipiac release and poll data is here; most of the story is a recapitulation of what’s there, so go to the source. Of the three other polls we’ve seen so far, this one is similar for the level of support for Beto (37, 39, and 43) but much higher for Abbott (44, 45, and 46).

That Abbott’s approval ratings may have bounced back somewhat isn’t terribly surprising, as the Lege is no longer in session (Rick Perry always polled worse during sessions), but whether he’s back to being ten points in the black is something I’ll want to see in other polls before I buy it. He was at 49-41 approval in the DMN/UT-Tyler poll, 43-48 in UT/Trib, and 49-47 in the Hispanic Policy Forum poll – again, better than he had been in August and September, but not this good. Similarly, the approval for President Biden was easily the worst in this poll – 32-64 for Biden, versus 42-53 in DMN/UT-Tyler and 35-55 in UT/Trib (no data from the other poll).

Basically, this is about as good a result as Abbott could reasonably expect. Is it an outlier or in line with the next batch of polls to come? That remains to be seen. There’s no good spin for this poll, but there’s also no reason to panic.

Beto and South Texas

Brace yourself for a lot of stories like this in the coming months.

Beto O’Rourke

In the first days of his campaign for governor, Beto O’Rourke made a beeline to this southernmost corner of the state, saying it was no mistake he was choosing to start his run in a part of Texas where Democrats have their work cut out for them after the 2020 election.

His supporters know it, too.

“We are being attacked at all ends,” Amanda Elise Salas said as she introduced him here Wednesday night. “This is a Democratic area, and there is no way we are gonna let Republicans come in here and take over.”

“They’re knocking at our door,” Mario Saenz, a Democratic precinct chair from Brownsville, said afterward. “We cannot let them in.”

A lot of Democratic hopes are riding on O’Rourke this election cycle, but few may be more consequential to the party’s future in Texas than his ability to stave off a strong GOP offensive in South Texas. Emboldened by President Joe Biden’s underwhelming performance throughout the predominantly Hispanic region last year, Republicans have been pushing hard to make new inroads there, and O’Rourke faces an incumbent in Gov. Greg Abbott who has been working for years to win Hispanic voters.

But it is not just about halting the GOP’s post-2020 march in South Texas. O’Rourke, who is facing an uphill battle in the governor’s race, has ground to make up after his own less-than-stellar performance with voters there in 2018 when he ran for U.S. Senate — and turning out more Latino voters has long been key to Democratic hopes statewide.

O’Rourke has been candid about the problem. Days after the 2020 election, which cemented Republican dominance across Texas, he told supporters that the fact that the border region “has been ignored for years by the national party, and even many statewide Democratic candidates, hurt us badly.” Last week, he began his campaign for governor with a swing through the region, calling the early itinerary “very intentional” and vowing to return frequently.

“If the great sin committed by Republicans historically has been to disenfranchise voters, including those in the Rio Grande Valley, then that committed by Democrats has been to take those same voters for granted in the past,” O’Rourke told reporters in San Antonio, before heading south to Laredo and the Valley.

O’Rourke got a wake-up call in South Texas during the 2018 Democratic primary for U.S. Senate, losing many counties in the region to a little-known and little-funded opponent, Sema Hernandez. While it was not the first time a candidate with a Hispanic surname beat expectations in a statewide Democratic primary, O’Rourke acknowledged afterward that he needed to do more outreach.

Months later, in the general election, O’Rourke failed to make significant gains in South Texas compared to his party’s 2016 presidential nominee, Hillary Clinton, which would have been key to defeating U.S. Sen. Ted Cruz. In the largest South Texas county outside San Antonio — Hidalgo — O’Rourke barely improved on Clinton’s vote share there, getting 68.8% after she got 68.5%.

Then came 2020, when Biden carried South Texas — and the Rio Grande Valley in particular — by a much narrower margin than Clinton did. He outright lost Zapata County, a longtime Democratic stronghold just north of the Valley.

[…]

Beyond any issue, though, South Texas Democrats say O’Rourke needs to show up, especially after a presidential election that left them wanting. Biden never visited Texas, let alone anywhere in South Texas, during the general election, and his running mate, Kamala Harris, visited McAllen only in the final days of the race.

To that end, South Texas Democrats are not particularly concerned about O’Rourke, who is known for his relentless campaigning. He toured all 254 counties during his 2018 race, which included a bus tour specifically focused on the border.

“We’re the poorest region of Texas, maybe one of the poorest regions in the nation, and you know, it was a huge letdown that Kamala and Biden didn’t make a prolonged appearance here in the Valley, but Beto, you know, he’s been recurringly focusing his presence here, especially in his past campaigns,” said Sebastian Bonilla, a 25-year-old from the Valley who came to see O’Rourke speak in McAllen.

Abbott has put an emphasis on South Texas since his first gubernatorial campaign in 2014, and he has been increasingly traveling there in recent months, both in his official capacity and for political appearances.

You get the idea. This kind of story is going to be the “Trump voters in diners” lodestar of 2022.

Because I tend to zero in on any actual numbers that show up in this kind of “collect a bunch of quotes and anecdotes” piece, I wondered about that Hidalgo County comparison. Just for grins, I went back and checked to see what was the best Democratic performance in Hidalgo in recent years:

2004 – JR Molina, 64.08%. For comparison, John Kerry got 54.86% against George W. Bush.

2006 – Bill Moody, 62.54%.

2008 – Linda Yanez, 73.63%.

2010 – Hector Uribe, 67.14%. That sure correlated with good Democratic performance elsewhere, eh?

2012 – Michelle Petty, 70.69%. Barack Obama got 70.40%, an improvement over the 69.02% he got in 2008.

2014 – Leticia van de Putte, 67.57%.

2016 – Dori Garza, 70.98%. Hillary Clinton got 68.50%, as noted in the story.

2018 – Steve Kirkland, 69.34%, with Beto’s 68.81% right behind. Kirkland was in a two-candidate race, while Beto and Ted Cruz also had a Libertarian in their race. Cruz’s 30.64% was actually a tiny bit behind Jimmy Blacklock’s 30.66%, though several other Republicans failed to get to 30% in their three-way races.

Latino Dems, and candidates for statewide judicial positions, were generally the high scorers. Looking at the numbers, I agree with the basic premise that Beto could have done better in South Texas than he did in 2018, and he will need to do better than Joe Biden did in 2020. The new SOS elections result website is trash and doesn’t give you a county-by-county view like it did before, so I went and found the Hidalgo County Elections page, which informed me that Biden got 58.04% in 2020, with Elizabeth Frizell being the high scorer at 61.51%; yes, another judicial candidate.

One could also point out, of course, that Biden came closer to winning Texas than Clinton did, despite doing worse in South Texas. Beto himself came as close as he did mostly by making huge gains in urban and suburban counties – to pick one example, he got 46.53% in Collin County, losing it by 22K votes, after Clinton got 38.91% and lost if by 61K votes. Beto did net 12K fewer votes in Hidalgo than Clinton did (Biden netted 32K fewer than Clinton), and he lost another 10K in Cameron County – that does add up in such a close race, though it wouldn’t have been enough to fully close the gap he still had. Ideally, he’d do better in South Texas and in the big urban and suburban counties. At least we all feel confident he’ll do the work.

Vaccine mandate for health care workers blocked

I’d say this is getting ridiculous, but we’re well past that point.

A federal judge on Monday blocked President Joe Biden’s administration from enforcing a coronavirus vaccine mandate on thousands of health care workers in 10 states that had brought the first legal challenge against the requirement.

The court order said that the federal Centers for Medicare & Medicaid had no clear authority from Congress to enact the vaccine mandate for providers participating in the two government health care programs for the elderly, disabled and poor.

The preliminary injunction by St. Louis-based U.S. District Judge Matthew Schelp applies to a coalition of suing states that includes Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. All those states have either a Republican attorney general or governor. Similar lawsuits also are pending in other states.

The federal rule requires COVID-19 vaccinations for more than 17 million workers nationwide in about 76,000 health care facilities and home health care providers that get funding from the government health programs. Workers are to receive their first dose by Dec. 6 and their second shot by Jan. 4.

The court order against the health care vaccine mandate comes after Biden’s administration suffered a similar setback for a broader policy. A federal court previously placed a hold on a separate rule requiring businesses with more than 100 employees to ensure their workers get vaccinated or else wear masks and get tested weekly for the coronavirus.

Biden’s administration contends federal rules supersede state policies prohibiting vaccine mandates and are essential to slowing the pandemic, which has killed more than 775,000 people in the U.S. About three-fifths of the U.S. population already is fully vaccinated.

But the judge in the health care provider case wrote that federal officials likely overstepped their legal powers.

“CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism,” Schelp wrote in his order.

That ruling doesn’t affect Texas, but this one does.

A federal judge on Tuesday blocked the Biden administration’s COVID-19 vaccination mandate for health care workers from going into effect nationwide next week after Texas and other states challenged the order.

Louisiana Western District U.S. Judge Terry Doughty’s ruling follows the same decision on Monday from Missouri U.S. District Judge Matthew Schelp. However, Schelp’s ruling applied for only 10 states.

Doughty wrote in his decision that the mandate exceeds the Biden administration’s authority.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency,” Doughty wrote.

I Am Not A Lawyer, and I couldn’t find any commentary out there about this, but just knowing that it was two Trump-appointed judges who made these rulings makes me look at them with extreme skepticism. (There are some other reasons for that, as the Daily Kos story indicates. I still want to see some serious lawyers weigh in on it.) The willingness of so many people to put the lives of so many other people in danger just boggles my mind.

On the moderately positive side, there was this.

A judge in Galveston has denied a bid from a group of federal workers seeking an injunction to halt enforcement of the White House’s COVID-19 vaccination mandate, saying they had natural immunity from having been infected with the virus.

John J. Vecchione, senior litigation counsel for the New Civil Liberties Alliance in Washington, D.C., said his team argued it was “arbitrary and capricious” to require vaccinations across the board for all federal employees, because this particular group of workers was not any more dangerous to others than people who have been fully vaccinated. Vecchione says in court documents his clients’ immunity is “at least as robust and durable as that attained through the most effective vaccines.”

[…]

The 11 litigants include a high ranking lawyer at U.S. Immigration and Customs Enforcement from Frisco, a Navy technician from Robstown, an air traffic controller from St. Cloud, Fla. , a Georgia-based veterinary specialist from the Department of Agriculture, a special agent with the Secret Service from Springfield, Va. and a supervisory air marshal with Transportation Security Administration in Palos Verdes, Calif. .

The suit is directed at Dr. Anthony Fauci, others on the COVID response task force and representatives of other federal agencies tasked with enforcement or supervision of the mandate. The deadline for vaccinations was Nov. 22 and enforcement was set to begin some time after Nov. 29.

U.S. District Judge Jeffrey V. Brown denied the workers request for a temporary injunction, saying they did not face irreparable harm if they complied with the mandate and they were unlikely to win their case on the merits. He noted that all but one of the plaintiffs were pursuing religious exemptions that would allow them to avoid the vaccine. The worker who did not seek an exemption works for ICE; the judge said the civil liberties lawyers had probably erred in failing to sue that agency.

Any win for sanity at the district court level feels like it’s written on sand these days, but I’ll take what I can get. Roy Edroso has more.

Biden tries again on the employer vaccine mandate

Different appeals court this time.

The Biden administration is asking the 6th US Circuit Court of Appeals to wipe away an order from another appeals court blocking its Occupational Safety and Health Administration vaccine mandate.

Several lawsuits were brought challenging the OSHA mandate, and last week the cases were consolidated in the 6th Circuit, an appeals court that leans right, as 10 of its 16 active judges are Republican appointees.

But, before the cases were consolidated, the 5th US Circuit Court of Appeals — perhaps the most conservative appeals court in the country — issued its order blocking the mandate.

In its filing overnight Tuesday, the Biden administration said the 5th Circuit erred in how its interpretation of the Occupational Safety and Health Act limited the law’s reach, while also arguing that the 5th Circuit had not taken into proper account the public health interest in letting the mandate go into effect.

“Simply put, delaying the Standard would likely cost many lives per day, in addition to large numbers of hospitalizations, other serious health effects, and tremendous expenses,” the administration said in the new filing. “That is a confluence of harms of the highest order.”

[…]

The administration told the 6th Circuit that if it does not lift the order blocking the mandate, it should at least modify the 5th Circuit order “so that the masking-and-testing requirement can remain in effect during the pendency of this litigation.”

See here for the previous update. The 6th Circuit is also pretty damn “conservative”, but it’s at least another shot. I have no idea what to expect, though I figure it’s best to not get one’s hopes up. I do hope they don’t take too long. Bloomberg Law has more.

Precinct analysis: The new Congressional map

Previously: New State House map

We will now take a look at how the districts of interest in the new Congressional map have changed over the past decade. Same basic idea, looking at the closer districts from 2020 to see how they got there. You can find all of the data relating to the new Congressional map here, and the zoomable map here.

I’m not going to tally how many seats were won by each side in each year, for the simple reason that there just wasn’t any real movement like there was in the State House. You can browse the middle years, I’m just going to focus on 2012 and 2020.


Dist   Obama   Romney Obama%Romney%     Biden    Trump Biden% Trump%
====================================================================
03    67,799  153,969  30.1%  68.3%   152,288  204,514  41.9%  56.3%
07   101,379   82,810  54.1%  44.2%   179,334   96,259  64.2%  34.4%
10    73,300  150,282  32.1%  65.8%   134,799  198,754  39.7%  58.5%
12    73,392  141,316  33.6%  64.8%   130,111  188,548  40.1%  58.2%
15    82,049   64,589  55.3%  43.6%   109,172  115,719  48.1%  50.9%
21    87,795  195,130  30.5%  67.7%   164,243  246,188  39.4%  59.1%
22    64,502  149,023  29.8%  69.0%   138,243  191,927  41.2%  57.3%
23    85,081  107,169  43.7%  55.0%   134,574  155,579  45.8%  52.9%
24    87,716  206,535  29.4%  69.2%   168,176  216,381  43.0%  55.4%
26    60,849  148,265  28.6%  69.8%   144,834  212,009  40.0%  58.5%
28   103,701   66,693  60.1%  38.7%   131,699  114,156  52.8%  45.8%
31    63,054  139,030  30.5%  67.3%   132,158  201,379  38.8%  59.1%
34    95,897   42,597  68.5%  30.4%   116,930   85,231  57.2%  41.7%
38    70,264  186,032  27.0%  71.6%   143,904  208,709  40.2%  58.4%

I’m going to sort these into three groups. The first is the “don’t pay too much attention to the vote percentage gains” group. I explained what I mean by that, with the help of a sports analogy, here. I’d put districts 21, 23, and 31 as canonical examples of this, with districts 10, 12, and 31 being slightly less extreme. All of them saw a net decrease in the Republican margin of victory from 2012 to 2020, but the rate is so slow that there’s no reason to believe that any continuation of trends would make them competitive in this decade. (With the possible exception of 23, which is reasonably close to begin with but always finds a way to disappoint.) Maybe things will look different after the 2022 election – these districts do still include places with a lot of Democratic growth – but they’re not the top priorities.

The next group is, or should be, the top priorities, at least from an offensive perspective, because they did have real movement in a Democratic direction. I’d put CDs 24, 03, 22, 38, and 26 in this group, in that order. This of course assumes that trends we have seen since 2016 will continue more or less as before, which we won’t really know until 2022 and beyond, but those numbers do stand out. I know the DCCC is targeting both CD23 and CD24, at least so far in this cycle, but I’d make CD24 more likely to be truly competitive this year. CD03 now includes Hunt County while a big strip of Collin County was put into CD04, so it will take more than just turning Collin blue to make CD03 flippable, but it will help. CD38 is if nothing else the biggest non-Commissioners Court prize on the board for Harris County Democrats.

Finally, there are the districts Dems need to worry about. CD15 is already going to be a tough hold, and even if Dems manage to keep it in 2022, there’s no reason to think it will get any easier, and may well get harder. If that happens, then CD28 could well be in peril as well. As noted before, it’s more like a 10-12 point district downballot, and whatever you think of him Henry Cuellar has shown the ability to outperform that level. Who knows how long those things can last if the trends continue? CD34 is almost as blue now as CD38 is red, but it was also almost as blue as CD38 was red in 2012. Again, I don’t like that trend. The main difference here is that the 2020 election was the sole data point in the new direction, whereas the trending-blue districts have been doing so since 2016. But the numbers are what they are, and until we see evidence that the trend isn’t continuing, we have to be prepared for the possibility that it will. Don’t take any of this for granted.

The bottom line is that right now, only a couple of districts look competitive. That was the case in 2012 as well, and we saw what happened there after a couple of cycles. That said, the reason for the big change was only partly about changing demography – the Trump effect and efforts to register voters, by Dems at first and by Republicans later, all played roles as well. We can extrapolate from existing trends, but it’s hard to know how much that will continue, and it’s really hard to know what exogenous factors may arise. And for all of the movement that the 2011/2013 Congressional districts saw, in the end only three districts were held by the opposite party in 2020 than in 2012 – don’t forget, Dems won CD23 in 2012, but only held it that one term. As much as that map looked like it could be a disaster for the Republicans at the end of the decade, it mostly held to form for them. Would it be a big surprise if the same thing happens this decade? Obviously, I don’t want that to happen, but the GOP built itself some big cushions into this map. Overcoming all that isn’t going to be easy, if indeed it is possible. We have a lot of work to do.

Texas sues over the health care workers vaccine mandate

It’s a trifecta.

In Texas’ latest legal challenge targeting federal vaccination mandates, Attorney General Ken Paxton is suing the Biden administration over its recent order requiring health workers to receive the COVID-19 vaccine.

The Biden administration issued an emergency order, which went into effect Nov. 4, requiring eligible workers at health care facilities participating in the Medicare and Medicaid programs to get the first shot of a two-dose vaccine or a one-dose vaccine by Dec. 6.

Paxton called the mandate “an unprecedented federal vaccine decree” on health care workers.

“At a time when we need healthcare workers more than ever before, amid a harrowing worker shortage, the Biden Administration has prioritized this unlawful vaccine mandate over the healthcare of all Americans,” Paxton said Monday night in a statement. “We need healthcare workers, regardless of their vaccination status, and this decision puts us on track for an impending disaster within the healthcare industry.”

Texas joins 10 other states suing the Biden administration over the mandate.

This joins the federal contractors mandate lawsuit and the employer mandate lawsuit, which by the way will now go to the Sixth Circuit, which may not be an improvement. There’s no point in making arguments about public safety or any other merit-base claim. The Fifth Circuit is gonna do what the Fifth Circuit does, and then either SCOTUS will step in or they’ll wave their hands at the complex legal complexities of it all and hope it’s all moot by the time it gets back to them. If you want to do something about it, support the Democratic nominee for AG against Ken Paxton or one of the Ken Paxton wannabes in 2022. That’s the one fully clear thing in this mess.

Fifth Circuit extends hold on Biden employer vaccine mandate

The worst court in America keeps on keeping on.

A federal appeals court kept its block on the implementation on the Biden administration rule that requires large companies to mandate COVID-19 vaccines for employees or carry out weekly testing starting in January. The rule, which the court characterized as a “mandate,” goes “staggeringly overboard” and “grossly exceeds [the Occupational Safety and Health Administration’s] statutory authority,” Judge Kurt Engelhardt wrote in the 22-page ruling that was joined by Judges Edith H. Jones and Stuart Kyle Duncan.

The three-judge panel on the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, issued the ruling saying that the challenges to the rule were likely to be successful so it further prevented the government form moving forward with its implementation. The Fifth Circuit is largely considered one of the country’s most conservative appeals courts and the panel is made up of one judge appointed by President Ronald Reagan and two others appointed by President Donald Trump.

Dozens of lawsuits have been filed in numerous appeals courts against the rule by businesses, religious organizations, and states. Engelhardt said those who opposed the measure, including Texas, Louisiana, Mississippi, and South Carolina, had standing to sue in the Fifth Circuit. “Rather than a delicately handled scalpel, the mandate is a one-size fits-all sledgehammer,” reads the ruling. The judges said the rule imposes a financial burden and could amount to a violation of the Constitution’s commerce clause. “The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” the judge wrote.

See here and here for the background. The Fifth Circuit never disappoints, do they? Completely predictable, regardless of the facts.

One small bit of potentially good news.

The ruling by the panel of the Fifth Circuit is unlikely to be the final word. Some challenges to the mandate are in other circuits, and the cases will be consolidated before a randomly chosen one of those jurisdictions. The Supreme Court is expected to eventually decide the matter.

Dena Iverson, a Justice Department spokeswoman, said the Biden administration would defend the mandate through that process.

Maybe we can hope for a better outcome from a less corrupted court. In the meantime, I’ll leave you with this:

Further developments soon, we hope. CNBC and Reuters have more.

What the BIF means for Texas

That’s the bipartisan infrastructure bill that was passed last week.

The White House estimates that Texas will receive about $35.44 billion over five years for roads, bridges, pipes, ports, broadband access and other projects after federal lawmakers passed a long-anticipated national infrastructure bill on Friday.

The influx of capital is set to advance existing transit plans, pay for much-needed repairs and could lay the groundwork toward increasing transportation options for Texans.

U.S. House lawmakers gave the roughly $1.2 trillion measure final approval late Friday after a series of negotiations and concessions to get the bill passed. President Joe Biden is expected to sign the bill into law soon.

[…]

Here is the breakdown of the funds that Texas is expected to receive based on estimates from the White House:

The White House also estimated that $3.5 billion will be invested to weatherize the country’s energy infrastructure, but it wasn’t immediately clear how much of that money would go to Texas or how those plans could combine with measures approved by the Texas Legislature this year in response to February’s devastating winter storm.

It’s smaller than I wanted, and there are some projects that were left out, but that’s still a sizeable investment, and after four years of loose talk about “Infrastructure Week”, it’s nice to finally close the deal. Just needed the right President and Congress, clearly. Speaking of which, remember that every Republican in Texas voted against this bill, so when you inevitably see one of them take credit for some project that is being funded by it, be sure to call them out.

We wait on the Fifth Circuit

They have received briefs and held a hearing about whether to keep or lift their hold on the Biden COVID vaccine mandate for employers.

A coalition of businesses argued in federal court Tuesday that they would suffer “irreparable harm” if the court fails to permanently halt the Biden administration’s Covid-19 vaccine-or-test mandate for large businesses as the legal challenges make their way through the courts.

Several staffing companies, religious employers and other businesses said in a court filing that the Fifth Circuit Court of Appeals should permanently block the standard “to protect Americans from being coerced to comply with the unconstitutional vaccine mandate during the pendency of this litigation,” after the court issued a temporary stay last weekend.

The Fifth Circuit challenge, led by Texas, is just one of at least a dozen lawsuits filed against the mandate by mostly Republican governors, conservative organizations and business groups, who say the mandate is an unconstitutional overreach of power by the federal Occupational Safety and Health Administration.

Comparing the vaccine-or-test mandate to the Biden administration’s eviction moratorium, business groups suing over the vaccine rule pointed to the Supreme Court’s decision in August to knock down the eviction ban. Then, the high court found in the case of the eviction moratorium, that “our system does not permit agencies to act unlawfully even in pursuit of desirable ends” and that Congress must specifically authorize such policies.

“Just a few months ago, the Supreme Court explained that the Centers for Disease Control and Prevention (CDC) could not unilaterally grant itself control of the nation’s housing market,” the business groups wrote in a Tuesday court filing. “Sweeping authority must come, if at all, from Congress.”

The emergency rules released by the Department of Labor last week require private businesses with more than 100 employees to ensure their workers are vaccinated or have them submit to weekly testing by Jan. 4.

The Biden administration said in a court filing Monday that the mandate was well within OSHA’s authority and that a permanent stay “would likely cost dozens or even hundreds of lives per day.”

Attorneys for OSHA and the Labor Department told a panel of judges for the New Orleans-based Fifth Circuit Monday that the legal argument lodged by states and businesses conflicts with earlier court rulings and federal law, and is unlikely to succeed.

They also said businesses and states challenging the rule don’t have the grounds for “emergency” relief because the effects of the mandate won’t be in place for another month.

See here for the background. I find it best for my sanity to always expect the worst from the Fifth Circuit, so I’m just going to take some deep breaths and try to think about other things. You night appreciate this Twitter thread from Raffi Melkonian about the arguments some of the companies that oppose the Biden mandate are making, and this Twitter thread from Karen Vladeck about the procedural aspects of this case. I’ll have more when the court says something.

Precinct analysis: The new State House map

Like it or not, we have new State House districts. We may as well acquaint ourselves with them. The coverage we’ve had so far has focused on the 2020 election numbers to say whether a district will be red or blue or (in a limited number of cases) purple. I think that we need to see more data than that to get a full picture. I’ve spent a bunch of time on this site looking at how districts changed over the course of the past decade. This post will do the same for the new State House districts. I may do the same for the other types of districts – we’ll see how busy things get once filing season opens – but for now let’s look at how things are here.

We now have a full set of election data for the new districts. All of the data for the new State House districts can be found here. I am using election data for these years in this post: 2012, 2014, 2016, 2018, and 2020

If you want to remind yourself of what the map looks like, use the district viewer, which allows you to zoom in all the way to street level. What would have happened in the last decade if we had had this map in place following the 2011 session?

2012 – 59 seats won by Obama
2014 – 51 seats won by Davis
2016 – 64 seats won by Clinton
2018 – 66 seats won by Beto
2020 – 65 seats won by Biden

This shows a couple of things. One is just how bad a year 2014 was. Two, how effective the 2011/2013 map was for the conditions that existed at the time. Note that with this map, the big shift towards the Democrats happened in 2016, not 2018. I have to wonder how things might have played out in 2018 and 2020 if that had been our experience. After that, it gets a lot more static. I’ll tell you which districts were won by Beto but not Clinton, and which district was won by Beto but not Biden, later in this post.

Enough setup. You’re ready for some numbers, right? I know you are. I’ve broken this down more or less by region, and am including districts that are within 20 points in the 2020 results.


Dist  Obama  Romney Obama%Romney%    Biden   Trump Biden% Trump%
================================================================
014  14,134  29,676  31.5%  66.1%   30,840  38,146  43.5%  53.8%
020  19,803  40,618  31.9%  65.4%   44,651  58,876  42.2%  55.6%
045  20,079  21,248  47.0%  49.8%   48,915  32,987  58.4%  39.4%
052  16,708  28,942  35.7%  61.8%   44,974  49,046  46.7%  51.0%
054  18,164  22,668  43.9%  54.7%   26,960  31,067  45.5%  52.4%
055  17,348  26,906  38.5%  59.8%   30,054  36,826  43.9%  53.8%
118  21,895  25,284  45.7%  52.8%   36,578  34,584  50.6%  47.9%
121  25,850  47,798  34.5%  63.8%   50,133  52,533  48.1%  50.4%
122  21,516  48,130  30.4%  68.1%   50,094  59,855  44.9%  53.7%

Call this the “Central” region – HD14 is Brazos County, HDs 20 and 52 are Williamson, HD45 is Hays, HDs 54 and 55 are the infamous “donut” districts of Bell County, and the other three are Bexar. Couple things to note, as these themes will recur. One is that if there’s a district you think might belong but which isn’t listed, it’s probably because it just doesn’t qualify as a “swing” district any more. A great example is HD47 in Travis County, which was a 52-47 district for Mitt Romney in 2012. In 2020, however, it was won by Joe Biden by a 61-36 margin. HD45 is more or less the same, but I included it here as a borderline case.

Looking at the shifts, it’s not too hard to imagine the two Williamson districts moving into (back into, in the case of HD52) the Dem column, in a future election if not this year. Note also that HD118 was once a red district. It’s one of the two that Beto flipped and which Biden held. Sure, it’s accurately described in all of the coverage of the special election runoff as being more Republican than the current HD118, but one should be aware of the direction that it has traveled. I won’t be surprised if it outperforms the 2020 number for Dems in 2022. (No, the result of this special election runoff doesn’t change my thinking on that. It’s not the first time that Republicans have won a special election in HD118.)

Not all districts moved so dramatically – that parsing of Bell County looks like it will be durable for the GOP, at least at this time. The other two Bexar districts were a lot more Democratic at the Presidential level than they were downballot, so one has to wonder if the splits we see here are entirely about Trump, or if they will be the leading edge for Dems as the 2016 Trump numbers were in places like CD07 and all of the Dallas House districts that Republicans once held.


Dist  Obama  Romney Obama%Romney%    Biden   Trump Biden% Trump%
================================================================
034  28,030  19,409  58.4%  40.4%   32,171  26,232  54.4%  44.3%
035  19,519   5,678  76.7%  22.3%   22,629  16,478  57.3%  41.7%
036  21,416   7,022  74.5%  24.4%   26,905  19,328  57.6%  41.4%
037  21,580  17,109  55.2%  43.7%   27,740  26,576  50.6%  48.4%
039  23,219   8,076  73.5%  25.6%   27,861  18,679  59.2%  39.7%
041  20,882  15,585  56.6%  42.2%   33,385  25,616  56.1%  43.0%
074  25,903  16,270  60.5%  38.0%   31,415  28,538  51.7%  46.9%
080  26,122  16,344  60.9%  38.1%   27,099  29,572  47.3%  51.6%

Here we have South Texas and the Valley, where things are not so good for the Dems. Again, the districts you don’t see here are the ones that are not swing districts; check out the linked numbers to see for yourself. HD41 was pretty stable, and I will note that the current version of HD74 was carried by Trump, so the new map is a bit friendlier to the Dems, at least for now. HD80 is the Beto district that Biden lost, and as with every other Latino district we’re just going to have to see how it performs in a non-Trump year. If State Rep. Alex Dominguez, the incumbent in HD37, does indeed primary Sen. Eddie Lucio, that puts another Dem seat squarely in the danger zone. (Modulo the pending litigation, of course.)


Dist  Obama  Romney Obama%Romney%    Biden   Trump Biden% Trump%
================================================================
033  16,134  40,104  28.2%  70.1%   35,618  53,384  39.3%  58.9%
057  13,506  30,350  30.3%  68.0%   36,387  47,660  42.6%  55.8%
061  15,178  34,157  30.3%  68.1%   43,274  50,795  45.2%  53.0%
063  20,983  40,571  33.5%  64.8%   42,303  47,444  46.4%  52.0%
065  18,851  36,946  33.3%  65.2%   43,265  51,231  45.1%  53.4%
066  19,348  41,191  31.5%  67.0%   43,902  51,608  45.2%  53.1%
067  16,268  32,870  32.6%  65.7%   39,889  47,769  44.6%  53.5%
070  23,926  36,395  38.9%  59.2%   45,111  35,989  54.7%  43.6%
084  17,622  30,644  35.8%  62.3%   25,604  36,144  40.7%  57.5%
089  18,681  39,334  31.6%  66.6%   39,563  49,499  43.5%  54.5%
093  13,971  29,638  31.6%  67.0%   34,205  45,799  42.0%  56.2%
094  23,934  46,010  33.6%  64.6%   37,985  45,950  44.4%  53.8%
096  22,912  42,668  34.5%  64.2%   39,472  48,073  44.4%  54.1%
097  21,540  40,721  34.0%  64.4%   38,218  46,530  44.3%  53.9%
099  17,899  33,551  34.2%  64.2%   31,245  43,999  40.8%  57.5%
106  12,893  30,578  29.2%  69.3%   38,447  50,868  42.4%  56.2%
108  26,544  58,932  30.7%  68.1%   54,481  55,364  48.9%  49.7%
112  24,601  44,320  35.2%  63.4%   44,881  45,370  48.9%  49.4%

So much action in the Multiplex. HD33 is Rockwall and a piece of Collin. HDs 61 and 70 are Collin, HD57 is Denton. I have lumped HD84 in here as well, even though it’s Lubbock and it remains on the fringe, but I don’t care. We will make a race out of that district yet! HDs 108 and 112 in Dallas are also much more Republican downballot than they were at the top, and while I think they will eventually fall, it’s unlikely to be in 2022. HD70, by the way, is the other district that flipped Dem in 2018.

Everywhere else I look, I see districts that are about as competitive as the formerly Republican-held districts of Dallas County were circa 2012. (Note how none of them have made an appearance in this post.) Look at how huge those splits were a decade ago. A decade in the future, either we’re going to be grimly hailing the evil genius of this gerrymander, or we’re going to be chuckling about Republican hubris and how if they’d maybe thrown another district or two to the Dems they could have saved themselves a bucketful of losses.


Dist  Obama  Romney Obama%Romney%    Biden   Trump Biden% Trump%
================================================================
025  16,141  33,014  32.4%  66.2%   29,441  43,675  39.7%  58.9%
026  14,574  36,701  32.4%  66.2%   37,863  47,532  43.7%  54.8%
028  15,831  33,229  31.9%  67.0%   36,213  46,580  43.1%  55.4%
029  18,280  37,848  32.1%  66.5%   32,787  46,758  40.6%  57.9%
126  18,574  47,202  27.9%  70.7%   35,306  50,023  40.8%  57.8%
127  19,674  45,760  29.7%  69.1%   38,332  53,148  41.3%  57.3%
129  21,321  45,292  31.5%  66.9%   38,399  51,219  42.2%  56.2%
132  13,399  31,974  29.1%  69.5%   35,876  46,484  42.9%  55.6%
133  21,508  45,099  31.8%  66.7%   40,475  42,076  48.4%  50.3%
134  34,172  42,410  43.7%  54.3%   66,968  38,704  62.5%  36.1%
138  20,133  40,118  32.9%  65.6%   37,617  42,002  46.6%  52.0%
144  17,471  16,254  51.1%  47.6%   25,928  20,141  55.6%  43.2%
148  20,954  19,960  50.4%  48.0%   34,605  24,087  58.1%  40.5%
150  14,511  34,552  29.2%  69.6%   34,151  45,789  42.1%  56.5%

Finally, the Houston area. HDs 25 and 29 are Brazoria County, HDs 26 and 28 are Fort Bend. The now-in-Fort-Bend HD76 slides in here as another former swing district, going from 51-48 for Romney to 61-38 for Biden. I threw HD134 in here even though it’s obviously not a swing district by any reasonable measure in part because it was once the epitome of a swing district, and because damn, just look at how far that district shifted towards Dems. The open HD133 is unfortunately another one of those redder-downballot districts, so even though it’s an open seat don’t get your hopes up too much for this cycle. Maybe later on, we’ll see.

I’m fascinated by HD144, which like HD74 is now slightly more Dem than it was under the existing map. I guess Republicans had other priorities in the area. As for HD148, it’s a little jarring to see it as a genuine swing district from 2012, though it barely qualifies as of 2020. Rep. Penny Morales Shaw has complained about the changes made to her district, not just geographically but also by reducing that Latino CVAP by almost ten points. Finally, I will note that while the GOP shored up HD138, it’s another district that used to be a lot redder than it is now. Again, we’ll just have to see how resilient that is. That “genius/hubris” divide will largely come down to places like that.

I hope this helped shed some light on what these districts may be going forward. As always, let me know what you think.

The employer vaccine mandate is here (and on hold)

Here are the details.

Deadline is Jan. 4: The first rule, issued by the Occupational Safety and Health Administration, covers companies with 100 or more employees, applying to an estimated 84 million workers. Companies must ensure that their workers are either fully vaccinated against COVID-19 by Jan. 4 or that they test negative for COVID-19 at least once a week. The rule will take effect as soon as it’s published in the Federal Register.

Workers must get paid time off to get vaccinated: Under the OSHA rule, employers must pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects.

Employers don’t need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the rule does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other circumstances may dictate otherwise.

Unvaccinated people must wear masks: Unvaccinated workers must also wear face coverings while on the job.

Health care workers don’t have testing option under separate rule: A second rule issued by the Centers for Medicare & Medicaid Services requires some 17 million health care workers to be vaccinated by the same deadline, Jan. 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees — clinical and non-clinical — at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.

Earlier, Biden had ordered federal workers and contractors to be vaccinated, with no testing option. Federal workers have until Nov. 22 to get the shots, while federal contractors have until Jan. 4.

[…]

In the case of the OSHA rule, enforcement will largely fall to companies themselves. With only a couple thousand state and federal OSHA inspectors nationwide, there is no mechanism for checking up on millions of workplaces to see whether they are in fact keeping vaccination and testing records.

Rather, OSHA inspectors will mostly respond to employee complaints and add COVID-related inspections to their to-do lists when they are already on-site somewhere. Employers who violate the rule can face fines of up to $13,653 per violation for serious violations and 10 times that for willful or repeated violations.

The company I work for will fall under this mandate. They have been waiting for the official rules before saying what the company policy will be, so I expect to see a communication about that soon. I have a co-worker who is Not Happy about this. I’m sure you can guess how I feel.

How will it affect Texas?

The White House said the new rules preempt any state and local laws, weakening Gov. Greg Abbott’s ban on COVID-19 vaccine mandates, employment lawyers said.

Abbott issued an executive order last month banning any entity in Texas, including private businesses, from requiring anyone to get the COVID-19 vaccine. The new Biden administration rule would void part of the ban, but it would still apply to everyone else in the state, including local governments, school districts and smaller businesses.

[…]

The conflicting vaccine mandates put the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

American Airlines and Southwest Airlines said they would continue requiring employee vaccinations despite Abbott’s new order.

See here, here, and here for some background. As the story notes, the state of Texas has filed a lawsuit against the national mandate for federal contractors, which has not yet had a court date. A day after the updated OSHA rules came out for employers, Texas filed another lawsuit, because of course they did.

Texas Attorney General Ken Paxton sued the Biden administration on Friday over new federal COVID-19 vaccine rules announced the day before, which order big businesses to mandate vaccination against the virus among their employees by Jan. 4 or require regular testing.

The new federal rules preempt state and local laws, including part of Gov. Greg Abbott’s statewide ban on vaccine mandates.

“The Biden Administration’s new vaccine mandate on private businesses is a breathtaking abuse of federal power,” Paxton said in a written statement Friday.

The U.S. Labor Department, which drafted one of the rules, “has only limited power and specific responsibilities,” Paxton said. “This latest move goes way outside those bounds. This ‘standard’ is flatly unconstitutional. Bottom line: Biden’s new mandate is bad policy and bad law, and I’m asking the Court to strike it down.”

Obviously, I’m not going to take Ken Paxton’s word on that. Texas is not the only state suing over this order, and a little searching led me to this AP story about the other lawsuits, which has some prognostication on the suits’ viability.

Lawrence Gostin, a professor at Georgetown University Law Center and director of the World Health Organization’s center on health law, said the half-century-old law that created OSHA gives it the power to set minimum workplace safety measures.

“I think that Biden is on rock-solid legal ground,” he said.

Critics have taken aim at some aspects of the requirement, including that it was adopted as an emergency measure rather than after the agency’s regular rule-making process.

“This is a real emergency,” said Gostin, who has spoken with the Biden administration about the requirement. “In fact, it’s a national crisis. Any delay would cause thousands of deaths.”

[…]

So far, courts have allowed businesses on their own to require employees to be vaccinated. But Michael Elkins, a Florida-based employment lawyer, said those decisions do not necessarily mean judges will rule the same way when it comes to the federal government’s requirement.

“You may see a federal judge, or a bunch of them, say, ‘This is just overreach,’” Elkins said.

Benjamin Noren, a New York-based labor lawyer, said he thought the rule is likely to be struck down because OSHA was intended to deal with workplace hazards such as chemicals, not a virus. He said OSHA has made 10 emergency rules in the last five decades. Of the six that were challenged, only one survived intact.

“It’s an innovative use by the Biden administration to figure out some way to mandate vaccination in the private sector,” Noren said. “I hope it works. I have doubts.”

We didn’t have to wait long to find out. I started this draft on Friday morning when the story was just the OSHA announcement. By the time I finished the initial draft, the lawsuits were announced, so I added that on. Somehow, I figured there wouldn’t be any more news until the next week, so I waited to publish on Sunday just to spread things out a bit. That turned out to be a poor decision.

A U.S. federal appeals court issued a stay Saturday freezing the Biden administration’s efforts to require workers at U.S. companies with at least 100 employees be vaccinated against COVID-19 or be tested weekly, citing “grave statutory and constitutional” issues with the rule.

The ruling from the United States Court of Appeals for the Fifth Circuit comes after numerous Republican-led states filed legal challenges against the new rule, which is set to take effect on Jan 4.

In a statement, Solicitor of Labor Seema Nanda said the Labor Department was “confident in its legal authority” to issue the rule, which will be enforced by the Occupational Safety and Health Administration (OSHA).

“The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them,” she said. “We are fully prepared to defend this standard in court.”

A copy of the order is here. If you’re thinking it doesn’t say much and stands in stark contrast to the court’s actions on SB8, you’re not alone.

If we ever get around to expanding the Supreme Court, could we maybe give some thought to doing the same to the Fifth Circuit? Because there are some trash judges on that court, and something needs to be done to restore some sense of justice there. The Biden administration has until Monday at 5 PM to file its response, so look for more updates soon. I won’t sit on any of them. WFAA has more.

UT/Trib: Abbott 46, Beto 37

Data point #2, arriving on schedule.

Gov. Greg Abbott has a comfortable lead over potential Democratic challenger Beto O’Rourke, according to a new poll from the University of Texas at Austin and The Texas Tribune.

The survey of registered voters found Abbott with a 9-percentage-point advantage over O’Rourke, 46% to 37%. Seven percent of respondents picked someone else in the hypothetical matchup, and 10% said they have not thought about it enough to have an opinion.

O’Rourke is increasingly expected to challenge the Republican governor for a third term next year, though he has not made an announcement yet.

Both men have vulnerabilities, according to the survey. Abbott’s approval rating has slightly improved since the last poll in August, but it remains underwater, with 43% of voters approving of the job he is doing and 48% disapproving.

O’Rourke, meanwhile, has a well-defined — and negative — image with voters. Only 35% of respondents said they have a favorable opinion of him, while 50% registered an unfavorable opinion. Only 7% of voters said they did not know him or had no opinion of him.

While O’Rourke is widely liked by Democrats and widely disliked by Republicans, his low favorability with independents is hurting his overall showing: Only 22% of them have a positive view of him, while 48% have a negative view.

Abbott’s numbers with independents are nothing to brag about, either. Twenty-seven percent of them approve of his job performance, while 57% disapprove.

O’Rourke’s initial 9-point deficit “is as good a starting point as Democrats are gonna get,” said James Henson, co-director of the poll and head of the Texas Politics Project at the University of Texas at Austin.

[…]

One other potential gubernatorial candidate who has captured the attention of the political world is actor Matthew McConaughey. He has teased a possible run for months, without saying which primary he would run in — or whether he would run as an independent.

The poll discovered that the movie star is not universally beloved by Texans. Close to a third of voters — 29% — have neither a favorable nor unfavorable opinion of McConaughey. Thirty-five percent registered a favorable opinion of him, and 24% said they had an unfavorable impression.

Any Democratic candidate will have to contend with a president from their party, Joe Biden, who is deeply unpopular in Texas. In the poll, voters gave him a net approval rating of negative 20 points, with 35% approving of his job performance and 55% disapproving. That is wider than the 11-point deficit that the survey found between the two ratings for Biden in August.

See here for the previous poll result we got, from the Texas Hispanic Policy Foundation. There’s another story about various issue questions, which largely boils down to “Democrats and Republicans disagree on things, and independents sometimes go one way and sometimes go the other”. Neither seems to have a link to their data, so who knows how it all breaks down. I will note that given the existence of that other poll in which Abbott led Beto by one, down nine is not really “as good a starting point as Democrats are gonna get”, but whatever.

This poll also included questions about the primaries, which again suggest that Abbott will win without a runoff, Paxton may win without a runoff, and no one can say what might happen in the contested Dem primaries. Biden’s approval numbers are lousy – it would be very nice if they bounced back a bit – Abbott’s remain bad but are better than they were in September – he may improve just because the Lege isn’t in session, that used to be the pattern for Rick Perry as well – and no one else is above water, consistent with other results. And that’s about all there is to say about this poll.

Hispanic Policy Foundation poll: Abbott 44, Beto 43

At long last, some new polling data, and this one is eye-catching.

A year before they could meet in a showdown for the state’s top office, Gov. Greg Abbott and expected Democratic challenger Beto O’Rourke are virtually tied, according to new polling from the Texas Hispanic Policy Foundation (TxHPF).

The poll shows Republican Abbott leading O’Rourke, 44% to 43% among voters who went to the polls in 2020, with the rest of respondents unsure or supporting minor-party candidates. The race is virtually unchanged if actor Matthew McConaughey, whose name has come up in gubernatorial-race speculation, appears on the ballot as an Independent candidate.

Among all registered voters, Abbott is the choice of 43% and O’Rourke of 42%, with 12% unsure of whom they would vote for and 3% choosing minor party candidates. The results remain nearly identical if the population is restricted to 2020 presidential election voters, with Abbott preferred by 44% and O’Rourke by 43%, with 10% unsure and 3% supporting minor party candidates.

O’Rourke, a former Congressman from El Paso who previously ran for president and for a seat in the U.S. Senate, has not formally announced his candidacy for governor but is widely expected to run.

The poll found that 49% of Hispanic respondents favor O’Rourke and 31% favor Abbott. Hispanics who are evangelical Protestants are more likely to vote for Abbott (42%) than O’Rourke (37%), while Catholic Hispanics and non-religious Hispanics overwhelmingly favor O’Rourke (56% and 46%) over Abbott (29% and 28%).

Before taking on the Democratic nominee, Abbott must make it through a competitive Republican primary. The new polling shows the two-term governor with an overwhelming lead in the GOP race: Abbott is ahead of his next-closest rival, former state Republican Party Chairman Allen West, by 51 percentage points, with 64% of the most likely GOP primary voters intending to vote for Abbott compared to 13% for West.

“Governor Abbott has shored up his right flank and stands firmly on solid ground with Republican primary voters,” said Jason Villalba, Chairman and CEO of the TxHPF. “But based on our data, it appears that he has achieved this objective by cutting deeply into his support with Texans who vote in the general election. Much can happen over the course of the year, but these numbers show that not only can we expect a competitive general election, but that Abbott’s shift to the hard right may have imperiled his governorship.”

[…]

The TxHPF has previously established its credibility in measuring public opinion in Texas. In August 2020, the TxHPF was the first major research organization to forecast that then-President Donald Trump was running relatively well among Texas Hispanics. Those survey results proved to be strikingly accurate on Election Night 2020, when Trump performed stronger than previous Republican candidates in heavily Hispanic regions of the state.

For the survey 1,402 respondents were interviewed online between October 14 and 27, with a margin of error of +/- 2.6%.

The data they provide can be found here – it doesn’t provide the individual questions or the totals for each, so make of it what you will. The topline numbers are the Abbott/Beto number, which has Abbott up 44-43, and a three-way race that includes Matthew McConaughey as an independent, which goes 40/37/9, a much less sexy result that those idiot polls that had Abbott versus McConaughey straight up without ever acknowledging that the only way that could happen is if our boy ran in and won the Democratic primary first.

As far as I can tell, the last straight up horse-race poll result we have is from September, in which Abbott led 42-37. Both that one and the other most recent result, from July, which had Abbott leading Beto 45-33, are from the DMN/UT-Tyler series that included those dumb Abbott/McC matchups. Since then what we’ve had is multiple polls that have highlighted Abbott’s declining approval rating, but basically no other election polls. I have to assume that Beto will indeed make official his candidacy, at which point I suspect we’ll get all the polling we can handle.

The one thing this poll doesn’t have that I would have liked to have seen was an approval rating for President Biden, which has also tanked since late spring, matching the national trend. This poll does a very nice job of taking a closer look at Latino response to Abbott and Beto, and boy would it have been cool to see those same questions about Biden and maybe even that other guy, to perhaps provide some extra context about the last election and what we might see this time around. Alas.

They also polled the primaries, with Abbott well in the lead and Ken Paxton just above fifty percent, thanks mostly I’d say to none of the other candidates being remotely well known to the voters. Same for the Ag Commissioner race, and the Dem primaries for Lite Guv and Attorney General, which is now out of date anyway. Primary polling is a lot harder to do, and the fact that many candidates aren’t well known doesn’t help. I’d say Abbott is in good shape to win without a runoff, Paxton may be able to avoid a runoff, and the rest isn’t worth worrying about.

As always, this is one poll, so don’t put too much weight on it. I do think we’ll start to see more results, and once that happens I’ll add a new widget on the sidebar to track them all. That has sure come in handy for me when I’ve had to trawl through the archives here to provide comparisons to past numbers. Let’s get this thing on the road already. The Texas Signal and the Chron have more.

Trump Train lawsuit update

San Marcos Police Department, wyd?

As supporters of then-President Donald Trump surrounded and harassed a Joe Biden campaign bus on a Central Texas highway last year, San Marcos police officials and 911 dispatchers fielded multiple requests for assistance from Democratic campaigners and bus passengers who said they feared for their safety from a pack of motorists, known as a “Trump Train,” allegedly driving in dangerously aggressive ways.

“San Marcos refused to help,” an amended federal lawsuit over the 2020 freeway skirmish claims.

Transcribed 911 audio recordings and documents that reveal behind-the-scenes communications among law enforcement and dispatchers were included in the amended lawsuit, filed late Friday.

The transcribed recordings were filed in an attempt to show that San Marcos law enforcement leaders chose not to provide the bus with a police escort multiple times, even though police departments in other nearby cities did. In one transcribed recording, Matthew Daenzer, a San Marcos police corporal on duty the day of the incident, refused to provide an escort when recommended by another jurisdiction.

“No, we’re not going to do it,” Daenzer told a 911 dispatcher, according to the amended filing. “We will ‘close patrol’ that, but we’re not going to escort a bus.”

The amended filing also states that in those audio recordings, law enforcement officers “privately laughed” and “joked about the victims and their distress.”

Former state Sen. Wendy Davis, who was running for Congress at the time, is among the four plaintiffs in the lawsuit. The new complaint also expands the number of people and entities being sued to include Daenzer, San Marcos assistant police chief Brandon Winkenwerder and the city itself.

See here for the background. The whole story is infuriating, ridiculous, and scary – I mean, it’s political violence that at least one law enforcement agency chose to just shrug off. It’s the sort of thing that Republicans spent the 80s warning us was happening in countries that the Soviet Union was trying to influence. There’s been very little accountability of any kind for this type of activity, and maybe the civil courts aren’t the best venue for exacting any, but it’s what we’ve got right now. I sure hope the plaintiffs can make it happen.

Of course Texas sues over federal vaccination mandates

On brand. Always on brand.

Attorney General Ken Paxton, on behalf of the state, sued the Biden administration on Friday over its coronavirus vaccine mandate for federal contractors.

The federal requirement, which is set to take effect Dec. 8, calls on all federal workers and contractors to be vaccinated against COVID-19. The Texas lawsuit comes after similar suits filed by Florida and Georgia, along with several other states.

“The Biden Administration has repeatedly expressed its disdain for Americans who choose not to get a vaccine, and it has committed repeated and abusive federal overreach to force upon Americans something they do not want,” Paxton said in a statement. “The federal government does not have the ability to strip individuals of their choice to get a vaccine or not. If the President thinks his patience is wearing thin, he is clearly underestimating the lack of patience from Texans whose rights he is infringing.”

Paxton and fellow Republican Gov. Greg Abbott have been at war with local and federal officials over vaccinate mandates. Earlier this month, Abbott expanded an executive order to block the requirement for any entity in Texas, including health care facilities and private businesses. He previously banned cities, counties, school districts and state agencies from requiring vaccines. Lt. Gov. Dan Patrick has tweeted that vaccination “should never be forced on anyone by the state or a private employer.”

The lawsuit alleges the Biden administration acted unconstitutionally in drafting the vaccine mandate policy. It also argues that the administration required congressional approval to enforce it.

[…]

On Friday, the U.S. Supreme Court on Friday declined to block Maine’s vaccine mandate, though that request came from a group of health care workers who argued their religious liberty rights had been violated because the mandate did not allow for a religious exemption. The highest court has also rejected challenges to vaccine mandates at Indiana University and in a New York City school system.

I took a quick look around Twitter at the national and constitutional lawyers that I follow who often weigh in on this sort of thing, and as of Saturday night none of them had said anything about this. Maybe they all have better things to do with their time, and maybe they think this isn’t worth commenting on. I don’t know. But my sense is that this is mostly a for-show lawsuit, to impress the ravening hordes, and is unlikely to get anywhere. I could be wrong. The one thing I will note is that there are already a lot of employer mandates out there, and they are both getting people vaccinated and making more people comfortable with the idea. So whatever does happen, it may not matter all that much anyway.

Rep. Vicente Gonzalez to switch to CD34

And in doing so, he’s probably going to make it harder to hold onto CD15, the swingiest district in the state (as far as we can tell from 2020 data).

Rep. Vicente Gonzalez

U.S. Rep. Vicente Gonzalez, D-McAllen, announced Tuesday he is running for reelection in the 34th Congressional District rather than his current 15th District.

Gonzalez had been considering the move due to redistricting, which made the 15th District more competitive for Republicans — and the 34th District safer for Democrats. U.S. Rep. Filemon Vela, D-Brownsville, is retiring in the 34th District, and he has voiced support for Gonzalez’s switch.

Gonzalez’s decision was made more likely by the final version of the congressional map that Gov. Greg Abbott signed into law Monday. The map redraws the 34th District to include Gonzalez’s residence.

[…]

Gonzalez was staring down a tough race in the 15th District, where he won reelection last year by a surprisingly close margin and his 2020 challenger, Monica De La Cruz, is running again with the support of national Republicans. She reiterated Monday she remains committed to the 15th District.

Under the map that Abbott signed Monday, the 15th District shifts from one that President Joe Biden won by 2 percentage points to one that Donald Trump would have carried by 3 points. The 34th District, meanwhile, goes from a district where Biden had a 4-point margin of victory to one that he would have swept by 16 points.

In the new map, both the 15th and 34th districts remain anchored in the Rio Grande Valley, with the 15th ending in Hidalgo County and the 34th ending in Cameron County. But the 34th District was revised to be more concentrated in the Valley, which is predominantly Democratic, and the 15th District was reconfigured to include fewer blue areas outside the Valley.

Gonzalez’s decision sets off a scramble to fill the Democratic primary in the 15th District. The primary has attracted at least two candidates in recent days: Ruben Ramirez, who ran for the seat in 2016, and Eliza Alvarado, an education advocate.

See here, here, and here for some background. I don’t blame anyone for wanting to be in an easier district, or for not wanting to move, but I imagine there are some teeth being gnashed at the DCCC right now. Rep. Gonzalez has two million bucks in the bank, and now none of that is going to be used to try to hold onto a close district. The Republicans are celebrating this news, and they should. It was exactly what they wanted.

All that said, CD15 is hardly a lost cause. Multiple Democrats carried it in 2020, specifically Chrysta Castaneda, Amy Clark Meachum, Gisela Triana, and Elizabeth Davis Frizell. Nearly every Dem carried CD15 by 10-12 points in 2018, with Lupe Valdez the main exception though she still did carry it. Dems had even broader margins in 2016.

Now, we’ve studied this stuff to death, and we know that Latino districts in many places took a hard turn away from Dems in 2020, with CD15 being high on that list. There’s lots of reasons to think this is part of a larger trend, the same trend that is pushing suburbs and more college-educated voters towards the Dems even as some Latinos move away from them. But so far it’s one election, and without Donald Trump on the ballot in 2022 who knows what the many lower-propensity voters who supported Trump last year will do. The main beneficiary here may be the Democrat who wins this primary.

Or maybe not. Maybe even if one of them wins in 2022, it will be super close and they’ll get wiped out in 2024, or they’ll spend however much time they have in Congress doing nothing but fundraising because they’ll always be a top national target. Again, I don’t blame anyone for not welcoming that fate, but it is what it is. It sure would have been nice to take one for the team.

One more thing:

State Rep. Alex Dominguez, D-Brownsville, had been considered a potential candidate for the 34th District, but with Gonzalez switching races, Dominguez may run for something else. His team confirmed Friday that he was instead exploring a primary challenge to state Sen. Eddie Lucio Jr., D-Brownsville.

Fine by me!

Caught between a mandate and a madman

I have sympathy for the schools.

Many Texas universities — which collectively hold billions of dollars in federal contracts — are wrestling with how to navigate the Biden administration’s mandate that all federal contractors be vaccinated by Dec. 8 in a state that bans vaccine mandates.

While more public universities across the country are announcing that all employees must be vaccinated to comply with the federal requirement, several Texas public universities — all managed by Gov. Greg Abbott appointees — told The Texas Tribune they are still evaluating the executive order, which applies to new federal contracts of $250,000 or greater and awarded as of Nov. 14 or existing contracts that have been renewed as of Oct. 15.

“This is unprecedented,” said Michael LeRoy, a labor law expert at the University of Illinois College of Law. “There have been conflicts between the state and federal government, but not at this magnitude with this kind of money on the line.”

LeRoy believes the issue will be resolved in the courts because of the two conflicting issues at the center. State universities receive funding from the state and federal level but they are run by a board of regents appointed by the Texas governor.

While LeRoy said it’s unlikely the federal government will immediately terminate a grant if universities don’t comply, he said a university’s actions could impact future bids for federal grants. The federal government could begin to give notice to rescind a grant, he speculated, but that is a lengthy process. For now, universities are awaiting guidance from their own lawyers.

“… [T]he White House has been clear that noncompliance will not be excused, even in situations where state law contradicts the federal directive,” University of Houston spokesperson Shawn Lindsey told the Tribune in a statement. “It’s an extremely complicated situation that requires further analysis.”

Texas Tech University is working with its lawyers to determine if there are contracts that would trigger the vaccination requirement, school officials said in a statement. Texas Tech is also requesting guidance from the Texas attorney general’s office.

A Texas A&M University System spokesperson said they are also still evaluating the order. The A&M system has about 500 contracts with the federal government worth $2 billion, most of which are tied to the flagship university in College Station.

A statement from the University of Texas System revealed how universities are trying to appease both federal and state leaders.

“We will endeavor to comply with federal vaccine requirements for specific, covered individuals to protect these investments in our state,” spokesperson Karen Adler said in a statement. She then went on to say the system would provide exemptions for those with religious beliefs and “we will make every effort to accommodate employees’ personal situations.”

I think we can all guess what the AG’s office will say to Texas Tech, but the ritual must be observed. We’re all awaiting final guidance from OSHA, which is writing the rule that will implement that executive order. After that is when the lawsuits will fly. Not much else to say at this point, other than I do not envy any of these university officials the task they have before them.

The Lege may fail to enshrine Abbott’s max anti-vaxx order into law

One bit of good news.

Legislation intended to block any Texas entity, including hospitals and private businesses, from mandating COVID-19 vaccines for employees has stalled out in the Senate with less than two days left in the third special legislative session this year.

State Sen. Kel Seliger, R-Amarillo, said he opposes the bill, which makes entities requiring the vaccines vulnerable to discrimination lawsuits. Seliger said the legislation — added to the session agenda as a late priority by Gov. Greg Abbott — does not have the votes to pass in the upper chamber.

“At the moment it’s not too well developed,” Seliger said of Senate Bill 51, authored by state Sen. Bryan Hughes, R-Tyler, calling it “anti-business.”

“I’ve got some real reservations because I think it’s another example of big government,” Seliger said. “And we don’t do that.”

SB 51 has been on the Senate’s calendar since Thursday, but the chamber has not taken action, even as it passed other priority legislation.

The special session is scheduled to end Tuesday, and the vaccine legislation is one of only a few outstanding Abbott priorities that appears unlikely to get through the finish line.

“It’s dead,” state Sen. Juan “Chuy” Hinojosa, D-McAllen, said of SB 51.

[…]

More than two dozen medical and business advocacy groups quickly criticized SB 51, pushing back against the legislation in the days after it was introduced last week. Hughes filed the bill after Abbott asked lawmakers last week to take up this issue to ensure Texans aren’t required to get vaccinated, saying that vaccines are “safe, effective, and our best defense against the virus, but should remain voluntary and never forced.”

Abbott called for the legislation as he took executive action to ban private companies from requiring employees or customers to be vaccinated against COVID-19, which will be in effect statewide even if lawmakers don’t act. His order came four weeks after Democratic President Joe Biden announced that federal contractors must have all employees vaccinated against COVID-19 and that businesses with more than 100 employees must mandate vaccination against the virus or require regular testing.

The organizations opposing the bill, including several chambers of commerce, the Texas Association of Business, the Texas Hospital Association, the Texas Association of Manufacturers, the Texas Hotel & Lodging Association and the Texas Trucking Association, have warned lawmakers of the legislation’s risks to small businesses, workplaces that rely on federal funding and immunocompromised Texans.

The warnings were notable in a state where business interests work closely with pro-business Republicans to influence legislation.

“We’re getting tremendous amount of communications from the business community saying this is their job,” Seliger said. “They set the rules and working conditions in their places of business.”

See here and here for some background. From the jump there were stories of strong opposition from business groups, who are normally very friendly to Republicans, to this bill. Given that the session ends today, I’d say the odds that this bill dies with it are pretty good. But I don’t want to get too overconfident, because it is entirely possible that enough objectionable pieces of that bill could get filed off, and it would be at the top of the agenda for a fourth session, whether or not one is needed. So count this as a provisional win, and hope for the best from here.

House approves its map

We’re getting close to the finish line.

Donuts – they’re not just for breakfast anymore

The Texas House on Wednesday approved proposed political boundaries for the lower chamber’s 150 districts that aim to fortify Republicans’ strength in the state House for the next decade.

House Bill 1, authored by state Rep. Todd Hunter, a Corpus Christi Republican who chairs the lower chamber’s redistricting committee, will now head to the Senate for consideration.

The House’s 83-63 vote comes as the Legislature rounds out its third special session of the year, an up to 30-day stretch ordered by Gov. Greg Abbott that has focused on redrawing the state’s congressionalSenate, House and State Board of Education maps based on the latest census data. Those numbers, which were delayed largely because of the pandemic, showed that people of color fueled 95% of the state’s population growth over the past decade.

Despite those growth trends, the number of districts in which white people make up the majority of eligible voters ​would increase from 83 to 89 in the new map. Meanwhile, the number of districts with a Hispanic majority among eligible voters would drop from 33 to 30, while the number of districts with Black residents as the majority of eligible voters would go from seven to six. Those numbers are based on census estimates of the number of citizens in each district who are of the voting age.

The new map includes 85 districts that would have voted for Donald Trump in the 2020 presidential election and 65 that would have voted for Joe Biden. That’s one less Trump district than was originally proposed in the House late last month. The current partisan breakdown of the House is 83 Republicans and 67 Democrats, though Trump only won 76 of the current House districts in 2020.

The special session is slated to end Oct. 19, which means lawmakers have a week left to hash out differences over those maps and other items included on the agenda set by Abbott.

See here for the background, and here for the map. This Trib story goes in deeper about that weird donut job in Bell County. At this point, the Lege might actually finish off their business in time to prevent the need for a third session, given that all they need to do is approve the other chambers’ maps. I would think that the SBOE and legislative maps would likely be easy enough for them, but maybe the Congressional map might get worked over in the House. Map drawing is a time honored way for ambitious legislators to find themselves a Congressional district to run in, after all. Or maybe they’re all sick of being in Austin and don’t have any desire to quarrel over small changes that favor one person over another. I thought it would take them longer to get this far, so who knows.

I mentioned before that the Heights was largely reunited under this new plan, all in HD145. There’s still a split in the Senate, with most of the Heights in SD15 but the eastern end in SD06. The main way that this reunification could occur was by radically moving HD148.

State Rep. Penny Morales Shaw, D-Houston, also opposed changes to her new district that she said leaves her with just a third of her current constituency.

Under the proposed map, Morales Shaw’s district would be shifted completely outside Loop 610, losing the Heights and Near Northside, most of which would be moved into state Rep. Christina Morales’ district. Morales Shaw’s District 148 would be expanded past Beltway 8 into northwest Harris County, taking in parts of Jersey Village and nearby suburbs, while cutting into area now represented by at least five other members.

The district’s Hispanic citizen voting-age population would decrease from 46 percent to 37 percent, and Morales Shaw said the residents that would be moved to other districts are from high-turnout communities.

“Chairman, from your knowledge, would you agree this dismantling and remaking of 148 is one of the most egregious examples that you’ve seen of retrogression in the Texas redistricting map?” Morales Shaw asked [State Rep. Rafael] Anchía during a round of questioning that seemed aimed at creating a record for a future lawsuit.

Anchía said District 148 is protected under Section II of the Voting Rights Act, which prevents discrimination against minorities during the political mapmaking process, “and to dismantle a protected district like that is one of the more problematic data points in the underlying map.”

Zoom in on that map and see for yourself. You know I’m pessimistic about any prospects for litigation, but that doesn’t mean we shouldn’t try.

UPDATE: Reform Austin has some more details about the latest map.

More on the Abbott max anti-vaxx order

Businesses will face a choice that they would rather not have to face.

Companies doing business in Texas face new and complicated challenges after Gov. Greg Abbott this week banned COVID-19 vaccine mandates for all entities in the state — including private businesses — for employees or customers.

The ramifications for businesses could begin as soon as Friday, when companies that enter into contract work with the federal government will be required to have all employees vaccinated under orders from the White House.

This conflicts with Abbott’s ban on vaccine mandates, putting the many Texas businesses that receive federal contracts in a tough position: Comply with federal law and violate Abbott’s ban, or comply with Abbott and turn down business from the federal government.

[…]

“This harms Texans directly,” Karen Vladeck, an employment lawyer in Austin, said of the new order from Abbott. “I just think it wasn’t well thought out.”

Abbott’s office did not reply to a request for comment.

On top of prohibiting any entity in Texas from requiring vaccinations, Abbott’s order also lists several expanded exemptions. Vladeck and other employment lawyers said that this adds to the vaccine dilemma facing businesses in Texas. Under Abbott’s new rule, people may opt out of a vaccine requirement for medical reasons, including if they prove they have had COVID-19 in the past, despite scientists widely agreeing that this does not protect people against contracting the virus.

“The executive order’s medical reason language is a bit strange because usually you exempt people for medical reasons if they have a severe allergic reaction to a vaccine,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. Abbott’s order is “meant to cover people who don’t want to get the vaccine because they believe, quite wrongly, that they’re completely protected by already having COVID.”

Abbott’s rule also allows people to opt out of a vaccine requirement if they prove they hold a deep personal belief against getting jabbed.

Any entity that fails to comply with Abbott’s rule could receive up to a $1,000 fine.

Abbott’s Monday order is a reversal from his position in August, when the Pfizer vaccine received final approval from the U.S. Food and Drug Administration. At the time, Abbott’s spokesperson said that businesses had the option of mandating vaccination for employees and “private businesses don’t need government running their business.”

“It’s all about company choice in Texas, except now it’s come to something that they don’t like what the companies are choosing,” Vladeck said. “It puts a big burden on employers.”

See here for the background. So far, businesses that are also federal contractors, including airlines and companies like IBM, will ignore Abbott’s order, while others are awaiting the OSHA rules before making a decision. Multiple business groups, the same organizations that often turn to the state for a legislative solution to local ordinances they don’t like, harshly criticized Abbott’s order for making their lives more difficult. Harris County Attorney Christian Menefee released a statement encouraging businesses that want to be able to get their employees vaccinated to file a lawsuit against Abbott over the order. And in the end, even wingnut talk radio hosts weren’t impressed by Abbott’s order. It’s almost as if he were a weak, gutless leader.

Abbott goes max anti-vaxx

He really wants us dead.

Texas Gov. Greg Abbott on Monday issued another executive order cracking down on COVID-19 vaccine mandates — this time banning any entity in Texas, including private businesses, from requiring vaccinations for employees or customers.

Abbott also called on the Legislature to pass a law with the same effect. The Legislature is in its third special legislative session, which ends Oct. 19.

“The COVID-19 vaccine is safe, effective, & our best defense against the virus, but should always remain voluntary & never forced,” he said in a tweet announcing his latest order.

The order marks a significant reversal after Abbott previously gave private businesses the choice to mandate vaccines for workers. An Abbott spokesperson said in late August that “private businesses don’t need government running their business.”

For weeks, Abbott has been under pressure from some on his right to go further in prohibiting vaccine requirements, and one of his primary challengers, Don Huffines, celebrated the latest order.

[…]

The latest move appears to be at least partly motivated by President Joe Biden’s actions in September that require all employers with more than 100 workers to mandate vaccines for workers or test weekly for the virus. Biden also required all federal government workers and contractors to get vaccinated, leading nearly all the major airlines — including American Airlines and Southwest Airlines headquartered in Texas — to announce they’d abide by the mandate.

See here for more on his previous order, which as noted explicitly avoided including private companies. There’s no question that this is one part a toddler’s response to the Biden executive order, but also a coward’s response to the toxic ravings of his primary opponents. Abbott’s weakness and ineffectuality are just embarrassing. Whether it’s enough to get a plurality of voters to turn against him, that’s the zillion dollar question.

As noted in the story, big employers like airlines are going to comply with the Biden order, which applies to companies with at least 100 employees. The Abbott order, to whatever extent it has an effect, will affect smaller companies.

Experts agree Abbott’s order — which says even private companies in Texas cannot “compel receipt of a COVID-19 vaccine by any individual” — would likely be trumped by President Joe Biden’s requirements that federal contractors and businesses with 100 or more employees require vaccines. Major corporations based in Texas, including Southwest Airlines and American Airlines, said Tuesday they would abide by Biden’s rules over Abbott’s.

The federal rules are still in the works, but even after they’re enacted they won’t affect the majority of the state’s workforce. The big businesses affected by Biden’s rule employ 44 percent of Texas workers.

How much protection the governor’s latest order provides to those 56 percent of workers employed by the smaller companies, however, is another question. Legal experts were split on whether those fired for refusing to get a shot could start collecting unemployment, for instance. Some attorneys believe Abbott has clearly opened the door for those workers to get benefits, while others argued the order stops well short of making such a guarantee.

And the order is likely to prompt conflicting rulings from judges at various levels of the court system, as has Abbott’s effort to stop schools and local governments from enacting mask mandates. Repeatedly, the state has admitted in court that it has no plans to enforce the ban on mask requirements, saying that is up to local district attorneys.

“You have these orders coming down at various levels. I think if you’re a consumer or even an employee, you’re kind of in a tough spot if you’re choosing to not be vaccinated,” said Alfonso Kennard, Jr., a Texas-based employment attorney. “The path of least resistance would be to be vaccinated.

“At a minimum, all it does is give some entity the ability to point to something and say, ‘The governor said this, so I should be OK,’” Kennard said. “But a week from now, a judge could say it isn’t lawful.”

The Texas Workforce Commission would not say whether the order impacts unemployment claims, saying only that each is handled on a case-by-case basis with the “totality of the job separation” taken into consideration.

Kalandra Wheeler, an employment attorney based in Houston, said Abbott’s order would appear to make it easier for unvaccinated workers to argue they deserve unemployment.

“What they have to establish for you not to get benefits is that you either resigned and there was no good cause connected to the work, or that you were terminated for misconduct,” Wheeler said. “I think there’s less of an argument you’ve done those things when the governor issues a ban that says you’re not required to get the vaccine.”

Randall Erben, a law professor at the University of Texas who previously worked as Abbott’s legislative director, said he believes the order was “very carefully drafted, very thoughtfully drafted, and drafted in a way that makes it harder to challenge and more easily enforceable.” Importantly, it doesn’t mention anything about unemployment eligibility.

“The executive order doesn’t really get into that,” he said. “What it says is a private employer can’t compel an employee to get a vaccine. What an employer does after that is not addressed in the order. It’s not even really contemplated.”

If there’s one thing that is clear, it’s that this will be a busy time for the lawyers. Actually, it’s also clear that Abbott has no qualms about contradicting himself:

OK, it’s also clear that we are already living in Don Huffines’ Texas. Abbott is just blowing in the wind. If you like this and want it to continue, you know what to do. Same for if you don’t. The Chron and the Trib, in a truly brutal analysis that includes observations such as how Abbott is “so overwhelmed by politics that he’s become a Random Policy Generator, throwing out edicts that make sense only if you forget everything he said before”, have more.

Runoff coming in HD118

You’ll be hearing more about this soon enough.

Leo Pacheco

Republican John Lujan and Democrat Frank Ramirez are advancing to a special election runoff to fill the seat of former state Rep. Leo Pacheco, D-San Antonio, a seat the GOP is eager to flip as it looks to gain new ground in South Texas.

With all vote centers reporting Tuesday night, Lujan was getting 42% of the vote, while Ramirez was receiving 20%, according to unofficial returns. Democrat Desi Martinez, a lawyer, was in third with 18%, followed by Democrat Katie Farias, a local school board member, at 12%. The other Republican on the ballot — Adam Salyer, the 2020 nominee for the seat — finished last at 9%.

The district, anchored in the South Side of San Antonio, is Democratic-friendly, though Republicans believe they have a shot at capturing it as they seek to capitalize on President Joe Biden’s underperformance across South Texas last year.

[…]

The Texas Democratic Party urged party unity for the runoff — and wasted little time painting a contrast with Lujan.

“While Frank has proven himself as a committed voice for working people across San Antonio, our opponent John Lujan has consistently shown that he will toe the party line of the Texas GOP — even as Texas Republicans throw San Antonio in harm’s way,” party chair Gilberto Hinojosa said in a statement. “We cannot afford another state rep who will be complicit in Greg Abbott’s attacks.”

Lujan has run three times before in the district, the first time in a 2016 special election where he flipped the seat before losing the regular general election months later. Lujan was backed by Gov. Greg Abbott, House Speaker Dade Phelan and a number of deep-pocketed GOP groups, which have helped him raise more than double what the Democratic candidates combined raised.

Still, Lujan campaigned with a bipartisan appeal, leaning on his business experience and law enforcement background. He even said he supported Medicaid expansion, though he clearly lined up with his party on issues like abortion and gun rights.

Pacheco endorsed Ramirez to succeed him, as did Bexar County Judge Nelson Wolff.

Ramirez is the former zoning and planning director for a San Antonio City Council member and before that, he was chief of staff to Pacheco’s predecessor in the seat, Tomas Uresti. At 27, Ramirez ran on the generational change he would bring to the seat and his already considerable experience in government.

For the record, Bexar County is not South Texas. Dems overall made gains across the board in Bexar County, though HD118 was on the low end of that. It would be slightly more Republican under the proposed new State House map, but still Democratic. It would be nice to not have a repeat of the 2016 runoff here, but in the end I expect this will be a Democratic seat when the 2023 Lege gavels in. Until then, look for a lot of money to be spent on this race. The Current has more.

More redistricting stuff

Just a roundup of some redistricting stories. We’ll start with the DMN.

The new map, part of a process of redrawing legislative boundaries every 10 years, makes significant changes in North Texas, where Democrats likely will gain a seat held by Republican Jeff Cason. The district would move to an area made up of mostly minority voters.

But the Republican proposal also adjusts the southern Denton County district represented by Democrat Michelle Beckley to make it more favorable for a GOP candidate. Beckley has opted to run for Congress in 2022 against Republican incumbent Beth Van Duyne in Congressional District 24.

Meanwhile, the North Dallas district represented by John Turner would move west and become a majority Hispanic district in Oak Cliff and Grand Prairie. Turner is retiring after his term ends, and had he stayed, he would have been paired with a Republican Morgan Meyer.

In North Texas, Republicans had the goal of protecting their incumbents who could be in trouble during the next decade. They made alterations that now have the Dallas County seats held by Republicans Angie Chen Button of Garland and Meyer, who lives in University Park. The new maps place them in areas won in 2020 by Donald Trump, but only at a 50% to 49% margin. Those districts will remain battlegrounds as Democrats try to make Dallas County a blue oasis.

Republicans bolstered their Tarrant County seats, except for the one held by Cason, which will become more Democratic. Cason also was one of only two Republicans who voted against House Speaker Dade Phelan in January. And they made the Collin County districts represented by GOP Reps. Matt Shaheen and Jeff Leach stronger for a Republican, but as with the case in Dallas County, the Collin County seats will remain targets for Democrats.

“Republicans did their best to cement their majority and, from a partisan gerrymandering standpoint, they played this very smart,” said David de la Fuente, a senior policy analysts for the center-left group called Third Way. “They didn’t go overly aggressive for new pickup opportunities for themselves because they know that a lot of this growth that’s happening in Texas is growth that could benefit the Democratic Party, so they tried to stop losses more than anything else.”

[…]

Rep. Jasmine Crockett, a Dallas Democrats who represents District 100, which includes parts of southern and eastern Dallas County, as well as West Dallas, is upset that her district is slated to incur a radical drop in its Black population. Under the new maps, the number of voting age Black residents District 100 will drop from 34.6% to 27%. The white voting age population would increase from 22% to nearly 37%. Crockett’s voting age Hispanic population drops from 41% to 29%.

“They have taken the voice away from African Americans in my district and that’s a clear violation of the Voting Rights Act,” Crockett said. “They are spitting on the legacy of HD 100. They went too far.”

Most of the Black population lost by Crockett will be moved to the nearby District 104 that is represented by Dallas Democrat Jessica González. Her new constituents would include residents from the historic Joppa neighborhood, a community built by freed slaves. District 104 has largely changed, González said. The district now extends to Mesquite and Garland.

While she would pick up Black population from districts represented by Crockett and Rose, González said the number of eligible voters with Hispanic surnames would drop from over 50% to about 48%. That could be a Voting Rights Act violation, analysts say.

Crockett and González were vocal participants of the quorum break by House Democrats to stall a controversial elections bill.

“I’m not too shocked that it ended up being me they targeted,” Crockett said. “I kind of wear it as a badge of honor…It is still a safe Democratic seat, but partisan gerrymandering is legal and when you slice and dice communities of interests, you end up with a problem.”

State Rep. Toni Rose, D-Dallas, would also have the Black population in her district sharply reduced, and she would lose Paul Quinn College. Rose’s district would see a drop in Black voting age population–from 34% to 26%. The Hispanic voting age population in the district would rise from 58% to 63%.

Black residents represented 25% of the growth in the Dallas/Fort Worth area, according to the U.S. Census Bureau.

Well, that answers my question about what Rep. Cason did to offend the redistricting gods. Gotta say, I was under the impression that doing what was done here to Rep. Crockett’s district was called “retrogression” and it was a no-no under the Voting Rights Act. It’s not clear to me if that slicing and dicing was done for strategic reasons or just out of spite. Wait for the lawsuits, I guess.

Here’s the Chronicle:

“The map gives Republicans a slight advantage,” said Ross Sherman of the advocacy group RepresentUs, which works with the Princeton Gerrymandering Project to grade redistricting proposals. “This seems to be a trend this cycle: another map producing safe seats and insulating politicians from their constituents.”

The Gerrymandering Project gave the proposed House map a “C” in fairness for its GOP advantages. It’s the highest grade a Texas map has received so far, after proposals for congressional and state Senate maps earned “F” grades.

[…]

Speaking in general about the maps, GOP strategist Brendan Steinhauser said the Republicans tried to “lock in the gains” they earned during the 2020 election, rather than “be too aggressive” and shift blue seats their way.

The House seats currently are divided almost equally between districts that favored Republican Donald Trump and Democrat Joe Biden in 2020. The current map includes 76 Trump-led districts and 74 Biden-led districts, but the new map shifts that support to 86 in favor of Trump and 64 in support of Biden.

Texas grew by roughly 4 million people over the past decade, a surge driven almost entirely by people of color, especially Latinos. Updating the political maps is required every 10 years, to account for such shifts.

Still, the proposed House map reduces the number of majority-minority districts by voting age population. Previously, 67 districts were majority-white; the new map proposes 72 districts that have mostly white voters.

Those numbers change dramatically when evaluating estimates for adult citizens. Using those figures, the House currently has 83 majority-white districts, compared with 89 under the new map. And while the current districts include 33 with Hispanic majorities and seven with Black majorities, those numbers would fall to 30 and four, respectively.

“These maps do nothing but preserve the status quo at the expense of Black and brown Texans,” said Anthony Gutierrez, the executive director of the good-government group Common Cause Texas.

Same observation about the reduction of majority-minority districts. I mean, I get that the Voting Rights Act may as well be written on toilet paper with this Supreme Court, but it’s still theoretically the law of the land. The Republicans may have had more challenges with the State House districts because of the law that requires districts to be entirely within counties where possible, which prevented them from putting pieces of urban counties in the same district with rural counties, which was not the case for the Congress or State Senate maps. Again, I figure the lawyers will have a lot to say about all this when the dust settles.

Speaking of Congress:

In a strongly-worded letter, U.S. Reps Sheila Jackson Lee and Al Green said they oppose the Republicans’ proposed redrawing of their districts and say they were not consulted before the map was released to the public.

The map “makes radical and unneeded changes to the two local congressional districts that include the majority of Black voters in Harris and Fort Bend counties,” the letter to the Texas Senate Redistricting committee states.

There are massive changes for Harris County in the congressional redistricting plan the Texas Senate released earlier this week. The county would still have nine members of Congress, but the district lines would be dramatically altered to improve the re-election chances of current Republicans and create a new congressional seat that appears to have been drafted to ensure another Republican would be elected to Congress.

The map would have a dramatic impact on the districts represented by Jackson Lee and Green, changing who represents 200,000 mostly Black residents.

Jackson Lee’s 18th Congressional District would not only lose the Third Ward, but also downtown Houston, the University of Houston and Texas Southern University — most of those areas would instead be shifted to the 29th Congressional District, represented by Democratic U.S. Rep. Sylvia Garcia.

And the Republican map would put Jackson Lee’s home in Riverside Terrace into Green’s 9th Congressional District, meaning she would not even be able to vote for herself unless she moved. It would also put Jackson Lee’s main district office for the 18th in Green’s district, forcing her to move it.

“No other member of the large Texas delegation is so severely impacted by the proposed map,” the letter notes, pointing out at Jackson Lee’s 18th Congressional District has roots that tie back to Barbara Jordan, who in 1972 became the first Black woman to represent Texas in Congress.

I said before that Reps. Green and Jackson Lee would easily win the new districts as drawn, but what was done to them is clearly an insult. For Sen. Huffman to claim that no one got in touch with her about the maps she was drawing is disingenuous, especially when she knows what effect those maps are going to have. You have the power, you have the responsibility. Spare me the whining.

More from the Statesman:

Nonwhite residents accounted for about 95% of the population growth that gave Texas two additional seats in the U.S. House.

Despite that, the number of predominantly Hispanic congressional districts in Texas would fall from eight to seven, while majority Anglo districts would rise from 22 to 23, in the Republican-drawn map unveiled this week, said Gloria Leal with the League of United Latin American Citizens.

[…]

“Toss-up seats, which presented an opportunity for Hispanics to elect candidates of choice, were cut from 12 to one,” Leal said. “This blatant attempt to increase partisanship in districts not only results in the suppression of minority votes, but it eliminates the opportunity for Hispanics to elect a candidate of their choice in violation of the Voting Rights Act and the U.S. Constitution.”

State Sen. Joan Huffman, R-Houston and chairwoman of the committee, said the map was drawn in a “color-blind way,” without taking into account the race of residents.

“We did not consider race in drawing the maps at all,” Huffman said. “Once we drew the maps, we provided them to our legal counsel … and we are advised that they were legally compliant” with the Voting Rights Act.

Michael Li, with the Brennan Center for Justice at the New York University School of Law, testified that creating the map without regard to race is not enough to insulate it from legal challenges, particularly if lawmakers know about its adverse impact on nonwhite Texans.

Li said the proposed map raised several “red flags,” particularly in the Dallas-Fort Worth area, where Black and Hispanic populations increased sharply in the past decade, yet no new districts were created to give nonwhite voters an opportunity to elect preferred candidates. At the same time, SB 6 would move a significant Latino population from a district held by U.S. Rep. Mark Veasy, D-Fort Worth, and into an Anglo majority district that includes seven rural counties, he said.

Li also questioned changes made to District 22 — centered on Fort Bend County, one of the most diverse suburban counties in America — where the voting age population would rise to 55% Anglo, up from the current 46%. Dismantling a district where rising numbers of Hispanic, Black and Asian voters were able to create voting coalitions “raises many red flags,” he said.

Have I mentioned that the lawyers are going to be busy? I don’t have much faith in the courts, but I believe in the lawyers.

Decision Desk:

Texas gained two Congressional districts through 2020 reapportionment. One district went into Austin, which the GOP previously divided between five Republican districts in 2010. All five ended up as marginal races by 2020. This new Democratic district releases pressure on the five seats allowing them to absorb Democratic voters from other parts of the state. The second new Congressional seat is roughly the successor to the old Seventh district in west Houston, with the new TX-07 traveling between Houston and her suburbs as a new, safe Democratic seat.

TX-03, TX-06, TX-07, TX-10, TX-21, TX-22, TX-23, TX-24, TX-25, TX31, and TX-32 were all potential competitive seats in 2020. TX-15, TX-28, and TX-34 became competitive because of newfound Republican strength among South Texas Hispanics. All but one of the districts are now uncompetitive. Republican Districts gain more Republican voters, and the few Democratic held seats become more Democratic. All of the former Republican suburban seats reach deep into the rural and exurban areas and drop Democratic suburbs. Former rural and exurban seats – TX-04, TX-05, TX-08, TX-13, and TX-36 – reach deeper into the suburbs to carve up Democratic areas. The result is  districts with obtuse borders where the Democrats gained the most voters, such as the north Dallas suburbs with the new TX-04.

In South Texas, past voting rights litigation prevents Republican map-makers from exploiting recent party gains. The resulting districts resemble the present lines and stretch northwards, but the most GOP-favoring Hispanic areas are now congregated in TX-15 which makes it a potential swing district. O’Rourke did win this seat by over 10%, so the district will not be competitive if the 2020 results end up as a one-off occurrence.

Texas mappers still found ways to cater to their protected incumbents. In TX-10, Senior Republican Michael McCaul gets a district that squiggles narrowly around Austin from his neighborhood west of the city to rural Texas. New TX-06 Republican Jake Ellzey’s district takes in more rural areas where he is better known and loses Arlington Republican voters who backed Susan Wright during the 2021 Special Election. TX-25 previously did not include Republican Roger Williams’ base in Weatherford, west of Fort Worth. Now it does.

Republicans also released their proposed Legislative and Board of Education district maps, which can be viewed here. Biden in 2020 and O’Rourke in 2018 won a majority or a near-majority of districts on the former maps for these bodies, so Republican mappers were even more desperate to gerrymander these lines. Both maps protect incumbents in a similar manner to the Congressional plan with the rural and exurban areas reaching into the suburbs. The legislative plans however go beyond incumbent protection and each attempt to carve up a marginally Democratic seat in the Dallas-Fort Worth Metroplex. 

The desire to protect incumbents may end up dooming State House Republicans in future years. County nesting requirements prevented the GOP from linking the Republican dominated rural areas to the suburbs. By giving former Biden-District Republicans seats Trump won, other, formerly safe Republican seats needed to take in Democratic voters. Even more districts than previously become marginal districts that could potentially swing heavily away from the GOP.

Voting rights litigation is a constant factor in Texas redistricting. For example, plaintiffs forced Texas Republicans to draw the new Dallas-based TX-33 into a Hispanic Democratic seat in 2010 (initial 2010 map here). This new Congressional gerrymander disadvantages minority communities across the state, especially since nearly all of Texas’s recent growth came from minority groups. The proposed TX-23 is only 60% Hispanic compared to the 80% or higher in other South Texas seats, limiting minority opportunity. TX-27 has several majority Hispanic counties, including the city of Corpus Christi, inside a seat where White voters historically pick the representative. TX-38 could be a second, overwhelmingly Hispanic seat in the Houston area. TX-18 was previously an African American district, but is here majority Hispanic, an example of regression. Fort Worth minority voters are distributed between four Districts and there could be a fourth minority seat in the region. A majority-minority coalition seat can be drawn in the suburbs north of Dallas. Expect this criticism and more to potentially be levied in future court cases.

I suspect he means that only CD15 is competitive, but CD23 is only Trump+7, which seems competitive enough to me. I also think that over time several others will become more competitive as well, if these districts are allowed to go into effect as is. I’m sure there will be changes, and then of course the lawsuits, though as we well know they will take years to resolve. What we eventually get here is what we’re going to have for awhile. The Current and the Trib have more.

The proposed State House map is out

The last of the bunch.

Texas House members on Thursday released the first proposal for a new map redrawing the chamber’s 150-member districts. The initial draft would both increase Republicans’ strength across the state and the number of districts in which white residents make up a majority of eligible voters.

House Bill 1, authored by Corpus Christi Rep. Todd Hunter, the GOP chair of the House Redistricting Committee, is just the first draft, and it will likely change as it makes its way through the legislative process before it’s signed into law by Gov. Greg Abbott.

The Texas Legislature is in the midst of its third special session. This one is dedicated to redrawing political maps based on the latest census data that showed people of color fueled 95% of Texas’ population growth over the past decade. The percent of Hispanics is now nearly equal to white people in Texas.

But, the new map creates fewer districts where Black and Hispanic people make up a majority of eligible voters. Black and Hispanic Texans make up two racial groups that along with Asian Texans outpaced the growth of white residents in the state over the last decade.

Currently 83 of the chamber’s 150 districts are areas in which white residents make up a majority of eligible voters; 33 are districts where Hispanic voters make up the majority, while Black residents are the majority of eligible voters in seven districts.

Under the new proposal, the map adds six more districts where white residents make up the majority of eligible voters while the number of Hispanic and Black districts would each drop by three.

The proposed map would also change the partisan breakdown among the 150 districts, tilting the scale toward Republicans.

Currently, there are 76 districts that went to former President Donald Trump during the 2020 general election while 74 went to President Joe Biden. Among those, 50 districts voted 60% or more for Trump, — indicating the district is safely Republican — while 40 districts had more than 60% support for Biden — indicating strong Democratic support. Under the proposed new map, 86 districts would have gone for Trump, while 64 would have went for Biden. The number of districts that voted 60% or more for Trump or Biden would be tied at 46.

All the data for this plan is here, and the current State House map is here. I wrote about the other maps here: SBOE, State Senate (updated), Congress. For a good initial look at the partisan breakdowns and who is getting paired with whom, see Patrick Svitek and Derek Ryan. Note that Ryan uses a different formula to calculate the partisan strength of a district; by hit metric, Dems would be favored in 65, not 64 of them.

Couple of thoughts and observations:

– Harris County remains with 24 districts, not 25 as it had in 2001-2011. El Paso goes from having five full districts to four full districts plus a piece of HD74. Fort Bend gains a district, Travis gains a piece of the very Republican HD19; that district number used to be in east Texas, held by Rep. James White who is going for a promotion, and is now split into multiple other districts. Denton goes from four full districts to four plus a partial, while Collin goes from four plus a partial to five plus a partial; HD57 moves from east Texas to Denton, HD60 moves from west-ish Texas to Collin. HD76 moves from El Paso to Fort Bend.

– Rep. Erin Zwiener, whose HD45 had been Hays plus Blanco counties, is now shown in the very Republican HD73, which is Comal plus a piece of Hays; the new HD45, shown as having no incumbent at this time, is the rest of Hays. It’s also pretty Democratic, and I’d guess Rep. Zwiener will be househunting soon, if there are no changes to this piece of the map.

– Rep. Ryan Guillen’s HD31 was already the most Trumpy Dem-held district, and it’s the most Republican district held by a Dem, followed by Rep. James Talarico’s HD52. There’s one Republican-held district that now shows as clearly blue, and that’s Rep. Jeff Cason’s HD92 in Tarrant County. Not sure what he did to anger the redistricting gods.

– On a personal note, the Heights has been reunited in one district, HD145, after a decade of being split between HDs 145 and 148. I need to check this for the Senate map as well, to see if the SD06/SD15 dichotomy is still there.

– I’m sure there will be changes to this map, and as the story notes there are some unhappy Republicans; it’s nearly impossible to satisfy everyone, and the needs of the many etc etc etc. For what it’s worth, using Derek Ryan’s metrics, there are 18 districts where the Republican vote is between 40 and 50 percent, and 31 districts with the Republican vote between 50 and 60 percent. Nearly all of the latter are in the places that have been trending Democratic – Harris, Dallas, Bexar, Collin, Denton, etc. A few of the former include South Texas districts that went the other way in 2020, but most of the rest are like the first group. I’ve said many times that the Republicans had to decide what their risk appetite was, and they have. If the current trends don’t at least slow down for them, this could really blow up on them.

I’m sure they’re aware of that, and they have a plan, or at least a hope, to hold on to enough of what they have to stave off disaster. All of this is without addressing the obvious racial inequities in the map, of which I’m sure we’ll hear plenty as the lawsuits begin to get filed. It’s never boring at this time of the decade, that’s for sure.