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It’s going to be lawsuit season again

Not looking forward to it, but it’s better than the alternative.

It’s constitutional – deal with it

President-elect Joe Biden has big plans for his first 100 days in office, when he’s vowed to roll back the Trump administration’s immigration crackdown, push policies addressing climate change and potentially forgive student debt for thousands of Americans.

He’s also said he’ll push a mask mandate to combat COVID-19 and wants Congress to pass another massive stimulus package. And in the longer term, Biden has talked about rewriting the tax code to raise taxes on the rich.

Texas is almost certain to fight him every step of the way.

The state is about to be back on the front lines battling against the federal government, a long tradition for its Republican leaders, from former Gov. Rick Perry to Gov. Greg Abbott — who as the state’s attorney general famously said, “I go into the office, I sue the federal government and I go home.”

Abbott’s successor, Attorney General Ken Paxton, has been just as committed to pushing back on federal laws and mandates championed by Democrats. Most recently he led a failed lawsuit seeking to overturn Biden’s victory in four battleground states at the U.S. Supreme Court. Paxton did not respond to a request for comment.

As Biden takes office next week, many expect the state to pick up where it left off after suing the Obama administration dozens of times to stop initiatives such as the Clean Power Plan, scrap protections for immigrants brought to the country illegally as children and end the Affordable Care Act.

The conservative Texas Public Policy Foundation — which filed the Obamacare challenge that Paxton joined and is now before the Supreme Court — is gearing up to start grinding out challenges to a slew of White House priorities regarding immigration, energy and taxes.

“On the eve of the election we were discussing internally, ‘Well, what would happen if Biden won?’ One thing everyone pretty much agreed on is our litigation center would probably increase in size significantly,” said Chuck DeVore, vice president of national initiatives at TPPF. “We’re kind of excited about it.”

Robert Henneke, general counsel at the TPPF, wouldn’t say whether the group’s legal staff has grown as expected, but did say they are bracing for battles ahead as he expects the Biden administration to “pick up where the Obama administration left off.”

The story goes on to list some likely future battles, a couple of which are ongoing now. It should be noted that Texas’ record suing the Obama administration wasn’t particularly good, though now there are all those Trump judges on the bench, so who knows what can happen. One other thing that can happen is we can boot our felonious Attorney General out of office next year. That won’t stop bad actors in the private sector from bringing cases, but it will at least keep them from having the state’s imprimatur on them. All I can say beyond that is I hope they feel the need to file lawsuits for a lot longer than the next four years.

SCOTUS rejects TDP petition on vote by mail

Back to the lower court, I think.

The U.S. Supreme Court turned away a Democratic bid to force universal vote-by-mail in Texas, leaving intact a state law that lets people cast no-excuse absentee ballots only if they are 65 or older.

The Texas Democratic Party and its allies argued unsuccessfully that the law violates the Constitution’s 26th Amendment, which says the right to vote “shall not be denied or abridged by the United States or by any state on account of age.”

Voting by mail became a sharply partisan issue amid President Donald Trump’s unsupported contentions that the practice led to widespread fraud in the November election. Texas’s Republican governor and attorney general urged the Supreme Court to reject the Democratic appeal.

A divided federal appeals court in September rejected the 26th Amendment claim, saying the Texas law didn’t make it more difficult for anyone to vote. The panel left open the possibility the law could be challenged as a violation of the Constitution’s equal protection clause.

The Supreme Court also rejected Texas Democrats in June, when the justices refused to reinstate a trial judge’s order that would have let any voter request an absentee ballot to avoid the risk of contracting Covid-19. That order, which was blocked by the appeals court, was designed to govern the 2020 election and might have boosted Democrats’ prospects.

See here for the last update, which was a petition for review of the Fifth Circuit ruling that kept intact the existing law on vote by mail in Texas as the original lawsuit that claimed the existing law violated the 26th Amendment is litigated. If I understand this correctly, the original case needs to be re-argued, with guidance from that Fifth Circuit ruling, and then once there is a ruling on the merits, we’ll go through the appeals process again. Or maybe not, if Congress and President Biden can pass a new Voting Rights Act that would allow for this nationally. I don’t see that particular provision in there now, but that doesn’t mean it isn’t or wouldn’t be there. Anyway, it’s kind of a non-starter now, since the effort was to make that happen in 2020, but it’s never too late to make it easier to vote. Just don’t expect anything to happen in the short term, outside of what Congress may do. Reuters has more.

Ken Paxton couldn’t be more on brand if he tried

News item: Texas laws protecting whistleblowers don’t apply to Attorney General Ken Paxton, his agency argues in bid to quash lawsuit. Who among us didn’t already know that Ken Paxton doesn’t think the law applies to him?

Best mugshot ever

The Texas Attorney General’s Office is attempting to fight off efforts by four former aides to take depositions and issue subpoenas in their lawsuit claiming they were illegally fired after telling authorities they believed Attorney General Ken Paxton was breaking the law.

The agency is arguing that Paxton is “not a public employee” and thus the office cannot be sued under the Texas Whistleblower Act, which aims to protect government workers from retaliation when they report superiors for breaking the law.

Four former Paxton aides claim they were fired in retaliation for telling authorities they believed Paxton had done illegal favors for a political donor, Austin real estate investor Nate Paul. The whistleblowers’ allegations have reportedly sparked an FBI investigation.

In seeking reinstatement and other financial damages, the whistleblowers want to question Paxton himself under oath, as well as Brent Webster, his top deputy at the attorney general’s office, and Brandon Cammack, a Houston lawyer Paxton hired to investigate complaints made by Paul in what aides say was a favor to the donor. They also issued subpoenas to Paul’s company and a woman alleged to have been Paxton’s mistress.

[…]

The whistleblowers sought to question Paxton, Webster and Cammack under oath as soon as next week. Michael Wynne, an attorney for Paul, accepted the subpoenas for both World Class and the woman, court documents show. She could not be reached for comment and Wynne did not return a request for comment.

But in a filing last week, the attorney general’s office asked the judge to quash the depositions and the subpoenas, and prevent the whistleblowers from conducting any discovery.

“The OAG is doing everything they can muster to avoid having Ken Paxton answer basic questions under oath about the facts,” said Carlos Soltero, an attorney for one of the whistleblowers.

Instead, the agency said, the Travis County judge should dismiss the case entirely on procedural grounds.

The Texas Whistleblower Act — the basis for the lawsuit — is designed to provide protection for public employees who, in good faith, tell authorities they believe their superiors are breaking the law. But the attorney general’s office claims the agency cannot be sued under the law because Paxton is an elected official.

“The Attorney General is neither a governmental entity nor a public employee and, thus, the Whistleblower Act does not extend protection to reports of unlawful conduct made against the Attorney General personally,” the agency argued. “The Act does not apply… for reports made about actions taken personally by the elected Attorney General.”

Comparing Paxton’s authority to that of the president of the United States, the agency claimed that the attorney general had the right to fire the employees, despite their claims of retaliation.

Under that theory, “he’s saying that elected officials aren’t accountable” for violating the Whistleblower Act, said Jason Smith, a North Texas employment attorney who has handled whistleblower cases.

“It appears that General Paxton is trying to get off on a technicality that doesn’t exist,” he added.

See here and here for the background. I don’t have anything clever to add here, just that I hope this defense is as successful as his lawsuit to overturn the Presidential election was.

Another way Ken Paxton is costing you money

He’s something else, this guy.

Best mugshot ever

Texas may pay tens of millions of dollars to outside attorneys hired to handle a major lawsuit against Google — money the state did not plan to spend before a scandal enveloped Texas Attorney General Ken Paxton this fall.

That’s under agreements signed last month with outside lawyers based in Chicago, Houston and Washington, D.C., including high-profile plaintiffs’ attorney Mark Lanier and the law firm Keller Lenkner, who will lead Texas’ multi-state antitrust lawsuit against Google.

The lawsuit came out of a Texas-led investigation launched more than a year ago. But until fall 2020, top agency staff intended to handle the case internally, instead of paying costly outside lawyers, a former senior Paxton aide told The Texas Tribune. The Associated Press first reported the timeline on Tuesday.

Jeff Mateer, who led the attorney general’s office for years as Paxton’s top deputy, said that when he resigned in October, the agency had no intention of hiring outside lawyers. Darren McCarty, another senior attorney, was leading an internal team on the case.

“Darren was more than able to do it,” Mateer told the AP.

But Mateer and McCarty were among the eight whistleblowers who left the agency after telling law enforcement they believed Paxton broke the law by doing favors for a political donor. Both resigned last fall, part of a notable exodus of the agency’s top staff.

The whistleblowers’ allegations have reportedly sparked an FBI investigation, but Paxton has insisted that the agency’s work has not been interrupted by the criminal investigation of him. Still, the contracts for the Google lawyers are an early indication of what cost taxpayers may bear for the latest drama surrounding Texas’ embattled attorney general.

The attorney general’s office will ask the Legislature for $43 million to pay the outside lawyers, according to a contract obtained by The Texas Tribune. If lawmakers do not grant that money — which may be a tall order during what’s expected to be a tight budget debate — the outside attorneys will be paid solely out of whatever monetary damages are recovered from Google, dollars that would have otherwise flowed into state coffers.

[…]

The expensive outside counsel contracts were inked in December, the same day the case was filed in federal court. The law firms were brought on only after the agency staff leading the probe fled the attorney general’s office in the wake of a fresh Paxton scandal.

Lanier told the Tribune he met with Paxton in Austin in November to discuss the possibility of working on the case, and emphasized that his team’s work was not intended to be “a big financial bonanza for the Lanier firm,” but rather to force a major restructuring of Google.

Lanier has given political contributions to Paxton, among a number of other top Texas officials.

The case, which comes alongside a number of other major government lawsuits against Google and other tech giants, takes aim at the company’s advertising practices.

Though it’s not yet clear exactly how much Texas could end up losing to the outside attorneys, it could be a massive figure. The outside lawyers’ contingency fee will either be based on an hourly rate equation — which could net the most senior attorneys as much as $3780 per hour — or be calculated as a percentage of the total Google settlement, whichever is less.

See here for the last update on the latest Paxton scandal. I will try, at least for a moment, to be as objective as I can about this. Paying the fee up front is a hedge against having to cough up a much larger amount of a hypothetical future award or settlement agreement, not to mention the time and effort it will surely take to haggle over the proper cut of said award. Lawyers cost money, this is going to run into some bucks no matter how you slice it, may as well get some certainty.

On the other hand:

1) The plaintiffs may lose this lawsuit, or have it overturned or any award reduced on appeal. We’d also be splitting any award a couple dozen ways, so it would have to be pretty freaking big for the attorneys’ cut to be more than $43 million.

2) Any future award is just that, in the future, likely years in the future. $43 million bucks now is worth more than an equivalent amount in, say, 2027. This is why Lottery winners who get the up-front payout instead of the over-20-years payout get a lot less than the stated prize amount.

3) Not to put too fine a point on it, but we don’t have an extra $43 million lying around right now. Yeah, sure, Rainy Day Fund yadda yadda yadda, but we know how that works. And yeah, $43 million is couch money compared to the real budget, but what would you rather spend it on this biennium – Ken Paxton’s fancy outside attorneys, or vaccines and the people to administer them? I know where my money would go.

4) Again not to nitpick, but if Ken Paxton hadn’t been a fucking awful Attorney General, we wouldn’t be in this predicament right now. He drove off the senior staff who could have handled this in house. Every dollar that Texas loses out on as a result of this, either up front or down the line, is his fault.

So yeah, I’m a big No on paying the outside attorneys at this time. I’ll roll the dice on the future award being either sufficiently small that the contingency fee is a bargain compared to the $43 million, or so freaking enormous that who cares if the Lanier firm makes out like bandits. And maybe, just maybe, we can get a new Attorney General in 2022 and we can hire another good senior staff, and maybe take the case back from the outsiders. I’ll be very, very interested to see what the Republicans in the Legislature make of this.

HISD Superintendent search is back on

For now, anyway.

Houston ISD trustees kicked off their long-delayed search for a permanent leader Monday, choosing three superintendent search firms to interview later this week.

The initial move comes as the state’s largest district seeks to fill a position that Interim Superintendent Grenita Lathan has held since March 2018, when Richard Carranza abruptly left to lead New York City public schools. HISD’s search has been delayed because of the looming threat of state sanctions, a state order that temporarily halted the first search and lingering uncertainty about the trustees’ ability to hire a quality candidate, among other issues.

Trustees are scheduled to reconvene Wednesday and possibly Thursday to select from the three firms: Austin-based JG Consulting; Illinois-based Hazard, Young, Attea & Associates; and Nebraska-based McPherson & Jacobson. Board members opted against interviewing GR Recruiting and the Texas Association of School Boards’ Executive Search Services.

“I prefer to interview three and give those three more time with us,” Trustee Dani Hernandez said.

HISD trustees have not released a proposed timeline for completing the search. School boards typically take multiple months to choose a lone finalist.

As the story notes, the previous search was halted by conservator Doris Delaney, who cited the investigation into allegations that five HISD Trustees had violated the Open Meetings Act when they voted to bring back Abe Saavedra as interim Superintendent and force out Grenita Lathan. The recent Third Court of Appeals ruling that affirmed an injunction against the TEA takeover stated that TEA officials failed to follow their own procedures in conducting that investigation, which sort of brings us full circle.

The injunction did not explicitly say HISD trustees could resume the superintendent search, leading to uncertainty about the board’s authority. However, trustees are interpreting the injunction as giving them the power to restart their search, and TEA officials have not moved to halt the effort.

“Because of the turmoil, it’s been hard to know what has been the long-term vision (for HISD),” Trustee Holly Maria Flynn Vilaseca said in November. “This process will help provide space to hear that, as well as the vision of others, as we do what’s best for kids.”

The potential for a bigger mess if the Supreme Court overturns the lower court rulings is very present, but one way or the other, the district deserves the opportunity to hire a new leader. Let’s just hope this results in less chaos and not more.

Still waiting on that sewer consent decree

Should be ready soon, once the federal court signs off on it.

Help finally could be on the way in the form of an agreement between the city of Houston and the Environmental Protection Agency aimed at upgrading the city’s embattled sewer system.

The proposal would cost an estimated $2 billion over 15 years and could increase water rates as soon as next spring.

Houston’s hundreds of sewage overflows each year, often caused by broken or clogged pipes, contaminate streams in violation of the Clean Water Act, and drew the EPA’s attention a decade ago.

Rather than fight the violations in court, the city and EPA negotiated a “consent decree” mandating actions Houston must take to reduce spills across its more than 6,200 miles of sewers, 384 lift stations and 39 treatment plants.

City Council approved the agreement last year. Federal officials spent months responding to comments on the proposal, and then, in August, asked a federal judge to approve the document and put it into effect. No ruling has been issued.

“After its review of the motion to enter, we expect that the court will approve entry of the consent decree,” said Houston Public Works spokeswoman Erin Jones.

The nonprofit Bayou City Waterkeeper has asked the court to withhold its approval until the agreement is improved, arguing that, among other deficiencies, it does not sufficiently address historical inequities.

A Houston Chronicle analysis four years ago found that a disproportionate share of the city’s sewer spills occur in low-income communities of color. And an analysis of Houston 311 service requests from the last two years shows historically Black southside neighborhoods such as South Park, South Acres and Sunnyside are among the most likely to report sewer problems even though high-income neighborhoods, in general, are more likely to call 311.

Kristen Schlemmer, Waterkeeper’s legal director, said her group feels the decree is needed but that it must deliberately prioritize repairs in historically neglected communities and require more transparency about the spills that occur there.

“What we would have liked to see the city do is to start with the impact on low-income communities and communities of color and craft its consent decree around that,” she said. “Instead they came up with their whole plan and when we raised the issue of environmental injustices, they’re like, ‘Well, completely incidentally, we’re addressing some of those issues.’”

EPA officials declined comment, citing the pending court action. In court filings, attorneys for Houston and state and federal regulators have said the decree is citywide and will not overlook any area. They also have noted that it requires the city to publish annual reports on the decree’s implementation and monthly reports tallying the location of each spill.

“Low-income communities are not being neglected,” one August filing stated. “Rather, low-income communities, especially those communities with higher numbers of (spills) and aging infrastructure, are being addressed with the ‘worst first’ prioritization.”

The decree would force Houston to clean its 5,500 miles of gravity-driven sewer pipes every decade, to carry out more preventative cleanings in problem areas, and to emphasize its program to educate residents not to invite blockages by pouring grease, oil and other fats down the drain.

The agreement would mandate a more aggressive schedule for assessing, cleaning and repairing the city’s sewer system, and prioritizes fixes in nine areas that experience voluminous spills during rainstorms, including the area around Mama Seafood.

See here, here, here, and here for the background. This will likely cause your water bill to go up, though we don’t know yet by how much. That wouldn’t be necessary now if we had been doing this all along, but here we are. If you don’t like it, go build yourself a time machine and travel back to, I don’t know, 1985 or so and yell at Kathy Whitmire about it. Otherwise, just know that there will be fewer sewer overflows in the future. That’s worth a few extra bucks a month on your water bill.

Fifth Circuit bats aside Gohmert appeal

In case you were wondering…

See here for the background. That’s two Reagan appointees and one Trump appointee, by the way. I suppose they could try their luck with SCOTUS, but you’d have to be Gohmert-level stupid to think they’d have a chance.

I saw this while scrolling Twitter and watching the Orange Bowl. There may be a news story out there, but it’s Saturday night and I’m not looking for it. Really, this is all there is to know.

Gohmert lawsuit tossed

As expected.

A judge dismissed a lawsuit from Rep. Louie Gohmert, R-Texas, that was aimed at Vice President Mike Pence, seeking to put the authority to overturn President-elect Joe Biden’s election win in the vice president’s hands.

U.S. District Court Judge Jeremy Kernodle, who is a Trump appointee, said Gohmert and a group of other Republicans on the lawsuit “lack standing.”

Gohmert “alleges at most an institutional inquiry to the House of Representatives,” Kernodle wrote.

Gohmert and the group of Republicans filed the suit against Pence this week, arguing that the vice president has the constitutional authority to decide which states’ Electoral College votes to count.

Kernodle continued, “The other Plaintiffs, the slate of Republican Presidential Electors for the State of Arizona (the ‘Nominee-Electors’), allege an injury that is not fairly traceable to the Defendant, the Vice President of the United States, and is unlikely to be redressed by the requested relief.”

“Accordingly, as explained below, the Court lacks subject matter jurisdiction over this case and must dismiss the action,” the judge stated.

See here and here for the background, and here for a copy of the judge’s order. I’d like to say that this is the last desperate and seditious thing that a stupid and malevolent officeholder will do to try to overturn the election, but I said that about the Paxton lawsuit and the objections to the Electoral College certification, so I’m just gonna keep my piehole closed this time. Raffi Melkonian and Steve Vladeck have more.

Census Bureau will miss deadline that would allow for apportionment shenanigans

Good.

The Census Bureau will miss a year-end deadline for handing in numbers used for divvying up congressional seats, a delay that could undermine President Donald Trump’s efforts to exclude people in the country illegally from the count if the figures aren’t submitted before President-elect Joe Biden takes office.

The Census Bureau plans to deliver a population count of each state in early 2021, as close to the missed deadline as possible, the statistical agency said in a statement late Wednesday.

“As issues that could affect the accuracy of the data are detected, they are corrected,” the statement said. “The schedule for reporting this data is not static. Projected dates are fluid.”

It will be the first time that the Dec. 31 target date is missed since the deadline was implemented more than four decades ago by Congress.

Internal documents obtained earlier this month by the House Committee on Oversight and Reform show that Census Bureau officials don’t expect the apportionment numbers to be ready until days after Biden is inaugurated on Jan. 20.

Once in office, Biden could rescind Trump’s presidential memorandum directing the Census Bureau to exclude people in the country illegally from numbers used for divvying up congressional seats among the states. An influential GOP adviser had advocated excluding them from the apportionment process in order to favor Republicans and non-Hispanic whites.

“The delay suggests that the census bureau needs more time to ensure the accuracy of census numbers for all states,” said Terri Ann Lowenthal, a former congressional staffer who specializes in census issues.

[…]

Former Census Bureau director John Thompson said the quality of the data is “the overarching issue” facing the Census Bureau.

“If these are not addressed, then it is very possible that stakeholders including the Congress may not accept the results for various purposes including apportionment,” said Thompson, who oversaw 2020 census preparation as the agency’s leader during the Obama administration.

He said in an email that missing the Dec. 31 target date “means that the Census Bureau is choosing to remove known errors from the 2020 Census instead of meeting the legal deadline.”

See here and here for some background. It’s one less way for Trump to screw things up beyond his own administration’s reign, and we should all be happy for it. There’s also a bill in the Senate to extend the deadline for Census results by four months, which the Census Bureau had asked for back in April but which got sidelined by (among other things) the usual Trump indifference. I presume that will have a much better chance of passing if the Dem candidates can win in Georgia, but we’ll see.

Pence asks for deranged Gohmert lawsuit to be dismissed

Here we go.

Vice President Mike Pence has asked a federal judge to throw out a lawsuit brought against him by Republicans seeking to empower him to overturn the results of the 2020 presidential election.

The suit, brought by Rep. Louie Gohmert (R-Texas) and 11 Arizonans who would have been electors for President Donald Trump, was aimed at throwing out the rules of a Jan. 6 session of Congress — with Pence presiding — intended to certify President-elect Joe Biden’s victory.

Gohmert’s suit contends that the rules Congress has followed for more than a century are unconstitutional because they override the vice president’s power to unilaterally decide which electoral votes to count. Trump allies have urged Pence to assert control and refuse to introduce Biden’s electors in key states that handed him the presidency.

But Pence, in a 14-page filing brought by Justice Department attorneys, said the suit shouldn’t be aimed at him, since he is who Gohmert is trying to empower.

“A suit to establish that the Vice President has discretion over the count, filed against the Vice President, is a walking legal contradiction,” Pence’s brief said.

U.S. District Court Judge Jeremy Kernolde, a Trump appointee who sits in Tyler, Texas, has not scheduled a hearing in the case. Gohmert is due to file a reply to Pence’s brief on Friday morning.

See here for the background. “Friday” is today, so we may get a ruling as quickly as this afternoon, given how bonkers (and yes, seditious) this action is.

In a 26-page brief calling on the court to reject Gohmert’s suit, House General Counsel Doug Letter described the effort as baseless and argued that both Gohmert and the Arizona electors lacked standing to bring it.

“At bottom, this litigation seeks to enlist the federal courts in a belated and meritless assault on longstanding constitutional processes for confirming the results of a national election for President,” Letter said.

Letter also says that Gohmert’s argument lacks substantive logic: It would make no sense for the framers to empower the sitting vice president to unilaterally control who becomes the next president, particularly when that sitting vice president is a candidate on the ticket. He also notes it would upend the accepted process for counting electoral votes that has been in practice for more than 130 years.

“Granting plaintiffs this extraordinary relief just days before the Joint Session would not only reward their inexcusably delayed filing,” Letter says, “it would also risk upending the orderly rules that have governed Congressional counting of electoral votes for more than a century and undermining the public’s confidence in the constitutionally prescribed processes for confirming—not overturning—the results of the election.”

I mean yes, if you’re going to rely on such stolid concepts as “logic” or “consistency” or “the rule of law”, then Gohmert’s suit should not only be laughed out of court, everyone associated with it should be removed from society so as not to taint the rest of us with the accompanying stink. Putting the attorneys in stocks and allowing the general public to hurl cream pies at them would also be an acceptable outcome, but alas, the law is limited in its menu of responses. We’ll have to settle for a swift dismissal, and work on winning some more elections.

TEA still barred from taking over HISD

Still in a state of limbo.

Texas is still temporarily barred from taking over Houston Independent School District, a state appellate court ruled Wednesday, upholding a lower court’s order.

In a 2-1 ruling, the Texas Third Court of Appeals upheld a temporary injunction that stops the Texas Education Agency from replacing the elected school board of its largest district with an appointed board of managers. The appeals court ruling sends the case back to the lower court that in January blocked the state’s takeover effort.

The appellate judges said Houston ISD had a “probable right to relief” since the TEA did not follow proper procedure and acted outside its authority as it moved to sanction the district. It also ordered the state to “pay all costs related to this appeal.”

The TEA plans to appeal the ruling to the Texas Supreme Court. “While the Agency is disappointed with the split ruling from the 3rd Court of Appeals, this is only a temporary setback,” the agency said in a statement. “We are confident that the Texas Supreme Court will uphold the Commissioner’s legally-authorized actions to improve the educational outcomes for the 200,000-plus public school students of Houston.”

[…]

[T]he appellate court’s ruling Wednesday said Texas’ “proposed actions are not authorized by the Education Code.” The opinion stated that the state did not have the right to appoint a conservator to oversee the entire school district in 2019, force Houston ISD to suspend its search for a new superintendent, or impose sanctions based on an investigation, among other things.

The opinion was written by Judge Gisela Triana, who was joined by Judge Jeff Rose in the ruling. In a dissenting opinion, Judge Thomas Baker wrote that Texas is authorized to take over Houston ISD, the injunction should be removed and the district’s claims should be dismissed.

See here and here for the background, and here for a copy of the opinion. The Chron story goes into the opinion in some more detail.

To start, HISD’s lawyers argued Wheatley High School did not trigger a state law requiring the school’s closure or the board’s ouster after the Fifth Ward campus received its seventh straight failing grade in 2019. While the law is intended to punish districts with campuses receiving failing grades in multiple consecutive years, the justices found that the TEA failed to take a technical step — ordering HISD to submit a campus turnaround plan for Wheatley — that it says was required under the statute.

The two justices also ruled that the TEA incorrectly interpreted a state law that says Morath can replace the school board in any district that has had a state-appointed conservator for more than two years.

State officials appointed conservator Doris Delaney to oversee long-struggling Kashmere High School in 2016, then clarified that her authority extended to district-level support in 2019. TEA officials argued Delaney’s presence since 2016 met the criteria for triggering the state law, but the two justices ruled that only her time as a district-level conservator counted toward the two-year requirement, which thus hasn’t yet been met.

Finally, the two justices found that TEA officials failed to follow their own procedures related to a special accreditation investigation, which Morath cited as a third reason for replacing HISD’s board.

For what it’s worth, the “affirm” opinion came from a Democratic justice (Triana) and a Republican justice (Rose), while it was a Democratic justice (Baker) who voted to overturn the district court opinion. I don’t know when this might be resolved – the appeal to the Supreme Court is of the injunction, while the case itself was sent back to the district court – but until there is a final ruling that says the TEA can install its Board of Managers, I’m going to operate on the assumption that there will be HISD Trustee elections this year. I guess there would be regardless, but at least for now those elections mean a bit more, since the Board of Trustees is still running things. The Press has more.

Okay, so *this* is the last pointless gesture

You can always count on Louie Gohmert to find the stupidest thing possible to do.

Vice President Pence was sued Sunday by Rep. Louie Gohmert (R-Texas) and several other Republicans in a far-fetched bid that appeared aimed at overturning President-elect Joe Biden’s election win.

The lawsuit focuses on Pence’s role in an upcoming Jan. 6 meeting of Congress to count states’ electoral votes and finalize Biden’s victory over President Trump. Typically, the vice president’s role in presiding over the meeting is a largely ceremonial one governed by an 1887 federal law known as the Electoral Count Act.

But the Republican lawsuit, which was filed against Pence in his official capacity as vice president, asks a federal judge in Texas to strike down the law as unconstitutional. The GOP plaintiffs go further: They ask the court to grant Pence the authority on Jan. 6 to effectively overturn Trump’s defeat in key battleground states.

Election law experts were dismissive of the lawsuit’s prospects for success.

“The idea that the Vice President has sole authority to determine whether or not to count electoral votes submitted by a state, or which of competing submissions to count, is inconsistent with a proper understanding of the Constitution,” said Edward Foley, a law professor at the Ohio State University.

[…]

Election law experts said there’s a strong possibility that U.S. District Judge Jeremy Kernodle, a Trump appointee, would find that Gohmert, Ward and the other Republican litigants lacked a legal right to sue.

“I’m not at all sure that the court will get to the merits of this lawsuit, given questions about the plaintiffs’ standing to bring this kind of claim, as well as other procedural obstacles,” Foley said.

Take that, Lance Gooden! Louie will show you what true fealty to Dear Leader looks like. In the spirit of not wasting your time any more than I already have, I will as tradition demands quote a couple of tweets from people who have some knowledge of the law and the constitution.

Rick Hasen has a copy of the complaint if for some reason you want to read it. Otherwise, you may safely resume ignoring Louie Gohmert, at least until the next time he unleashes some Kraken-level stupidity. Daily Kos has more.

Ken Paxton’s attempted jihad against Harris County

Wow.

Best mugshot ever

Attorney General Ken Paxton tried to get the Trump administration to revoke millions in federal COVID relief funding that Harris County budgeted for expanding mail-in voting earlier this year, newly revealed records show.

Paxton wrote in a May 21 letter to Treasury Secretary Steven Mnuchin that Harris County’s plan was an “abuse” of the county’s authority and an “egregious” violation of state law. The letter was obtained and published by the Citizens For Responsibility and Ethics in Washington.

“We respectfully ask the department to scrutinize its award of CARES Act funding to Harris County in light of the county’s stated intent to use federal funding in violation of state law, and to the extent possible, seek return of any amounts improperly spent on efforts to promote illegal mail-in voting,” Paxton wrote. “Without implementing adequate protections against unlawful abuse of mail-in ballots, the department could be cast in a position of involuntarily facilitating election fraud.”

The letter to Mnuchin illustrates the lengths Paxton went in his efforts to stop Harris and other counties from making it easier to vote by mail during the pandemic, which included suing Harris County as it tried to send mail ballots applications to all 2.4 million of its registered voters. The mail-ballot application push was part of the county’s $27.2 million plan to expand voting options, funded in large part through CARES Act money.

[…]

The Treasury Department did not immediately respond to a request for comment on whether Mnuchin heeded Paxton’s request to investigate how Harris County used the funding.

In a written statement, County Judge Lina Hidalgo said that the loss of the funds “would have knocked the floor out of our citizens’ ability to vote safely” during an important election held in the middle of a global pandemic.

“This attempt to cut off emergency federal funding for fellow Texans is indefensible,” she said. “To do so in secret is truly a shame and I’m relieved this is now out in the open.”

Members of the Texas Democratic Party accused the attorney general of “picking fights” to distract from his personal life.

“In the middle of the biggest pandemic in American history, every Texan should have been afforded the opportunity to vote as safely as possible. Indicted Texas Republican Attorney General Ken Paxton continues to try to pick fights to distract away from his personal life and his abuse of office. Paxton is a carnival barker who has made Texas a laughingstock with his ridiculous inquiries and lawsuits. To restore trust in the Attorney General’s office, we must all band together to vote him and his abuse of power out in 2022.”

I suppose if there’s one thing that the year 2020 has been good for, it’s to serve as a reminder to me that I am still capable of being shocked. I can’t say that I’m surprised, because it was clear from the beginning that then-County Clerk Chris Hollins’ aggressive efforts to make voting easier, ably funded by Commissioners Court, were going to draw a heated response. I guess I had just assumed that the lawsuits filed by Paxton and others against the various things that Hollins pioneered were the response, with bills filed in the 2021 Legislature the culmination, but I had not expected this.

It is interesting that Paxton chose to fire this particular shot in secret. We would have found out about it at the time if he had succeeded, of course, but it’s strangely out of character for Paxton to do something like this under cover of darkness. Say what you will about Ken Paxton, the man does not lack confidence in the correctness of his positions. I don’t know what his motivation was for not being front and center about this – I mean, we saw the lawsuit he filed to overturn the election. Shame, or fear of being publicly dragged, are not inhibitions for him. Maybe he was afraid of spooking Secretary Mnuchin, who is generally less cartoon-y in his villainy. I’m open to suggestion on this point.

The story mentions that this letter came from the Citizens for Responsibility and Ethics in Washington (CREW), which led me to this:

CREW obtained Paxton’s letter to Mnuchin as part of a Freedom of Information Act lawsuit against the Treasury Department, which remains ongoing.

The lawsuit in question is over the appointment of Louis DeJoy as Postmaster General. We might never have found out about this scurrilous and cowardly action otherwise.

I was going to spend more time in this post pointing out that Paxton’s allegations were 1) essentially baseless, and 2) should have been made in a lawsuit, as this would have fallen squarely under his law enforcement authority if Harris County were indeed breaking the law as he claimed, but honestly that CREW article laid it out thoroughly, so go read that for those details. The main takeaway here is that this wasn’t just a partisan dispute, which could and should have been carried out in public as so many other mostly ginned-up voting “controversies” this year were, it was 100% unadulterated bullshit from our despicable Attorney General. He’s not feeling any pressure to step down from his fellow Republicans, and do brace yourself for a pardon from our Felon in Chief, so it really is up to us to vote his sorry ass out in 2022. The Texas Tribune has more.

SCOTUS mostly punts on Census apportionment shenanigans

They seem to be hoping that the problem will solve itself, while applying a partisan litmus test to when it is appropriate for them to step in.

The Supreme Court dismissed a challenge to Donald Trump’s final sabotage of the census on Friday, deeming it premature. Trump seeks to exclude an estimated 10.5 million people from the data used to divide up congressional seats among the states because they are undocumented immigrants. This policy, if successful, would strip seats in the House of Representatives from diverse states with large immigrant communities. Because it has not been implemented, however, the Supreme Court determined, by a 6–3 vote, that the case is not yet ripe for resolution. All three liberal justices dissented.

Friday’s decision in Trump v. New York does not come as a surprise: At oral arguments, several conservative justices seemed to be looking for a way out of deciding whether the president has the power to manipulate the census this way. A few, including Justices Brett Kavanaugh and Amy Coney Barrett, even appeared to recognize that Trump’s policy is unlawful. The Constitution requires the apportionment of House seats based on “the whole number of persons in each state,” and the government has never before in history sought to exclude undocumented immigrants. By declaring that an entire class of immigrants are not “persons” who reside in the United States, Trump is trying to pass a modern three-fifths clause—except his policy reduces millions of immigrants to zero-fifths of a person.

Still, the Supreme Court’s conservative majority decided that this threat was insufficient to create a live controversy due to the uncertainty that plagues this case. (It did so in an unsigned opinion apparently joined by all six conservatives.) The federal government does not actually know how many undocumented immigrants live in each state. Trump has directed the Census Bureau to use existing administrative records to obtain these figures. But this process is ongoing, and the bureau has warned that it may not produce the data for weeks—possibly not until Trump has left office. (Joe Biden will undoubtedly retract the policy if it has not yet been executed.) The administration has speculated that it may narrow its goal by excluding only subsets of immigrants, like those in detention. (There are more than 50,000 people in ICE detention today, so even that exclusion could affect apportionment and funding.)

In light of this uncertainty, the majority found that the plaintiffs—which include states that may lose representation and local governments that may lose funding—lacked standing to attack the policy in court. Trump’s policy “may not prove feasible to implement in any manner whatsoever, let alone in a manner substantially likely to harm any of the plaintiffs here,” the majority asserted. In other words, Trump might fail to carry out his scheme, which would spare the plaintiffs any injury. Moreover, if the president only excludes a subset of immigrants, like ICE detainees, the plan might not “impact interstate apportionment.”

The court also found that the case “is riddled with contingencies and speculation,” declaring that “any prediction how the Executive Branch might eventually implement” Trump’s policy is “no more than conjecture.” As a result, “the case is not ripe,” and the plaintiffs must come back when they can contest a more explicit policy. The court clarified that “we express no view on the merits of the constitutional and related statutory claims presented.”

[…]

Friday’s ruling also entrenches a new rule that emerged after Barrett replaced Justice Ruth Bader Ginsburg: Plaintiffs only have standing when they are challenging a policy that the conservatives do not like. In November, by a 5–4 vote, the ultraconservatives blocked a COVID-19 restriction on New York City churches that was no longer in effect. As Roberts explained in his dissent, the restrictions were not in force when the court issued its decision. Yet the court blocked them anyway, reasoning that the governor might enforce them again in the future.

It is difficult to square that decision with Friday’s census punt. Trump has stated his policy in stark terms and directed the government to execute it as soon as possible. There is a serious, looming threat that his administration will carry it out in the near future. No one actually knows whether Biden or Congress can reverse the policy after it has been implemented. Yet the conservative justices still considered the case premature. This inconsistent approach gives the impression that at least five conservative justices are manipulating the rules to roll back blue states’ COVID orders while giving Trump leeway to test out illegal policies. Friday’s decision is not the end of this litigation, and the administration may ultimately fail to rig the apportionment of House seats. It is framed as a modest, narrow, technical decision. But the court has revealed its priorities, and they have nothing to do with restraint.

See here and here for the background. Texas would also likely lose a seat or two if this went into effect, not that you’d know it from the total radio silence of our state leaders. My hope is of course that the Census does not deliver this data before January 20, in which case the Biden administration could just drop the subject and proceed as we have always done. It’s not great that we have to rely on that hope, of course. Daily Kos and TPM have more.

TDP asks SCOTUS to review age discrimination claim in mail voting

From the inbox:

Today, the Texas Democratic Party and voters filed their final brief with the U.S. Supreme Court, seeking its review of the case filed last Spring which challenged the constitutionality of Texas’s law that limits voting by mail, without excuse, to voters age 65 and older. The 26th Amendment prohibits “denying or abridging” the right to vote based on age, which Texas law does. The United States Court of Appeals for the Fifth Circuit ruled in September that so long as all voters can vote in person, it does not abridge the right to vote if the state provides some voters with additional voting options. The Texas Democratic Party and voters argue this ruling runs contrary to the 26th Amendment and is inconsistent with U.S. Supreme Court precedent.

The Supreme Court is scheduled to confer regarding this case on January 8, 2021. On January 11, 2021, at 10:00 am ET, the Court will issue its orders list for the 2021 term. At that point, the Court may grant review of the case, deny review, or hold the case over for further consideration at a later time. If the Court grants review, the case could be heard this term, with a decision before Summer or it could decide to hear the case in its term beginning Fall of 2021. If the court denies review of the case, it will return to the U.S. District Court in San Antonio, where it will proceed to the final trial and, thereafter, potentially go back through the appeals process.

See here for my last update on this case, and here for a copy of the filing, which in fancy lawyer-speak is a “petition for a writ of certiori”. SCOTUSblog has a concise summary of the case so far. The brief makes three arguments, of which the first two are technical and boring to non-lawyers, but the third is a straightforward claim that the Fifth Circuit erred in its ruling:

The error in the Fifth Circuit’s reasoning was powerfully illustrated by the statement respondents’ counsel made at oral argument: “[I]f a state were to pass a law saying that White people must vote by personal appearance but Black people can vote by personal appearance or by mail-in balloting, …. the Fifteenth Amendment would not prohibit that law because that law does not deny or abridge the right to vote within the meaning of the Fifteenth Amendment.” Or. Arg. Rec. at 41:27-42:07. To state that position is to show its indefensibility.

1. The Fifth Circuit treated “abridge” as solely a temporal restriction: In its view, a state’s law does not “abridge” the right to vote when it adds voting opportunities for some, so long as one manner of voting remains in place for those not given the new voting opportunity. See BIO App. 38a. That holding is inconsistent with this Court’s precedents that the concept of abridgement “necessarily entails a comparison” of “what the right to vote ought to be.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 334 (2000).

Contrary to the Fifth Circuit’s arid resort to dictionary definitions of “abridgment,” BIO App. 33a34a, the proper baseline under the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments is given in the text of those amendments themselves. Those amendments provide that the right to vote shall not be abridged “on account of” or “by reason of” specific characteristics: “race,” “sex,” taxpaying status, or “age.” By their plain terms, those amendments call for a comparison between the law’s treatment of voters of different races, sexes, taxpaying statuses, or ages—not between the scope of the right a particular voter enjoyed yesterday and the scope of the right he or she enjoys today. It cannot be that the Fifteenth Amendment would have nothing to say if a jurisdiction gave white voters an early voting period, as long as it left untouched a preexisting ability for Black voters to cast a ballot in person on election day. But that perverse consequence is exactly what the Fifth Circuit’s logic commands.

The reason why the voting amendments use the word “abridge” is not to create a temporal comparison, but to make clear that any race-, sex-, taxpaying-, or age-based suffrage rule, and not only categorical denial of the right to vote, is covered. The Voting Rights Act, which was enacted to enforce the Fifteenth Amendment, illustrates this point. While Section 5, the provision at issue in Bossier Parish involved a statute with language explicitly requiring a temporal comparison, Section 2 echoes the Fifteenth Amendment text and requires an inter-voter comparison. Section 2(a) prohibits practices that result “in a denial or abridgement” of the right to vote on account of race or color or membership in a specified language minority. 52 U.S.C. § 10301(a). Section 2(b) declares that a violation of that prohibition occurs, among other things, when the plaintiff group has “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 52 U.S.C. § 10301(b) (emphasis added). That understanding of abridgment is also, as the petition explains, more consistent with this Court’s decision in Harman v. Forssenius, 380 U.S. 528 (1965). See Pet. 20-22.

Basically, the Fifth Circuit said that giving one set of voters (in this case, voters over the age of 65) something extra (no-excuses absentee ballots) was fine and not a form of discrimination against other voters, who were still able to vote. The TDP argues that the correct interpretation of the 26th and other amendments to the constitution is that not giving the under-65 voters the same benefit as the 65-and-older crowd is an abridgement of their rights, and thus unconstitutional. I think the plaintiffs have a solid argument, but as we know I Am Not A Lawyer, and also this particular Supreme Court is nobody’s friend when it comes to voting rights. We’ll know in January if we’ll get a short-term resolution or if this goes back to the trial court for a do-over.

“Of course I didn’t say the thing that I totally said”

“You just weren’t supposed to understand it.”

Texas Republican Party Chairman Allen West said Monday he was not advocating secession from the United States in his response on Friday to the U.S. Supreme Court’s decision to refuse to take up a Texas-led lawsuit to overturn election results in four battleground states.

After the Supreme Court rejected the Texas case, West released a statement to the public expressing his frustration with the decision. But he included one line that caught national attention.

“Perhaps law-abiding states should bond together and form a union of states that will abide by the Constitution,” West said.

But West said that was never a call for Texas to leave the Union like it did in 1861. In a message to Republicans on Monday, he said he’s still unsure why people think his statement meant he wanted Texas to secede.

“I am still trying to find where I said anything about ‘secession,’” West said.

Truly, it’s our fault for having sufficient reading comprehension skills.

Meanwhile

Texas Republicans on Monday couldn’t resist making one last futile stand for President Donald Trump even during what normally should have been a mundane and routine meeting certifying he had won the Lone Star State.

After 38 designated supporters of President Donald Trump cast all of Texas’ Electoral College votes, they went off script and crafted a nonbinding resolution calling on state legislatures in Pennsylvania, Georgia, Michigan and Wisconsin to change their pick from President-elect Joe Biden to Trump in an attempt to erase the Democrat’s win.

The resolution, which doubled down on Texas Attorney General Ken Paxton’s long-shot effort last week to undermine Biden’s win, also condemned the U.S. Supreme Court for “a lack of action.”

All of them need a snack and their nap pad. It’s just so, so sad.

Can Ken Paxton be sanctioned for his seditious lawsuit?

One group is going to try. I wish them luck.

Felons for autocracy!

A national lawyers group on Monday called for professional licensing bodies to investigate what it called a “breach of ethical rules” by Texas Attorney General Ken Paxton and 17 of his counterparts in red states who sued in the Supreme Court last week in a vain attempt to overturn President-elect Joe Biden’s win in four states in the Nov. 3 presidential election.

Lawyers Defending American Democracy, a nonpartisan group that says it has the support of 5,000 lawyers across the country, said in a statement that Paxton and his fellow Republican state attorneys general filed an “abusive lawsuit” that pushed groundless theories that erode confidence in vital institutions.

“The historically unprecedented attack on our democracy needs to be met by historically unprecedented state bar investigations,” said the group.

It called for the state bar of Texas, and its lawyer-licensing counterparts in other states, to investigate unprofessional conduct by not only the state attorneys general but any lawyers among the 126 GOP members of Congress who supported the suit.

“We call on state licensing authorities to promptly investigate the breach of ethical rules by these public officials and all lawyers participating in the filing of this Supreme Court petition,” the group said.

“They must not shrink from applying established ethical rules to discipline those officials.”

See here for the background, and here for the statement. I completely agree, and there were calls for sanctions a few weeks ago against Trump’s lawyers for their obviously dishonest filings. The case for bringing sanctions against Paxton as well is based on the American Bar Association’s Model Rules of Professional Conduct, which are adapted in some form in every state, which states that a lawyer shall not bring a suit “unless there is a basis in law and fact for doing so that is not frivolous.” But to even get to the State Bar of Texas with your complaint, first you need someone to file it, and then you have a difficult task getting them to agree with you.

“If history is any guide, it’s extremely unlikely that any of these lawyers are going to face disciplinary sanctions,” says Deborah Rhode, an ethics scholar at Stanford Law School and another co-author of Legal Ethics. “The bar is just, historically, extremely reluctant to take on anything that isn’t a clear, easily provable violation of disciplinary rules, and that has any kind of political overtones.” Moreover, she notes that bar disciplinary processes are underfunded and overworked. This issue came up in multiple conversations with experts: a lack of funding, expertise, and political will to investigate established or high-profile lawyers. “I think if you had a more robust disciplinary process with the likelihood that there would be professional consequences, that would be significant, that would be a deterrent,” she says. “But we’re a long way from that process.”

“This has been a persistent complaint that a lot of people in the legal ethics world have made about our discipline systems for years, which is that they don’t work that well,” says Luban. Most bar complaints do not lead to public sanctions, and that’s particularly true for the well-connected. It’s easier for underfunded committees to sanction solo practitioners, but they leave the big fish largely untouched.

Much as I’d like to see Ken Paxton suffer some professional consequences for his anti-American actions, the best we’re likely to get is to vote his sorry ass out of office. And to root for the various prosecutors and plaintiffs lining up against him. No one ever said life was fair.

Paxton denies whistleblower allegations

Pretty standard response.

Best mugshot ever

The Texas attorney general’s office will pay outside counsel $540 an hour to defend the state agency against accusations that it was retaliating against top aides when it fired them just weeks after they reported their boss, Ken Paxton, to authorities for possibly breaking the law.

William Helfand, a Houston attorney with Lewis Brisbois Bisgaard & Smith LLP, will make $540 per hour for his work on the case while an associate attorney and a paralegal will make $350 and $215 per hour, respectively, according to a contract with the agency.

They filed the agency’s first official response Monday to a lawsuit filed by four of eight whistleblowers who left the agency after leveling the accusations. Paxton’s attorneys roundly rejected pages and pages of allegations of wrongdoing and retaliation in just a few brief sentences.

The agency “generally denies each and every claim and allegation” made by the whistleblowers, attorneys for the state wrote in the brief filing.

“Any action Plaintiffs allege to be an adverse employment action was the result of each Plaintiff’s own misconduct, lack of competence, and/or disloyalty to the Office,” the outside attorneys for the agency wrote.

Paxton is reportedly being investigated by the FBI over the allegations raised by the aides.

Separately, he has been under indictment since 2015 on felony securities fraud charges but has yet to stand trial amid side issues over venue and prosecutor pay. Notably, his defense team and political allies have loudly objected to the special prosecutors in the case making $300 per hour — far lower than the pay scale for the outside attorneys in the whistleblower case.

That point was not lost on Brian Wice, one of the special prosecutors, who said it was “ludicrous for Paxton to believe that a seven-year attorney, not to mention a paralegal, should be paid more for defending him than two lawyers with over 80 years of combined experience should be paid for prosecuting him.”

“And it is outrageous that the taxpayers of Texas will be obligated to pay the legal fees for defending Paxton’s alleged misconduct that has reportedly triggered an FBI investigation,” Wice added.

See here and here for some background. Even I recognize this as Basic Lawyering 101, nothing new or unusual to see here. Where it gets exciting is in discovery, where Paxton will have to start coughing up some documents. As for how much the defense attorneys are being paid, as a theoretical matter the office of Attorney General deserves competent representation in matters like this. But the same is very much true for the special prosecutors, who have had to deal with a huge amount of political interference on Paxton’s behalf just to get paid. Surely if Paxton’s defense attorneys are worth that kind of fee, then we ought to see Brian Wice and Kent Schaffer as relative bargains. At least if Paxton does eventually get busted by the FBI, it’ll be the feds paying for that trial. In this case, we know Ken Paxton is going to raise money off of his latest legal travails. If the plaintiffs win, he can damn well kick in some of that loot to pay for the defense of his misdeeds.

Is Greg Abbott now an obstacle for Texas Central?

This Texas Monthly story suggests that maybe the answer to that question is Yes.

Earlier this year, after six years of legal battles brought by property owners and local governments, the rail project finally looked to be chugging along. Texas Central, the company behind it, had purchased six hundred parcels, or 40 percent of the land needed to build the project. In May, a victory at the Corpus Christi Court of Appeals asserted the business’s status as a railroad company with the power to exercise eminent domain—meaning that it can require owners to sell portions of their land in return for a “reasonable” price—though that ruling may be appealed to the state Supreme Court. This fall, the project received approval from the U.S. Department of Transportation’s Federal Railroad Administration, and Governor Greg Abbott wrote a letter to the Japanese government, a key investor in the project, voicing his support. The potential benefits of the rail seemed manifold. It would offer travelers a ninety-minute alternative to the four-hour drive between Dallas and Houston and relieve highway congestion that’s projected to double by 2035. It would reduce greenhouse gas emissions. And it would create thousands of high-paying jobs at a time when Texas is suffering from both a pandemic-related recession and an oil-price bust.

“The Texas High-Speed Train will be the first truly high-speed train in Texas and the United States, connecting North Texas, Houston and the Brazos Valley in less than 90 minutes, using the safest, most accessible, most efficient and environmentally friendly mass transportation system in the world today,” Texas Central spokesperson Erin Ragsdale wrote in a statement.

Abbott’s letter, however, sparked a firestorm among some of his longtime supporters. Even before the governor expressed support for the rail project, Meier said, her circle of friends had become increasingly wary of him because they believed he was pandering to liberal interests by imposing restrictions on some businesses during the early days of the pandemic. “I was the only one I know of that was still basically supporting him,” Meier said. “If he continues to support the [train], he will not get my vote, and I will passionately spread the word.”

Four days after Abbott penned his letter, his staff walked back his support, telling the Dallas Morning News that the governor intended to reevaluate his position out of concern for Texans’ property rights and because he was provided with “incomplete” information about the project. (His initial letter had indicated the railway had already obtained all the necessary permits to proceed, but, in fact, it still needs to receive approval from the Surface Transportation Board, a federal regulatory agency.) Abbott’s office did not make clear whether staff, pro-rail lobbyists, or another party had provided the information that allegedly misled him, nor did it respond to multiple requests for an interview about why he wrote the letter and later walked it back. Texas Central also declined multiple requests for interview about Abbott’s reversal. With the loss of the governor’s support, the train’s future faces new hurdles. Texas Central now lacks a strong advocate to ward against pending anti-high-speed rail bills in the upcoming Legislative session, and the company has lost a prominent voice asking investors to keep money flowing.

See here for the background. It’s hard to know what Abbott is thinking, but what is clear is that the strongest opposition to TCR comes from rural Republicans, who are the base of the party. While I think that on a philosophical level this project likely appeals to Abbott – indeed, TCR was designed from the beginning to appeal to Republicans, with its private-enterprise, no-government-funding ethos, and with Republican stalwarts like Robert Eckels among its leadership – he is for sure aware of which way the wind is blowing, and after a summer of vitriol from the wingnut faction he’s probably wary of starting another fight. What that means in terms of the upcoming legislative session is unclear, but we already know that TCR was playing defense. They may be facing a more potent offense than originally expected.

Now we wait on SCOTUS

The state of Texas filed its reply to the defendants’ responses to its democracykilling lawsuit, and, well, it’s something.

Best mugshot ever

This brings us the Texas AG Ken Paxton’s reply–or, rather, replies, as there are multiple filings, including a motion to enlarge the word-count limit, a supplemental declaration dated today from Charles Cicchetti, and a new affidavit prepared yesterday from one Lisa Gage.

The first reply brief focuses on rebutting the factual and legal claims made by the four defendant states. The brief starts with the facts, and AG Paxton’s choice of emphasis here is quite interesting, as the brief leads with an extended defense of statistical stupidity contained in the initial filing and the Cicchetti declaration (hence the newly drafted supplemental declaration which is attached). Here, the Paxton brief argues “Dr. Cicchetti did take into account the possibility that votes were not randomly drawn in the later time period but, as stated in his original Declaration, he is not aware of any data that would support such an assertion.” In other words, because he does not know anything about the two sets of voters, it was okay to assume they were identical for purposes of assessing the statistical likelihood that they would vote differently. That this is the lead argument in the reply tells you most of what you need to know. (Well, perhaps not, as other parts of the factual discussion misrepresent claims made by defendant states or repeat claims that were considered and rejected in other suits over the past month.)

On the law, the Texas reply essentially argues that the handful of attorneys in the Texas AG’s office who were willing to sign on to the brief know more about the election laws of Georgia, Michigan, Wisconsin, and Pennsylvania than do the Attorneys General and Secretaries of State of those various states. It further argues that although state legislatures have “plenary” authority to set the manner in which states select electors, this somehow does not include the authority to authorize the involvement of courts and election agencies, and that the U.S. Supreme Court, not the supreme courts of the respective states, should be the final authority on the meaning of relevant state laws and constitutional provisions. (Yay federalism!)

The other Texas filing, styled as a reply in support of Texas’s plea for emergency injunctive relief, is not much better. It does, however, deploy a powerful use of capitalization in the Table of Contents (“Texas IS likely to prevail”). Note that Texas does not have to worry about any of the defendant states responding in kind (“Texas IS NOT likely to prevail”) because this is the last brief to be filed.

In this brief, Texas argues that it is not seeking to disenfranchise voters. Rather, Texas argues, “Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes.” Of course, to the extent this were true, Supreme Court intervention would not be necessary. If the relevant state legislatures concluded that the results of the elections within their states were indeterminate–that the voters had failed to select electors on election day–they could act, but they have not. Here Texas repeats its arguments that federalism requires the Supreme Court ordering state legislatures to act and possibly even hold new elections because Texas does not like how other states have run their elections.

It’s already time for some tweets.

One possible way to avoid that outcome is for SCOTUS to shut this shit down hard.

The easy thing for the Supreme Court to do is simply deny Texas permission to file the complaint (and deny the motions to intervene as moot) and be done with it. No fuss, no muss.

But the court should do more. It is perfectly ordinary and appropriate for the justices to write an opinion explaining the various reasons why they are rejecting Texas’ request. Indeed, the minority of justices who think that the court is required to accept original actions like Texas’ may well write short opinions of their own or note that they think the case was properly filed. So there is nothing overreaching if a majority of the court explains why the case is meritless.

The justices’ decision whether to do that needs to account for this extraordinary, dangerous moment for our democracy. President Donald Trump, other supportive Republicans, and aligned commentators have firmly convinced many tens of millions of people that the 2020 presidential election was stolen. If that view continues to take hold, it threatens not only our national politics for the next four years but the public’s basic faith in elections of all types that are the foundations of our society.

A simple five-page per curiam opinion genuinely could end up in the pantheon of all-time most significant rulings in American history. Every once in a long while, the court needs to invest some of its accumulated capital in issuing judgments that are not only legally right but also respond to imminent, tangible threats to the nation. That is particularly appropriate when, as here, the court finds itself being used as a tool to actively undermine faith in our democratic institutions — including by the members of the court’s bar on whom the justices depend to act much more responsibly.

In a time that is so very deeply polarized, I cannot think of a person, group or institution other than the Supreme Court that could do better for the country right now. Supporters of the president who have been gaslighted into believing that there has been a multi-state conspiracy to steal the election recognize that the court is not a liberal institution. If the court will tell the truth, the country will listen.

I’m not so sure I share the optimism, but I agree it would be the best thing that SCOTUS could do.

More Republicans have lined up to join Paxton on his lemming suicide bomber dive, including some who are seemingly claiming their own elections are also tainted.

Maybe the most ridiculous thing about this ridiculous moment, is that among the 126 Republican House members who have signed on to a document that they know to be not just false in its content, but malicious in its intent, are 19 from states that are the subject of the suit.

So Representatives like Doug Collins and Barry Loudermilk in Georgia are arguing that their own elections were fraudulent. Except, of course, they’re not making that argument. They’re not making any argument. They’re just hoping to gain “street cred” from adding their signatures to a list of people who support Trump rather than America.

You know who else is on Team Dictatorship? Dan Crenshaw, that’s who. This Dan Crenshaw.

U.S. Rep. Dan Crenshaw told Veterans Affairs Secretary Robert Wilkie that a woman who reported sexual assault at a VA hospital had filed frivolous complaints when she and Crenshaw served in the same Navy command, according to testimony by several senior officials in a report by the agency’s watchdog.

Investigators said they were troubled by the way Wilkie and his agency handled the outcry of the woman, who is now a Democratic aide in the House of Representatives.

The Houston Republican’s link to matter, first reported by Newsweek magazine, was included in a report released by the agency’s inspector general on Thursday. The report details a number of apparent problems with the agency’s handling of complaints filed by the veteran, Andrea Goldstein, who alleged a VA hospital contractor “bumped his entire body against mine and told me I looked like I needed a smile and a good time.”

[…]

Senior VA officials told investigators that Crenshaw passed along information about Goldstein to Wilkie, the report says, which both Crenshaw and Wilkie have denied.

The report points to an email Wilkie sent Chief of Staff Pamela Powers and Brooks Tucker, assistant secretary congressional and legislative affairs, after a fundraiser that he and Crenshaw both attended. It said: “Ask me in the morning what Congressman Crenshaw said about the Takano staffer whose glamor (sic) shot was in the New York Times.”

While Wilkie told investigators that Crenshaw approached him at the December 2019 fundraiser and brought up the veteran, he claimed that Crenshaw merely told him they served together. When investigators asked Wilkie why that information was enough to merit the email he sent after the fundraiser, he responded, “Well, I don’t remember. I have no idea.”

Both Powers and Tucker, however, told investigators they recalled Wilkie making comments about the veteran’s reputation “based on information they understood he received from Congressman Crenshaw.”

The report also says Deputy VA Secretary Jim Byrne told investigators that Wilkie had “verified with Congressman Dan Crenshaw that the veteran had previously filed frivolous complaints when the two were serving in the same command in the Navy.”

Crenshaw and his staff refused to answer VA investigators’ questions about the matter, the report says. Crenshaw’s office did not respond Thursday to a request for comment.

The Newsweek story is here. Remember Crenshaw’s craven refusal to answer questions about this the next time he tweets some garbage about how “all cases should be heard, all investigations should be thorough”. As a reminder, the Chron endorsed Crenshaw for re-election. The Orlando Sentinel has apologized for endorsing Rep. Michael Waltz, one of Crenshaw’s fellow members of the Sedition Caucus. I await the Chron taking similar action; merely excoriating Ken Paxton and Ted Cruz, without even mentioning Crenshaw for his role in this debacle, is insufficient.

Montana Governor Steve Bullock has observed, as part of his own amicus filing against the Paxton mess, that Texas did not include his state as a defendant even though Montana made the same kind of changes that Georgia et al did that Paxton finds so objectionable. Of course, Trump carried Montana, so it’s totally different. Governor Bullock also knows how to bring the snark:

SCOTUS may act on the Texas case even before I finish drafting this post, so let me wrap up while the outcome is still unknown. First, a few words from Adam Serwer about why Trump has so many rats following behind his rancid Pied Piper act:

To Trump’s strongest supporters, Biden’s win is a fraud because his voters should not count to begin with, and because the Democratic Party is not a legitimate political institution that should be allowed to wield power even if they did.

This is why the authoritarian remedies festering in the Trump fever swamps—martial law, the usurpation of state electors, Supreme Court fiat—are so openly contemplated. Because the true will of the people is that Trump remain president, forcing that outcome, even in the face of defeat, is a fulfillment of democracy rather than its betrayal.

The Republican base’s fundamental belief, the one that Trump used to win them over in the first place, the one that ties the election conspiracy theory to birtherism and to Trump’s sneering attack on the Squad’s citizenship, is that Democratic victories do not count, because Democratic voters are not truly American. It’s no accident that the Trump campaign’s claims have focused almost entirely on jurisdictions with high Black populations.

From Elizabeth Dye at Above the Law:

But perhaps we shouldn’t get waylaid in Constitutional and procedural niceties, lest we distract ourselves from the point that THIS IS BATSHIT. The state of Texas has filed a facially nonsensical suit purporting to vindicate the rights of the Defendant states’ legislatures from unconstitutional usurpation by overweening governors and state courts, a usurpation which supposedly violates the Elections Clause. And the proposed solution is for the Supreme Court itself to violate the Elections Clause by postponing the electoral college vote, thus usurping Congress’s power to “determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

And instead of saying, “Slow your roll, Ken Paxton! We’ve been banging the drum about states’ rights for two hundred years now. It’s kind of our thing, you know?” the intervenor states are all in on this Frankenstein hybrid of vote dilution and anti-federalism. Rather than acknowledging the reality of Trump’s loss, these attorneys general would rather attach their names to a complaint which claims that it’s just mathematically impossible for Biden to have won those four Defendant states because, ummm, Clinton lost them. Don’t ask how Trump was able to flip Pennsylvania, Wisconsin, and Michigan after Obama won them in 2012 and 2008 — that formula is still being calculated.

Never mind that Texas’s governor Greg Abbott extended early voting by a week, the same dastardly usurpation of legislative prerogative which supposedly voids the election in the Defendant states. Pay no attention to the fact that Mississippi also allows votes to be counted if they arrive within three days of the election, which Paxton argues is patently illegal. Or that Utah conducted this election entirely by mail, which is, according to the complaint anyway, prima facie evidence of intent to allow vote fraud. IOKYAR.

The Trump motion to intervene is little more than a cleaned up version of the president’s Twitter feed, drafted by John Eastman, a law professor at Chapman University who is nonetheless confused about birthright citizenship and recently penned a racist Newsweek editorial wondering if Kamala Harris was eligible to run for president.

Mentioning this John Eastman character brings us to the final tweets, because all good blog posts about election theft end with tweets. These two are embedded in that ATL article:

As noted before, Lawrence Joseph is the outside counsel Ken Paxton hired for his lawsuit, since the Solicitor General declined to come on board. Wheels within wheels, y’all.

And finally, nothing could sum up this entire experience better than this:

From the neighborhood of New Heights in the city of New Houston and the state of New Texas, I wish you all a happy weekend. CNN has more.

UPDATE: Didn’t have to wait long, as it turns out.

The US Supreme Court on Friday rejected Texas’s unprecedented last-ditch effort to challenge President-elect Joe Biden’s win in Pennsylvania, Michigan, Georgia, and Wisconsin by suing those four states in the high court.

At least a majority of the justices concluded that Texas lacked standing to bring the case at all, a threshold the state had to clear before the case could go any further.

“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in the brief order.

No justice noted that they had dissented from the decision to knock out Texas’s case from the start. It would have taken at least five justices to agree to hear the case, but the justices don’t have to individually indicate how they voted, so there’s no way to know the vote breakdown for certain. Justice Samuel Alito Jr., joined by Justice Clarence Thomas, wrote that they believed the court had to allow Texas to file its lawsuit, but they wouldn’t have granted any other relief that the state requested.

It was a significant loss not only for Texas, but for President Donald Trump, who had asked to intervene in the case and spent the the past two days tweeting about why the justices should effectively hand him an election that Biden won. The court denied all of the other motions filed in the case as moot once it decided Texas couldn’t bring the case at all, which ended Trump’s bid to get before the justices.

There’s plenty more stories out there – go to Google News or Trending on Twitter if you haven’t come across any others. The Electoral College meets on Monday, and after that it really is over, though one presumes the delusions will continue. I’m going to finish with some more tweets. You should go outside and enjoy the day.

Not sure how I feel about this. It’s right there in the Constitution, but it’s also overturning the will of the voters, which is what the Sedition Caucus was trying to do. I am happy to have a discussion about this, however. Let these bastards explain why they haven’t violated the Constitution.

Speaking of bastards and being in opposition to the Constitution:

Yeah, I don’t even know what to say to that. But I would very much like to know what every elected Republican thinks about it. Let’s get them all on record, shall we? Rick Hasen has more.

The states respond to Paxton

Now we wait for SCOTUS. I sure hope they’re quick about it.

Best mugshot ever

Each of the four battleground states targeted by a Texas lawsuit seeking to overturn President Donald Trump’s election defeat issued blistering briefs at the Supreme Court on Thursday, with Pennsylvania officials going so far as to call the effort a “seditious abuse of the judicial process.”

The court filings from Georgia, Michigan, Pennsylvania and Wisconsin come a day after Trump asked the Supreme Court to intervene in the lawsuit brought by Texas Attorney General Ken Paxton seeking to invalidate millions of votes in their states. The lawsuit amounts to an unprecedented request for legal intervention in an election despite there being no evidence of widespread fraud.

“Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” wrote Pennsylvania Attorney General Josh Shapiro.

The Texas lawsuit, Shapiro said, rested on a “surreal alternate reality.”

[…]

Despite the slate of inaccurate claims driving the lawsuit, more than 100 House Republicans signed on to an amicus brief in support of Paxton’s motion.

Notable Republican leadership names on this list include House Minority Whip Steve Scalise and Republican Policy Committee Chairman Gary Palmer.

“The unconstitutional irregularities involved in the 2020 presidential election cast doubt upon its outcome and the integrity of the American system of elections,” the brief said without evidence.

“Amici respectfully aver that the broad scope and impact of the various irregularities in the Defendant states necessitate careful and timely review by this Court.”

Beyond the four states subject to the Texas lawsuit, more than 20 other states and Washington, DC, also submitted an amicus brief deriding the effort and urging the high court to deny Texas’ motion.

“The Amici States have a critical interest in allowing state courts and local actors to interpret and implement state election law, and in ensuring that states retain their sovereign ability to safely and securely accommodate voters in light of emergencies such as COVID-19,” the brief said.

Shapiro’s particularly fiery brief assessed that the Texas lawsuit is “legally indefensible and is an affront to principles of constitutional democracy.”

“Nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four sister States run their elections, and Texas suffered no harm because it dislikes the results in those elections.”

See here and here for the background. A copy of the court filings are at the CNN story, but the best part of the Pennsylvania filing, which uses the word “seditious”, is here. Despite the sound and fury, there’s some suggestion that even the sedition-committers know that it all signals nothing.

Six states attorneys general, led by Missouri AG Eric Schmitt, have moved to intervene in Texas v. Pennsylvania, the lawsuit filed by Texas Attorney General Ken Paxton that seeks to prevent the selection of presidential electors based upon the November election results in four states (Pennsylvania, Georgia, Wisconsin, and Michigan). Yesterday, 17 states, also led by Missouri AG Schmitt, filed an amicus brief in support of the Texas suit. I wrote about that filing here.

There are a few notable things about today’s filing. First and foremost, it is notable than only six of the states that joined yesterday’s amicus brief (Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah) were willing to join today’s motion to intervene and join the Texas Bill of Complaint. This suggests that some of the state AGs who were willing to say that the claims raised by Texas are sufficiently serious to warrant the Court’s attention were not willing to actually endorse the substance of those claims. Perhaps this indicates there is only so far they are willing to go to virtue-signal their support for the Trump tribe. (Yesterday’s filing from Arizona can be viewed in a similar light.) In the alternative it could simply represent discomfort with some of the claims this new briefing supports, which leads to my next point.

It gets into the legal weeds from there, so read the rest if you’re so inclined. In the meantime, there may still be a couple of respectable voices here in Texas.

The state’s Big Three — Gov. Greg Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen — have all supported the suit, and Texas Sen. Ted Cruz has reportedly even agreed to argue the case before the U.S. Supreme Court if it advances, which legal experts say is extremely unlikely.

More than half of the Texas Republican congressional delegation — 12 members including Reps. Dan Crenshaw, Kevin Brady and Randy Weber — were among the 106 House members to sign onto a brief in support of the suit.

[…]

Still, in what is shaping to be yet another with-Trump or against-Trump moment for Republicans in Congress, the Texas delegation is splitting.

Texas Sen. John Cornyn doubts that Paxton even has grounds to sue. “It’s an interesting theory,” he said, “but I’m not convinced.”

On Thursday, Cornyn — a past Texas attorney general, as is Abbott — was joined by several more prominent Republicans in his dissent.

Rep. Kay Granger, who has represented North Texas for almost two decades, told CNN she did not see the suit going anywhere and called it a “distraction.”

“I’m not supporting it,” Granger said. “I’m just concerned with the process.”

Conservative firebrand Rep. Chip Roy excoriated the suit, saying he could not join colleagues in the House in writing a brief to support the suit because he believes it “represents a dangerous violation of federalism and sets a precedent to have one state asking federal courts to police the voting procedures of other states.”

“I strongly support the continued pursuit of litigation where most likely to succeed — such as Georgia — to bring to light any illegal votes and encourage, if necessary, state legislatures to alter their electors accordingly,” Roy tweeted. “But, I cannot support an effort that will almost certainly fail on grounds of standing and is inconsistent with my beliefs about protecting Texas’ sovereignty from the meddling of other states.”

I give Kay Granger a B+, Cornyn a C, and Roy a D – he was perfectly happy to throw manure on the concept of voting by mail, so his disagreement was entirely about tactics, not principles. I remind you, as recently as 2016, Republicans in Harris County cast more votes by mail than Democrats did. As for Dan Crenshaw, I hope that the next time we try to tell the voters in his district that he’s nothing more than a faithful foot soldier for Donald Trump, they believe us.

Not that Ken Paxton cares, but I appreciate what the DMN editorial board says to him.

Your lawsuit, as you should know, will fail on the merits. Every piece of evidence shows the same result. Donald Trump lost this election. This is why the high court will turn you away, as courts have repeatedly turned away suits seeking to reverse the election’s outcome.

That is not to say that your decisions are without consequence. As the state’s attorney general, you chose to mislead the public by acting as if there were a legal case to defy the will of the voters as expressed through legally administered elections, and this will cause lasting damage to our political system and to faith in our elections. Much like crying wolf when there is no animal in sight, your lawsuit will undermine legitimate complaints in the future about voter fraud and undercut legitimate work in the future to ensure ballot integrity.

Your leadership is also fueling cynicism, empowering conspiracy theorists who operate on accusation rather than fact, and enabling those who seek election confusion rather than clear, compelling and accurate election results. This is leadership unbecoming of your office. It is a disservice to Texans who deserve a well-run office of the attorney general and who depend on a fair administration of justice.

We really need to vote him out in 2022. I’ll wrap up with some tweets.

I’ll blog about that more fully when I see a story. It just sure is hard to separate the timing, and the cravenness, of this lawsuit from Paxton’s immediate needs. We’ll see what SCOTUS has to say, and when they have to say it. Daily Kos and NBCNews have more.

We still have to talk about Paxton’s ridiculous and anti-democratic lawsuit

At least for one more day.

Best mugshot ever

President Donald Trump on Wednesday latched on to a longshot Texas lawsuit seeking to overturn a presidential election that handed the White House to Joe Biden.

Legal experts say Texas Attorney General Ken Paxton’s effort to contest election results of four key battleground states is all but certain to fail. But it has drawn support from the Republican attorneys general of 17 other states.

As the president’s legal team loses case after improbable case in federal district and appellate courts, the Texas lawsuit offers a major advantage: It goes straight to the top. Under a special legal avenue unique to states, Paxton filed the case directly with the U.S. Supreme Court, a body Trump has suggested could deliver him the victory that voters did not.

[…]

The Texas lawsuit takes issue with changes to election procedures in four battleground states: Georgia, Pennsylvania, Michigan and Wisconsin. Paxton argues those changes were unlawful and call into question Biden’s victories in those states. He is asking the high court to block the critical battlegrounds from participating in the Electoral College.

Though the Supreme Court has a six-member conservative majority, including three justices appointed by Trump himself, it has so far shown no interest in siding with him in the election cases his campaign has lobbed. On Tuesday, it decisively rejected Pennsylvania Republicans’ effort to overturn Biden’s victory there in a one-sentence order with no dissents.

Legal experts and court watchers expect a similar outcome in the Texas case. The court has asked for a response from the four battleground states Texas is suing, setting a Thursday deadline, but has given no indication about how it will decide the matter.

“This is the Hail Mary with time running out the clock kind of play here,” said David Coale, an appellate attorney in Dallas. “This is really the last little window to sort of sneak in there and try to get a court involved.”

States have a special legal ability to take cases directly to the Supreme Court, though such cases are rare, and more typically involve boundary disputes like water rights. If the high court accepts Texas’ argument that it can sue the four battlegrounds in this case, Coale said, “then any state can sue any other state about just about anything.”

Even if the court gets past tricky procedural issues, Texas’ case faces an uphill battle.

Officials in the battleground states have roundly rejected Paxton’s argument, calling it “false,” “irresponsible,” “a publicity stunt,” “genuinely embarrassing,” “beyond reckless” and “beneath the dignity of the office of attorney general.”

They also point out that many of the claims Paxton makes about election irregularities in their states have already been litigated and roundly rejected. Experts, state election officials and U.S. Attorney General Bill Barr have all said there is no evidence of voter fraud on a scale that could have affected the outcome of the election.

“Texas alleges that there are 80,000 forged signatures on absentee ballots in Georgia, but they don’t bring forward a single person who this happened to. That’s because it didn’t happen,” said Jordan Fuchs, Georgia’s deputy secretary of state.

See here for the background, and please put aside any concerns you may have for Ken Paxton’s dignity. He sure isn’t concerned about it.

Honestly, the best way to deal with this kind of pure bullshit is through Twitter.

For more responses from people who are smarter and way more honest than Ken Paxton, Texas Lawyer collected a bunch more responses, a sample of which is here:

>> Raffi Melkonian, appellate lawyer at Wright, Close & Barger: “The new Paxton lawsuit is not worth a lot of your time, but I mean, it doesn’t make any sense and is bad and has no chance of success at all. Just want to be clear on that.” [Twitter]

>> Jonathan Adler, Case Western Reserve University law professor: “Here, Texas is not only asking the Supreme Court to hear the case, it is also asking for expedited consideration and extraordinary emergency relief, in the form of injunctions barring the defendant states from relying upon the election results to appoint electors and authorizing ‘pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.’ In effect, the suit is asking the U.S. Supreme Court to supervise the Presidential election in the four defendant states.” [Reason.com]

>> J. Scott Key, Georgia appellate attorney and Mercer University law professor: “This pleading is our book club’s next selection. Over wine, we will discuss whether the text is a coded love letter subtle to a jealous suitor with pardon power.” [Twitter]

>> U.S. Sen. Ted CruzR-Texas:  “Petitioners’ legal team has asked me whether I would be willing to argue the case before #SCOTUS, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument.” [Twitter]

>> John Q. Barrett, law professor at St. John’s University School of Law: “Kudos to Sen. Cruz for giving the Court another major reason, just in case it needed any more, to deny cert.” [Twitter]

>> Philadelphia election lawyer Adam Bonin, who has represented the Democratic Party in recent election litigation in Pennsylvania: “It is embarrassing to see argument like this from a state attorney general to the Supreme Court of the United States.” [Twitter]

>> Andrew Fleischman, appellate attorney, Ross & Pines, Atlanta: “Gonna go ahead and sue the Supreme Court to enjoin them from taking up this Texas challenge. That way they’ll all have to recuse. When the Supreme court rejects the suit after dismissing my petition and ordering sanctions, I’ll go on Fox News and say they were scared of me.” [Twitter]  “Ok the absolute trolliest thing Michigan could do right now is move to recuse Paxton because his desire for a pardon is a conflict of interest. We’re not even really doing law any more so why not?” [Twitter]

>> Eric Greenberg, Seyfarth Shaw: “Would the @Nate_Cohn @nytimes needle predicting a Biden win in GA at 3 am in the morning be sufficient evidence to combat the claim as to GA?  Just kidding — but maybe not.” [Twitter]

>> Adam VanHo, Ohio attorney, former state assistant attorney general: “@KenPaxtonTX should be ashamed of himself for this frivolous filing. And if states get to sue other states over their treatment of voters, when will states like New York and Ohio sue southern states over their treatment of former felons’ voting rights.” [Twitter]

>> Pennsylvania Lt. Gov. John Fetterman: “Can the Texas AG *also* sue their Lieutenant Governor for the handsome reward of $2M he owes me for reporting voter fraud?”  [Twitter]

>> Chris Geidner, The Justice Collaborative: “As others have noted, Texas Solicitor General Kyle Hawkins is not on the SCOTUS filing—despite him being the state’s lead SCOTUS lawyer. There is, however, a ‘special counsel’ noted.” [Twitter]

>>Joyce White Vance, former U.S. attorney for the Northern District of Alabama: “This lawsuit alleges defendant states took advantage of the pandemic to expand vote by mail. It’s the ultimate expression of Trump’s view the GOP can’t win … if all eligible Americans can vote. Tx AG, himself under criminal investigation, appears to be a fan of cheat to win.” [Twitter]

>>Jocelyn Benson, Michigan Secretary of State: “This lawsuit seems to suggest that the voters of Michigan messed with Texas. They didn’t. Case closed.” [Twitter]

SCOTUS requested responses from the four targeted states by this afternoon. Everyone with integrity believes the case will be summarily dismissed shortly thereafter. Stay tuned. The Chron, Daily Kos, the Current, Political Animal, and Slate have more.

Ken Paxton sues other states to overturn their election results

It’s as stupid and pernicious as it sounds.

Best mugshot ever

Texas Attorney General Ken Paxton is suing four battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — whose election results handed the White House to President-elect Joe Biden.

In the suit, he claims that pandemic-era changes to election procedures in those states violated federal law, and asks the U.S. Supreme Court to block the states from voting in the Electoral College.

The last-minute bid, which legal experts have already characterized as a longshot, comes alongside dozens of similar attempts by President Donald Trump and his political allies. The majority of those lawsuits have already failed.

There is no evidence of widespread fraud in the 2020 election, officials in most states and U.S. Attorney General Bill Barr have said. Biden won in all four states where Paxton is challenging the results.

In a filing to the high court Tuesday, Paxton claims the four battleground states broke the law by instituting pandemic-related changes to election policies, whether “through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”

Paxton claimed that these changes allowed for voter fraud to occur — a conclusion experts and election officials have rejected — and said the court should push back a Dec. 14 deadline by which states must appoint their presidential electors.

“That deadline, however, should not cement a potentially illegitimate election result in the middle of this storm,” attorneys for Texas wrote.

[…]

Notably, Paxton himself is listed as the agency’s lead attorney on the case — a highly unusual role for the state official, who rarely plays a hands-on role even in the state’s major cases. Paxton’s new chief deputy, Brent Webster, signed onto the filing, but conspicuously absent is the agency’s top lawyer for appellate work, Solicitor General Kyle Hawkins, who typically argues the state’s cases before the Supreme Court and did so as recently as last month. None of Hawkins’ deputies is listed as contributing to the case, nor are any of the agency’s hundreds of other attorneys.

The agency instead appears to have hired an outside attorney, Lawrence Joseph, to contribute to the case.

The agency did not answer questions about its staffing choices for the lawsuit, nor did Hawkins himself.

Gov. Greg Abbott, a former Texas attorney general, signaled support for the lawsuit, telling a reporter the case “tries to accelerate the process, providing certainty and clarity about the entire election process. The United States of America needs that.”

We’ll discuss motives in a minute, but first, a few tweets.

You should also read this thread from Steve Vladeck, and this post from Rick Hasen, in which he calls this “a press release masquerading as a lawsuit” and “utter garbage”. And now you know all you need to know about the legal merits of this case, which by the way was filed on the legal deadline for states to certify the Presidential election.

Now then. Why would multiply-accused felon Ken Paxton do this? Two obvious reasons:

1. It’s a signal to George P. Bush and any other potential primary challengers that no one is going to out-wingnut him in 2022. We are at “drinking hemlock to own the libs” levels of depravity here. Maybe Solicitor General Kyle Hawkins will speak up and contradict the speculation about why Paxton was on his own for this, but the fact that Paxton did this on his own is surely a message to any wannabe kingslayers.

2. It’s also a message to Donald Trump, and that message is “PARDON ME! PAAAAAAAARDON MEEEEEEEEE!” Why fight an FBI investigation if you can be pre-emptively declared not guilty of any crimes you may have committed?

My guess is that Greg Abbott’s “well, we should just let the process play out” numbskullery is also an attempt to placate the seething hordes that now think he’s a liberal squish crossed with Joseph Stalin. I doubt it will work, but this is where Abbott is these days.

Anyway. On the one hand, we have already wasted too many brain cells on this. On the other, we should never forget that the official stance of way too many Republican officials is that they cannot lose elections and will do anything at all to prevent that from happening, law and decency and democracy be damned. I can only imagine the freakout they will have when Dems finally break through at the state level. For more reading than you should have time for, see the Chron, TPM, Daily Kos, Mother Jones, Reform Austin, and the Press.

Why can’t we get our jail population down?

I found this story from Thanksgiving weekend frustrating.

Harris County’s efforts to reduce its jail population have flatlined, despite more than $7.5 million aimed at alleviating systemic burdens so that the county could attempt to reduce its inmates by a targeted 21 percent.

Even after creating programs to lessen the population and reduce racial disparities in jail, criminal caseloads mounted and the facility returned nearly to capacity, county officials said. When Harris County in 2016 joined the nationwide Safety and Justice Challenge – meant to help retool the use of lockups – more than 8,789 people were in jail. On Nov. 23, that number was 8,724 — a decrease of less than 1 percent. To meet the program’s goal, the population would need to have fallen under 7,000.

County leaders next week will reapply for a final round of funding from the MacArthur Foundation to sustain progress made in the challenge overseen by the nonprofit Justice Management Institute. It remains to be seen whether how much the county will receive given the struggle to reduce the jail population.

Even if the county receives the full amount, achieving its goal remains distant, said Thomas Eberly, Harris County’s site coordinator for the challenge and program director of the Justice Management Institute, which works with localities to improve justice systems.

“I do think that the odds are not in Harris County’s favor because of past performance,” said Eberly. “We’re five years into this and the change that was expected hasn’t been achieved, and it’s quite honestly not even close.”

Some county leaders remain positive, however, citing implementation of a series of programs as part of the challenge. They include hiring a “fairness administrator” to address racial inequities and a community engagement outreach coordinator, as well as creating a cite-and-release program and a Reintegration Impact Court to divert those who have low-level cases from jail.

The MacArthur Foundation could award up to $660,000 for one year of sustainability and $500,000 for a second year.

The foundation has already provided $4.25 million to the county since 2015, and county commissioners in 2016 allocated more than $3.3 million from general fund reserves to help pay for reforms.

“We remain optimistic that we’re going to have some breakthroughs,” said Jim Bethke, Harris County’s director of justice administration.

It’s a long story that goes in a number of directions, so go read the whole thing. The main explanations cited are the damage to the courts caused by Hurricane Harvey in 2017, as well as the coronavirus pandemic, as both have contributed to long delays in resolving cases. The changeover in the courts due to the 2018 election plus the effort put into the bail reform program was also cited, though it’s not clear to me why that would contribute to the problem – the whole point of bail reform was to have fewer people rotting in jail while they wait for their trials. I needed more information to understand what that had to do with it.

Later in the story, the HPD cite and release program was listed as a potential mitigating factor going forward. It’s only been in effect since September – the Harris County Sheriff’s Office has had a similar policy since February. Diversion programs by the DA’s Office were also cited. I would have liked to know more about how much these could help, or more to the point could have helped if they had been in place longer. Not to put too fine a point on it, but one simple way to have fewer people in jail is to out fewer of them in jail in the first place. It’s very much in our power to arrest fewer people for minor non-violent offenses, with marijuana possession being at the top of that list. Circumstance can explain some of this problem, but our choices are a big part of it as well. There’s plenty we can do to change that.

Birds of a feather

Sweet.

A pro-Trump group that promised to challenge the Nov. 3 election results and expose fraud was sued by a North Carolina money manager who donated $2.5 million to the cause but says he didn’t get his money’s worth.

Fred Eshelman, founder of Eshelman Ventures LLC, wants his money back, saying he “regularly and repeatedly” asked for updates on the project but his “requests were consistently met with vague responses, platitudes, and empty promises,” according to the lawsuit filed Wednesday in Houston federal court.

Houston-based True the Vote Inc. had promised a multi-pronged plan to “investigate, litigate, and expose suspected illegal balloting and fraud in the 2020 general election,” according to the lawsuit.

In the weeks after the election, True the Vote filed four lawsuits, but it dropped them all last week. “While we stand by the voters’ testimony that was brought forth, barriers to advancing our arguments, coupled with constraints on time, made it necessary for us to pursue a different path,” the group announced on its website on Nov. 17.

[…]

True the Vote called its effort to reverse the election results Validate the Vote. The plan included filing lawsuits in seven swing states, collecting whistleblower complaints, galvanizing Republican legislative support in key states, and conducting “sophisticated data modeling and statistical analysis to identify potential illegal or fraudulent balloting,” according to Eshelman’s lawsuit.

The money manager said he agreed to support the plan and wired the group $2 million on Nov. 5 and $500,000 a week later after the group’s president told him that more money might be needed to achieve their goals, according to the suit.

When True the Vote failed to provide any reports on its progress and with certification deadlines approaching, Eshelman said it became obvious the group wouldn’t be able to execute the plan he agreed to support. So, he asked for his money back.

True the Vote had offered him $1 million if he would drop any plans for a lawsuit, he said in the complaint.

Hilarious. True the Vote oozed up from the local firmament a decade ago, and were involved in some highly questionable activities that centered around allegations of vote fraud, none of which ever came to pass. Juanita had some experience with them. I had honestly forgotten they were still a thing until I saw the stories of their aborted litigation a few days earlier. The little coda to that story is just delightful. Grifters gonna grift.

So now we start to prep for redistricting

It’s gonna make for a long session, or more likely sessions.

Wielding the map-drawing power will not be entirely painless for Republicans, who have seen their grip on dozens of state and federal districts erode since the last round of redistricting. Though Democrats failed to flip any of their targeted congressional seats in 2020 and fared about as poorly in state House contests, their single-digit defeats in once ruby red districts point to Democrats’ growing advantages in urban and suburban counties, even as Republicans retain an overwhelming advantage in rural Texas.

Republicans, then, will have to decide how aggressive they want to be in redrawing political boundaries to their benefit, balancing the need to fortify their numbers in battleground districts with the opportunity to flip back some of the districts they lost in 2018, when Democrats picked up 12 seats.

“I see this redistricting opportunity for Republicans as more of a defensive play than an offensive play,” said Texas Republican strategist Matt Mackowiak. “This is one of the tough things when you’re engaging in redistricting if you’re the party in power, because you can be sort of allured by the short-term potential to win an extra seat or two. But you can take two steps forward to eventually take three steps back if you’re not thinking about demographic changes over a 10-year period.”

For now, the looming redistricting fight is far from the minds of most state lawmakers. Though the U.S. Census Bureau is supposed to deliver updated population data to states by April 1 next year, the agency suspended field operations for the 2020 Census due to the COVID-19 pandemic and wrapped up the count in October, well after the original July 31 deadline. Bureau officials also sought to push back the deadline for sending data to the states until July 2021, prompting speculation that Texas may not get the census numbers until after the Legislature gavels out in late May.

“If the data is not delivered during the regular session, it creates a whole set of cascading problems that impact the drawing of lines, even down to the county and municipal levels, because everyone is going to be put on an even greater time crunch,” said Eric Opiela, an attorney and former executive director of the Texas Republican Party who has worked on prior redistricting efforts.

During normal times, officials might already be using population data from the Census Bureau’s annual American Community Survey (ACS) to strategize or even draw up preliminary maps. But the pandemic has forced census workers to adopt unconventional survey tactics and generated unprecedented population shifts due to the rise in remote working, factors that make any pre-2020 population data highly unreliable, Opiela said.

“Those (ACS) projections can be used to allow you to do things like work through scenarios before the official data comes, and it’s actually fairly accurate,” Opiela said. “I don’t know that that’s going to be the case this time. I think it’s going to be very important to wait until the official data is received to draw any conclusions as to where Texans live.”

It’s not just the uncertain timeline. Even if the Census data arrived on time, COVID-19 would likely hamper redistricting efforts by forcing lawmakers to prioritize filling the state’s pandemic-inflicted budget gap and perhaps providing economic and medical relief to COVID-19 victims.

“The challenge with redistricting is it’s such a naturally partisan issue that it’s really hard to sort of box half the day and then be ballet dancers the other half of the day,” Mackowiak said. “It’s hard to be bipartisan on other issues but then super, super partisan during redistricting. So, having a special session just related to redistricting after the major issues are taken care of seems to me to be the smartest pathway.”

See here for the most recent news on the Census situation. I think it’s very likely that we don’t get the data in time for the regular session, in which case redistricting will be done in a special session later in the year. Depending on how late that is, and on how long it takes to hammer out maps, and whether any initial court challenges result in temporary restraining orders, we could see the 2022 primaries get pushed back. The filing period begins in mid-November, after all, so there’s a non-zero chance of it being affected by how this plays out.

It’s worth remembering that if the Dems had managed to win the State House, they still would have had limited influence over redistricting. As the story correctly notes, the Legislative Redistricting Board, a five-member panel that would have had only one Democrat (the House Speaker, in this hypothetical), would draw the State House, State Senate, and SBOE maps if the House and Senate had been unable to agree on them. The Congressional maps would go to a federal court, however, and that’s where the Dems might have had some influence. If Republicans didn’t want to take the chance of putting map-drawing power in a third party like that, they might have been open to some compromises on the other maps. We’ll never know now, but that was the basic idea.

As it is, how this goes with Republicans once again in full control will come down to how they answer a few key questions. (For the purposes of this post, I’m focusing on the State House. The issue are mostly similar for Congress and the State Senate, but my examples will come from House elections.) Will they be constrained by established rules like the county line rule, which puts only whole House seats in sufficiently large counties (this is why all Harris County State House seats are entirely within Harris County), or do they change that? How constrained do they feel by the Voting Rights Act, and by other established redistricting precedents – in other words, do they bet big on the courts overturning past rulings so that they can more or less do whatever they want, or do they pull it in so as not to risk losing in court?

Most of all, what do they consider a “safe” seat to be? Look at it this way: In 2012, Republicans won 16 of the 95 seats they took with less than 60% of the vote. Of those, only five were decided by fewer than ten points:

HD43 – Won in 2010 by then-Democrat JM Lozano, who subsequently switched parties.
HD105 – Barely won by the GOP in 2008, by less than 20 votes.
HD107 – Won by a Dem in 2008, it became the first Republican-held seat to flip in this decade, won by Victoria Neave in 2016.
HD114 – Nothing special, it was won by eight points in 2012.
HD134 – The perennial swing district.

Note that four of those five are now Democratic. Other “less than 60%” seats from 2012 now held by Dems include HDs 45, 47, 65, 102, 115, and 136. (*) The point is, that looks like an extremely durable majority, with enough 60%+ seats on their own to ensure a mostly Republican House. And indeed it was for the first three elections of the decade. There will be books written about why all of a sudden it became precarious, but you’d be hard pressed to do a better job than the Republicans did in 2011.

But as noted, things look different now. In 2020, Republicans won 26 of the 87 seats they took with less than 60% of the vote. Of those, seventeen were won by less than ten points:

HD26, HD54, HD64, HD66, HD67, HD92, HD93, HD94, HD96, HD97, HD108, HD112, HD121, HD126, HD132, HD138

We can talk all we want about how things might have gone differently in 2020, but the fact remains that it wouldn’t have taken much to change many of those outcomes. How many Republican incumbents will insist on a 55%+ district for themselves? Whatever assumptions you make about the 2020 electorate and what it means for the future, that’s going to be a tall order in some parts of the state.

This more than anything will drive their decision-making, and may well be the single biggest source of friction on their side. Who is willing to accept a 51% Republican district, and who will have to take one for the team? In 2011, Republicans were coming off an election that they had won by more than 20 points statewide. This year they won at the Presidential level by less than six points, and at the Senate level by less than ten. They have a smaller piece of the pie to cut up. They have full control over how they do it, but the pie isn’t as big as it used to be. What are they going to do about that?

(*) In 2012, Cindy Burkett had no Democratic opponent in HD113, and Gary Elkins was re-elected in HD135 with 60.36% of the vote. Both of those districts are now held by Democrats. Always in motion, the future is.

I remain pessimistic about the chances of good voting bills passing

This Trib story suggests that with Republicans doing well in the high turnout 2020 election, and with the emergency measures that were implemented to expand voting access, the odds of getting a bill passed to make some forms of voting easier are as good as they’ve ever been.

Lawmakers and voting rights groups have been fighting over updates to Texas’ election systems for years, but issues heightened by the coronavirus pandemic have launched a new conversation over voter access.

This January, primarily Democratic lawmakers heading into the next legislative session are honing in on problems like backlogs in processing voter registrations, an unprecedented flood of mail-in ballots and applications that overwhelmed some elections offices, and a lack of viable alternatives to voting in person.

Outnumbered by GOP members in both chambers, Texas Democrats have seen their efforts to expand voter accessibility thwarted at virtually every turn for years.

But the pandemic-era challenges combined with strong Republican performance at the polls — which may have been boosted by record-breaking voter turnout across the state — has some lawmakers and political operatives believing there’s potential for conservatives to warm up to voting legislation that could improve accessibility.

A main reason is that voters of all political camps experienced some of these new ideas when they were introduced during the pandemic — things like drive-thru voting pilot programs, multiple ballot drop-off sites, turning in mail ballots during early voting and extended early voting — or realized that others, like online registration, would have made voting in the pandemic easier.

“My guess is [lawmakers are] going to hear from their Republican voters that they like to do this, and there will start to be Republicans championing these things, and they’re championing them from a majority point of view,” said Trey Grayson, a former Republican Kentucky secretary of state who was previously director of the Institute of Politics at Harvard University. “I would be shocked in five years if Texas didn’t have more of these reforms in place.”

Quinn Carollo Jr. is one of those Republican voters who said he applauded efforts in Texas to make it easier to vote. He was thrilled by Texas’ lengthy early voting period — which had been expanded from two weeks to three weeks because of the pandemic. He moved in recent years from Alabama, which doesn’t have early voting.

“There was plenty of opportunity to get by there and vote without dealing with a lot of lines on Election Day,” said Carollo, a 49-year-old transportation manager for a chemical company in Houston. “So I really enjoyed that. I’m all for it.”

Carollo said he’d like to see the longer voting period become a permanent part of Texas law, along with other reforms that might make voting easier and more accessible.

[…]

Bills already filed include legislation that would allow for online voter registration for those with driver’s licenses or state IDs, on-site voter registration at the polls during early voting and on election day, making election days state holidays, universal mail-in balloting, easing voter ID restrictions and allowing felony probationers and parolees to vote.

The idea of moving registration online is worth considering, given that some 41 other states have already implemented it, said Justin Till, chief of staff and general counsel for Republican state Rep. Greg Bonnen, R-Friendswood, who sponsored the 2019 bill that eliminated mobile polling sites and who has filed election fraud legislation to be considered this session.

“I don’t think it would be a problem if we were to transition. I know a lot of people are still hung up on the IT security part of it, which I get.” Till said. “So long as it’s a sound system, it will work fine and the other states that have implemented it thoughtfully have done so successfully.”

Till said Bonnen’s office would consider measures that could ease or expand access during early voting and eliminate long travel and wait times, such as extending the early voting period to three weeks and allowing counties to keep polling sites open beyond the state required minimum.

“If you can achieve that satisfaction point where everyone gets an opportunity to vote as quickly and as easily as they can, then you’re good,” Till said.

Voting rights advocates say that the experiences of millions of new voters in Texas this year could translate into election changes that are driven by the voters, not politics.

“I think a lot of people that had not been affected by some of the problems in our election systems were affected this time,” said Joaquin Gonzalez, staff attorney for the Texas Civil Rights Project. “So there are probably a lot more legislators who are hearing about it more from all walks of the aisle.”

A new “driving force” behind some legislation will be pressure to address or retain some voting initiatives that were born out of the pandemic, said Derek Ryan, a Republican consultant and voter data analyst in Austin.

These could include increased access to curbside voting, extended early voting periods and expanding countywide voting and online voter registration — the latter of which Ryan said was hit or miss with Republicans and “one of those issues that kind of splits the party.”

Among those that are anticipated but haven’t been filed yet are bills dealing with drive-thru voting, allowing 24-hour polling sites and making permanent a pandemic-era order by GOP Gov. Greg Abbott extending the early voting period to three weeks — all of them ideas that first appeared in some counties during the pandemic, several activists and lawmakers said.

”I think that after any election, we figure out that there are better ways to do things, and so there’s always some election legislation that kind of tries to clean up some of the process, but I think you’re probably going to see that even more so because of the pandemic,” Ryan said.

Maybe, but I’m going to see some hard evidence of this before I buy into the idea. The one place where maybe I can see something happening is with online voter registration, mostly because Republicans made a show of trying to register new voters this cycle, and running into the same problems everyone else who has ever tried to do this has run into, and that was even before the pandemic hit. The fact that there’s a staffer for a Republican legislator talking about it is of interest. I’m willing to believe something may happen here. As for everything else, my counterarguments are as follows:

1. The first bill out of the gate is a bill to restrict county election administrators from sending vote by mail applications to eligible voters, for no particular reason other than Paul Bettencourt’s sniffy disapproval of Chris Hollins doing it. It’s not an auspicious start, is what I’m saying.

2. While Greg Abbott did extend the early voting period and did allow for mail ballots to be dropped off during the early voting period (before then cracking down on where they could be dropped off), all of the prominent innovations like drive-through voting and 24-hour voting and multiple drop boxes were pioneered by local election administrators, most of whom were Democrats, with Chris Hollins in Harris County and Justin Rodriguez in Bexar County being among the leaders. I’d feel like this would be more likely if Abbott and the Lege were ratifying Republican ideas, rather than giving their stamp of approval to Democratic inventions. I admit that’s attributing a level of pettiness to Abbott and the Republicans in the Lege, but if we’re talking about the process being driven by feedback from the voters, I’ll remind you that the chair of the state GOP, several county GOP chairs, activists like Steven Hotze, and more were the plaintiffs in lawsuits that targeted not only the Hollins/Rodriguez-type innovations, but also Abbott orders like the third week of early voting. Plus, you know, the extreme animus that Donald Trump fed into Republican voters about mail ballots and other vote-expanding initiatives. What I’m saying is that while some Republican voters undoubtedly liked these new innovations and would approve of them becoming permanent, the loudest voices over there are dead set against them. We’d be idiots to underestimate that.

3. All of which is a longwinded way of saying, wake me up when Dan Patrick gets on board with any of this. Nothing is going to happen unless he approves of it.

4. Or to put it another way, even if these innovations help Republicans, even if everyone can now say that expanding turnout is just as good for Republicans as it is for Democrats, it’s still the case that making it harder to vote is in the Republican DNA; I’m sure someone will post that decades-old Paul Weyrich quote in the comments, to illustrate. I don’t believe that the experience of one election is going to change all these years of messaging.

5. To put that another way, Republicans might be all right with things that make it easier for them to vote, as long as they don’t make it easier for Democrats to vote. They’re absolutely fine with things that make it harder for Democrats to vote – and by “Democrats” I mostly mean Black voters, as far as they’re concerned – and if those things also make it harder for some of their people to vote, it’s an acceptable price to pay. Making it easier to vote, as a principle, is not who and what they are. I’ll be happy to be proven wrong, but until then I’ll be taking the under.

No Walmart liquor stores

Some non-election litigation news of interest.

Texans still won’t be able to purchase liquor at Walmart, after the U.S. Supreme Court rejected a bid by the retail giant that would have allowed the booze to be sold at stores in the state.

Texas is the only state in the nation that does not allow publicly traded companies, like Walmart Inc., to obtain liquor permits — but they are allowed to sell beer and wine.

Walmart claims the law is discriminatory and has argued that 98% of liquor stores in the state are owned by Texans.

Turned away by the nation’s highest court, Walmart will now have to prove intentional discrimination before a federal trial court.

Lawyers for the Texas Alcoholic Beverage Commission said the law is in place to make liquor less readily available and curb its consumption.

“The law precludes large corporations from using their economies of scale to lower liquor prices and increase the density of liquor outlets in the State. This approach has served Texas well — it has consistently ranked among the States with the lowest per capita liquor consumption,” lawyers for the commission stated.

Not sure I buy the cause-and-effect logic there, but whatever. Walmart, which at the time still had a hyphen in its name, originally sued in 2015 in federal court in Travis County. They got a favorable ruling in 2018, which was remanded back to the district court by the Fifth Circuit (opinion here). Walmart had appealed this ruling to SCOTUS, so the denial means they have to go back to the district court and try again under the tougher guidelines set out by the Fifth Circuit. We’ll see if they proceed, or if they decide it might be faster and cheaper to try to elect a bunch of legislators who will pass a bill to do what they want. I’m no fan of Walmart, but I really don’t see the point of this state regulation. Everything we do with alcohol in this state is weird and anachronistic.

The last whistleblower

Nothing like a fully cleaned house.

Best mugshot ever

The Texas attorney general’s office has fired the last remaining whistleblower who alleged Ken Paxton broke the law in doing favors for a political donor — just days after aides had sued the agency alleging they suffered retaliation for making the report.

Deputy Attorney General for Legal Counsel Ryan Vassar — who had already been placed on paid leave — was fired Nov. 17, according to internal personnel documents obtained by The Texas Tribune, making him the fifth whistleblower to be fired from the agency in less than a month. The three others who reported Paxton to law enforcement have resigned.

On Nov. 12, Vassar and three of his former colleagues filed a whistleblower lawsuit against the Texas attorney general’s office, claiming they had suffered retaliation after they told law enforcement they believed Paxton broke the law by using the agency to serve the interests of a political donor and friend, Nate Paul.

Joseph Knight, Vassar’s attorney in the lawsuit, said the justification Vassar was given for his termination amounted to “made-up, nonsense reasons” — and that he believes the firing was an act of retaliation. Vassar was hired by the agency in 2015.

Neither the attorney general’s office nor Ian Prior, a political spokesman for Paxton, returned requests for comment on why Vassar was terminated, though Prior has said previous terminations were not acts of retaliation but rather related to policy violations.

See here for more on the whistleblowers’ lawsuit. As we know, the FBI is investigating Paxton for the allegations that have been leveled against him regarding Nate Paul. Nothing else new to report here, so just let the anticipation wash over you.

We might get better Census apportionment data

Some good news.

The Census Bureau has identified issues in the data from the 2020 decennial census that will take an additional 20 days or so for it to fix, and thus delay the release of survey’s apportionment data until after President Trump leaves office, TPM has learned.

According to a person inside the Census Bureau, the additional time it will take to reprocess the data in question has pushed back the target date for release of the state population counts until Jan. 26 – Feb. 6.

That would mean President-elect Joe Biden will be in the White House when the Census Bureau delivers to him the numbers for him to transmit to Congress for the purposes of determining how many House seats each state will get for the next decade.

President Trump had been seeking to exclude undocumented immigrants from that count, with a policy that several lower courts have deemed illegal in rulings Trump is hoping the Supreme Court will overturn. Excluding undocumented immigrants from that count would decrease the House seats given to immigrant-rich states like California, and increase the representation for whiter, more Republican parts of the country.

The issues that the Census Bureau has identified in the data are standard for any census, the source told TPM, and it is routine for the Census Bureau to have to do this kind of reprocessing.

Shortly after this story was published, Census Director Steve Dillingham confirmed the “anomalies” in a statement to TPM that made no explicit mention of how fixing them will impact the timeline for releasing the data.

“During post-collection processing, certain processing anomalies have been discovered. These types of processing anomalies have occurred in past censuses. I am directing the Census Bureau to utilize all resources available to resolve this as expeditiously as possible. As it has been all along, our goal remains an accurate and statistically sound Census,” Dillingham said.

I don’t know if that puts an end to the ongoing Census shenanigans, but anything that takes the process out of the Trump administration’s hands is a good thing.

Greg Abbott has no interest in fighting COVID

It is what it is at this point.

On June 26, Texas was reporting 5,102 people had been hospitalized due to the coronavirus, breaking a new record for the state. The positivity rate — the portion of tests that come back positive — had hovered above Gov. Greg Abbott’s “warning flag” level of 10% for more than a week.

Abbott swept into action. For a second time in months, the Republican governor shut down bars and rolled back restaurant capacity. Six days later, he took arguably his most drastic action yet, announcing a statewide mask mandate.

This week, more than 7,400 Texans are hospitalized for COVID-19, and the positivity rate has exceeded 10% for over three weeks.

But the governor’s strategy as the state heads into the holidays is to stay the course, relying on a 2-month-old blueprint to claw back reopenings regionally based on hospitalizations. The mask order remains in place, but last week he ruled out “any more lockdowns,” and tensions are again rising with local officials who want more authority to impose safety restrictions.

“We need the state to step in and lead or get out of the way and let us lead,” Harris County Judge Lina Hidalgo told reporters Tuesday.

Public health experts and elected officials acknowledge they are up against a stronger sense of “COVID fatigue” than ever — a malaise that appears to be reflected in the state response.

“The numbers are quite alarming, to be honest, because it’s not showing any sign of slowing down,” said Rajesh Nandy, associate professor of biostatistics and epidemiology at the University of North Texas Health Science Center. However, Nandy added, “it seems like at this point, there’s not a lot of will, even among people, for a full-scale stay-at-home [order] like [Abbott] did in March because, of course, it has other consequences.”

That much is true, as far as it goes. There are economic consequences for shutdowns. There are also economic consequences for letting the virus rage out of control – restaurants and bars and gyms and so forth may be open now, but lots of people don’t want to go to them because it’s not safe, and no amount of puffy-chested posturing from our Republican leaders will change that. At any time in the past six months, Abbott could have asked one or both of our Republican Senators – publicly or privately – to support another COVID relief bill, so that businesses and their employees that have been affected by COVID could safely shut down and not go bust. You would have to ask him yourself why he hasn’t done that, if he ever deigns to answer questions from the public or the non-sycophantic media again.

I mean, maybe we’ll get some kind of relief package from the lame duck session. Maybe the Dems will win both Georgia Senate runoffs and will have the ability to pass a real relief bill. Maybe enough people will stop doing dangerous things like attending indoor events and going about their lives un-masked, and the infection rate will drop again. Maybe we’ll manage to not die before the vaccines get circulated. Anything can happen, I guess.

Of course, one thing that could happen is that our hospitals get so overwhelmed that the death rate for non-COVID sufferers also spikes:

Since Abbott announced the 15% threshold, it has been the subject of some scrutiny. Abbott initially defined the threshold as 15% of “all hospitalized patients” in a region, though he later changed it to 15% of “total hospital capacity” — or total beds — in a region. That redefinition is problematic, according to hospital administrators in parts of Texas that have seen the most infections.

“They’re assuming that all those licensed beds can somehow be utilized for a COVID-19 surge, and that’s simply not true,” Dr. Brian Weis, chief medical officer at Northwest Texas Healthcare System, said last month during a coronavirus briefing for the city of Amarillo. “By using that number, that overestimates our capacity to handle COVID-19 patients.”

[…]

Exhibit A in the state-local tensions is hard-hit El Paso County. Attorney General Ken Paxton has gone to court to stop the shutdown order that County Judge Ricardo Samaniego issued late last month, saying it oversteps Abbott’s statewide rules. A state appeals court blocked the order for a second time Friday.

Abbott blasted the order shortly after it was issued, saying Samaniego “failed to do his job” enforcing existing rules to slow the spread of the virus “and is now illegally shutting down entire businesses.”

In an interview, Samaniego said the criticism from Abbott felt politically motivated and failed to address the biggest issue El Paso faces — that people are getting sick, being hospitalized and dying at staggering rates. Samaniego said he did everything within his power to limit the spread of the virus. He, like other local officials, wants more authority to take precautions in his county.

“It was about saving lives, not about whether I was right or wrong or he was right or wrong,” he said.

He also noted that El Paso’s share of hospital beds occupied by COVID-19 patients is several times Abbott’s 15% trigger, but it’s still artificially low because the county added 580 spots to its hospital capacity.

“This is a governor that issued a stay at home order,” Samaniego said. “And now he’s upset that I did when my numbers are 10 times worse than when he issued it. It’s just a political approach to our community.”

It’s not just El Paso County, though, where local officials are pushing for more latitude from Abbott. In Lubbock County, where cases have ballooned to more than 400 per day on average in the last week, the county judge, Curtis Parrish, said he is grateful for the state’s help with hospital capacity — the state has provided three large medical tents and personnel to go with them — but that he wants more enforcement power.

“My hands are tied,” Parrish said. “We operate under the governor’s order. We can’t do any detaining.”

In Laredo, the City Council voted Monday to limit private gatherings to 10 people plus household members. City Council member Marte Martinez said he would have liked to do more, such as implement a curfew and beef up enforcement for businesses that violate state rules.

“I felt powerless in my plight to save people’s lives,” said Martinez, a doctor. “You’re going to be in a full shutdown within a few weeks unless the state allows municipal governments and county governments to make more firm action.”

There is especially an urgency in Laredo and its hospital region, where the number of coronavirus patients has exceeded 15% of the capacity for the past three days. That means the state’s reopening rollback will kick in in four days if the figure remains above 15%.

What’s happening in El Paso right now is grotesque and disgraceful. Maybe what happens is that we begin to see death and misery like Italy had in the spring, at such levels and in so many places that even Greg Abbott will not be able to ignore it. I really hope it doesn’t come to that, but I don’t know what short of that will make him take this seriously.

More on the Lathan non-hiring

Some sharp criticism from local leaders about the HISD Board’s decision not to hire interim Superintendent Grenita Lathan permanently.

About 20 of Houston’s leading Black elected officials, clergy and racial justice advocates called Tuesday for Houston ISD’s school board to reverse its vote last week declining to name Interim Superintendent Grenita Lathan as the district’s long-term leader.

In a statement and at a news conference, many of the city’s Black leaders argued Lathan has proven herself worthy of the top job since assuming the position on an interim basis in March 2018. Some officials also questioned whether trustees were motivated in part by race, given that the board’s three Black members supported retaining Lathan while the six non-Black members voted against it.

“For several reasons, we are united in our belief that the decision not to name Dr. Lathan as superintendent of HISD was grossly misguided, and I must add, ill-motivated,” NAACP Houston Branch Vice-President Bishop James Dixon said Tuesday, surrounded by about a dozen Lathan supporters outside the district’s headquarters.

The rebuke of trustees came five days after board members voted to resume the district’s long-dormant superintendent search and forgo removing Lathan’s interim tag. The board majority argued HISD should conduct a national search — with Lathan as a candidate, if she chooses to apply — before selecting a long-term leader.

“We owe it to our students to, at the very least, take a look at the records of other candidates and other superintendents who want to apply to the school district,” HISD Trustee Dani Hernandez said Thursday. “I cannot make this decision for my community and our students without conducting a search.”

The group that convened Tuesday included state Rep. Ron Reynolds, former HISD trustees Rhonda Skillern-Jones and Jolanda Jones and several religious leaders. In addition, U.S. Reps. Sheila Jackson Lee and Al Green, state Sen. Borris Miles, and state Reps. Alma Allen and Harold Dutton Jr. signed a statement in support of Lathan, according to the NAACP Houston Branch.

[…]

Board members were on the brink of naming a superintendent finalist in March 2019, but a state-appointed conservator ordered trustees to stand down. At the time, HISD remained under the threat of a state takeover of the district’s school board.

The Texas Education Agency ultimately moved in November 2019 to replace HISD’s elected trustees, citing a state law triggered by chronically low academic scores at Wheatley High School and multiple instances of trustee misconduct. HISD trustees sued to stop the takeover, and Travis County District Judge Catherine Mauzy issued a temporary injunction in January halting their ouster.

As part of the injunction, Mauzy ordered that the conservator is “prohibited from acting outside her lawful authority.” However, Mauzy did not state clearly whether that applied retroactively to the conservator’s order, leading to questions about whether trustees legally can conduct a superintendent search.

See here and here for the background. I don’t have a whole lot to add to what I’ve already said, but I will say this much: More discussion and engagement about this decision and the process that led to it would be a good idea. A full and honest accounting of the Saavedra situation from last year would help, too. I feel like there’s a lot we don’t know about what’s been happening, and that’s a problem.

Paxton sued by four whistleblowers

Start popping the corn.

Best mugshot ever

Despite his role as the state’s top law enforcement officer, Attorney General Ken Paxton “believes he is above the very law” he is supposed to uphold, several whistleblowers say in a new lawsuit seeking damages after he allegedly retaliated against them.

In the lawsuit filed this week in Austin, four top former Paxton aides recounted some of the extraordinary efforts the attorney general allegedly made on behalf of his friend and campaign donor Nate Paul, an Austin real estate investor — everything from empowering Paul to go after business adversaries to helping him stave off foreclosure.

They say Paxton frequently met with Paul without his security detail present and abused his office to “advance the legal and personal interests” of the Austin businessman. Over time, Paxton “became less rational in his decision making and more unwilling” to listen to criticism of his actions, they said.

[…]

“The most senior members of the [office of the attorney general] believed in good faith that Paxton was breaking the law and abusing his office…,” ” the lawsuit says.

The lawsuit provides more detail about allegations that have been leaking out in press reports since early October, including Paxton’s efforts to hire an outside lawyer to oversee a criminal investigation sought by Paul.

The FBI raided Paul and his businesses last year, and he has complained vociferously that he was treated unfairly and illegally by state and federal law enforcement. Those complaints reached Paxton and eventually led the attorney general to launch a probe — at Paul’s urging.

“Paxton rarely showed an interest in any pending criminal investigations, but he showed an extraordinary interest in the investigations sought by Paul,” the lawsuit alleges.

Among the “perceived adversaries” that Paul wanted the attorney general’s office to investigate: a federal magistrate judge, FBI agents, a federal bankruptcy judge, a local charity and a credit union, according to the lawsuit.

Though criminal investigators concluded “no credible evidence existed” to warrant state charges, Paxton pressed on and eventually hired an outside lawyer to oversee an investigation, which has since collapsed amid the controversy.

The lawsuit doesn’t just give more detail about the accusations that have already been reported. It also provides fresh allegations about Paxton’s abuse of his power to make rulings in disputes over the release of government records — once again to benefit Paul.

Though the attorney general’s office makes rulings in up to 40,000 open records disputes each year, the whistleblowers say they are “only aware of Paxton taking a personal interest in decisions that relate to Paul.”

In one instance involving records that Paul was seeking from the Texas Department of Public Safety, Paxton “personally took the file,” which included records sealed by a federal court, and “did not return it for approximately seven to ten days.”

In other open records cases involving Paul he told his deputies what conclusion he wanted them to reach even if it was unsupported by the law, according to the lawsuit.

Oh, mama. Let’s look at the Trib story for more details.

The whistleblowers are asking for reinstatement, as well as compensation for lost wages, future loss of earnings and damages for emotional pain and suffering. If they succeed, it will be taxpayers, not Paxton himself, who bear the majority of the litigation costs.

Under the Texas Whistleblower Act, any adverse action taken against whistleblowers within 90 days of their report to authorities is “presumed” to be retaliation for that report. The firings, as well as other actions alleged in detailed complaints to the agency’s human resources department, all fit within that three-month time frame.

Paxton has dismissed the whistleblowers as “rogue employees” wielding “false allegations.” But media reports in The Texas Tribune and other outlets, as well as public documents, show four instances when the attorney general’s office intervened in a legal matter in a manner that seemed to help Paul — events that are also detailed in the new lawsuit.

Paul and Paxton are friendly, but the full nature of their relationship remains unclear. Paul donated $25,000 to Paxton’s reelection campaign in 2018. Paul said in a court deposition last week that they have known each other for years, and sometimes had lunch together. Asked whether they were friends, Paul said “I consider the relationship, you know, positive.”

[…]

But for the whistleblowers, the most troubling example came this fall, when Paxton hired a 34-year-old Houston defense attorney, Brandon Cammack, to vet complaints made by Paul that he had been mistreated during the 2019 raid on his home and office.

Maxwell and Penley had been tapped to look into Paul’s complaints given their leading roles in law enforcement and criminal justice. But they had found, according to the lawsuit, “no credible evidence existed to support any state law charges.”

When Penley said he believed the investigation should be closed, Paul, his attorney and Paxton all “pushed back.”

Paxton soon turned to an outside investigator, Cammack, to vet Paul’s complaints against authorities, hiring the young lawyer through a process his top aides characterized as unusual and improper.

The office also considered hiring Joe Brown, a former U.S. attorney in the Eastern District of Texas and onetime Grayson County district attorney — experience, legal experts say, that would have better positioned him for the position. Brown told The Texas Tribune he interviewed for the job in late August but eventually negotiations stalled.

Emails Brown sent the agency show he was concerned about allowing the attorney general’s office — or Paxton himself — to direct a probe that would ultimately lead to prosecution. One of the authorities Paul targeted in his complaint was the Texas State Securities Board, which in 2014 fined Paxton $1,000 for violating the Texas Securities Act, a law he was later indicted for violating.

“While I will fully investigate the circumstances related to the referral received, and provide a report related to any potential criminal charges, I am not committing to handling the prosecution of any resulting case,” Brown said in an email to the agency.

But he added that he might be willing to take on such a prosecution “after any ethical conflicts which could arise have been fully considered.”

Ultimately, the agency opted to hire the less experienced Cammack — Paxton’s decision, according to the lawsuit.

The four plaintiffs are David Maxwell, Mark Penley, Blake Brickman, and Ryan Vassar. I wonder if the other whistleblowers have their own legal action planned, or will just be witnesses in this one.

Reading these stories crystallized something for me that I hadn’t consciously considered before, which is why would Ken Paxton do all this stuff for one asshole like Nate Paul? Not to be too crude about it, but a $25K campaign contribution only buys you so much. There’s plenty of that kind of money out there for Paxton, so why would he (allegedly) do all of this crazy and maybe illegal stuff for that guy? There has to be more in it for him than that. All of these stories note that the “full nature of the relationship between Paxton and Paul is unclear”, and that just has to be the key to cracking this. There is something else we don’t know, maybe more than one something else, and until we find out what that is, we are not going to understand this story. Maybe this lawsuit will be the fulcrum that helps unearth whatever that is.

HISD Board declines to hire Lathan permanently

A national search will be conducted, with still-interim Superintendent Grenita Lathan encouraged to apply.

Houston ISD trustees voted Thursday against committing to Interim Superintendent Grenita Lathan as the district’s long-term leader, opting instead to launch a national search before filling the position.

In a 6-3 vote, trustees generally complimented Lathan’s lengthy tenure as interim, but ultimately concluded the district needs a deeper search for a permanent chief. Some trustees encouraged Lathan to apply for the job during the search, though it is not immediately clear whether she will.

“As the largest school district in Texas and the seventh-largest in the United States, it is of the utmost importance that we think about candidates for the permanent superintendent position by going through a transparent and thorough search process,” HISD Trustee Holly Maria Flynn Vilaseca said.

“We owe it to our students, our community, our constituents and the taxpayers to do our due diligence.”

HISD trustees Judith Cruz, Sue Deigaard, Dani Hernandez, Elizabeth Santos and Anne Sung joined Flynn Vilaseca in voting to start the search. Lathan did not address the outcome during Thursday’s meeting or immediately respond to a request for comment through the district.

[…]

Lathan enjoyed strong backing from many other HISD administrators, with about 45 of them lauding her leadership amid district instability and the novel coronavirus pandemic.

“This period now has been, by far, one of the most difficult I have seen during my tenure,” said Moreno Elementary School Principal Adriana Abarca-Castro, who has led the campus for 31 years. “I have witnessed how our superintendent, Dr. Lathan, has led us courageously, positively and (been) supportive in every way.”

Many of the city’s Black civic leaders also rallied to support Lathan, with U.S. Rep. Sheila Jackson Lee and state Reps. Alma Allen and Senfronia Thompson endorsing her Thursday. Lathan would have become the district’s first Black woman to lead the district if chosen.

However, Lathan’s tenure coincided with scathing state reports documenting extensive operational and special education issues in the district. One of HISD’s longest-struggling campuses, Wheatley High School, also received its seventh straight failing grade in 2019, triggering a state law that resulted in Education Commissioner Mike Morath moving to replace the district’s elected school board.

Some trustees argued HISD should not lock in a superintendent while they continue to fight in court to stop their ouster. The board’s lawsuit against the state is pending before the Texas Supreme Court.

“The TEA lawsuit has huge implications for our choice,” HISD Trustee Elizabeth Santos said.

HISD trustees did not outline a plan Thursday for conducting their search, though questions remain about whether they can legally engage in the process.

See here for the background. This whole thing is a mess. The best argument for doing the national search is that this is the way we have always searched for Superintendents. Under normal circumstances, the HISD Super job is a plum – we’re a big district, we’re in good fiscal shape, we’ve got a lot of good schools, and yet there are some real challenges on which someone with vision can make a difference. We get good applicants, and just the process of reviewing and interviewing them can provide some new perspective on HISD and its mission.

Of course, these are not normal circumstances. Putting aside the current disfunction with the Board, the looming state takeover would be a pretty serious drawback for any potential applicant, and that’s before you take into account the fact that the eventual appointed board of managers might move to vacate your contract. Plus, the fact that you’d be competing against a now-multi-year interim Super for the job might be an impediment. I don’t even know how to factor in the whole Abe Saavedra fiasco, other than as another example of what a circus it has been around here. The clear downside risk of not making Grenita Lathan permanent, even on a shorter-than-usual contract, is that she might just decide that she’s had it with this bullshit and leave, and now we don’t have any Superintendent at a time when that would be really bad. I don’t feel strongly one way or the other about Lathan, but it is fair to say she has not been treated well by the Board, even with two of the instigators of the Saavedra mess being defeated in the 2019 election. I don’t know where we go from here.