Off the Kuff Rotating Header Image

Jose Garza

Paxton thumbs his nose at open records demand

Water is wet. The sun rises in the east. Ken Paxton DGAF about government, ethics, accountability or any of that other namby-pamby stuff.

Best mugshot ever

Attorney General Ken Paxton said the Travis County district attorney’s determination that Paxton violated open records laws by withholding information related to his trip to Washington D.C. on the day of the Capitol insurrection was “meritless” and that his office had fulfilled its obligation under the law.

Last week, the district attorney’s office gave Paxton four days to turn over communications requested by the state’s leading newspapers relating to his trip or face a lawsuit.

On Friday, Austin Kinghorn, a lawyer for the attorney general’s office, dismissed the district attorney’s findings, saying the office had provided no provisions under the state’s open records law that had been violated and implied that the newspapers had made the requests to publish stories about them.

“In each instance, complainant’ allegations rely on unsupported assumptions and fundamental misunderstandings of the PIA and its requirements,” Kinghorn wrote. “Frustrated that they have failed to uncover anything worth reporting following ‘numerous open records requests to AG Paxton office for various documents,’ complainant newspaper editors have sought to leverage your office’s authority to further their fishing expedition, or worse, manufacture a conflict between our respective offices that will give rise to publishable content for the complainants’ media outlets.”

[…]

In the letter, the attorney general’s office said the newspaper editors base their complaint on an “awareness of a small number of inconsequential documents they believe should have been produced” in public records requests and “baselessly speculate” that Paxton is failing to comply with the open records law.

Kinghorn said the “inconsequential documents” include a text message sent to Paxton’s personal cell phone by a Dallas Morning News reporter and two “spam” emails and an internal email that announced the temporary closure of an office parking garage.

See here for the background and here for a copy of Paxton’s response. This was of course the most predictable event imaginable, and basically serves as the pregame warmup for whatever comes next. Which will be a lawsuit filed in Travis County district court, and after that a million legal maneuvers by Paxton to delay, obstruct, and as feasible ignore the whole process. It will end with a final ruling from the Supreme Court sometime between now and the heat death of the universe. If somehow Ken Paxton is still in office when this is ultimately resolved, it will be incontrovertible proof that we are indeed in the darkest timeline. Adjust your expectations, is what I’m trying to say here. The Chron has more.

Paxton accused of violating open records law

Put it on his tab.

Best mugshot ever

The Travis County district attorney has determined that Attorney General Ken Paxton violated the state’s open records law by not turning over his communications from last January, when he appeared at the pro-Trump rally that preceded the attack on the U.S. Capitol.

The district attorney gave Paxton four days to remedy the issue or face a lawsuit. The probe was prompted by a complaint filed by top editors at several of the state’s largest newspapers: the Austin American-Statesman, The Dallas Morning News, the Fort Worth Star-Telegram, the Houston Chronicle and the San Antonio Express-News.

In a letter hand delivered to Paxton on Thursday, the head of the district attorney’s public integrity unit said her investigation showed the attorney general’s office broke state law by withholding or failing to retain his own communications that should be subject to public release.

“After a thorough review of the complaint, the (district attorney’s) office has determined that Paxton and (his office) violated Chapter 552 of the Texas Government Code,” wrote Jackie Wood, director of the district attorney’s public integrity and complex crimes unit, referring to the open records statute.

The district attorney’s office will take Paxton and his agency to court if they do not “cure this violation” within four days, Wood warned. For open-records complaints against state agencies, the law says the Travis County district attorney or the attorney general must handle them. The newspapers filed the complaint with the district attorney.

[…]

Jim Hemphill, the immediate past president of the Freedom of Information Foundation of Texas, said Paxton may take issue with the DA’s investigations — or he could voluntarily choose to release this and other records to the public.

“It’s a rare occurrence where a requestor actually has tangible evidence,” Hemphill said. “It will be interesting to see how the attorney general responds to this.”

The Texas Public Information Act guarantees the public’s right to government records, even if those records are stored on personal devices or public officials’ online accounts. The attorney general’s office enforces this law, determining which records are public and which are private.

On March 25, six news outlets jointly published a story that raised questions about whether Paxton was breaking open records laws.

On Jan. 4, five newspaper editors filed a complaint asking the district attorney to investigate the alleged violations. Anyone can file a complaint with a local prosecutor if they believe a public agency is withholding information in violation of the Public Information Act.

Wood’s notice to Paxton said the district attorney’s office concurred with the allegations in the editors’ complaint.

First, the editors raised concerns that Paxton’s office was using attorney-client privilege to withhold every single email and text message sent to or received by him around the time of the Jan. 6 rally, which preceded the attack on the U.S. Capitol. Paxton and his wife were in Washington that day and appeared at the rally.

Wood said withholding all of Paxton’s communications during that week violated the law. As evidence, she noted the attorney general’s office released nearly 500 pages of communications sent to or received by First Assistant Attorney General Brent Webster — including some emails that included Paxton as a recipient.

The newspaper editors also said the attorney general’s office had no policy for handling work-related records kept on personal devices or accounts.

When a Morning News reporter sent Paxton a work-related text message and another reporter requested all his messages that day, Paxton’s office responded that no responsive messages existed. A spokesman for Paxton later said the attorney general doesn’t have to retain “unsolicited and unwelcome text messages to personal phones.”

Wood noted that the attorney general’s office stated in the past that the communications of government officials were subject to retention policies and the open records law.

Finally, the editors raised concerns that Paxton was turning over other people’s communications in response to requests for his own text messages.

The DA’s investigation agreed that Paxton had not provided his own text messages with officials at the attorney general’s office in Utah — where Paxton and his wife traveled during the February freeze — and instead turned over a copy of another person’s text to Paxton. The attorney general’s office did not explain why Paxton didn’t provide his own version of the text exchange.

See here for some background. The answer to how Paxton will respond is obvious: He’ll denounce the Travis DA’s actions as unfair, biased, and partisan, and he’ll not only not comply he’ll do everything in his power to delay a court decision that might force him to comply. Honestly, even then I doubt he’ll actually comply – I’d bet he destroys records first, and dares everyone to do something about it. I don’t think anything short of handcuffs and a jail cell will move him. What in his past record suggests otherwise? As the Trib notes, the January 6 commission in Congress is also seeking records relating to communications between Paxton and Donald Trump at that time. What do you think are the odds he’ll comply with them?

We know who and what Ken Paxton is. He’s shown us, every day. I commend the newspapers for pursuing this, and the Travis County DA for taking action. It’s just that it will take more than a lawsuit to make him budge. He’s going to require a consequence he fears. We’re nowhere close to that. The DMN and the Statesman have more.

The progressives and the runoffs

May as well check in on this.

Sara Stapleton Barrera

Judging from March, the ideological left wing of the Democratic Party in Texas should be inconsolable.

After months of high hopes, the faction ran into a centrist buzz saw in the March 3 primary. Joe Biden practically locked up the Democratic presidential nomination, and progressive candidates experienced electoral drubbings.

Among the fallen: presidential candidates Bernie Sanders and Elizabeth Warren, congressional candidate Jessica Cisneros, U.S. Senate hopeful Cristina Tzintzún Ramirez, and Audia Jones, a candidate for Harris County District attorney endorsed by Sanders.

But rather than licking their political wounds, leading progressive candidates still in the fight say they’re invigorated — and eager to use the coronavirus pandemic, fights over voting by mail and calls for police reform to score some late victories in the July runoffs.

“Every time we have a progressive run, we get a little bit closer,” said Sara Stapleton-Barrera, who is in a runoff against state Sen. Eddie Lucio Jr., D-Brownsville. “I feel like we’re slowly winning the war, but we have to get through some of these battles first.”

Perhaps the most energy is coming from Austin, where two runoffs have the attention of progressives. José Garza is competing in the nationally watched Democratic primary runoff for Travis County district attorney. Mike Siegel is vying for his party’s nomination in the 10th Congressional District’s Democratic primary runoff.

Garza’s race is where the focus on police reform is arguably the clearest. Even before the death of George Floyd at the hands of Minneapolis police prompted protests nationwide, Garza was challenging incumbent Margaret Moore from the left, arguing she was too harsh in her prosecution of nonviolent offenders. He earned the most votes in March and has promised to bring all police shootings and more police misconduct cases before a grand jury. He has also pledged not to accept campaign contributions from police unions.

Moore, meanwhile, has accused him of being inexperienced with the local criminal justice system and running a campaign focused on national issues instead of local ones.

In the 10th Congressional District, Siegel is running on a platform that includes supporting “Medicare for All” and the Green New Deal. Siegel will face Dr. Pritesh Gandhi, who has cited his medical experience while pitching Medicare Extra, a proposal that does not go as far as Medicare for All and leaves some private insurance in place.

“I think this is the exact moment in history when progressives are in a place to lead, and it’s because the times have caught up the policies we’re fighting for,” Siegel said. “This is the time to run as a progressive. I feel really good not just about my chances, but the movement overall.”

[…]

Another runoff that has drawn the attention of some national progressives is the one for the 24th Congressional District, where Kim Olson and Candace Valenzuela are competing to replace retiring U.S. Rep. Kenny Marchant, R-Coppell. The seat is a national Democratic target.

Valenzuela has endorsements like the Congressional Progressive Caucus and Warren, but the runoff has not as sharply split along ideological lines as much as it has on issues of experience and racial identity. Valenzuela, a former Carrollton-Farmers Branch school board member, and her allies are hammering Olson over her time as human resources director for the Dallas Independent School District. Valenzuela and her supporters are also touting that she would be the first Afro-Latina to serve in Congress. Olson is white.

But the divide might be clearest in South Texas, where the winner of the state Senate runoff between Lucio and Barrera will be the overwhelming favorite to win the seat in November.

I’ve said repeatedly that beating Eddie Lucio in SD27 will do more for progressives than beating Henry Cuellar in CD28 ever could have done, because of the relative sizes of the two legislative bodies and the outsized influence Lucio has in the 12-member (for now) Dem Senate caucus. Lucio is terrible, and I’m delighted that that particular race has finally gotten the attention it needs. I think one reason why maybe it didn’t get as much attention earlier is because Sara Stapleton Barrera isn’t necessarily “the” progressive candidate in that race. If Ruben Cortez had finished second, people would be rallying behind him now. This race is much more about Eddie Lucio, and I’d say it’s only now that we’re down to one candidate against him that the race has been viewed through that lens.

As for CD10, I mostly shrug my shoulders. I think Medicare For All is a fine goal to work towards, but Medicare For Those Who Want To Buy Into It is much more easily achieved in the short term, with far less disruption to the existing system and far less resistance from people whose employer-based (possibly collectively-bargained) plan is just fine for them. If we’re lucky enough to have a Democratic Senate in 2021, I think what can get passed by that Senate is what we’re going to get. Will having more pro-Medicare For All members of Congress affect that outcome? Maybe. It’s hard to say. I like Mike Siegel and would vote to give him a second chance to topple Mike McCaul if I lived in CD10, but I think either Siegel or Pritesh Gandhi will be a fine addition to Congress and a major upgrade over the incumbent. Same in CD24, with Kim Olson and Candace Valenzuela, each a good candidate with different strengths and appeals but no major differences on policy.

The race that definitely has the potential to have a big effect is the Travis County DA race, where the ideological lines are clear and the ability for the upstart to make a difference if they win is great, though not unbound. Please feel free to set a good example for the rest of us, Travis County.

As for whether this is another step in a long march towards more liberal candidates and officeholders, I’d say yes, and that we’ve already been on that march for a long time. Ideological sorting is a thing that has been happening for a few decades now. You can see the effect just in recent years – the Democratic waves of 2006 and 2008 included a lot of candidates whose politics included “fiscal responsibility”, support from the NRA, opposition to same-sex marriage, immigration restrictionism, and a host of other views that were very much not shared with the class of 2018. The Democratic Party is a big tent, which means there will always be room for vicious family fights over various issues. Having some number of Never Trumpers inside that tent will just make it all more exciting. It’s fine, and I’d rather be dynamic than stagnant. And every primary and primary runoff, the main emotion many of us will feel will be “thank prime that’s over, now let’s please get on to the general election”. Same as it ever was.

Runoff reminder: County races

Previously: Statewide, Congress, SBOE and State Senate, State House.

There were a ton of contested county race primaries in Harris County, with all of the countywide offices except one HCDE position featuring at least three candidates. When the dust settled, however, there wree only a few races still ongoing, with one on Commissioners Court and one Constable race being the ones of greatest interest. Fort Bend County saw a lot of action as well, with two countywide races plus one Commissioners Court race going into overtime. Here’s a review of the races of interest.

Harris County – Commissioners Court, Precinct 3

This is the open seat left by long-tenured Steve Radack, which has always been a Republican stronghold but which has trended Democratic in recent years. Beto of course carried Precinct 3, by four points, after Hillary Clinton came close to winning it in 2016. Other statewide candidates (Mike Collier, Justin Nelson, Kim Olson) also won Precinct 3, though the Democratic countywide candidates from 2018 all fell short. It’s there for the taking, but it can’t be taken for granted. The top candidates to emerge from the large field of Democratic hopefuls were Diana Martinez Alexander and Michael Moore. Moore was the bigger fundraiser as of January – we’ll see soon how the current finance period has gone; Alexander’s January filing came in later, after I had published that post. Alexander is a grassroots favorite who has been super busy on Facebook, while Moore has the endorsements of incumbent Commissioners Adrian Garcia and Rodney Ellis, as well as the endorsement of the Chronicle. You can see other Democratic group endorsements on the invaluable Erik Manning spreadsheet. They participated in the first 2020 Democratic Candidates Facebook Debates here. My interview with Diana Alexander is here, and my interview with Michael Moore is here.

Harris County – Constable, Precinct 2

This is the race with the problematic incumbent and Not That Jerry Garcia. The thing you need to know is that in the end, the incumbent, Chris Diaz, was forced into a runoff against the good Jerry Garcia, who was listed on the primary ballot as “Jerry Garca (Harris County Lieutenant)”. Garcia led the way with 39% to Diaz’s 33%. If you live in Constable Precinct 2, please vote for Jerry Garcia in the runoff.

Harris County – Other runoffs

Justice of the Peace, Precinct 5, Place 1: Israel Garcia (48.1%) versus Roel Garcia (30.5%)

Constable, Precinct 3: Sherman Eagleton (incumbent, 47.5%) versus Ken Jones (16.1%)

Constable, Precinct 5: Randy Newman, who doesn’t appear to have a Facebook page (43.4%) versus Mark Alan Harrison (34.3%).

I confess, I know little about these race. Look at the Erik Manning spreadsheet to see who got what endorsements. Based on available information, I’d lean towards Eagleton, Israel Garcia, and Harrison, but please do your own research as well.

Those of you with keen eyes may have noticed there are two other unsettled Harris County races to discuss. Both of these will be decided by the precinct chairs in August. I’ll discuss them in a separate post.

Fort Bend County

County Attorney: Bridgette Smith-Lawson (45.2%) versus Sonia Rash (37.8%)
Sheriff: Geneane Hughes (35.2%) versus Eric Fagan (35.1%)
Commissioners Court, Precinct 1: Jennifer Cantu (41.8%) versus Lynette Reddix (25.6%)

The Sheriff candidates are seeking to replace incumbent Troy Nehls, currently in a nasty runoff for CD22. Nehls has not resigned from his position for reasons unknown to me. I presume he’ll do so if he clinches that nomination, but who knows what he’ll do if he doesn’t. Nehls is awful, either of these candidates would be a big upgrade. County Attorney (and also Tax Assessor) is an open seat whose incumbent has in fact announced his retirement. Commissioners Court Precinct 1 is a race against a first-term incumbent who had ousted Democrat Richard Morrison in 2016. I wrote about all the Fort Bend County races here, and unfortunately don’t have anything to add to that. I’d love to hear from someone who has a strong opinion in these races.

Travis County – District Attorney

Jose Garza (44.3%) versus Margaret Moore (incumbent, 41.1%)

As a bonus, this is the highest profile county race runoff. First term incumbent Margaret Moore faces former public defender Jose Garza in a race that will have national attention for its focus on police reform, with a side order of how sexual assault cases are handled thrown in. Garza has an impressive list of national endorsements, including Elizabeth Warren, Bernie Sanders, and more recently Julian Castro. Austin has been one of the hotter spots for police violence, so this is a race that could have a big effect on how the reform movement moves forward.

Hope this has been useful for you. I’ll have a brief look at the judicial runoffs next to wrap this up.

The Observer overviews the DA primary

You’ve had a chance to listen to my interviews with DA candidates, now read this story for more on this important primary.

Kim Ogg

When Kim Ogg first ran for Harris County district attorney, she had a simple pitch for criminal justice reform: stop jailing people for petty pot possession. The position, novel to Houston politics in 2014, proved so popular that even her Republican opponent embraced a version of it. Ogg lost that first race, but she tried again in 2016, this time adding bail reform and a promise to create “a system that doesn’t oppress the poor” to her platform. She beat the incumbent by 8 percentage points to become Harris County’s first Democratic DA in 40 years.

Ogg was among the first wave of reform-minded “progressive prosecutors” elected across the country in recent years. This new class rejected a tough-on-crime ethos, advocating instead for fairness and jailing fewer people. Ogg quickly declared herself “part of the national reform movement” and started dismissing low-level marijuana charges for people who took a class and paid a fine. She also rejected so-called “trace cases” involving miniscule drug amounts and called for diversion instead of jail for small-time offenders. 

Over the course of her first term, however, progressives have soured on Ogg. While she publicly supported bail reform, she continued to seek high bail for people charged with minor offenses. She further disappointed them by objecting to historic bail reforms that followed a years-long lawsuit to end the practice of keeping low-level offenders in jail simply because they’re poor. Progressives have also bristled at Ogg’s repeated attempts to expand her office.

Now at the end of her first term, Ogg feels squeezed between opposing forces: a police union that accuses her of being soft on crime and critics on the left who say she’s failed to live up to her reputation. She’s facing a combative Democratic primary next month, flanked by challengers who insist that she’s stood in the way of progress during her first term. A Democratic sweep in the midterms that turned Harris County solid blue further emboldened local organizers who are seeking a new kind of reform prosecutor. 

While Ogg credits herself with boosting diversion programs and reducing prison sentences during her first term, her critics insist more fundamental changes are needed to fix yawning racial inequalities in the local justice system and to decarcerate one of the largest jails in the country. There was palpable tension between Ogg and the forces that helped elect her at a ACLU of Texas candidate forum in downtown Houston last Thursday. Some people in the standing-room-only crowd jeered as Ogg urged them to stick with her “balanced approach” to reform. After the forum, a woman walked up to Ogg and began arguing with her before campaign staffers quickly intervened.

In a phone call this week, Ogg sounded aggrieved and unappreciated, the way incumbents often do during tough re-election fights. “I started running before people in our local political arena even knew what a district attorney did,” she said. “Everything I wanted to do was a reformation of decades of static prosecutorial policy in Harris County. So of course I’m a reformer, and to be labeled otherwise—that’s a political issue more than a factual one.”

Ogg’s primary is one of several prosecutor races in Texas this year that could redefine the bounds of criminal justice reform in the state. As state lawmakers fail to make meaningful progress each legislative session, advocates for change have increasingly focused on amplifying key district attorney, judge, and sheriff races to transform how their communities are policed and prosecuted.

The article touches on the race in Travis County as well, where incumbent Margaret Moore is under similar fire. I have no idea what will happen in these races – they’re as prominent as any local election, but it’s hard to say how much of that breaks through in the non-stop fusillade of national political news – but they will have a significant effect in Harris and Travis Counties. A side issue I’ve been pondering, which I asked Audia Jones about when I spoke to her, is whether the Legislature (especially but not exclusively if it remains in Republican hands) will step in and try to impose some limits on what prosecutors can and can’t do. I can very easily see this as a red meat law-and-order issue for Dan Patrick (and, whenever someone wakes him up and reminds him that he’s Governor, Greg Abbott) in the 2021 session. I have no idea what they may try to do, but I’m sure their imagination won’t be so limited. Just something to keep in mind.

Interview with Jose Garza

Still the only voter ID anyone should need

So it’s been a busy couple of weeks for the voter ID litigation. There was the motion by the Justice Department to delay the hearing on whether the law was passed with discriminatory intent, which everyone expects is a prelude to them switching sides in the case. Then there was the decision by the Supreme Court to not hear an appeal of the original ruling that found a discriminatory effect of the law, given with a promise by Chief Justice Roberts that they will be back later. With so much going on, I wanted to make sure I understood it all, and to that end I have for you an interview with Jose Garza, who serves as counsel for the Mexican American Legislative Caucus, one of the plaintiffs in this suit. We talked about both of these events in the case and what they may mean, and a few other items besides. Here’s our conversation:

I feel like I have a better handle on what’s happening, and I hope you feel the same. Let me know what you think.

Voting rights lawsuit filed over Texas statewide judicial elections

This happened on the same day as the Fifth Circuit ruling on voter ID.

[Wednesday], the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee), Garza Golando Moran, PLLC, and Dechert LLP filed a lawsuit in the U.S. District Court for the Southern District of Texas on behalf of individual Latino voters alleging that the method of electing Texas’s Supreme Court and Court of Criminal Appeals judges violates the Voting Rights Act. The Texas Supreme Court and Court of Criminal Appeals are the two highest courts in the state and decide critical issues of state civil and criminal law, respectively.

“Courts in the state of Texas should reflect the diversity of the communities they serve,” said Kristen Clarke, president and executive director of the Lawyers’ Committee. “Instead, the way in which Texas elects judges to two of the state’s highest courts denies Latino voters an equal opportunity to elect judges of their choice. Bringing Texas state courts into compliance with the Voting Rights Act can help instill greater public confidence in the state’s justice system.”

All 18 high court judges in Texas, nine for each court, are elected statewide. Because White Texans comprise the majority of the citizen voting age population in the state, and because Latinos consistently prefer different candidates than do Whites, Latino-preferred candidates are almost never elected to the highest levels of the state’s judiciary. Such vote dilution is prohibited by the Voting Rights Act and the state could develop and implement a more representational electoral method.

Texas’s Latino citizen voting age population (CVAP) comprises 26.5 percent of the state’s CVAP while White Texans comprise 56.4 percent. With Latinos in the minority and voting polarized along racial lines, Latinos have been significantly underrepresented on both courts for decades. Since 1945, only two of the 48 judges to serve on the Court of Criminal Appeals, a mere 4.2 percent, were Latino. Over the same time period, only five of the 77 justices to serve on the Supreme Court, or 6.5 percent, were Latino.

Plaintiffs in the case include six individual voters from Nueces County and an individual voter from El Paso County.

“For too long the voice of the Latino community has been missing from the critical secret conference rooms of the Texas Supreme Court and the Texas Court of Criminal Appeals,” said Carmen Rodriguez, plaintiff in this case and longtime civil rights attorney and activist from El Paso. “It is vital that we bring the promise of the Voting Rights Act to the selection process of the members of these august judicial bodies.”

Because Texas’s judges largely represent only one subset of Texas voters, there are serious questions as to whether all of the circumstances of a diverse population are fully considered. The Texas Court of Criminal Appeals hears all death penalty cases in the state. From 1977 to 2010, of the 92 executions of Latinos nationwide, 78 were executed in Texas. Recent Supreme Court decisions of critical importance to racial minorities, including a May 2016 ruling limiting school funding for English language learners and economically disadvantaged students, were issued without so much as a dissent.

“All Texas citizens should have the right to cast a meaningful, undiluted vote for their most important courts,” said Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee. “For decades, that right has been denied to Latinos in Texas. Section 2 of the Voting Rights Act was designed precisely to deal with this circumstance.”

“For too long, the Latino community in Texas has had no say in who represents them on the highest courts in the state,” said Jose Garza, a civil rights attorney and partner at Garza Golando Moran, PLLC. “The recent school finance ruling is a clarion call to every minority in Texas: Your voice will not be heard by these courts. Now is the time to listen to the millions of Texas minorities who want a seat at the table to help decide the matters important to our community. I am proud to represent these brave clients and work with some of the best legal minds in voting rights to fight for my state and my community.”

“Being able to participate fully in our electoral system is a fundamental right of all citizens,” said Neil Steiner, a partner at Dechert LLP, which is representing the plaintiffs pro bono. “We look forward to vindicating those rights for Texas’s Latino population.”

Here’s the complaint. The introduction gives you an overview of what this is about:

1. The Supreme Court of Texas (“Supreme Court”) and the Texas Court of Criminal Appeals (“Court of Criminal Appeals”) are the courts of last resort in Texas. They are the final authorities on questions of Texas civil and criminal law, respectively. Together, the two courts render enormously consequential decisions that profoundly affect the lives of all Texans.

2. According to the 2010 Census, Latinos, a significant and rapidly growing racial group, constitute 37.6 percent of Texas’s total population and 26.5 percent of Texas’s citizen voting age population. However, Latinos have been prevented from participating fully in the election of Texas’s high court judges because of the way those judges are elected. That election method, in which all judges for both courts are elected in at-large statewide elections, unlawfully dilutes the voting strength of Latino citizens and prevents them from electing their candidates of choice.

3. The Supreme Court and Court of Criminal Appeals each has nine members. Because voting is racially polarized, that is, white voters as a group and Latino voters as a group consistently
prefer different candidates, the at-large method of election functions to deprive more than one quarter of the State’s eligible voting age population from electing judges of their choice to any of the eighteen seats on the two courts.

4. The Latino population and citizen voting age population are sufficiently large and geographically compact to constitute a majority in at least two fairly-drawn single-member districts; the State’s Latinos are politically cohesive; and the State’s white citizen voting age majority votes sufficiently as a bloc to enable it usually to defeat Latino voters’ preferred candidates. Because of these circumstances, as well as the historical, socioeconomic, and electoral conditions of Texas, the at-large election method for the Supreme Court and Court of Criminal Appeals violates Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 (“Section 2”). Thornburg v. Gingles, 478 U.S. 30 (1986).

5. For these reasons, plaintiffs respectfully pray for this Court to issue: (1) a declaratory judgment that the use of at-large elections for the Supreme Court of Texas and the Texas Court of Criminal Appeals violates Section 2 of the Voting Rights Act; (2) an injunction against the further use of at-large elections for the Supreme Court and the Court of Criminal Appeals; (3) an order requiring future elections for the Supreme Court and the Court of Criminal Appeals to be conducted under a method of election that complies with the Constitution and the Voting Rights Act; (4) an award of costs and reasonable attorneys’ fees to plaintiffs, including expert witness fees; and (5) such additional relief as is appropriate.

I found this on Wednesday afternoon via Rick Hasen while looking at his coverage of the voter ID ruling. Basically, this is the at-large versus single-member-district debate taken statewide. If you scroll down to the end of the complaint and look at the list of lawyers involved, you will see that one of them is Jose Garza, who has successfully argued voter ID and redistricting cases on behalf of the Mexican American Legislative Caucus. (Both of Garza’s partners, including Martin Golando, are also involved.) Amy Rudd, the first attorney listed in the complaint, was pro bono counsel for the NAACP Texas State Conference and MALC in the voter ID case as well. Point being, this is an experienced legal team taking this on, and it could wind up being a pretty big deal, yet so far the only news coverage I have seen is from Texas Lawyer, KTSA, and the El Paso Times, which notes that six of the plaintiffs are from Nueces County, with the seventh being El Pasoan Carmen Rodriguez, a civil rights attorney and wife of Texas Sen. Jose Rodriguez, D-El Paso. I very much look forward to seeing how this plays out.

Abbott versus Garza on voter ID

They’ve battled in court, and now they’re battling in the news.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas Attorney General Greg Abbott on Monday called a lawyer for the Mexican American Legislative Caucus unethical for his suggestion that people in the Rio Grande Valley attempt to vote without a photo ID.

Jose Garza, a lawyer who represents MALC in its fights against the state of Texas on voter ID and redistricting, reportedly encouraged voters in Edinburg to try to cast a ballot in next month’s city council elections without a photo ID. State lawmakers passed the voter ID bill — which requires voters to show one of several state- or federally issued forms of ID to vote — in 2011, but it was kept on hold until a June U.S. Supreme Court decision made its implementation possible.

“I would encourage everybody who wants to test this law to go and attempt to cast their ballot using their voter registration card,” Garza told the Rio Grande Guardian last week. “Let us test the impact of this law. We need to be able to measure how many people this law kept from voting.”

Abbott, whose office sued the Obama administration when the federal government originally blocked the ID requirement, said Monday that Garza is the one guilty of trying to suppress the vote, the common argument for opponents of the photo requirement who call the measure a 21st-century poll tax.

“It is always unethical for a lawyer to advise someone to violate Texas law. Even worse, Garza’s advice does not inform voters to bring one of the acceptable forms of voter ID,” Abbott said in a statement. “Instead, in an attempt to create a false impression that voter ID suppresses votes, the unethical advice is to come to the polls without the needed ID.”

Garza has since released a statement that fired back at Abbott.

Today, the attorney general questioned my integrity and said that I am advising voters to come to the polls without the photo identification that is now required to vote. Let me be very clear and set the record straight, I have never encouraged Texans to violate the law.

Everyone who is legally registered and eligible to vote ought to go vote. For those that are eligible and registered, but cannot obtain a valid photo ID as required by SB 14, I would advise them to also go vote and possibly cast a provisional ballot. Do not stay home and allow a discriminatory law to suppress your vote and voice. That is my message to Edinburg’s voters.

A federal court denied preclearance to Texas’ voter/photo ID law, stating that the undisputed record of evidence demonstrated that the voter identification requirement would have harmed the right to vote for many Texas minorities. Just because Section 5 is not in effect at the moment does not mean that the retrogressive effect of the photo identification requirement does not exist. I would advise the attorney general to do everything in his power to address the concerns of the D.C. Federal District Court and alleviate the undue burden that is being placed on the poor to exercise their constitutional right to vote.

General Abbott’s statement about my personal integrity is yet another ill-advised tactic to evade responsibility and accountability for seeking the implementation of an unjust and, I believe, unconstitutional law. If the citizens of Edinburg cannot vote, it is not because of me, but because of a law designed to disenfranchise hundreds of thousands of poor and minority voters.

Emphasis in the original. Speaking of which, let’s go to the original story to see what really was said and meant.

Jose Garza believes a new Texas law requiring voters to bring along a certain type of photo identification is unconstitutional. He wants to bring a lawsuit against Texas and for this he needs practical examples of registered voters being denied the right to vote because they did not show up with an approved photo ID card.

“Anybody who is validly registered to vote and has a registration card or is clearly on the registration rolls should go and attempt to vote anyway, even if they do not have a photo ID,” Garza told the Guardian. “I believe the photo ID law is unconstitutional.”

[…]

“The photo ID legislation may be the law of the land in Texas but I believe it is unconstitutional. The only way you can challenge it is to find people who have been denied the right to vote because they did not comply with this specific term,” Garza said.

“So, I would encourage everybody who wants to test this law to go and attempt to cast their ballot using their voter registration card. Let us test the impact of this law. We need to be able to measure how many people this law kept from voting.”

[…]

“You can be denied the right to vote if you do not have the right type of photo ID. If you have a driver’s license that has been expired for more than 60 days that is not good enough. If you have a photo ID from your university or college, that is not good enough. If you have a photo ID from work, an employee from a school district, a city, the state of Texas or the federal government, that is not good enough. But if you have a photo ID from your concealed hand gun license, you can vote,” Garza explained.

“If you were involved in an accident and you have a DWI and your license has been suspended, even though you are otherwise eligible to vote, if your license has been suspended for more than 60 days, you cannot use that as an ID at the polling place and you will not be allowed to vote.”

Edinburg is a university town. Garza said UT-Pan American students that are registered to vote should take along their student photo ID card to the polls and offer this as a photo ID card. If they and others who are on the voter rolls are denied the right to vote, they should call MALC, the ACLU, MALDEF, LULAC, or the South Texas Civil Rights Project, Garza said.

A reporter put it to Garza that if such voters carry out his advice they may could be denied their legitimate right to vote and that this could influence the outcome of the Edinburg special election. Garza acknowledged this was the case but said the fight to stop voter suppression in Texas was worth it.

“It is better than staying home. If a voter is denied the right, they should call us or LULAC or the Texas Civil Rights Project or the ACLU or MALDEF. All of these groups are interested in the impact of this law. They will want to hear from those who are being denied the right to vote because they did not have the appropriate photo ID,” Garza said.

“If you are a student and all you have is your student ID you should try to vote, show it. They are going to be denied but they are otherwise eligible. A student photo ID is as good a proof of who you say you are as a concealed hand gun license is.”

On the one hand, Garza is clearly saying that anyone who is registered to vote but doesn’t have one of the very few types of legal ID should go and vote anyway. If nothing else, seeing how many provisional votes wind up getting cast and where they are will help clarify things as the next round of litigation moves forward. You know that I agree with Garza about the unconstitutional nature of voter ID, and that I believe Texas’ ridiculous and arbitrary restrictions on what ID is required is strong evidence of the discriminatory intent of this law. Still, Garza does appear to be calling for what is basically civil disobedience here. I admire the sentiment, but it’s not clear what would be gained by it. There’s no capacity for shame among Abbott and his acolytes, and whatever the courts say the way to win on this is by winning elections. Casting needless provisional votes, however strong a statement, won’t help with that. Go vote whether you have the required ID or not, but do bring it if you have it.