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SCOTx allows provisional votes to be counted

Good.

The Texas Supreme Court ruled Tuesday that Harris County can include about 2,100 ballots cast during an extra hour of Election Day voting when officials certify the midterm results. But the state’s highest civil court also ordered Harris County to determine whether those late-cast ballots would affect the outcome of any races — and kept alive Attorney General Ken Paxton’s challenge to counting them.

It’s a win, at least temporarily, for Harris County officials in a fight against Paxton’s attempt to discard thousands of midterm ballots as election results are set to be certified Tuesday.

In an interview Tuesday, Harris County Attorney Christian D. Menefee said that about 2,100 provisional ballots cast after 7 p.m. Election Day should be counted. Those ballots were cast after a district court judge ordered Harris County polling places to remain open an extra hour because many locations had opened late that morning.

“The votes that were cast during that time period pursuant to a court order are still perfectly legal. And there’s nothing in the law that prohibits them from being counted,” Menefee said. “So our perspective is that those provisional ballots are no different than any other provisional ballots — they are to be counted.”

Harris County officials argued as much in a filing to the Texas Supreme Court on Tuesday. That came one day after Paxton petitioned the Supreme Court to toss the late-cast ballots.

[…]

In at least one race, the provisional ballots could impact the outcome. After provisional and mail-in ballots were counted, the incumbent for Harris County’s 180th Criminal State District Court, DaSean Jones, went from trailing Republican Tami Pierce to leading by less than 500 votes, the Houston Chronicle reported.

See here for the background and here for the court’s order. It’s just one page long, and the gist of it is this:

In this mandamus proceeding, which challenges Harris County election officials’ processing of the “later cast votes,” we grant the following temporary relief under Rule of Appellate Procedure 52.10(b):

  • Respondents are directed to conduct the canvass of the November 2022 election as required by the Election Code.
  • As part of the canvass, respondents are ordered to separately identify in the vote tabulations the number of “later cast votes” for each candidate in each race and for or against each proposition, so that candidates, the parties, and this Court may ascertain whether the “later cast votes” would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.
  • Respondents are ordered to provide the Court with a copy of the canvass results, including the separately tabulated “later cast votes,” as soon as they are available.

The petition for writ of mandamus remains pending before this Court.

I presume that last line is there in the event the provisional ballots have an effect on the 180th Criminal District Court race, in which event (again, I presume) the merits of the arguments will have to be addressed. Lawyers, please feel free to correct me as needed. The only other race that is close enough to be even theoretically affected by the provisional ballots is the County Criminal Court #3 race, where Porsha Brown trails by the even smaller margin of 267 votes. However, given that the provisional votes cast on Election Day favored Democrats, it’s even less likely for that race to be affected, and it would be impossible for both of them to be in a position to change.

I maintain as I said yesterday that it is highly unlikely that the 180th Court will be affected. If you throw out all of the Election Day provisional ballots, DaSean Jones still leads by 89 votes. There are apparently 2,100 provisional Election Day ballots in question, out of 2,555 total E-Day provisionals and 2,420 that included a vote in this race. The odds that Jones could lose the entire 360 vote net he got from the E-Day provisionals plus another 90 votes in this subset of the total ballots just strike me as extremely remote. I wish the stories that have been published about this would go into more detail about this as I have done – yes, I know, math is hard, but you could at least use “highly unlikely” language to offer some context. By the time this runs in the morning we’ll know what the official canvass says, and from there we’ll see if an election challenge will follow.

The Chron story, from a bit later in the day, has more details.

While the provisional ballots are included in the official count certified by Commissioners Court, the Supreme Court also is ordering the county to include in the final canvassed results a separate report that details the votes of the “later cast votes for each candidate in each race.” That way, candidates can determine whether this group of ballots would change the outcome of their race and “assess the extent to which further litigation is warranted.”

Given that Harris County voters cast more than 1.1 million ballots overall, the 2,000 provisional ballots have little chance of changing most election outcomes. However, a handful of candidates in tight races may consider legal challenges over election results.

“At this point, we do not anticipate that it impacts the outcome of any races,” Harris County First Assistant County Attorney Jonathan Fombonne said. “Of course the [Texas Supreme Court] proceedings remain pending and the court could rule on something. And of course there can always be election contests. Many of those races were close, and it wouldn’t surprise us to see candidates filing election contests.”

[…]

On Election Night, the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas obtained a court order from a judge requiring all Harris County polling locations to extend voting hours until 8 p.m. after the groups argued in a lawsuit that late openings at some polling locations prevented some residents from voting.

Voters who were in line by 7 p.m. were able to vote normally, while those who arrived between 7 and 8 p.m. were allowed to cast provisional ballots.

That evening, in quick succession, Paxton’s office filed its writ of mandamus asking the Texas Supreme Court to vacate or reverse the court order, and the Supreme Court responded by staying that order, saying votes cast after 7 p.m. “should be segregated,” without specifying whether they must be excluded from the final count.

Because the proceedings are still ongoing, it is too soon to know whether the ability to extend voting hours in the future could be impacted.

“The court hasn’t specified whether or not that’s legal,” Fombonne said. “The proceedings are pending. There may be an opinion in the future that addresses that question.”

Hani Mirza, legal director of the Texas Civil Rights Project’s voting rights program, was part of the team that sought the court order extending voting hours this year. The group also filed a lawsuit in 2018 obtaining a similar court order in Harris County. Mirza said in the case four years ago, Paxton’s office did not ask the Texas Supreme Court to intervene.

Nor did Paxton’s office intervene this year when voting hours were also extended by one hour in Bell County because of early morning glitches with check-in systems. The Bell County attorney confirmed last week that a court order there had not been challenged by the Attorney General’s Office or another party.

“It doesn’t make any sense outside of, obviously, cynical partisanship and these targeted actions against Harris County, the most diverse county in the state” Mirza said.

That sort of addresses my question above about the last line in the SCOTx order. We’ll just have to keep an eye on that. The election has been certified by Commissioners Court, which if nothing else avoids the drama of any further delays. As to who might file a contest, again we’ll have to see. Seems like a lot of fuss for something that is unlikely to go anywhere, but who knows.

Forced birther lawsuit targets abortion pills

Did you think you were going to have a nice, peaceful Thanksgiving week? Sorry, no can do.

Abortion opponents who helped challenge Roe v. Wade filed a lawsuit Friday that takes aim at medication abortions, asking a federal judge in Texas to undo decades-old approval of the drugs that have become the preferred method of ending pregnancy in the U.S.

Even before the Supreme Court struck down the constitutional right to an abortion earlier this year, the use of abortion pills had been increasing in the U.S. and demand is expected to grow as more states seek abortion limits.

The lawsuit was filed by the Alliance for Defending Freedom, which was also involved in the Mississippi case that led to Roe v. Wade being overturned. The lawsuit argues the U.S. Food and Drug Administration erred in approving the drugs mifepristone and misoprostol and overstepped its authority in doing so.

Reached for comment, the FDA said it does not comment on pending or ongoing litigation.

The lawsuit was filed in federal court in Amarillo, Texas. The state banned abortion after the Roe decision and is among the states where GOP lawmakers have banned mail delivery of the pills.

The number of medication abortions has increased since regulators started allowing them and now account for roughly 40% of U.S. abortions. The medication can cost as little as $110 to get by mail, compared with at least $300 for a surgical abortion. Research has shown the pills are safe.

However, people seeking abortion pills often must navigate differing state laws, including bans on delivery of the drugs and on telemedicine consultations to discuss the medication with a health care provider. And until Democrat Joe Biden became president, U.S. government policy banned mail delivery nationwide.

Axios has a copy of the lawsuit. And before you ask the answer is yes, of course this is about sheer opportunism, not anything resembling facts.

Medication abortion accounts for more than half of abortions in the U.S. In response to the pandemic, the FDA allowed abortion pills to be mailed, which contributed to a significant jump in its use. For decades now, it has been used safely and effectively up to 10 weeks of pregnancy. It has been extensively researched for decades, and has proven safe, effective, and convenient for doctors and patients alike.

There is absolutely no scientific or medical basis for the assertions in this case. It is “an incredibly safe medication,” Loren Colson, a family medicine physician in Idaho and fellow with Physicians for Reproductive Health, told The Washington Post. “It’s been well-studied and much safer than a lot of things you can find over the counter,” Colson said. “If they are trying to argue the safety, they have very little ground to stand on. It’s just a clear and blatant attack on abortion.”

One legal expert who has written extensively about the pill calls the safety claims in the suit “ridiculous.” Greer Donley, associate professor of law at the University of Pittsburgh School of Law, said, “Mifepristone is one of the safest drugs on the market, safer than Viagra and penicillin,” citing the decades of research: “We have a lot of studies and a lot of data on it.” This case, she said, is “really weak.”

Which is why the group chose Texas, where they could find a friendly federal district judge. They did. The case is going to Trump appointee Matthew Kacsmaryk, one of the young extremists the Federalist Society handpicked. He is vehemently anti-LGBTQ and misogynistic, and so extreme in his anti-LGBTQ writings that Sen. Susan Collins, a Republican, voted against him.

His hostility to abortion is no secret. He has described Roe v. Wade as wrongly decided. “On January 22, 1973, seven justices of the Supreme Court found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye.”

It’s a junk case with no basis in science or medical research. But we’ve been here before with junk cases, this federal court district, and the 5th Circuit in which it operates. Kacsmaryk will rule for the plaintiffs and possibly even try to put a national injunction on the use of medication abortion. The administration will appeal and it will go to the abortion-hostile 5th Circuit, from where it will be fast-tracked to the Supreme Court.

So yeah, this is bad, not because of the law or anything like that but because of numbers and court-shopping. I don’t know how long it will take to get to a hearing and then to a preliminary ruling, but it’s out there. Be prepared for it. Bloomberg Law and Kaiser Health News have more.

Paxton sues to prevent some provisional votes from being counted

On brand. Always, always on brand.

Best mugshot ever

The Texas Attorney General’s office is attempting a last-minute intervention to toss out 2,000 provisional ballots before a Harris County Commissioners Court meeting Tuesday to certify the November election.

The ballots in question were cast during a one-hour period on Nov. 8.

“Although the ballots were processed, Harris County now intends to include them in the final vote canvass,” Christopher Hilton, chief of the Attorney General’s office general litigation division said Monday. “We have never agreed that these ballots can be part of the final election results, and this afternoon we’re going to ask that the Texas Supreme Court rule that these late-cast votes should be excluded as Texas law requires.”

The petition was filed Monday afternoon. Hilton declined to comment on why the office did not ask for the ruling sooner.

“A court of law ordered Harris County to keep the polls to open for an additional hour on Election Day and people across our county cast their ballots during that time,” Harris County Attorney Christian Menefee said in a statement. “My office is going to do everything we can to protect every single vote that was cast. Republican, Democrat, or Independent — no eligible voter should have their ballot thrown out because the Attorney General can’t accept the results of Harris County elections.”

[…]

According to emails shared with Chronicle, parties including the Texas Attorney General’s office, Harris County Attorney’s office, Texas Civil Rights Project, Harris County Republican Party and Harris County Democratic Party all signed off an agreement on Nov. 11 for processing the provisional ballots.

First Assistant County Attorney Jonathan Fombonne wrote the Harris County Attorney’s office was approving the agreement “based on the understanding that the Texas Supreme Court’s order does not prohibit the tabulating of those votes as long as the ballots themselves remain segregated.”

Kimberly Gdula, deputy chief of the Attorney General’s office general litigation division, signed off on the agreement in an email: “The State is good with this.”

However, Sunday evening, two days before the commissioner’s court meeting to certify the election results, Hilton, the chief of the Attorney General’s office general litigation division, sent an email to the parties questioning the legal basis for including the provisional ballots cast after 7 p,m. in the final count and seeking clarification “so that the parties can pursue any legal remedies, if necessary.”

In a statement Monday, Harris County Attorney’s office spokesperson Roxanne Werner said: “Representatives from the Attorney General’s office and the Harris County Republican Party asked for the language describing that process to be removed from the agreed order, leaving Harris County to process and count the late ballots as they would other provisional ballots while ensuring they were kept segregated. All parties were put on notice that the votes would be counted.”

“This 11th-hour ask to throw those votes away should not be tolerated, especially considering the State rejected the County’s offer to hold off on counting these votes while it sought clarification from the Supreme Court,” Werner added.

See here and here for some background about the litigation that allowed polling locations to remain open until 8 PM. As the story notes, Bell County had similar issues with some polling locations and also got a court order allowing locations to remain open until 8 PM, which the AG’s office has not opposed. The main takeaway here is that not only can you not trust anything Paxton says, you also can’t trust anything his office says, even if they sign their names to it. No wonder he’s having a hard time retaining staff.

As a reminder, and as you can see from the report released by the Elections Office on the 18th, DaSean Jones netted 360 votes from the provisional ballots cast on Election Day. However, he is leading by 449 votes, so if you threw out all of the E-Day provisionals, he would still be ahead by 89 votes in his race. He had already overcome the 165-vote deficit he had in earlier reports thanks to the counting of cured mail ballots, which had gained him 259 votes.

It’s actually not clear from the story how many ballots we’re talking about. The story refers to “2,000 provisional ballots”. I can’t tell if this is just using a round number because exact figures are confusing or if this is the exact figure. There were 2,555 provisional ballots cast on Election Day, of which 2,420 included a vote in the DaSean Jones – Tami Pierce race. I guess it’s theoretically possible that of the provisional E-Day ballots that were specifically cast by people who got in line after 7 PM (because if you were already in line you were always allowed to vote), Jones had a net advantage of at least 450 over Pierce. To say the least, that would be an extraordinary circumstance. (*)

I point this out to say that barring something truly weird, Paxton’s bad faith filing will not – can not – have any effect on any race. That doesn’t change the fact that his filing is trash and should be rejected by SCOTx on the grounds that these people deserve to have their votes counted. The remedy for having to vote late because of voting location problems is to extend voting hours to accommodate those that were affected. Just like what happened in Bell County (won by Greg Abbott 59.04% to 39.52%, in case you were curious), which the AG has accepted as fact. I for one don’t see any difference between the two.

(*) I did search on the Supreme Court webpage for Paxton’s mandamus filing, which might have been more specific and thus answered my questions. Looking on the Electronic Filings search, I think this case is number 22-1044. However, the hyperlink for that case didn’t work when I tried it, and searching for the case via that number returned no results. If you can do better than I did, or if the webpage eventually fixes itself, let me know.

UPDATE: The Trib story also references “2,000 ballots”, which does not help clear up my confusion. They also refer to the overall total of about 4,000 provisional ballots – the actual overall total is 4,333, of which 1,778 were cast early and are clearly not at issue. So, until I hear otherwise, it is my contention that these provisional ballots are not enough to alter any race’s result, and also that this doesn’t matter because all of the ballots should be counted. We’ll see what the Court says.

Collin County DA denies sexual harassment allegations

Pretty damn forcefully, but also in a way that’s kind of telling.

Greg Willis

Collin County District Attorney Greg Willis repeatedly called accusations of sexual harassment and retaliation against him “false, defamatory and outrageous” at a news conference Wednesday, where he presented “extraordinary evidence” he says debunks allegations in a federal lawsuit filed last month.

Willis — flanked by about three dozen supporters, including his wife, State District Judge Jill Willis, and prosecutors inside the McKinney courthouse — played an audio recording and displayed notes written by the six current and ex-employees suing the DA. He said he had been “unfairly attacked” in the 75-page lawsuit.

“We have spent our entire professional lives fighting for the rule of law, and the rule of law is what holds our society together,” Willis said, speaking of himself and his wife. “Fair, equal and unbiased justice must always prevail, and in our roles we have the duty to seek justice at all times. The truth matters.”

The suit says Willis inappropriately touched and propositioned female employees. It also alleges that Willis’ top prosecutor, First Assistant District Attorney Bill Wirskye, fostered a toxic workplace and that county officials were complicit in covering up the systemic misconduct.

The office’s chief and deputy chief investigators, as well three former employees and a current prosecutor, lodged the accusations against the county’s two highest-ranking prosecutors, County Judge Chris Hill and commissioners Susan Fletcher, Darrell Hale, Duncan Webb and Cheryl Williams. The lawsuit seeks unspecified damages.

Willis’ attorney, Rogge Dunn, said in a prepared statement that Willis “revealed only a small sampling of the compelling mountain of evidence proving the plaintiffs’ claims are false and completely trumped up.”

He added: “In 35 years of handling employment lawsuits, this is one of the most frivolous lawsuits I’ve ever seen.”

Jeffrey Simon, a lawyer for the plaintiffs, said in a prepared statement that the employees “greatly feared [Willis’] rage and retaliation” if they defied him.

“Efforts by Mr. Willis to characterize those acknowledgments as proof of his innocence are consistent with the allegations that he remains consumed with trying to cover his tracks in the event he’s exposed,” the statement said.

[…]

One of the former employees, Fallon LaFleur, alleges Willis gave her a “full-frontal hug” as she left the district attorney’s office following her exit interview. LaFleur worked as a prosecutor from 2019 to 2021, according to the lawsuit. She resigned from the office, the lawsuit says.

The lawsuit says Willis hugged her “while her arms were stiff beside her body” and “he rubbed her lower back with his hands and pressed her breasts against him.”

In an audio recording of the exit interview, a woman Willis said is LaFleur can be heard saying, “Can I give you a hug?” and, “You are so wonderful! Thank you so much! And I will see you around.” Willis described her tone during this interaction as “animated” and cheerful.

“The truth is now clear for all to see what she said in this lawsuit did not happen,” Willis said. “It is a lie. It is false.”

It is unclear why Willis recorded the exit interview.

According to the lawsuit, LaFleur attempted suicide because of the “severe and pervasive discriminatory workplace.” Later, Wirskye was overheard calling LaFleur “crazy” and insinuating LaFleur attempted suicide to get out of a trial, the lawsuit says. LaFleur has since been diagnosed with post-traumatic stress disorder, according to the lawsuit.

Simon, the plaintiffs’ lawyer, said recording their conversation may have violated the Collin County employee handbook, which “expressly prohibits the recording or taping of conversations” inside the DA’s office or county offices.

“The fact that Mr. Willis appears to have tried to secretly set her up in the event she later exposed his behavior is again entirely consistent with the conduct alleged against him,” Simon said in his statement.

See here for the background. KERA dug into the code of conduct matter.

KERA obtained a section of a 2006 Collin County handbook, which says employees are “not allowed to film, record or tape in any format, a conversation or activity taking place on county property or where county business is being performed, unless you inform and obtain the consent of all parties to the conversation or activity.”

On Wednesday, Willis released portions of a May 2021 exit interview with Fallon LaFleur, one of his former subordinates. Willis had called a press conference to dispute allegations of sexual harassment against him that were detailed in a federal lawsuit. LaFleur had worked as a misdemeanor prosecutor.

LaFleur’s attorney, Jeffrey Simon, said she didn’t know Willis was recording the conversation. Simon said the fact Willis recorded LaFleur’s exit interview without her consent or knowledge is suspicious.

“What kind of workplace is one running that a boss feels compelled to secretly record their employees? Did Mr. Willis foresee that one day he and a toxic workplace that our clients alleged to exist would be exposed?” he said.

The handbook also says the rules about recording apply “even if you yourself are taking part in the conversation or activity.” Simon said Willis didn’t reveal to LaFleur at any point in their conversation that he was recording.

“What if in the interview he added to at least one or all of those comments of fawning praise and personal assurance, I’ve been secretly recording you?” he said.

I presume that if he did inform LaFleur about the recording, that would be on the recording as well. Recording the exit interview, when that’s against the county’s code of conduct, sure seems sketchy to me. It can’t be policy to do that, since that policy would (presumably, at least) be in violation of the code, and if it was done as a one-off you have to wonder why, as attorney Simon does. Let’s just say that I look forward to the court hearings, when people will be speaking under oath. KERA and the Dallas Observer have more.

UPDATE: OMFG.

Collin County District Attorney Greg Willis this week argued a snippet of a recorded conversation cast doubt on allegations of sexual harassment and retaliation against him by current and former employees.

But the entire 20-minute conversation with then-prosecutor Fallon LaFleur shows she told Willis in spring 2021 she was sexually harassed during the nearly three years she worked for him.

Willis posted the recorded interview and a transcript to his new website, collincountytruthfiles.com, but played only 11 seconds at a news conference Wednesday when he challenged the accusations.

[…]

“I worry there is a lot you don’t know,” LaFleur said timidly to Willis, about three-fourths of the way into the exit interview.

“I’m aware that there is a lot I don’t know,” Willis said. “The person at the top usually knows the least.”

LaFleur then described comments by First District Attorney Bill Wirskye: “I’ve personally been called a whore in a whorehouse.”

“It felt mean. It felt like sexual harassment,” she said.

In the clip Willis played at the news conference, LaFleur asks the DA for a hug. In the lawsuit LaFleur alleges Willis gave her a “full-frontal hug” while her arms were stiff beside her body. Willis rubbed her lower back and pressed her breasts against him, according to the lawsuit.

This interaction was the only accusation of inappropriate physical contact LaFleur lodged against Willis in the lawsuit. Several other women made similar allegations of unwanted massages, moaning as he touched them and unwanted sexual advances.

Willis, who would not answer questions Wednesday after his news conference, did not acknowledge the rest of the recording. His spokeswoman said she would ask Willis and his attorney questions from The Dallas Morning News on Thursday. But she didn’t follow up with answers to why Willis didn’t discuss it, why the full recording and transcript were posted to the website, and if Willis recorded other conversations with Willis recorded other conversations with employees.

Wirskye did not attend the news conference or respond this week to requests for comment. He previously called the allegations “politically motivated and politically timed” and made “by some very disgruntled and very troubled individuals.”

Jeffrey Simon, a lawyer for the former and current employees, said in an interview the audio “clearly corroborates paragraph after paragraph of allegations” LaFleur made in the paragraph of allegations” LaFleur made in the court filing.

“It’s astonishing to me, to us, that [Willis] thought that by virtue of the 11 seconds that he played that somehow disproved the importance of the 20 minutes of audio,” Simon said.

“If Mr. Willis believes that at his grandstanding … hurts Ms. LaFleur’s case, he is mistaken. He’s helping to prove it.”

That sound you heard was my jaw hitting the floor. There’s more to the story, none of which sounds good for Ken Paxton’s buddy Greg Willis. Like I said, I can’t wait for this to get a hearing.

Commissioner-elect Briones

Good story.

Lesley Briones

Yes, Lesley Briones secured a victory that handed Democrats a stall-proof majority on Harris County Commissioners Court.

And yes, she upset Republican Commissioner Jack Cagle in a precinct where he has won reelection every cycle since 2011, beating the incumbent by about 3 points when polling in the week before the election marked Cagle with a firm lead in the race.

It’s also true that Briones’ election to office marks the first instance in its 145-year history that two women have served on Harris County Commissioners Court at the same time. It should also be noted that her presence adds a third representative with Latin American heritage to the five-member body in a county where Latinos make up the largest racial demographic group and have been growing every year since 2010.

But Briones maintains that the circumstances and implications surrounding her victory will not color her decisions as she prepares to assume her role as Harris County’s newly elected Precinct 4 Commissioner. A former Harris County Civil Court Judge who graduated from Harvard and went to law school at Yale, told Chron that she plans to approach her role as commissioner “just the way I did in court.”

“In my court, I wear a black robe, not a blue robe, not a red robe or any other color. And I listen to both sides of a case, or all sides if there are multiple parties. And I listened to the evidence and made my rulings in the fairest way possible,” Briones said.

“I am a proud lifelong Democrat, but it’s beyond partisanship,” said Briones. “It’s about being Americans, being Houstonians, being Texans. It’s about fixing potholes, improving parks, maintaining ditches. It’s about making sure we have the number of law enforcement officers we have,” she added.

Looking back at her and Democratic Judge Lina Hidalgo’s re-election victories, Briones said that “when people box themselves into corners, if it’s hyperpartisanship or polarization or however you want to frame it, it wasn’t serving people, and things weren’t getting done.”

First, that was the same poll that had claimed Judge Hidalgo was losing in her race; it underestimated her support by six points. To be fair, that poll showed a lot of undecided voters and noted that they came primarily from demographics that would favor Democrats. I’m just noting this all for the record, so we can examine the polls of 2024 more carefully.

I like the subtlety with which Commissioner-elect Briones calls out her vanquished opponent for his quorum busting – there’s more later in the story – which she had taken the opportunity to attack as it was happening in the latter stages of the campaign. I have no idea if this had an effect on the outcome – we don’t have any data on that – but as the victor one gets to write the narrative. Seems like a pretty good way to start telling the story of her tenure.

Finally, given that we will be talking a lot about Latino representation on Houston City Council in the coming year, not to mention the promised lawsuit to get rid of the At Large Council seats, it’s worthwhile to compare Harris County to Houston and note the disparity in their governing bodies. I will note that County Commissioner races are a lot more expensive than At Large City Council races, and that Briones won in a district that was not specifically drawn to elect a Latino. She had to defeat a diverse slate of opponents in her primary to get onto the November ballot. To be sure, she’s running in a partisan race, which can be (but isn’t necessarily) a boost to one’s fundraising prospects. She’s also running in an even-numbered year, which as we’ve discussed before in the City Council context means much higher turnout and thus a more diverse electorate than our odd-year municipal elections. If we had city elections in even-numbered years, we would almost certainly have a different-looking City Council. There are good reasons to not want to have those elections in even years, I’m just saying it’s another option, and something to keep in mind as we have this longer conversation in 2023. Campos has more.

If Greg Abbott demands an investigation, Greg Abbott will get an investigation

This is all still so dumb.

Harris County District Attorney Kim Ogg is launching an investigation into “alleged irregularities” during last week’s election after receiving a referral from the Texas Secretary of State’s office.

Ogg sent a letter to Texas Department of Public Safety Director Steven McCraw asking for the Texas Rangers’ assistance on Monday, the same day Gov. Greg Abbott called for an investigation and the Harris County Republican Party filed a lawsuit accusing Elections Administrator Cliff Tatum and the county of numerous violations of the Texas Election Code.

The allegations include paper shortages at 23 polling locations, releasing early voting results before polls closed at 8 p.m., the improper disposition of damaged ballots and inadequate instructions on how poll workers were to manage instances in which the two-page ballots were not completely or adequately scanned into machines.

Under Harris County’s countywide voting system, residents had 782 locations to cast their ballots on Election Day. The paper shortages affected a small number of polling places.

The GOP lawsuit, however, claims “countless” voters were turned away due to the paper shortages and did not go to a second location to vote.

See here for the background. Ogg, who was not exactly an asset to Democrats in this election, has taken some heat for this. I get that and I’m not here to defend any of her recent actions, but I’m not exercised about this. There was going to be an investigation of some kind once Abbott threw his tantrum, and given that it can’t be Ken Paxton unless he’s invited in, it may as well be the local DA. Having the Texas Rangers assist makes sense in that it’s best to have outside help for an internal political matter. If this turns out to be much ado about nothing, as I believe it is, then let the Rangers take the blame from the Republicans for not finding anything. I am not going to waste my energy sweating about this at this time.

In the meantime:

Harris County Elections Administrator Cliff Tatum, speaking at length publicly for the first time since Election Day, pledged a complete assessment of voting issues Tuesday but said the county is in “dire need” of improvements to the way it conducts elections.

“A full assessment is in order,” Tatum told Harris County Commissioners Court on Tuesday. “We have started that assessment, but I’d like to remind you and the public we are still counting votes.”

He said his office still was working its way through about 2,100 provisional ballots cast after 7 p.m. last Tuesday. A state district judge ordered the county to keep the polls open until 8 p.m. because some voting locations failed to open on time. Those provisional ballots are being kept separate from the unofficial count, pending a court ruling on the validity of those votes.

The deadline for the county to canvass the vote is Nov. 22.

[…]

Tatum told Commissioners Court his staff is contacting each election judge to gather feedback and assess challenges they faced, including any technical difficulties and the response they received.

At least one polling place had a late opening and certain locations ran out of paper, Tatum confirmed.

Tatum took over the job in August, just two months before early voting in the November election began. So far, he noted the county is in “dire need” of some critically needed improvements, including a better communication system, more maintenance and operations personnel and a tracking system for monitoring requests from the election workers running polling locations.

Tatum said he has spoken with election judges who requested technical help and did not receive it.

“Because I can’t track that technician within the system that I have, I can’t tell you what happened,” Tatum said.

I dunno, maybe wait until all the work is done and see what happens before storming the barricades? And yes, especially now that they have full control over the budget, the Democratic majority on Commissioners Court needs to ensure this office has sufficient resources. We need to do better. Reform Austin has more.

Paxton taken off the hook for testifying in abortion funds’ lawsuit

By the Fifth Circuit, of course.

Best mugshot ever

Texas Attorney General Ken Paxton will not have to testify as nonprofits that help patients legally obtain abortions seek clarity on whether they can do their work in states like Texas where the procedure is outlawed, a federal appellate court ruled Monday.

A three-judge panel of the Fifth Circuit Court of Appeals found that an Austin federal court judge should have granted Paxton’s motion to quash subpoenas he was served by the plaintiff abortion funds.

The subpoena made national headlines after Paxton evaded a legal messenger who had shown up at his house on the eve of a hearing in the case. Paxton later called the messenger “suspicious” and “erratic” and said he “justifiably feared for his personal safety.”

The abortion funds are suing the state for protection to resume their work amid the state’s newly enforced abortion bans. They have said Paxton’s testimony is necessary because he and his office have made conflicting statements about the legality of helping Texas residents legally obtain abortions in other states, and he is the only person who can clarify their meaning and intent.

“We are happy that Judge Pitman can move forward in the case now, and that the Fifth Circuit has acknowledged the real threats against our clients related to assisting people to access reproductive health care out of state,” the plaintiffs’ attorneys said in a joint statement.

[…]

At first, the district court granted Paxton’s motions to quash the subpoenas; however, after more information came to light — Paxton had claimed he was served “on the literal eve of trial,” yet emails submitted to the court by the abortion funds’ lawyers showed he had at least four days notice — the judge changed course and ordered Paxton to testify.

The appellate judges disagreed with the lower court’s finding that there were “exceptional circumstances” requiring Paxton to testify.

“Paxton’s personal ‘thoughts and statements’ have no bearing on his office’s legal authority to enforce Texas’s abortion laws or any other law,” the panel wrote in the ruling. “It is entirely unexceptional for a public official to comment publicly about a matter of public concern. If doing so imparts unique knowledge, high-level officials will routinely have to testify.”

The panel also disagreed with the lower court’s contention that testifying would not cause a significant burden for Paxton.

“‘High ranking government officials have greater duties and time constraints than other witnesses,'” they wrote, citing prior case law. “Those duties often involve communicating with the public on matters of public interest. The fact that a high-ranking official talks to his constituents does not ipso facto mean he also has ample free time for depositions.”

See here for the background. This is one of those times where I wish the story included a quote or two from an actual legal expert about the opinion. We all know how deeply in the tank for Paxton the Fifth Circuit is, but based on what is reported in the story, the ruling seems at least defensible. But the Fifth Circuit is so utterly corrupt that I can’t rely on my judgment here, and they deserve absolutely no benefit of the doubt. I don’t want to be a chump here, so I’d like to see someone who knows these things render an assessment. In the absence of that, all I have is my well-honed instinct to not trust that terrible court. And we’ll all have the Internet mockery of Ken Paxton for his pusillanimous efforts to evade the process server. Sometimes the snark is the most dependable thing out there.

This is all so dumb

I’m going to quote a large swath of this Reform Austin story because it sums up what has been happening the past couple of days better than I could.

Gov. Greg Abbott called for an investigation into Harris County’s election practices last Tuesday, saying that he wanted to get answers as to why a myriad of election administration issues occurred. Delayed openings at some polling places openings, a shortage of paper ballots at some polls, and understaffing problems plagued the county on election day.

“The allegations of election improprieties in our state’s largest county may result from anything ranging from malfeasance to blatant criminal conduct,” Abbott said in a statement but did not offer further details.

He added: “Voters in Harris County deserve to know what happened. Integrity in the election process is essential. To achieve that standard, a thorough investigation is warranted.”

But Harris County Elections Administrator Clifford Tatum responded that the county is “committed to transparency” and is already participating in the state’s election audit process.

“The office is currently reviewing issues and claims made about Election Day and will include these findings in a post-elections report to be shared promptly with the Harris County Elections Commission and the County Commissioner Court,” Tatum said in an emailed statement.

Harris County Precinct 2 Commissioner Adrian Garcia said that any problems on Election Day were technological and were related to the new voting machines Harris County was forced to purchase to bring the county into compliance with the new state law.

That law mandated the new models would be used as they produce a paper backup in addition to electronically capturing voter input. GOP state legislators passed the legislation called SB1 in their post-2020 “election integrity” campaign, despite any evidence of irregularities or fraud.

“Rather than waste resources on this nonsense, Gov. Abbott ought to investigate how many permitless guns have been used in violent crime,” Garcia said.

Also Monday, the Harris County Republican Party filed a lawsuit against Tatum and the county, alleging paper shortages at some voting centers amounted to violations of the Texas Election Code.

But Harris County Democratic Party Chair Odus Evbagharu disputed the GOP’s assertions, saying that “The claim that there was, like, thousands and thousands of people who were disenfranchised, there’s no claim to that, there’s no proof of that,” Evbagharu said.

The delayed openings of roughly a dozen polling places on election day led a state district judge to allow an extra hour of voting time at those sites in response to a last-minute lawsuit filed by progressive advocates.

The Texas Civil Rights Project argued the case on behalf of the Texas Organizing Project, which sued to keep polls open. The suit stated it felt compelled to take legal action because election operation disruption earlier that day had caused voter disenfranchisement.

Hani Mirza, voting rights program director at the Texas Civil Rights Project said in a statement “We went to court because these closures and errors, especially in communities of color across Harris County, robbed voters of the opportunity to cast their ballot.”

Harris County District Judge Dawn Rogers ruled the effort was likely to prevail, and that the government had infringed upon voters’ rights, and thus she approved the additional time.

Not surprisingly, Republican Attorney General Ken Paxton’s office appealed the organization’s suit immediately, prompting the Texas Supreme Court to order the county to segregate votes cast during the extension while it reviews the judge’s action.

Honestly, all things considered, I thought Election Day didn’t go as badly as some people are saying. There were some glitches, and for sure we could do a better job with the paper, but we’re talking twenty-some locations out of 782. One reason we have so many locations is to give people plenty of other options if the place they went to is having issues. It’s a pretty small percentage, and so far as I can tell, no one has come forward to say that they were prevented from voting. Even more, the obvious remedy to voting locations that opened late or had to shut down for a period while paper issues were being sorted would have been to allow voting to go on for some extra time, so that anyone who was unable to get to another location and could not return before 7 PM would still have a chance to vote. Which the Texas Organizing Project and the Texas Civil Rights Project sought to do and got an order from a district court judge, which was then opposed by Ken Paxton and shot down by the Supreme Court. You can’t have it both ways.

The Elections Office is going to have to make its mandated reports. There was already going to be an audit of the November election, in case anyone has forgotten. Paxton is going to do whatever he’s going to do. If the local GOP is claiming that there was some kind of conspiracy to make it harder for Republicans to vote – pro tip: never believe a word Andy Taylor says – all I can say is good luck proving intent. Until shown otherwise, this all looks like a bunch of hot air and sour grapes. The Trib, the Chron, and the Press have more.

The state of the AstroWorld lawsuits

We’re still at the beginning of a very long road.

The roughly 2,500 plaintiffs who filed lawsuits in the aftermath of the Astroworld Festival are now part of what is expected to be a yearslong legal process to seek recourse from a variety of defendant for deaths and injuries suffered during the Travis Scott performance. 

Who can be held responsible is one of the first questions the team of prominent personal injury lawyers is tackling as the lawsuits have been consolidated into one case in the Harris County civil courts against nearly a dozen defendants, including Live Nation Entertainment and rap icon Travis Scott. Other targeted for contributing to the deadly chaos include Apple, concert promoter Scoremore Shows and event management ASM Global, all of who deny responsibility.

While Judge Kristen Hawkins has issued a gag order, preventing attorneys, plaintiffs and defendants from addressing the cases outside of court proceedings — and upheld it despite the objection of news outlets — records show an arduous process that has attorneys bogged down in debates over jurisdiction and responsibility for the 10 compression asphyxia deaths and the hundreds more injured.

Tactically, defendants can either point blame at one another or become a unified front to fight off the lawsuits, he continued.

He likened the sweeping multi-district litigation to the aftermath of the 2005 BP plant explosion in Texas City, which similarly had numerous plaintiffs and fatalities and was consolidated by the courts as a result. At one point, there were 4,000 lawsuits stemming from the explosion. Civil suits stemming from the BP plant explosion stretched on through 2008.

Astroworld may be an even larger undertaking because the case has about a dozen defendants, he said.

William Hubbard, professor of law at the University of Chicago, said many of the defendants will try shirking responsibility in order to dismiss the case against them.

Most of the cases will likely never go to trial in their original courts, he continued. As lawyers from both sides continue to meet in court, debating over evidence and jurisdiction, the end game is likely to settle and for how much.

“The defendants don’t want to defend thousands of trials,” Hubbard said.

At least two lawsuits have been settled, and suits for hundreds of plaintiffs have been resolved — although it remains unknown if those disputes were settled or dismissed. Most surviving plaintiffs are seeking $1 million, contending they suffered physical pain, emotional distress and mental anguish as a result of the concert chaos.

See here for the previous update and read the rest. I seriously doubt I’m going to be able to keep track of everything with this story, since a lot of the basic procedural stuff happens out of sight of the news and thus bloggers like myself, but I’ll at least keep an eye on the things that do get into the papers. In re: the reference to the 2005 Texas City explosion, I fully expect this to take more than the three years indicated for that because there will be appeals, and we know how long those can take. The one thing that can shorted this process is a settlement. I suspect we’re in for the long haul.

Trump judge blocks student loan forgiveness order

Same crap, different day.

A federal judge in North Texas ruled on Thursday that President Joe Biden’s student loan forgiveness program is “unlawful,” the latest challenge to the policy that has seen several attacks from conservative groups.

U.S. District Judge Mark Pittman said in court files that he declared the loan forgiveness plan unlawful because Biden did not follow federal procedures to allow for public comment prior to the policy’s announcement.

In October, the Job Creators Network Foundation filed the lawsuit in the North Texas court on behalf of two borrowers who don’t qualify for all of the program’s benefits. Those borrowers disagreed with the program’s eligibility criteria and the lawsuit alleged that they could not voice their disagreement.

The latest attack on Biden’s loan forgiveness programs comes after the U.S. Court of Appeals for the 8th Circuit temporarily halted the program last month in response to a lawsuit from six GOP-led states. The Texas lawsuit joins a growing number of legal challenges to the loan forgiveness plan that Biden announced in August. Borrowers started applying for the program in October.

[…]

The Texas lawsuit alleges that Biden’s program violated the Administrative Procedure Act by not providing a public comment period. The lawsuit also argues the Secretary of Education does not have the authority to implement the program.

Alexander Taylor, one of the plaintiffs, is not eligible for $20,000 in forgiveness because he did not receive a Pell Grant, which is only available to low-income students, and therefore will only be entitled to $10,000 off his student loans.

The other plaintiff, Myra Brown, has privately held loans that are no longer covered by Biden’s plan. Earlier in the program’s existence, commercially held loans like Brown’s could be consolidated into Direct Loans, which meet the eligibility requirements of Biden’s program, but the Education Department changed this policy after fielding multiple lawsuits from conservative states.

In response to the lawsuit, the Justice Department argued last month that Biden’s plan doesn’t require notice and comment.

I guess we should be thankful that this is based on a colorable legal claim, one that at least theoretically could be addressed in a subsequent order if it came to that, and not on some bullshit Constitutional theory invented last week by a drone in a Federalist Society lab. It’s still the case that every two-bit Trump-appointed or adjacent district judge thinks they have a national veto on anything the President does, and that’s not how this is supposed to work. It really would be nice if we could restore a little balance here.

There were still ballots being counted yesterday

I think they’re done now? It’s hard to say for sure from the story.

With more than 1.1 million ballots cast, Harris County on Thursday still was counting ballots from Tuesday’s election.

The county filed a request for an extension Wednesday evening to get more time to complete its preliminary, unofficial count beyond the 24-hour deadline mandated by the Texas Election Code.

The state’s 24-hour rule to complete the Election Day tally is not new, but county officials said this is the first year Harris County is bumping up against the deadline because the county has implemented a paper ballot record, which is now required under state law. The county exceeded the deadline during this year’s March primaries.

[…]

A member of the county’s canvassing authority filed the motion Wednesday to obtain the court order allowing the county more time to process ballots, which a state district judge granted that night.

Leah Shah, a spokesperson for the Harris County Elections Administrator’s office, attributed the delays to the addition of paper ballot records and said the county anticipates it will finish counting by the end of the Thursday.

“When introducing paper voter records into the process we are now accounting not only for the processing of mail ballots, but also the processing of emergency slot ballots,” Shah said.

Emergency slot ballots are paper voter records that were not scanned at the polling location, which could happen for multiple reasons, including paper jams.

The county received 1,099 mail ballots on Election Day, along with 857 emergency slot ballots, according to the county.

All of those paper records had to be processed by the Early Voting Ballot Board before they could be counted. The board is made up of an equal number of representatives appointed by the county’s Republican and Democratic political parties.

There have been four Unofficial Results reports released since Wednesday morning. The date and time are in the files’ names.

CumulativeReport-20221109-04:51, with 1,094,415 total votes, 55,393 mail ballots, and 1,039,022 in person ballots.

CumulativeReport-20221109-08:46, with 1,096,633 total votes, 55,393 mail ballots, and 1,041,240 in person ballots.

CumulativeReport-20221109-17:10, with 1,100,979 total votes, 59,186 mail ballots, and 1,041,793 in person ballots.

CumulativeReport-20221110-14:42, with 1,102,097 total votes, 60,302 mail ballots, and 1,041,795 in person ballots.

As I said, it’s not clear to me if they are done – the Chron story had a publication time of 2:50 PM yesterday, which would correspond with that last updated file, but it also refers to “the end of the day”. I’m drafting this at about 8 PM and haven’t seen anything new, so maybe we’re done pending any provisional ballots. At some point I hope to do an interview with Clifford Tatum, and when I do I’ll ask him for an explanation of this. In the meantime, as I appended to yesterday’s post about the order extending the deadline to vote to 8 PM and the SCOTx ruling that put that aside, the closest race is now one in which the incumbent, 180th District Criminal Court Judge Dasean Jones, trails by 165 votes. If there are still votes, even provisional votes, to be counted, it is possible – still not likely, but possible – Jones could pull ahead. All we can do now is wait and see.

Tatum came in to run this election quite late in the game, and as we know Harris County is still new to the machines with the printers. I thought early voting went pretty smoothly, but there were some significant disruptions on Election Day – some of which were outside the county’s control – and while we were adequately warned about the count taking awhile and the HarrisVotes Twitter account was good about providing updates during the night, we really do need to get the count finished faster than this. I mean, we had 550K more voters in 2020, though the number on Election Day was smaller then because so many people voted early. The point is, the potential for this to be messier in two years unless things improve is significant. It’s going to take more resources and a better plan to collect the votes and get them processed. We need to get started on that ASAP.

UPDATE: Here’s the 8:15 PM version of the Chron story.

The Harris County Elections Office finished its preliminary count Thursday afternoon of more than 1.1 million votes from Tuesday’s election, following its request for an extension to finish its tally beyond the 24-hour deadline set by the state election code.

The county’s submission of the results to the state came shortly after the Harris County Republican Party said it plans to sue the office over claims that polling locations faced paper shortages on Election Day.

The state’s 24-hour rule to complete the Election Day tally is not new, but county officials said this is the first year Harris County has bumped up against the deadline because of the introduction of a paper ballot record now required under state law. The county exceeded the deadline during this year’s March primaries, too.

After receiving the extension, all ballots subject to the 24-hour rule had been counted by 3:12 p.m., according to the elections office. A spokesperson with the Texas Secretary of State’s office confirmed Harris County reported its final results shortly before 5:00 p.m.

At an afternoon press conference, Andy Taylor, the Harris County GOP’s legal counsel, criticized the county’s new Elections Administrator Clifford Tatum, saying the election was poorly run and the GOP is investigating claims that paper shortages occurred at 23 voting locations on Election Day, which Taylor claimed were all located in Republican precincts.

“We will, if those facts support what we believe to be true, file a lawsuit and we will have a day of reckoning in the courtroom for Administrator Tatum and all of his folks,” Taylor said.

Tatum has denied that the county ignored requests to deliver additional paper.

“I have staff in the field at this very moment delivering paper to any location that’s requested,” Tatum said Tuesday evening. “We’ve been delivering paper throughout the day.”

[…]

In response, Harris County Democratic Party Chair Odus Evbagharu said the reconciliation form is designed to be preliminary and unofficial.

“There is literally a disclaimer on this form that says ‘these numbers are subject to change as information is verified after Election Day,'” Evbagharu said. “It’s a snapshot in time of what the numbers are. That’s why we have a canvass. That’s why we have 10 days after to make sure that all of these things are right.”

Evbagharu said that while the reconciliation form is new under a state law passed in 2021, the vote counting process also took time to verify under Republican Stan Stanart, who ran Harris County elections for eight years until 2018.

“They never reconciled it in 24 hours,” Evbagharu said. “The only difference now is that you have it on paper so now they can make a big deal about it.”

He also disputed the claim that election problems only occurred in Republican strongholds, citing voting difficulties residents experienced in Houston’s predominantly Latino East End.

“They’re just now crying into the abyss because they lost,” Evbagharu said. “If I spent $20 million on an election and all I can say is I got a couple judicial seats, I’d be pissed, too. So, I’m not surprised if (Richard) Weekley and Mattress Mack and all these people are calling them like, ‘what the hell did you do with all of our money?'”

[…]

Secretary of State spokesman Sam Taylor said the office’s election trainers on the ground in Harris County Tuesday night observed several members of the early voting ballot board, which processes mail and provisional ballots from prior to Election Day, as well as staff counting regular ballots, leave in the middle of counting.

That “certainly contributed to the delay due to a shortage of people to continue the counting process,” he said.

The early voting ballot board consists of a small group of people appointed by the county elections administrator, sheriff and two major political party chairs, selected from lists submitted by the parties.

We’ll see what happens next. Threatening to sue is a lot easier than suing, which in turn is a lot easier than winning. I personally would like to know more about who wasn’t there during the counting and why. Things will happen, and people will have needs that come up and can’t be helped, but if that is a factor, it needs to be addressed going forward.

So what if anything will come of that SCOTx ruling on the extra voting time?

I have no idea.

The Texas Supreme Court on Tuesday set the stage for a legal fight over whether to count ballots Harris County voters cast during an extended hour of voting ordered by a lower court.

That lower court ordered that the state’s most populous county extend voting hours until 8 p.m. after several polling places were delayed in opening. The state’s highest civil court blocked that ruling and ordered Harris County to separate ballots cast by voters who were not in line by 7 p.m., the normal cutoff for voting in Texas. The Supreme Court’s order followed a request by Texas Attorney General Ken Paxton to reverse the lower court’s order. The Supreme Court posted the order on Twitter at 8:30 p.m.

It’s unclear how many votes were cast during the extra hour of voting, but Harris County Attorney Christian Menefee raised the prospect that the state would ask for those votes to be thrown out. The attorney general’s office did not immediately respond to a request for comment on whether they would pursue such action.

Voters who got in line after 7 p.m. were required to cast a provisional ballot, which the county had already said would take more time to process and would not be initially counted in election night returns. Harris County is home to nearly 2.6 million registered voters.

The order to keep polls open an extra hour at nearly 800 polling places came after the Texas Organizing Project sued Harris County, citing issues at numerous polling locations that opened more than one hour late Tuesday. Many Harris County voting locations also experienced voting machine malfunctions that caused delays and temporary closures throughout the day, the lawsuit claimed. The county did not fight the request for extra voting time.

“We didn’t oppose the original relief because we want to make sure every single eligible voter in Harris County has the chance to cast their ballot, and there were polling places that had some issues,” Menefee said. “But the Supreme Court of Texas will decide what happens here.”

In its request for extra voting time, the Texas Organizing Project argued the delayed openings violated the Texas Election Code because polling locations that opened after 7 a.m. would not remain open to voters for 12 hours. State law says polls must be open from 7 a.m. to 7 p.m.

In a court motion filed earlier Tuesday, the attorney general’s office argued that a county’s failure to open polls at 7 a.m. does not justify ordering them to remain open past 7 p.m.

[…]

“We went to court because these closures and errors, especially in communities of color across Harris County, robbed voters of the opportunity to cast their ballot,” said Hani Mirza, the voting rights program director at the Texas Civil Rights Project, which filed the lawsuit. “These folks got to the polls early, wanting to do their civic duty, and they would have were it not for these issues.”

Earlier in the day, a state district judge also ordered polling places to remain open an extra hour in Bell County in Central Texas. It is unclear if the attorney general’s office is also challenging that extension.

See here for some background, and here for a Twitter thread from the TCRP about their filing. At this point, I don’t believe any election is close enough to be potentially affected by however many provisional votes there could be. (I have no idea what that number is now, we’ll find out after the election is canvassed.) It would be nice to settle this as a matter of law and precedent, of course, and I would strongly argue that the voters shouldn’t be put in a position to be disenfranchised because of issues with a polling location – sometimes things go very wrong and it’s nobody’s fault – but I’m under no illusion that the Supreme Court will see it that way. Honestly, they’ll probably declare it moot once the provisional ballot numbers are confirmed, and that may be the best result we can hope to achieve. At least then there will be hope for the next time these things happen.

UPDATE: From the Chron:

Harris County officials declined to provide the number of voters who cast ballots during the extended period. The state’s highest civil court ordered these ballots be set aside until it issued a final ruling. In the meantime, all the votes during this period remain in legal limbo.

The Harris County district judge ordered that votes after the original 7 p.m. closing time be cast as provisional ballots, which are not counted until election workers confirm a voter’s eligibility.

Harris County Election Administrator Clifford Tatum declined to state how many ballots were cast during the extended period, but said Wednesday he didn’t believe any races would be affected by those provisional votes – or any provisional ballots left to count for other reasons.

“I don’t believe there are enough provisional ballots,” he said.

[…]

As of unofficial results, at least four district and county judicial races that flipped from Democrat- to Republican-held were close, separated by vote margins in the thousands and one as small as about 500.

As noted above, incumbent judge Dasean Jones is currently trailing by 465 votes, the closest countywide race. Jones won on Election Day with 50.24% of the vote. That means that if there are 10,000 provisional votes resulting from the problems with voting locations – this is, I want to emphasize, a huge over-estimate of the number of provisional ballots, but it’s a nice round number and will be nicely illustrative – and they vote at the same percentage for Jones, he’d have a net gain of 48 votes (524 to 476 for Jones). Of course, these problems occurred at specific locations which likely have more partisan characteristics – there’s no reason why they’d vote in exactly the same way as the county overall. Jones would need to win these 10K votes with 52.33% in order to pull ahead. If there are 5,000 provisional votes, he’d need to win them with 54.66% of the vote. If it’s 1000 provisional votes, it would need to be 73.3% of the vote. You get the idea. I don’t think it would be impossible for Dasean Jones to win with these votes, but unless those are extremely Democratic locations, the math is pretty challenging. For the candidates who lost by larger margins, even if those margins are tiny in absolute terms, it quickly becomes impossible to make up the ground. This is why recounts basically never change the outcome of even the closest elections.

UPDATE: There were still votes being counted when I wrote this. Looks like mostly mail ballots – there are another 1,116 of them in the latest report. County turnout is just over 1.1 million now. The bottom line, since mail ballots were much more Democratic than in person ballots, is that as of this writing Dasean Jones is now trailing by 165 votes, having closed the gap by 300. However, I think this is the end of that line. But if indeed there are a significant number of provisional ballots and they are mostly accepted, then the chances that Jones could edge ahead are greater than what the math had suggested before. I still think it’s unlikely, but it’s less unlikely now.

Omnibus 2022 election results post

It’s already midnight as I start writing this. I’m just going to do the highlights with the best information I have at this time.

– Nationally, Dems are doing pretty well, all things considered. As of this writing, Dems had picked up the Pennsylvania Senate seat and they were leading in Georgia and Arizona. They held on in a bunch of close House races. The GOP is still expected to have a majority in the House, but not by much. The Senate remains very close.

– Some tweets to sum up the national scene:

– On that score, Republicans appear to have picked up CD15, which they drew to be slightly red, while the Dems took back CD34. Henry Cuellar is still with us, holding onto CD28.

– Statewide, well. It just wasn’t to be. The running tallies on the SOS Election Result site are a bit skewed as many smaller red counties have their full results in while the big urban counties have mostly just the early votes counted. Heck, they didn’t even have Harris County early results there until after 10:30 PM (the point at which I went and snoozed on the couch for an hour because I was driving myself crazy). It will be a ten-point or more win for Abbott, I just can’t say yet what. A survey of some county results early on suggested Beto was around where he’d been percentage-wise in most of the big counties (Tarrant, where he was a few points behind, being an exception) but was going to need some decent Election Day numbers to approach his raw vote margins. He didn’t do as well as he had done in 2018 in some of the larger suburban counties like Collin and Denton and didn’t do as well in South Texas.

– He also didn’t do as well in Harris, which made for some close races and a few Republican judicial candidates with early leads. A couple of those had eroded by the 11:30 addition of more Election Day and mail ballots, but we might see a few Republican judges on the bench next year. As of that 11:30 PM vote dump, Beto was leading Harris County by nine points, well short of where he had been in 2018.

– But as of this time, and with the proviso that I don’t know which voting centers have reported and which are still out, the Harris County Democratic delegation was all ahead, though not be a lot. This includes Lesley Briones for County Commissioner, which if it all holds would give Dems the 4-1 margin on Commissioners Court that they sought. There are still a lot of votes to be counted as I type this.

– Going back to the state races, Republicans may pick up a seat or two in the Lege. HD37 was leaning their way, and they may hold onto HD118. Dems were leading in HDs 70 (by a little) and 92 (by a more comfortable amount), two seats that had been drawn to siphon off Dem voters in formerly red areas. As of this writing, the open SD27 (Eddie Lucio’s former fiefdom) was super close but all of the remaining votes were from Hidalgo County, where Dem Morgan LaMantia had a good lead in early voting. That one will likely be a hold for Dems. On the other hand, SBOE2 was leaning Republican, so Dems may be back to only five members on the SBOE.

– There were of course some technical issues.

Tight races in Harris County, where around 1 million votes will be tallied, could hinge on whether ballots cast after 7 p.m. will be included in the count, after an Election Day filled with glitches and uncertainty for voters and poll workers alike.

Harris County District Court Judge Dawn Rogers signed an order keeping all county voting sites open until 8 p.m., only to have the Texas Supreme Court stay her order just in time to create confusion at voting locations letting voters arrive late.

In a three-sentence order, the court said voting “should occur only as permitted by Texas Election Code.” The high court also ruled that votes cast in the final hour should be segregated. That means those votes can’t be counted until the court issues a final ruling.

That ruling could be critical in the event that certain county races, including the hard-fought battle for county judge between Democratic incumbent Lina Hidalgo and Republican challenger Alexandra del Moral Mealer, are close enough to be decided by those set-aside votes.

“Every single vote counts,” said Laila Khalili, a director at the voter engagement group Houston in Action. “Some elections can be won by just a couple of votes.”

Khalili watched a handful of voters file provisional ballots at the Moody Park voting location.

The request to keep the polling sites open late was made by the Texas Organizing Project, Texas Civil Rights Project and ACLU of Texas, citing what they said were late election location openings and poor planning that disenfranchised some voters.

“These delays have forced countless voters to leave polling places without being able to vote,” the groups said.

Harris County was unable to estimate or confirm how many votes were cast after the typical 7 p.m. cutoff that allows for anyone in line by that time to cast a ballot.

Voters who arrived between 7 p.m. and 8 p.m. cast a provisional ballot, according to the county attorney’s office. Some voters, later in the evening, complained that election workers even denied them that option, as the Supreme Court stay was broadcast to the 782 polling locations.

There were some issues with temporarily running out of paper at some locations and some long lines at others. We’ll just have to see how many provisional votes there are.

– Finally, for now, all of the county and city bond issues were passing. The closest ones as of this time were city of Houston prop E, up by eight points, and Harris County prop A, up by 11.

I’m going to hit Publish on this now and go to bed. I’ll make updates in the morning, either here or in a new post.

UPDATE: It’s 2:30 and I never actually got to sleep. With 334 of 782 voting centers reporting, Dems have gained some more ground in Harris County. Beto leads by nine points, while Judge Hidalgo is up by almost two full points and over 15K votes. She has led each aspect of voting. A couple of Dem judges who trailed early on are now leading, with a couple more in striking distance. There will be some Republican judges next year barring something very unexpected, but the losses are modest. All things considered, and again while acknowledging there are still a lot of votes out there, not too bad.

UPDATE:

An email with the summary file hit my inbox at 4:51 AM. Democrats officially have a 4-1 majority on Harris County Commissioners Court. By my count, Republicans won five judicial races in Harris County.

Anti-gay Waco JP’s lawsuit still tossed

Good.

An Austin intermediate appellate court has upheld a Travis County judge’s decision to throw out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.

In an opinion issued Thursday, the 3rd Court of Appeals affirmed 459th State District Judge Jan Soifer’s June 2021 decision to dismiss Hensley’s lawsuit against the State Commission on Judicial Conduct.

The appellate court judges agreed with Soifer that the commission has statutory and sovereign immunity from the claims, that Hensley failed to exhaust other legal remedies before filing her lawsuit and that she failed to establish her claims that commission members were without legal authority to issue the public reprimand against Hensley.

Hensley has said she has always expected the case will ultimately be reviewed by the Supreme Court of Texas. She referred questions about the Thursday ruling to her attorneys at the First Liberty Institute, a high-profile religious liberty legal group based in Plano.

[…]

Hensley, a Republican who is unopposed in Tuesday’s election in her bid for a third term, has officiated at weddings between men and women but refused to perform weddings for same-sex couples, saying it goes against her “Bible-believing Christian conscience.”

She said Thursday she has stopped performing any weddings while her lawsuit is pending. Her lawsuit alleges the commission violated her rights under the Texas Religious Freedom Restoration Act.

The commission’s public warning against Hensley said she violated the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” It also said she has refused to perform same-sex weddings since August 2016, despite the 2015 U.S. Supreme Court decision that established constitutional rights to same-sex marriage.

Hensley’s lawsuit originally was filed in McLennan County. However, it was transferred to Travis County after a contested hearing.

Her petition asserts the commission violated her rights by punishing her for “recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” She also claimed “the commission’s investigation and punishment” of her placed a substantial burden on her free exercise of religion.

See here, here, and here for the background. The court information on the case is here, and there was both a majority opinion and a concurring opinion, in which one Justice agreed with the judgment but not the reasoning behind it. I didn’t slog my way through the majority opinion, but all it’s doing is upholding the lower court, so there’s nothing new here. I stand by what I wrote about her lawsuit when she filed it in 2019. I only regret that she hasn’t seen fit to take my advice. I’m sure this will get to SCOTx and from there who knows what will happen, but for now justice has been served. Thanks to my friend Carmen for giving me a heads up about this one – I had briefly seen a headline about the opinion, which came out last week, but hadn’t gotten back to it. The DMN has more.

Fifth Circuit releases the True the Vote duo

Thanks for making the streets less safe.

After spending nearly a week in jail, Catherine Engelbrecht and Gregg Phillips — leaders of Texas-based right-wing voting activist group True the Vote — have been released. They’d been held for contempt of court since Halloween, having repeatedly refused to release the name of a man they called a “confidential FBI informant” who is a person of interest in a defamation and hacking case against them.

The person remains unidentified.

Their release came after True the Vote’s lawyers appealed the contempt order by federal district Judge Kenneth Hoyt to the U.S. Court of Appeals for the 5th Circuit, arguing the finding of contempt was in error and the pair should be released from jail. The appeals court granted their release but kept the remainder of Hoyt’s order in place.

[…]

In the week since Engelbrecht and Phillips were escorted to federal detention, they have turned their plight into a national public relations and fundraising blitz. Former President Trump, speaking at a rally in Pennsylvania last week, defended Engelbrecht, calling her “incredible” and a “patriot.”

“And she’s now in a Houston prison along with another great patriot. And you know what they did? They went out and they saw illegal ballot stuffing,” he told the crowd, conflating the Konnech debacle with the “2000 Mules” documentary, a separate True the Vote project. “Can you imagine? They put her in prison. She’s in jail. What a disgrace. Our country’s going to hell in so many different ways.”

Engelbrecht and Phillips were not held in “prison” but rather the Joe Corley Federal Detention Facility, which is a temporary lock-up facility used by the U.S. Marshals and Immigration and Customs Enforcement, and is not run by the Bureau of Prisons. Still, they repeatedly claimed to be in “prison” in their many fundraising efforts of the past week.

The day after their arrest, a True the Vote staff member sent a message to supporters, saying Engelbrecht was in “federal prison.”

See here for the background. I don’t know what kind of leverage exists to force an absolutely resistant defendant to comply if contempt is off the table, but perhaps this isn’t the final word on the matter. Maybe a default judgment will become a possibility at some point. These two are dedicated grifters and their basic strategy is to try to frustrate everyone into giving up. I sure hope the judge here will have some more tools in the box to prevent them from getting away with it.

A True the Vote twofer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It always comes down to fluoride

I swear, it’s at the root of most election conspiracy fantasies.

Laura Pressley and three other people huddled inside a Fredericksburg courtroom Monday, bowing their heads, closing their eyes, holding hands, and beginning to pray in hushed voices.

“In Jesus’ name, Amen,” the group whispered, just moments before the trial was set to begin in their lawsuit contesting the results of a three-year-old city election.

Their prayers appear to have gone unanswered. On Monday, almost immediately after arguments concluded, 216th District Court Judge Stephen Ables denied the relief they sought. He would not, he said, overturn the election.

“I had to make a finding that these ‘irregularities’ changed the results of the election,” he said. “I don’t think I have the basis to do that.”

The lawsuit was filed against Fredericksburg’s former mayor in early 2020 by poll watcher and anti-fluoride activist Jeannette Hormuth and local election judge Jerry Farley of Fredericksburg. The suit claimed election malfeasance in connection with the defeat of a 2019 proposal to remove fluoride from the city’s water system. Pressley’s Austin-based attorney, Roger Borgelt, represented Hormuth and Farley in court Monday.

It is the latest in a string of court losses for Pressley, a long-time Central Texas anti-fluoride activist, conspiracy theorist, perennial candidate for office, and self-styled trainer for poll watchers who even has her own state political action committee. This year alone, the Texas Supreme Court has dismissed at least two lawsuits she filed against the secretary of state, in which she claims the office isn’t following election law. This pattern, election experts and advocates say, promotes misinformation, wastes resources, and could further harm the election process.

“You see this maneuver among these fringe conspiratorial organizations where a lot of times they say that ‘there’s reason to believe that there’s fraud’ in the election system, but what they point to are, at worst, deviations from procedure,” said James Slattery, senior attorney for the Texas Civil Rights Project’s voting rights program. “This is merely one tactic in that broader strategy to undermine faith in elections.”

See here and here fore more Gillespie County shenanigans. Many years ago, I wrote about my first encounter with Texas politics, a 1985 referendum in San Antonio to finally add fluoride to their city’s water, which went down to defeat thanks to some local weirdos and a lot of fearmongering. The more things change, and all that. I think my headline for that post is one of my better efforts.

Still, while I remain capable of being somewhat amused by these characters, there are real world effects outside of good dental hygiene that they can have, and they’re just as bad for us:

One lawsuit, tossed out by a judge last month, sought to direct the secretary of state to retract advice the office gave counties about the use of randomly numbered ballots. Borgelt told Votebeat he’d already filed a motion for a rehearing on the decision.

Experts have time and time again said the practice Pressley’s allies advocate — consecutively numbering ballots — could facilitate election fraud. Consecutively numbered ballots could also more easily make voters identifiable, and aren’t necessary for audits.

Putting my cybersecurity hat on for a moment, using sequential numbers like this is a known vulnerability for databases that could allow for entire datasets to be easily stolen. Any code that involved secure data that did this would flunk an audit. So maybe we shouldn’t be taking suggestions about election security from known crackpots. I’m just saying.

There is still a right to free speech at Collin College

Good.

A Texas professor who said she was fired from Collin College in North Texas after she publicly criticized the school’s response to the coronavirus pandemic has won her job back for two more years according to a legal settlement with the school.

Education professor Suzanne Jones filed a lawsuit in September 2021 accusing the school of violating her First Amendment right to free speech and claimed they fired her for her critical comments and for her work to start a local campus chapter of the Texas Faculty Association, a statewide higher education faculty union that lacks bargaining rights.

In a settlement announced Thursday, the college agreed to pay Jones $230,000 as part of a two-year contract starting in January 2023, a much higher sum than her prior annual salary of around $66,000. But she is restricted to teaching online classes only through the college’s iCollin program, and she must resign once the contract is up in 2025. In addition, the college agreed to pay $145,000 in legal fees for Jones. Neither party admitted liability in the settlement.

“The most important thing is that professors feel they are free to speak their minds on matters of public concern without looking over their shoulders for an administrator to punish them for a viewpoint they disagree with,” said Greg Greubel, the lawyer who represented Jones on behalf of the Foundation for Individual Rights in Education, a legal group that defends free speech on college campuses. “All levels of public employees, from Collin College to any prestigious university, they all have First Amendment rights and they all deserve to be respected.”

Greubel said that if Jones decides to leave before her contract is up she will keep the full $230,000 in the contract. But her goal was to be reinstated as a teacher at the college.

Jones had worked at Collin for two decades before her contract was not renewed. The lawsuit said that the college gave three reasons for why they were letting her go. That included that she had signed her name and college affiliation to a petition calling for the city of Dallas to remove Confederate monuments. They also raised issue with her opposition to the college’s reopening plan during the beginning of the COVID-19 pandemic and that she had listed herself as a Collin College professor on the Texas Faculty Association website.

Jones had filed the lawsuit against Collin College, President Neil Matkin and Toni Jenkins, a now-retired vice president of campus operations at Collin College.

After Jones filed the lawsuit claiming those actions were protected speech, lawyers for Collin College had asked the judge presiding over the case to dismiss the case, claiming they had “qualified immunity,” which protects government officials from lawsuits unless they clearly violated an individual or group’s constitutional rights.

But the judge denied that request in August, calling the arguments “dead on arrival,” which meant the officials could be held personally and financially responsible if found to have violated Jones’ First Amendment rights.

See here for a bit of background. Collin College, which is a community college in Collin County, has been the subject of several lawsuits like this, and the bills are coming due. FIRE, the group that represented Professor Jones, included Collin College in its “10 Worst Colleges for Free Speech” list in 2021 and 2022. The Dallas Observer, which has followed these stories closely, adds on:

The settlement with Jones is the second in an ongoing free speech saga. In January, Collin College agreed to pay $70,000 to Lora Burnett, a history professor who said she’d been sacked after criticizing former Vice President Mike Pence in October 2020 and speaking out against the college administration.

FIRE also represented Burnett.

In March, history professor Michael Phillips, author of White Metropolis: Race, Ethnicity, and Religion in Dallas, 1841–2001filed a lawsuit against Collin College, its president and school officials.

Phillips, who is also represented by FIRE, alleges that the school similarly terminated his contract over his public criticism of the school’s COVID-19 policies and other free speech concerns.

“I never dreamed I would teach at a college where I would be ordered to not share facts, particularly life-saving ones, with my students,” Phillips said in a FIRE release at the time. “We should model for our students how to hear speech and ideas we don’t like, skills necessary for participating in a democracy.”

Phillips’ suit is ongoing.

You love to see it. The DMN has more.

Army Corps ordered to pay $550K to reservoir flooding victims

This could turn into a lot more if it is upheld.

More than five years after their homes and businesses were flooded, residents above the Addicks and Barker dams are learning how much money the federal government owes them for damage from Houston’s overflowing reservoirs.

A federal judge last week ruled that the owners of six upstream properties flooded during Hurricane Harvey should collectively receive nearly $550,000. The six were chosen — jointly by Justice Department lawyers and attorneys for hundreds of property owners — as test cases in a massive case initiated just moths after the historic deluge.

The decision could open the door to thousands more judgments for property owners and could result in the government paying out tens of millions more dollars, attorneys for the flooded residents said Wednesday.

The case falls under a special jurisdiction that oversees so called “takings” cases, involving allegations the government temporarily took control of private land for a legitimate purpose. If the court’s ruling survives anticipated appeals by the Justice Department, it could become the largest government takings case in U.S. history, according to attorneys representing property owners.

A ruling is still pending for separate group of residents and business owners whose properties flooded when the U.S. Army Corps of Engineers opened the Addicks and Barker floodgates. The downstream property owners saw their claims dismissed in 2020, but in June a federal appeals court reversed the dismissal and remanded it to the lower court for further proceedings.

[…]

After the storm, more than 1,600 businesses and homeowners sued the Army Corps in the specialized U.S. Court of Federal Claims in Washington, D.C., contending the government intentionally planned for the reservoirs to flood their land. In 2019, U.S. Judge Charles F. Lettow ruled government officials had knowingly and intentionally used private property to store rising floodwaters.

Then, in separate hearings, Lettow set about assessing how much money these property owners were owed. On Oct. 28, Lettow ruled on damages, laying out explicitly how much some property owners were owed for decreases in their property values, the damage or destruction of their personal property and the costs of being displaced by the floods.

“The plaintiffs are entitled to just compensation for the permanent flowage easement the government took through its construction, maintenance, and operation of the Addicks and Barker Dams,” Lettow wrote.

The six property owners included homeowners and owners of rental properties. The decision in these test cases will trigger a process for Lettow to assess how much compensation property owners might be owed in thousands of other complaints. If Lettow’s standard is applied to all the upstream homes and businesses believed to be flooded, the total compensation would top $1 billion, according to Daniel Charest, a lead attorney for the upstream plaintiffs.

Charest said he expected the Department of Justice to file an appeal within the next 60 days and will likely challenge property owners’ rights to damages.

See here for the previous update, and here for more on the other lawsuit. I have no idea what will happen with this on appeal, but note that we are five full years out from Hurricane Harvey, and the appellate process hasn’t actually started yet. Settle in the the long haul, is what I’m saying.

Collin County DA accused of sexual harassment

Oh, boy.

Greg Willis

Six individuals who currently work or have worked in the Collin County District Attorney’s office filed a federal civil suit Monday, alleging that they were sexually harassed, discriminated against because of their gender, and faced retaliation after reporting the allegations about their boss and his top lieutenant.

The suit names Collin County District Attorney Greg Willis, his first assistant Bill Wirskye, Collin County Judge Chris Hill, and county commissioners Susan Fletcher, Darrell Hale, Cheryl Williams, and Duncan Webb. The suit was filed by the district attorney’s chief investigator, Kim Pickrell; deputy chief investigator Keith Henslee; former misdemeanor prosecutor Fallon LaFleur; prosecutor VyKim Le; and two plaintiffs identified as Jane Doe.

The suit alleges that Willis sexually harassed female employees then retaliated against them. It says he repeatedly made sexual comments and inappropriately touched them. The lawsuit also alleges that Willis propositioned the women for sex during work trips and during regular closed-door meetings. It also claims that Wirskye routinely hazed female employees.

Le said that Willis had touched her inappropriately on at least two occasions, and the two unnamed plaintiffs recounted instances of unwanted touching and propositioning. After Pickrell and Henslee went to Wirskye with their concerns, the lawsuit alleges he retaliated by complaining about their performance.

Wirskye is also accused of referring to groups of prosecutors profanely, and called female prosecutors “bitches, whores, and sluts.” Henslee, Le, and LaFleur all recounted instances where Wirskye was allegedly retaliatory or crass.

The county commissioners were included because they “have known of this misconduct for years but have continued to enable it by refusing to take remedial action or even conduct a reasonable investigation.” A spokesperson for the county said it would not comment on pending litigation.

In addition to filing the lawsuit, the plaintiffs say they have also filed complaints with the Equal Employment Opportunity Commission and the Texas Workforce Commission.

A copy of the lawsuit is embedded in the story. This case is obviously a potential blockbuster on its own, but I am specifically interested in it because Greg Willis is a good buddy of Ken Paxton’s and one reason why Paxton is being pursued by special prosecutors in his neverending Servergy fraud case, as Willis (properly!) recused himself at the beginning. Maybe any Collin County DA would have had to do the same – politics is a small world, after all, and politicians like to avoid hot potatoes when they can – but in another world maybe that doesn’t happen, and if so then the years-long saga of how the special prosecutors would or would not be paid would never have happened. Anyway, I’ll be keeping an eye on this. The DMN, whose story I was unable to read as I drafted this, has more.

True the Vote leaders officially held in contempt

How long do you think they’ll be willing to sit in jail?

Federal marshals escorted two leaders of True the Vote out of a Houston courtroom on Monday morning and into a holding cell. Catherine Engelbrecht and Gregg Phillips have been held in contempt of court for refusing to release the name of a person of interest in the defamation and computer hacking case against them, who they claim, without proof, is a confidential FBI informant.

They will remain in jail until they release the name of the man.

It is the latest surprise development in the strange story, which concerns — depending on who’s describing it — a right-wing elections group allegedly defaming a small technology company, or a small technology company whose alleged security flaws were exposed by a right wing elections group.

Konnech, the election management software company at the center of those claims, filed a federal lawsuit in September alleging that True the Vote’s viral social media campaign targeting the company’s founder and CEO, Eugene Yu, led to personal threats to him and his family and damaged his company’s business.

In podcasts and interviews, Phillips described a dramatic night in early 2021 in a Dallas hotel, where a man he later identified as Mike Hasson revealed what True the Vote has said was hard evidence of Konnech’s alleged influence on the 2020 election.

The involvement of a third man was unknown until a Thursday hearing, when Konnech’s attorney’s pressed Phillips for additional information about what Phillips claimed was an hours-long Konnech research session in Dallas that night. On the stand, Phillips revealed that another “analyst” was present in the room when Hasson allegedly offered evidence he’d uncovered about Konnech, showing the company had stored American poll worker data on a server in China. Neither he nor Engelbrecht would release the third man’s name, saying he was in danger from “drug cartels.”

While True the Vote’s former attorney on the matter, Brock Akers, released Hasson’s name after U.S. District Judge Kenneth Hoyt demanded he do so earlier in the month, True the Vote’s new legal team has chosen a different path. Akers has not  appeared in court since providing Hasson’s name. Last week, Engelbrecht and Phillips were represented by Michael Wynne, a different Houston attorney, who told the court Akers was on vacation “on the Mediterranean” and would be withdrawing from the case. Wynne said Akers remained away, on a cruise, on Monday morning.

[…]

Again on Monday, Wynne said that True the Vote never had access to the data in question in the case. “The information was too large — the number of terabytes — for him to physically have taken possession,” he said. “He did not and does not have access.”

“I don’t know that,” Hoyt responded. “And neither do you.”

Wynne entered more than two dozen pages of evidence onto the record late Friday night, including dozens of text messages between Engelbrecht and individuals True the Vote has claimed are FBI agents. They also included two affidavits from Phillips and Engelbrecht, and details of Yu’s arrest in Los Angeles.

Hoyt, a Ronald Reagan nominee, was unmoved by the submission, calling it irrelevant given its failure to identify the man at the center of Thursday’s hearing.

See here and here for the previous updates. The phrases “you can’t make this stuff up” and “truth is stranger than fiction” are often overused, but they absolutely apply in this saga. I’m riveted. I’m also torn between “these two chumps will fold quickly” and “these two are dumb enough to stay in the pokey indefinitely”. Could honestly go either way. We’ll see. Juanita has more.

From the department of “The rent is too damn high”

A lawsuit to watch.

Renters are suing Richardson-based RealPage and some of the largest property management firms in the nation for allegedly forming what they call a “cartel” to artificially inflate apartment prices above competitive levels.

Five renters are challenging RealPage and seven property management firms — including Dallas-based Lincoln Property Co. — days after ProPublica published an investigation on landlords’ use of RealPage’s proprietary YieldStar algorithm to push the highest possible rent prices on tenants for apartments across the U.S.

“RealPage strongly denies the allegations and will vigorously defend against the lawsuit,” said RealPage spokeswoman Natalie Dent. “Beyond that, we do not comment on pending litigation.”

Earlier this week in response to the ProPublica story, RealPage told The Dallas Morning News: “Revenue management software cannot control the market because it does not consider or have visibility into market availability. Additionally, the article implies vacancy and resident turnover have increased due to revenue management, which is exactly opposite of what has occurred, as both have steadily declined over the last decade even as revenue management software usage increased.”

The class-action suit was filed in U.S. District Court in the Southern District of California on behalf of all renters of multifamily real estate leases from landlords who have used RealPage’s pricing or lease renewal-taggering software.

“Today’s lawsuit plausibly alleges that lessors of rental units have coordinated to drive rents up to unprecedented levels, exacerbating the nation’s affordable housing crisis,” said Gary Smith Jr., an attorney at Hausfeld representing the renters. “We look forward to vindicating our clients’ rights in this important federal antitrust litigation.”

The suit claims landlords independently priced their leases based on their own assessments of how to best compete against other landlords until about 2016, when they agreed to use a common third party, RealPage, which collected real-time prices and supply levels and used that data to make pricing and supply recommendations. The landlords would follow RealPage’s suggestion with the expectation that others would do the same, the suit said.

The lawsuit is targeted at some of the largest managers of apartment complexes in the nation, including Greystar Real Estate Partners LLC, headquartered in Charleston, S.C.; Dallas-based Lincoln Property Co.; FPI Management Inc., based near Sacramento; Mid-America Apartment Communities Inc., based in the Memphis area; Chicago-based Equity Residential; Essex Property Trust, headquartered in the San Francisco Bay Area.; and three Seattle-based firms: Avenue5 Residential LLC, Thrive Communities Management LLC and Security Properties Inc.

You should read the Pro Publica article that seems to be the foundation of this lawsuit; you can also listen to this What Next TBD episode in which host Lizzie O’Leary interviews the author of the article about it. I don’t know what the likelihood of success is for this lawsuit. Federal suits can take years to work their way through the system, and SCOTUS looms at the end of the line if the result is too unfriendly to business interests. I do think this is an issue that could and should be championed by progressive politicians, and could gain a lot of traction. Nobody really likes the idea of secret algorithms taking advantage of regular people, so the opportunity to have a good fight for real oversight of a problem that’s costing lots of people lots of money is one that should be taken. I’ll keep an eye on this.

Contempt of court in the True the Vote lawsuit

Wilder and wilder.

After a chaotic day of testimony on Thursday, a federal judge in Texas found Catherine Engelbrecht and Gregg Phillips — known as leaders of the group True the Vote — in contempt of court. They are facing accusations of defamation and computer crimes from a company at the center of a viral right-wing social media campaign engineered by the conservative voting organization.

The judge informed the pair they would face jail time if they do not comply with the terms of a court order by Monday at 9 a.m.

“I expect both defendants to be present,” said U.S. District Judge Kenneth Hoyt, a Ronald Reagan appointee, looking at their table. Marshals, he said, would be ready to arrest them.

Thursday’s finding of contempt was the latest in a string of twists in the civil suit filed in September by Konnech, a Michigan-based company that provides poll worker management software to elections offices.

In filings and testimony, the basic facts and plot lines have shifted from week to week, often producing unexplained contradictions. True the Vote’s telling involves a lengthy middle-of-the-night hotel rendezvous, double-crossing federal agents, confidential informants, and security threats on two continents.

Konnech’s lawsuit, on the other hand, alleges that True the Vote’s baseless and racist accusations against the company’s CEO, Eugene Yu, forced him and his family to flee their home in fear for their lives and damaged the company’s business. Meanwhile, Yu was arrested and charged by the Los Angeles district attorney on allegations of storing government data in China, in breach of its contract, that appear similar to at least some of the allegations True the Vote has made, and Los Angeles officials have said they received an initial tip from Phillips.

For years, Engelbrecht and Phillips have come under fire for promoting election conspiracy theories while offering scant evidence to support them. But their current campaign against Konnech is forcing them to back up what they’ve said since August on far-right social networks and platforms in the more skeptical setting of a federal courtroom.

See here for the previous update. It’s impossible to convey how chaotic this all was without excerpting huge portions of the story, so just click over and read the whole thing. I have no idea what happens next – as far as the near future goes, either Engelbrecht and Phillips will be spending some amount of time in the federal pokey or they will finally give up the evidence they’ve been required to present – but what is clear is that these people are not operating on the same plane of reality as the rest of us. There have always been people like that in the world, but they used to mostly inhabit the fringes. Now they’re much more mainstream, and there’s no obvious precedent for any of this. I suspect we have not reached the pinnacle of the craziness here yet. The Chron has more.

Texas Central insists they’re still alive

It’s something, I guess.

A lawyer for nearly 100 property owners who are living with the threat of their land being seized said he will seek legal action against Texas Central, the company that for a decade has promised to build a bullet train between Dallas and Houston, if the company does not provide more details about the looming project.

Landowners whose property could be in the path of the train track have petitioned the company to answer their questions. Patrick McShan, the lawyer representing property owners, said he’s prepared to ask a judge to allow him to depose the company — which has said little about the project — to get answers for his clients.

[…]

McShan’s list of questions included inquiries about the company’s leadership and permits for the project.

Robert Neblett, Texas Central’s attorney, said the company spent a “considerable sum” of money acquiring property for this project. Neblett added the company owns hundreds of tracts of land purchased for this project, but he did not confirm The Texas Tribune’s analysis of property owned by Texas Central.

“Texas Central’s chief executive is Michael Bui. Texas Central is not currently looking for a CEO to replace him nor is it looking for a new Board of Directors,” Neblett said in an emailed statement to the Tribune.

Neblett added that Texas Central plans to obtain any and all federal Surface Transportation Board certifications required to construct and operate the project.

Bui is a senior management consultant with FTI Consulting, a business advisory that lists corporate recovery as one of his qualifications. Bui also served as an adviser to a private energy company that provided power to the Electric Reliability Council of Texas following its court-ordered restructuring after the February 2021 freeze that caused hundreds of deaths while knocking out power and heat to millions of people.

According to a news release Houston Mayor Sylvester Turner’s office released Thursday, unnamed representatives of Texas Central said, “the landscape changed since March 2022, when the company underwent a restructuring effort, and the future of the high-speed train remains bright.”

Houston and Dallas leaders have long championed the project that would connect the two cities. Turner said the bullet train would be an economic stimulant for the entire state.

“We had some very productive and constructive discussions about the train in Japan,” Turner said. “The leadership in Houston is very supportive and wants it to happen. I look forward to working with Texas Central and our state and federal partners to advance this project. If you build it, people will take full advantage of it.”

Still in contention is how much land the company has acquired in the 10 years since the project was announced, and how much land is still needed for the bullet train.

See here, here, and here for the background. As noted in the story, the Texas Central Twitter page had its first new post since July, so that’s something. I’d like to see more activity than that, but at least the mirror test shows that there’s still some breath in there. For now, I’ll take it.

The Corpus Christi desalination plant fight

This ought to be interesting.

Texas regulators issued an environmental permit Thursday for the Port of Corpus Christi to build what could become the state’s first seawater desalination plant — but the U.S. Environmental Protection Agency may refuse to accept it.

The state permit for a desalination plant on Harbor Island represents the culmination of years of business strategy, political maneuvering and lawyering effort on behalf of the port, which wants to build a large-scale facility to convert seawater from the Gulf of Mexico into freshwater. The marine desalination plant is expected to cost at least half a billion dollars to construct; an estimate provided to the Texas Water Development Board puts the cost at more than $800 million.

Environmental groups have fought the project for four years on the grounds that wastewater from the plant could harm sensitive coastal ecosystems.

Now the port also will have to spar with the EPA, which can refuse to recognize the state permit on the grounds that it doesn’t comply with the Clean Water Act. The federal agency is concerned that Texas’ permit may not be sufficient to protect aquatic life and water quality, according to letters obtained by The Texas Tribune, and that the Texas Commission on Environmental Quality did not send the permit to the EPA for federal review.

The dispute centers on what type of permit is required: The EPA believes the desalination plant needs a “major” environmental permit — which requires EPA review — while TCEQ says the facility should be considered a minor project, which does not require federal review.

“If the TCEQ issues [the permit] without responding to the EPA … the EPA’s position will be that it is not a validly issued [permit],” Earthea Nance, regional administrator for the EPA’s Dallas-based Region 6, wrote in a Sept. 2 letter to TCEQ Commissioner Jon Niermann. Some experts speculated that the EPA may sue the TCEQ to determine whether Texas is legally obligated to consult the EPA on such seawater desalination permits.

TCEQ commissioners on Thursday seemed to dismiss the EPA’s concerns. Commissioner Bobby Janecka said he considered the federal agency’s objections but called them “outside our window of decision” on whether to issue the permit.

The Harbor Island plant is one of five marine desalination facilities proposed for Corpus Christi Bay — all racing to be the first built in Texas. Two are proposed by the Port of Corpus Christi and two by the city of Corpus Christi. (The port and the city have soured on one another as partners on desalination.) The fifth plant was proposed by a now bankrupt plastics company, which has since been taken over by Corpus Christi Polymers.

Water demand in the Corpus Christi region’s water planning area — pushed by a growing population and a boom in manufacturing and petrochemical facilities that need water to cool their plants — is expected to outstrip supply by more than 31,000 acre-feet, or about 10 billion gallons, by the end of the decade if new water sources are not secured, according to the state’s water plan.

The water planning area — made up of 11 counties in South Texas’ Nueces River Basin along the coast — projects that 70% of its new water resources will have to come from desalination plants by 2030.

“The potential for water independence from these kinds of facilities is very big,” said Manish Kumar, an associate professor of environmental and chemical engineering at the University of Texas at Austin, who has worked on and advised desalination projects. “The significance is huge, because we have the coastline, we have energy and in many places, we have a need for high-quality water.”

While Texas already has more than 50 plants that desalinate brackish groundwater into freshwater, according to a state database, seawater desalination is much more technically difficult, energy intensive and expensive to achieve on a large scale because ocean water is much saltier than brackish groundwater.

The seawater plants also give less bang for buck: Marine desalination plants are able to convert around 40% to 50% of seawater into freshwater, while groundwater desalination plants convert closer to 80%, Kumar said. The remaining water — made saltier by removing most of the now fresh water — is discharged as waste.

There’s a lot more, so read the rest. The environmental groups stress that they are not opposed to desalination, but they don’t think the TCEQ has done enough to ensure that the wastewater will be disposed of safely – basically, they want it dumped farther out into the Gulf of Mexico, where it can be more easily dispersed. I don’t know how much that might add to the cost of the project, or how big an effect it might have on future projects. I do know that the lawsuit that will result if the EPA decides this is a “major” project and requires their review will be another opportunity for the right-wing legal machine to attack the regulatory state, and I would rather that be avoided if possible. We’ll see how it goes.

UPDATE: I drafted this a couple of weeks ago, and more recently a lawsuit has been filed by residents of a historically Black neighborhood in Corpus Christi to stop this construction on the grounds that it violates Title VI of the Civil Rights Act of 1964. We’ll see how that goes.

How long has it been since the Fifth Circuit upheld a voter suppression law?

However long it’s been, they’re back at it.

Still the only voter ID anyone should need

A federal appeals court on Wednesday revived a 2021 Texas law that set new residency requirements for voter registration, including one that civil rights groups alleged essentially blocked college students from signing up.

The ruling by a three-judge panel of the 5th Circuit Court of Appeals overturned a lower court’s ruling that blocked most of the law for creating an unconstitutional burden on the right to vote.

[…]

The judges found the groups, LULAC and Voto Latino, failed to prove they had endured harm as a result of the law and therefore lacked standing.

“It’s unfortunate that we have such a conservative, anti-voting rights 5th Circuit,” LULAC President Domingo Garcia said. “We’ve been representing Latinos of Texas since 1929. This is the first time in recent memory a court has ruled we do not have standing. We believe we were right on the merits that this is a voter suppression bill that should be overturned.”

Garcia added that the group plans to request a rehearing by the full court, which is often considered one of the most conservative courts in the country.

Senate Bill 1111, which took effect Sept. 1 of last year, requires that anyone using a P.O. Box to register must also provide documentation of a physical residential address, such as a photocopy of a driver’s license.

It also prohibits voters from establishing or maintaining a residence “for the purpose of influencing the outcome of a certain election.”

Lastly, it bars voters from establishing a residence in a place they have not inhabited or at a previous residence, unless they live there at the time of the designation and intend to remain there.

“It’s a recognition of the obvious that they really didn’t have standing and they are not harmed because all (the bill) does is simply say: Don’t register at an impossible address,” said state Sen. Paul Bettencourt, who authored the bill.

LULAC and Voto Latino had argued that the law had forced them to have to divert resources toward educating the public about the changes and it chilled their speech when it came to what they could say about how to register to vote.

Garcia said LULAC spent more than $1 million to counteract election laws like SB 1111, but the judges sided with Texas in finding that the group failed to show how such expenses were directly related to that law, as several election laws were passed in 2021.

U.S. District Judge Lee Yeakel mostly left the P.O. Box provision in-tact, reasoning that the state has an interest in preventing voter registration fraud and the request for verification of a physical address is not a severe burden. A response to that request with a new address, Yeakel clarified, should be considered a change of address with no further action needed.

Yeakel had enjoined the two other provisions. He argued that there are valid reasons for changing an address that may influence the outcome of an election but not in a malicious way, such as “voting, volunteering with a political campaign, or running for an elected office.”

The final provision relating to where a person lives or intends to stay would make registration near-impossible for college students, senators or other groups of people who live in multiple locations throughout the year, Yeakel said.

“The burden imposed is ‘severe,’ if not insurmountable,” Yeakel wrote. “Such an insurmountable burden is not easily overcome … And the possible repercussions are not just complete disenfranchisement, but also criminal liability.”

See here for the background. You will note that I anticipated this outcome, so at least I’ve got that going for me. I would just like to know, if this law is constitutional, if we can prevent certain lowlife perennial candidates from registering at warehouses around town for the purposes of establishing “residency” to run for office. I’m sure the Fifth Circuit will be able to justify that, I would just like to see them do it.

The “abortion sanctuary cities” lawsuit at SCOTx

A big decision this will be.

The Texas Supreme Court heard arguments Wednesday over whether a defamation case brought by several abortion funds against prominent anti-abortion activist Mark Lee Dickson should be dismissed.

In 2019, Waskom in Harrison County became the first Texas city to largely outlaw abortion and groups that assist it, like abortion funds, by adopting a Sanctuary Cities for the Unborn ordinance, following a campaign started by Dickson.

Then in 2020, three abortion funds — the Afiya Center, Texas Equal Access Fund and Lilith Fund for Reproductive Equity — sued Dickson, the director of Right to Life of East Texas, for defamation. Dickson had referred to the groups, which provide financial assistance to patients seeking abortions, as “criminal organizations” in statements on social media.

On Wednesday, Dickson’s attorney, Jonathan Mitchell, said his client’s statements were not defamatory because they were true.

“They are criminals because they have violated the criminal laws of Texas, which imposes felony criminal liability on any person who quote ‘furnishes the means for procuring an abortion,’” said Mitchell, a former solicitor general of Texas. He is also the architect behind the the state law that made performing an abortion illegal after fetal cardiac activity is detected, usually around six weeks of pregnancy.

[…]

In particular, Mitchell argued that Texas never repealed an 1897 law that punishes those “furnishing the means for procuring an abortion” and that Roe v. Wade, the 1973 landmark U.S. Supreme Court case that legalized abortion, didn’t make funding another person’s abortion a constitutional right.

“The court should say that these statements, far from being nondefamatory, are actually true to prevent future lawsuits like this from ever getting off the ground,” Mitchell argued. “This has been a campaign to intimidate constitutionally protected speech.”

Mitchell added that there are other grounds to dismiss the case, arguing that the abortion funds would have to prove Dickson made his statements with “reckless disregard for the truth.”

Beth Klussman, an attorney for the state of Texas, also spoke in support of Dickson. She argued that his statements were protected because they were opinions, similar to how opponents of the death penalty refer to executions carried out by the state as murder. Attorney Jennifer Ecklund, who represents the abortion funds, responded that Dickson’s language should be considered a factual statement because it was specific rather than about broad topics.

“We have a defendant who specifically said I am telling you as a fact that this is the state of the law and that these people are committing crimes,” she said. “That is a very singular set of facts.”

Ecklund added that the 1973 U.S. Supreme Court ruling made Texas’ pre-Roe law in question unconstitutional at the time, and therefore calling the abortion funds “criminal” infringes on their freedom of speech and association. And she said the groups have been complying with the law since the Dobbs decision.

“People are afraid to associate with them. People are afraid to donate. People are afraid to express their views for fear that they will also be called literal criminals who might be prosecuted based on things that they believe were totally constitutional,” Ecklund said.

See here for the background. I think Dickson’s defense is contrived and should be rejected, but it has just enough plausibility that it could persuade SCOTx that is has meaning. I’d love to hear what the lawyers think. This is a ruling on a motion to dismiss, so I’m assuming that the suit has previous survived such a motion at the district court and with the appellate court. We’re supposedly expecting an answer in the spring. You know what I’m rooting for.

Of course voters of color has more mail ballots rejected

Water is wet, the sun rises in the east, voter suppression laws disproportionately affect voters of color.

Alice Yi of Austin is frustrated when she thinks about the March primary election, when her 92-year-old father tried to vote by mail, as he had many times before, but couldn’t.

He could not remember what identification number he used to register to vote more than 30 years ago, she said. When he sent in his ballot application with the last four digits of his Social Security number, a rejection letter from the elections office said that number was not on file. Another letter later said her father, who is legally blind in one eye, failed to fill out other details, such as specifying which ballot he needed.

By the third attempt, Yi, his caregiver, worried her father’s application would not make it before the deadline and he would be unable to cast a ballot. So she took him to vote in person, for the first time in years.

Yi’s father was just one of thousands of Texans who attempted to vote by mail in the March primary, but collided with the Texas’ GOP restrictive 2021 voting law, known as Senate Bill 1. When voting by mail, the new law requires voters to write their driver’s license, personal identification number, or the last four digits of their Social Security number on their mail ballot application and mail ballot envelope — whichever number they originally used to register.

In fact, the mail-in applications and ballots of Asian, Latino, and Black Texans were rejected because of the new ID requirement at much higher rates than those of white voters, according to a study released Thursday by the Brennan Center for Justice, a nonpartisan law and policy institute. The office of the secretary of state declined to comment on the findings, citing pending litigation over SB 1.

Although researchers couldn’t determine the exact cause of the disparities, experts and advocates say that in addition to the voting law’s restrictions, existing factors rooted in systemic racism, such as lack of resources in their native language and other socioeconomic barriers, likely played a role in the high rejection rates.

In the March primary, 12,000 absentee ballot applications and more than 24,000 mail ballots were rejected, leading to a 12% rejection rate statewide. That represented a significant increase compared to previous years. For example, the rejection rate for the 2020 presidential election was 1%.

The study shows the rejection rate was highest for Asian voters, who were about 40% more likely to have their absentee ballot application rejected than white voters.

The study also shows that Asian and Latino voters were each more than 50% more likely than white voters to have a ballot rejected due to a problem meeting SB 1’s new requirements.

Overall, 19% of Asian voters had either their application or their mail ballot rejected due to SB1’s provisions, followed by 16.6% of Black voters and 16.1% of Latino voters. For white voters, it was 12%.

“This shows that even if you successfully applied to vote by mail, you still weren’t out of the woods, you still might have your ballot rejected,” said Kevin Morris, a researcher with the Brennan Center for Justice and one of the authors of the study. “And not only do we see this gauntlet effect happening, we see that there are big racial discrepancies in whose applications and whose ballots are rejected.”

[…]

Absentee ballot rejection rates have been lower in Texas’s smaller elections since the March primary. The mail ballot rejection rate was at 5% for the May 7 Constitutional Amendment election, according to the secretary of state’s office. For the May 24 primary runoff elections, the statewide mail ballot rejection rate across both the Republican and Democratic primaries was 3.9%. Both of those elections, however, drew only a fraction of the voters who cast ballots in the primary.

Efforts made by local election officials across Texas counties contributed to the decrease in rejections.

The study, which has some limitations that are noted in the story, is new but its findings are no surprise. I’ve said before that I’m hopeful that the error rate will continue to fall, mostly thanks to the overburdened but very hard working local officials who have done all the work to make that rejection rate go down. I’ve also now had the experience of navigating this with my elder daughter, who is voting by mail from college. I’ll be keeping track of its progress on the Harris County elections webpage. She has a couple of friends who are in college in Texas but outside the county, and I’ve advised her to tell them to just drive in and vote in person during the EV period. It’s kind of crazy, but that’s the less risky option. Hopefully that will not be the case someday.

State Bar complaint against Ted Cruz was dismissed

This story ran a few days ago.

Not Ted Cruz

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

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

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

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

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

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

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

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

Today is a court day for Steven Hotze

As you may recall, local wingnut crackpot Steven Hotze was sued last May by air conditioner repairman David Lopez after a couple of Hotze goons led by former HPD Captain Mark Aguirre assaulted him on the road in an unhinged attempt to prove that he was somehow handling mail ballots from the 2020 election. In April of this year Hotze was indicted on charges of unlawful restraint and aggravated assault with a deadly weapon, and we have since learned more about his role in the attack.

What I had not seen before this weekend was anything new on that civil case. I’ve been sent a few court documents from it, which tell me that today there will be a hearing and that quite a bit has already happened.

The hearing today is about an objection by Hotze to a previous ruling that compels him to make a net worth disclosure to the plaintiff. Hotze, who as noted has been indicted for his role in the assault on Lopez, is trying to invoke the Fifth Amendment to prevent this disclosure. The plaintiff’s response to Hotze’s claim contains the following very interesting opening statements:

A. The Court has already determined, as a matter of law, that the Plaintiff has a substantial likelihood of success on the merits against Hotze. (See previous motion and court order).
B. Hotze cannot assert his Fifth Amendment rights to producing net worth documents.
C. Hotze fails to explain or prove why providing net worth would have anything to do with the criminal assault charges against him.
D. The Court’s net worth order does not invade the constitutional rights of Hotze. The only case cited by Hotze, Hoffman, is inapplicable to this case.

Emphasis mine. I don’t have any more information on that assertion, but it sure sounds to me like Hotze is in some doo-doo. You can see Hotze’s arguments here, in which he argues that the civil suit should wait until the criminal matter is resolved (among other things) and also adds this piece to the timeline:

On July 1, 2022, Lopez filed Plaintiff’s Motion to Compel Net Worth Discovery From Defendant Steve Hotze and Defendant Liberty Center For God and Country and Motion to ReDepose Defendant Steven Hotze Individually and as Representative of Liberty Center for God and Country, requesting, among other things, an order from this Court “allowing him to conduct net worth discovery, including, but not limited to, request for production and interrogatories propounded to Steven Hotze, Individually and The Liberty Center for God and Country and a deposition of Steven Hotze in both capacities.” (Plaintiff’s Motion to Compel p. 9) Plaintiff does not particularize the request, but, instead, makes a generalized request for discovery regarding “net worth.”

He also argues that Lopez has not met the standard to compel such a discovery. That was filed on August 10, the plaintiff’s response was filed on September 15, and the court overruled the objection on September 21. Hotze also made a writ of mandamus to the 14th Court of Appeals on September 9 to vacate the earlier order allowing net worth discovery and upholding the objection; it was denied on October 11. The notice of today’s hearing was given on August 31, and I’m a little confused by the order of operations, but here we are.

Anyway. If people who are more in the know want to look through these filings and fill in some blanks I would welcome the feedback. We know there’s a hearing today, and I hope there will be a news story after to help clear things up some more. If what you need right now in your life is to hear of a legal setback for Steven Hotze, I hope this suffices.

New sexual harassment lawsuit filed against Deshaun Watson

Number 26, that we know of.

A new sexual assault lawsuit has been filed against former Texans quarterback Deshaun Watson, accusing him of pressuring a Houston massage therapist into giving him oral sex.

The lawsuit was filed in Harris County on Thursday afternoon by a woman identified only as Jane Doe. She is represented by Houston attorney Anissah Nguyen.

The lawsuit accuses Watson, who is now the quarterback of the Cleveland Browns, of reaching out to the woman through Instagram in December 2020, arranging a meeting in a hotel room and then her pressuring into the sex act. The woman is seeking damage for physical and mental pain and suffering and loss of earnings, among other things, according to the lawsuit.

“Watson used his celebrity to take advantage of a young woman working hard for her success,” the lawsuit said. “Due to his behavior, she has suffered from severe depression and anxiety. Plaintiff is currently seeking counseling.”

[…]

Watson was previously sued by two dozen women, who made similar allegation he assaulted and harassed them. He has denied the allegations and has not been charged with any crimes. Since June, Watson has reached settlements with 23 of 24 the women who accused him of assault. In July, the Houston Texas reached settlements with 30 women preparing to sue the team over their role in the allegations against Watson.

See here for more on the other active lawsuit against Watson. As ESPN notes, there was a lawsuit that was dismissed in addition to the now-two active ones and the 23 settled ones, which is how we get to 26. We had heard about two more potential suits against Watson back in June; it’s possible this is one of those two, but I note that this plaintiff is not represented by Tony Buzbee, so who knows. Based on previous reporting, the possibility exists that even more could be filed. This is a reminder that no matter how much you don’t want to think about Deshaun Watson, we still have to think about Deshaun Watson.

Houston City Council approves its new map

Now we wait for the lawsuit(s).

City Council on Wednesday approved new boundaries for the city’s 11 districts for the 2023 elections, featuring modest adjustments affecting parts of downtown, Braeburn, Greater Inwood and a few areas in southeast Houston.

The new boundaries aim to balance district populations based on the latest census data.

By law, the most populous district should not have more than 10 percent more residents than the smallest district. Based on the 2020 census, Districts C and G need to give up some neighborhoods. Districts H, I and J, on the other hand, have lost too many constituents and need to expand. Overall, fewer than 3 percent of the Houston’s 2.3 million residents will change districts.

The redistricting plan had gone through several iterations based on months of internal discussions and public feedback. On Wednesday, four council members also offered amendments to the proposal, three of which were successful.

Despite the majority support for the new maps, council had to vote twice to approve them after it was revealed late Wednesday that the city secretary called out the wrong agenda item before the council voted during the morning session.

The council reconvened at 6 p.m. for a public hearing on a proposed bond election. Following the hearing, which drew no speakers, the council confirmed the new maps by a 14-2 vote, with District I Councilmember Robert Gallegos and District E Councilmember Dave Martin dissenting.

[…]

City Demographer Jerry Wood said throughout the design process he had to juggle competing interests from council members and the public and was unable to accommodate some requests.

“If you go into this thinking that you’re going to make everybody happy, you’re going to be sorry for thinking that,” Wood said. “If you go into this thinking that you’re going to make as few people unhappy as possible, then you might have some success.”

See here for some background. The map I’ve embedded is from the early part of the process and doesn’t include any of the changes made at that Council meeting, so go here for the latest details. CM Gallegos has some issues with the process and with an amendment that affected District I; the story did not say why CM Martin voted no. Overall, this was pretty painless, certainly easier than it was in 2011 when we had to add two new districts. That doesn’t mean there won’t be legal issues:

Much of the discussion around redistricting has centered on the lack of Hispanic representation at City Hall.

While about 45 percent of Houston residents are Hispanic, Gallegos of District I is the only Hispanic council member out of the 16, even though the city previously created two other Hispanic-opportunity districts, H and J.

The League of United Latin American Citizens (LULAC), one of the largest Hispanic civil rights organizations in the country, has promised to sue the city over what its advocates characterize as a gross underrepresentation of Latinos on the council.

The goal of the lawsuit is to replace the city’s five at-large seats, which represent voters citywide, with single-member seats, which cover a certain geographical area, to improve minority representation.

The city has hired a law firm in anticipation of the legal challenge.

“We are asking for equity and fairness, and we just don’t have that with the current districts,” said Sergio Lira, a Houston-based leader with the organization. “That’s why we are filing the lawsuit to push for changes.”

Some are worried that Kamin’s amendment could have an adverse effect on Hispanic votes.

The areas set to move to District H instead of Freedmen’s Town, have high percentages of Hispanic constituents, but are experiencing gentrification and are expected to see a decline in Hispanic populations in the following years, according to Wood.

Gallegos said that he did not originally agree with LULAC’s demand to abolish Houston’s at-large seats, but in light of these new developments, he plans to work closely with the organization to advance its cause.

“After what happened this morning, I agree that we need all single-member districts to make sure that we have the representation we need,” he said.

See here for some background. I don’t have anything to add to what I wrote then. I think the plaintiffs would have a decent chance of prevailing if they file, but it’s not a slam dunk. An alternate possible outcome would be to agree to move City Council elections to even-numbered years, as the natural boost in turnout would create a more diverse electorate and thus could raise the chances of Latino candidates in citywide races. That was one of the things that happened in Austin, in addition to the switch to districts from At Large; their elections had been in May of odd years, for maximal non-turnout. Greg Wythe wrote on this topic some years ago at his sadly defunct blog, and it’s stuck with me ever since. There are good reasons to keep city elections in the odd years – Lord knows, we have enough to vote on in the even years, and putting them in the even years would very likely make them more overtly partisan – I’m just saying it’s a possible option. We’ll see what happens.

The True the Vote lawsuit continues to be wild

This is crazy.

Inside a nearly empty federal courtroom Thursday, a fiery argument broke out between a judge and the lawyers representing Texas-based nonprofit True the Vote in a defamation and computer fraud case filed by a Michigan-based election software company.

U.S. District Judge Kenneth Hoyt warned Houston-based attorneys Brock Akers and Mike Brewer that they might be getting “played” by their conservative nonprofit client after the attorneys repeatedly argued against disclosing the source of the information central to the case, about sensitive poll worker data managed by Konnech Inc.

In podcasts and elsewhere, True the Vote has repeatedly claimed that their organization directed “analysts” to hack Konnech’s servers, which the group claims were located in China and thus proof of the company’s work on behalf of the Chinese Communist Party. After Konnech sued True the Vote last month for defamation, Hoyt ordered True the Vote to turn over any Konnech data the organization still had, and disclose the name of the individuals who’d helped them obtain it.

The contentious tone in the courtroom demonstrated the precarious position the lawsuit has put True the Vote in. The group has spearheaded the spread of voter fraud conspiracy theories in Texas and beyond for years — most recently by producing the debunked voter-fraud documentary “2000 Mules” — and has faced very little accountability for it. Now True the Vote is trying to maintain its conspiratorial claims about Konnech while also denying accusations that it illegally hacked data or misled the public about the company and its CEO.

In their own legal filings, True the Vote said that contrary to their prior public statements, the group had never been in possession of Konnech’s data but had simply been shown it by a source.

Konnech’s lawyers, meanwhile, asked the judge to hold True the Vote’s founder, Catherine Engelbrecht, and a board member, Gregg Phillips, in contempt for failing to follow the judge’s order.

In court Thursday, Akers and Brewer were reluctant to release the source’s name in court, saying they feared for the man’s safety.

Hoyt, a judicial nominee of President Reagan, wasn’t having it.

The judge said he didn’t “have any confidence” in True the Vote’s version of events, in part because he said the group’s leaders haven’t submitted sworn affidavits under penalty of perjury to support them. True the Vote’s lawyers said they didn’t believe their clients needed to appear at the hearing.

“Do errors get made [in elections]? Yeah,” Hoyt said as he continued to question True the Vote’s trustworthiness. “Do people cheat? Perhaps. But all of this hustle and bustle about the integrity of the process? Is the way to fix the process to tear it apart? That’s not integrity.”

He demanded the lawyers release the name of the source.

See here for the previous update. Judge Hoyt eventually got the name, which Votebeat didn’t publish in their story from the weekend because they hadn’t been able to verify anything about that person. I mean, I dunno, it’s probably not a good sign for your side when the judge is telling your lawyers that you can’t be trusted. We’ll have to see how it goes from here.

In the meantime, this is also nuts.

The Los Angeles County district attorney announced on Tuesday the arrest of Eugene Yu, the CEO of a small company that makes software for scheduling poll workers and had a contract with LA County. District Attorney George Gascón said at a news conference that the contract with the county required the company, Konnech, to securely maintain election worker information on servers in the United States.

Gascón said that in the course of a separate investigation, his office “found probable cause to believe that Konnech allegedly violated this contract by storing critical information that the workers provided on servers in China.”

The district attorney did not provide further details of what evidence his investigators had uncovered so far. He said Yu’s arrest was made on “suspicion of theft of personal identifying information.”

Konnech is located in Michigan, and Gascón said his office had cooperated with local law enforcement to make the arrest. Robert Arcos, the chief of the DA’s Bureau of Investigation, said that investigators from the Public Integrity Unit and the Computer Forensics Unit helped serve the arrest warrant on Yu, and also seized hard drives.

“We intend to hold all those responsible for this breach accountable,” said Gascón, who added that his office is seeking the extradition of Yu from Michigan to California.

NPR obtained court documents filed against Yu in Ingham County, Michigan, which indicate that Yu is “charged in Los Angeles County, California with the extraditable crime of Embezzlement of Public Funds.” The documents state Michigan authorities charged Yu with “misdemeanor fugitive from justice,” and he has another court date on Oct. 25. NPR also sought court documents from the LA County D.A.’s office, but a spokesperson said in an email, “Because this is an ongoing investigation we will not be releasing any documents at this time.”

Gascón, a Democrat, said at the news conference that the information allegedly held on servers in China related to poll workers, and “is not — I repeat, it is not — related to election material or voter information.”

In a statement, a spokesperson for Konnech said, “We are continuing to ascertain the details of what we believe to be Mr. Yu’s wrongful detention by L.A. County authorities.”

“Any L.A. County poll worker data that Konnech may have possessed was provided to it by L.A. County, and therefore could not have been ‘stolen’ as suggested,” said the spokesperson, Jon Goldberg.

As they say, you can’t make this stuff up. I didn’t see any more recent stories than the ones reporting the arrest, and those stories were all based on the LA County DA’s press release. Hard to know if we’ll learn anything more until the court date in two weeks. Unfortunately, I doubt that DA Gascón’s emphatic words about the nature of this case will persuade anyone on the True The Vote side. It’s likely to get crazier from here.

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

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

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

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

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

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

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

[…]

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

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

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