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Ohio

How to lose a Congressional seat

As things stand right now, Texas will gain three Congressional seats in the 2021 reapportionment, as Texas continues to be the fastest-growing state in the country. There is one thing that can stop that, however: Donald Trump.

President Donald Trump opened a new front Tuesday in his effort to keep undocumented immigrants from being counted when lawmakers redraw congressional districts next year, a move that could cost Texas several seats in Congress if it succeeds.

Trump attempted last year to include a citizenship question on the 2020 census, but was shot down by the courts. On Tuesday, he signed a memorandum directing Secretary of Commerce Wilbur Ross to exclude undocumented immigrants who might be included in the census count from the “apportionment base,” or the base population that’s used to divide up seats in Congress.

The order, which will surely be challenged in court, is Trump’s latest effort to differentiate between citizens and noncitizens when states redraw the boundaries of political districts each decade to account for growth. Recent estimates indicate the size of the undocumented population in Texas has reached nearly 1.8 million. Excluding those residents from population counts to draw up congressional districts would likely lead to a drastic realignment of representation and power throughout the state.

The U.S. Constitution mandates that representation in Congress be divided among states based on a count every 10 years of every person residing in the country. But the Constitution, Trump wrote, does not define “which persons must be included in the apportionment base.”

“Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government,” the memo reads. “Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.”

[…]

“The Constitution requires that everyone in the U.S. be counted in the census,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “President Trump can’t pick and choose. He tried to add a citizenship question to the census and lost in the Supreme Court. His latest attempt to weaponize the census for an attack on immigrant communities will be found unconstitutional. We’ll see him in court, and win, again.”

Litigation has indeed been filed, in multiple lawsuits and venues at this point. My interest in pointing this out was the very narrow one of showing what this would mean to Texas.

If unauthorized immigrants were excluded from the apportionment count, California, Florida and Texas would each end up with one less congressional seat than they would have been awarded based on population change alone. California would lose two seats instead of one, Florida would gain one instead of two, and Texas would gain two instead of three, according to analysis based on projections of Census Bureau 2019 population estimates and the Center’s estimates of the unauthorized immigrant population.

Alabama, Minnesota and Ohio would each hold onto a seat that they would have lost if apportionment were based only on total population change. Alabama filed a lawsuit in 2018 seeking to block the Census Bureau from including unauthorized immigrants in its population count.

[…]

The Census Bureau does not regularly publish counts or estimates of unauthorized immigrants, although the Department of Homeland Security has done so. Last year, after the U.S. Supreme Court ruled against including a question about citizenship on the 2020 census, the president ordered the Census Bureau to assemble a separate database, using other government records, on the citizenship status of every U.S. resident. This has also been challenged in court.

The Center’s analysis relies on assumptions about populations to be counted in the 2020 census and estimates of unauthorized immigrants. The actual figures used for apportionment will be different from these, and so the actual apportionment could differ regardless of whether unauthorized immigrants are excluded from the apportionment totals.

You might think that Texas’ political leaders would be up in arms about this. That Congressional seat belongs to Texas! State’s rights! You know the drill. And sadly, you also know that our Trump-hugging Attorney General would never, ever say or do anything that would contradict his Dear Leader. What’s a Congressional seat (or two, or even three, if our dismal failure to support a complete Census effort causes the official count to be unexpectedly low) compared to a favorable tweet from Donald Trump? That’s a question we should all be asking, loudly and often, in 2022, when they are up for re-election.

One more thing:

Texas House leaders have previously indicated to The Texas Tribune they have no plans to alter the way Texas redraws political districts even if the Legislature obtained more detailed data on citizenship.

“Bottom line, the law for the Texas House and the Senate — and frankly the courts and the State Board of Education — requires it be done by total population, as does the U.S. Constitution with regard to congressional seats,” said state Rep. Phil King, a Republican from Weatherford who chairs the House Redistricting Committee.

That’s good to hear, but my understanding is that while the State House is explicitly mandated to use total population in redistricting, the State Senate is not. That’s why it was the Senate map that was targeted in the Evenwel case. So, while I hope Rep. King means what he says here, the possibility very much exists that the Lege will try a different tack. (Also, it’s usually the House that draws the House map, and the Senate that draws the Senate map. I’d like to know what the relevant Senate committee chair has to say about this.)

UPDATE: From Ross Ramsey at the Trib:

In a letter urging Texas Attorney General Ken Paxton to take legal action to stop the proposal, state Rep. Chris Turner, D-Grand Prairie, framed the idea as an attack on Texas.

“Filing suit to block the Presidential Memorandum to the Secretary of Commerce dated July 21 would be wholly consistent with your official biography that explains as Attorney General, you are ‘focused on protecting Texans and upholding Texas laws and the Constitution’ and ‘fighting federal overreach.’ Indeed, if unchallenged, the President’s actions would likely hurt Texas more than any other state.”

The partisan politics here are clear enough. Turner is the chairman of the Texas House Democratic Caucus. Paxton, a Republican, is the newly branded co-chair of the national Lawyers for Trump.

But not all that is political is partisan, even in an election year. Does anyone in elected office here think Texas should have less influence in Washington, D.C.?

Good question. Someone should ask Ken Paxton, and Greg Abbott, and Dan Patrick, and John Cornyn and Ted Cruz, and all of the Republican members of Congress.

Emerson: Trump 47, Biden 41

Next up.

The latest Emerson College/Nexstar Media polls of Texas, California, and Ohio show President Donald Trump with a slight advantage in Ohio and Texas in the general election against presumptive Democratic nominee former Vice President Joe Biden. Trump also appears to be who voters in these states expect to win in November, as a majority expect him to secure a second term.

As the coronavirus pandemic continues to deeply affect the country, Governors in all three states maintain strong approval and partisan divides are stark in individual opinions on the country’s future.

[…]

In Texas, a potential new battleground state, President Trump is at 46% approval and 44% disapproval. Republican Governor Greg Abbott has 54% approval and 32% disapproval among voters in the state. n=800, +/-3.4%.

Trump leads Biden by six points among Texas voters, 47% to 41%, but when undecided voters are included, Trump’s lead tightens to four points, 52% to 48%. Despite the close ballot test, a clear majority of voters in Texas, 61%, expect Trump to be re-elected.

A slight majority in Texas, 51%, would rather vote by mail this year because of concerns about safety related to the virus.

You can see the full poll data for Texas here. For what it’s worth, FiveThirtyEight uses the 52-48 push-the-leaner total on its Texas polling page.

There are some questions about what kind of newly reopened establishments one would feel comfortable in, if you want to read more. Texas respondents were more cautious than their Ohio counterparts, which was interesting. Note that while Greg Abbott had fairly solid approval numbers, they pale in comparison to Ohio Gov. Mike DeWine, who checked in at 71 approve/15 disapprove – California Governor Gavin Newsom was at 65/20. Both DeWine and Newsom have been generally praised for their handling of the pandemic, while Abbott has been his usual wishy-washy self. It’s not that Abbott’s numbers are terrible, but compared to his peers, they’re weak. Make of that what you will.

Vote by mail is not a panacea

Let’s be clear, I very much support expanded access to vote by mail. I support the ongoing TDP lawsuit to force expanded vote by mail, and I would very much advise anyone who is at risk for COVID-19 to apply for a mail ballot. I believe allowing no-excuse vote by mail should be universal, along with a bunch of other voting rights reforms. But we need to recognize that if we do get expanded vote by mail for this year, it’s going to fit within the existing system we have now, not one that has been prepared for it in advance. There are real risks to large-scale expansion of vote by mail, and as is always the case, they fall disproportionately on minority voters.

As election officials scramble to expand their absentee programs, voter advocates are pressing them to preserve adequate in-person voting options, pointing specifically to the obstacles faced by voters of color. They are also noting the ways that vote-by-mail systems — particularly, if implemented sloppily — tend to disenfranchise minority voters at a higher rate than white ones.

Their concerns have already been borne out in the few states that have large-scale mail-in voting programs; in many of them, minority voters’ use of the options lags behind that of white voters.

“From our experience of doing voter engagement, one of the things is that there is confusion,” said Adrianne Shropshire, the executive director of BlackPAC, which mobilizes black voting around key races.

Her group recently surveyed registered black voters in swing states and found that 4-in-10 had concerns about voting by mail, a process only 36 percent had experience with. Even with the ongoing pandemic, voting-in-person was about tied with vote-by-mail when the survey-takers were asked their preferred method for November’s election.

“In some ways there’s an instinct that you have about the challenges that make them suspicious or concerned even if they don’t know the specifics,” Shropshire said. “On the reality side, we already know the challenges that black voters face when they vote by mail.”

The potential for racial disparities in how vote-by-mail systems are implemented has already become a flashpoint in upcoming primaries in Ohio, Nevada and Georgia.

Some of the resistance to absentee voting can be chalked up to historical or cultural trends, experts say, such as the longstanding “Souls to the Polls” practice of black church-goers traveling to polling places after Sunday services.

“Early voting has been really, really important for African American communities in encouraging voter participation,” said Danielle Root, an expert at the Center For American Progress who worked on a recent CAP-NAACP paper on the need for in-person voting during the pandemic. “So eliminating all in-person options obviously negatively impacts African American voters in that way.”

There are other systemic issues at play as well. African Americans change addresses more frequently, and they make up a disproportionate percentage of the homeless population. Transience can make participating in vote-by-mail elections challenging.

Given the unreliable nature of postal service on tribal lands, certain mail-in voting policies present unique challenges for Native American communities.

In-person voting is also needed for non-English speaking voters and for voters with disabilities, advocates say.

Pointing to these populations, voter advocates have criticized — and in some places, sued — election officials who have sought to all but eliminate in-person voting during the pandemic, as they have expanded absentee voting opportunities.

“For communities — and this is true for African American voters — that have higher rates of moving and lower rates of voter-by-mail usage, [election officials] need to be figuring out how to reach voters, and not looking for ways to, frankly, cut corners and in turn cut people out of the process,” said Hannah Fried, the national campaign director of the advocacy group All Voting Is Local.

There’s more, and you should read the rest. We have talked about some of these concerns, but this article goes into a lot more detail, and it addresses concerns I had not previously considered.

There are three basic takeaways here. One is that the goal here is to make voting easier for everyone, and that means giving them the best way for them to vote, whether it’s mail or in person. Two, focusing on safety and risk mitigation means considering all reasonable options to make in person voting safer as well – more locations, hand sanitizer and wipes everywhere, getting as many poll workers in place and trained as possible, etc. We can’t afford to be too focused on one method of voting at the expense of others. And three, we need to really listen to the voters who always face the hardest challenges to voting and take their feedback seriously. I’m going to be fine whatever we wind up doing. Lots of people are not in that same position. We need to accommodate those voters before we worry about voters like me.

Schlitterbahn sold

End of an era, as another iconic family-owned Texas business is sold to a non-Texas firm.

Schlitterbahn Waterparks and Resorts — which has dealt with a gruesome death, indictments and financial troubles in recent years — is selling a chunk of its holdings.

Ohio-based Cedar Fair Entertainment Co. has an agreement with the owners of Schlitterbahn to purchase the company’s New Braunfels park and resort property as well as their Galveston park for $261 million, subject to certain adjustments.

“It’s important to know that Cedar Fair values Schlitterbahn’s character and brand promise,” the Henry family — Schlitterbahn’s owners — said in a statement. “They have committed to not only keeping Schlitterbahn awesome but helping us grow!”

Richard Zimmerman, Cedar Fair’s president and CEO, said the company is “very excited about the opportunity to bring these two award-winning Texas water parks into the Cedar Fair family.”

“These properties represent new markets for us with attractive demographics in the growing Central Texas region, and they align with our strategy to identify compelling opportunities to accelerate our growth and profitability,” he said in a statement.

That’s Schlitterbahn and Whataburger all in the same week, y’all. As we know, the Schlitterbahn has had some trouble in recent years, though at least the criminal charges that were filed have been dismissed. It sounds like the family had been looking to sell for awhile, as they were having cash flow problems that caused some planned new parks to not happen. They are retaining the South Padre park, which will be rebranded. I hope the new owners can get everything back to its old glory, and I hope the Henry family can get themselves back on their feet. The Current has more.

The Ohio voter purge case

Still the only voter ID anyone should need

I refer to the Husted v. A. Philip Randolph Institute case that was decided by SCOTUS on Monday. Here’s a long reading list if you want to get up to speed on it:

SCOTUSBlog
Pema Levy
Mark Joseph Stern
Kira Lerner

Daniel Nichanian
Josh Douglas
Dahlia Lithwick
Rick Hasen
Ian Millhiser
Ari Berman
Kevin Drum

Go ahead and peruse. I’ll wait.

All right. The coverage and analysis of this ruling focuses on Ohio, for the obvious reason that this is where the case came from, and also because, as Dahlia Lithwick puts it, Ohio is the “purgiest of all the purgey states”. There’s some discussion about how this ruling paints a roadmap for other states that are inclined to do what Ohio has been doing to follow, though as the Rick Hasen piece notes there’s also a potential roadmap for blocking such efforts in the courts. What I want to know, of course, is how this will and may affect Texas. To the best of my knowledge, this kind of voter roll updating/purging is done at the county level. We certainly saw various underhanded tricks here in Harris County, like sending notices to update one’s voter registration information to known old addresses, back in the Paul Bettencourt/Leo Vasquez/Don Sumners days, but with Ann Harris Bennett in office now it’s less of a concern.

So my question is, what role does our Secretary of State play in all this, and what opportunities does our SOS have to “assist” the county election admins/voter registrars in “cleaning up” their voter rolls? What does the SOS do now, and what could our Lege enable or direct it to do now that Husted is law? I don’t have the expertise to say, and the election law-minded folks on Facebook that I rely on have not had anything to say about this. It sure would be nice if one of our professional news-gathering organizations put someone on to this question.

Wait, who supports paper ballots now?

I have three things to say about this.

Following repeated allegations by Republican Donald Trump that the election may be rigged to ensure a win for Democrat Hillary Clinton, Texas lawmakers are actively considering ways to boost confidence in the state’s elections during next year’s legislative session.

Among the ideas drawing interest: adding paper trail backups to thousands of electronic voting machines.

The idea was brought up in a tweet Saturday by Gov. Greg Abbott.

“That’s a great idea & we are considering it as an election reform measure. Election integrity is essential,” Abbott tweeted in response to a voter who tweeted that he wanted printed proof of how he cast his ballot.

Over the last decade, several Texas lawmakers have filed bills to require paper trails on electronic voting machine. The proposals often include adding a printer in a sealed case to the state’s electronic voting machines so voters could check their votes against the receipt. The paper trail could be consulted in the event of a recount.

During the 2007 legislative session, interest in the idea stalled following estimates that adding the printers to all of the state’s voting machines could cost $40 to 50 million, according to a Fort Worth Star-Telegram article from the time.

One of the 2007 bills was authored by then-state Rep. Lois Kolkhorst, R-Brenham. Now a state senator, she said she may re-introduce her previous legislation.

“I agree with Governor Abbott’s call for election reform,” Kolkhorst said Tuesday in an emailed statement. “I have personally spoken with his office about re-introducing my legislation from 2007 to strengthen ballot integrity by requiring a paper record be printed of a person’s vote on an electronic voting machine. Texans have the right to inspect and verify that their vote was accurately recorded.”

[…]

The move toward election reform comes amid an election season in which Texans have expressed concerns about election rigging and voter fraud. Last week, Trump highlighted reports of voting machines in Texas changing votes for president from voters casting straight-ticket ballots. Those reports, however, have been largely debunked by election officials, who have stated that alleged instances of “vote flipping” were the result of user error.

1. I’m old enough to remember when suspicion of electronic voting machines and faith that only paper ballots could ensure the integrity of our electoral system was a shibboleth on the left, largely having to do with dire conspiracy theories about the Diebold corporation and vote counting in Ohio in 2004. Here’s a little blast from the past for those of you who have blocked this out or weren’t there for it the first time. Who knew that a sociopathic sore-losing narcissist could spark such an interest in voting machine integrity among Republicans? For that matter, who knew that so many Republican voters could be that suspicious of the electoral process in a state whose elections they have been dominating for over 20 years? Clearly, all these Republican County Clerks and Republican-appointed elections administrators can’t be trusted.

2. Travis County has already done a lot of the heavy lifting on building a better mousetrap. Maybe we should just emulate their work and save us all a bunch of time and effort.

3. Putting aside the question of paper ballots for a moment, perhaps we should take a moment and contemplate the fact that the electronic voting machines we use now are all a decade or more old, and are generally past their recommended lifespan. If we do nothing else, spending a few bucks to upgrade and replace our current hardware would be an excellent investment.

SCOTUS will take up same sex marriage

This is it.

The Supreme Court announced on Friday that it will take up four cases challenging state bans on same-sex couples’ marriages — a long anticipated move that could lead to nationwide marriage equality.

The cases ask the justices whether Kentucky, Michigan, Ohio, and Tennessee bans on same-sex couples’ marriages and bans on recognition of same-sex couples’ marriages from out of state violate the Constitution’s due process and equal protection guarantees.

The two questions granted by the court for argument are: 1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” and 2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

There will be 90 minutes of argument on the marriage question and 60 minutes of argument on the marriage recognition question, per the court’s order.

The coming showdown before the justices over same-sex couples’ marriage rights has quickly become seen as inevitable following the Nov. 6, 2014, decision of the 6th Circuit Court of Appeals to uphold the bans in Kentucky, Michigan, Ohio, and Tennessee. The ruling set up a disagreement with other appeals courts to have considered the issue; the 4th Circuit, 7th Circuit, 9th Circuit, and 10th Circuit courts of appeals all have struck down such bans on various grounds.

[…]

The same-sex couples plaintiffs’ briefs will be due by 2 p.m. Friday, Feb. 27. The states’ briefs will be due by 2 p.m. Friday, March 27. The reply briefs from the plaintiffs will be due by 2 p.m. Friday, April 17.

Then, likely in late April, the justices will hold arguments over the issue — which would mean a decision, and possible nationwide resolution of the issue, would be expected by late June.

Freedom to Marry has reactions from many of the people that have been directly involved in the litigation, while TPM reports that the Obama administration will formally ask SCOTUS to rule in favor of same sex marriage. This is what we’ve been waiting for, and while I suppose it could all go horribly wrong it’s hard not to feel optimistic. I look forward to seeing the analyses of the case as the briefs get filed and replied to and whatnot. In the meantime, I wonder if this will spur the Fifth Circuit to issue its ruling prior to SCOTUS, or if they’ll be happy to let the Supremes take that task out of their hands. The Trib lists some possibilities:

  • At the very least, the Supreme Court’s ruling — which will likely come in June — will make the 5th Circuit’s decision in the Texas case less consequential, said Aaron Bruhl, an associate law professor at the University of Houston. The 5th Circuit could issue its decision in the case in a few weeks.
  • The Supreme Court’s action on Friday could also delay the 5th Circuit’s decision in the Texas case. “It is possible that at this point [the 5th Circuit] could say, ‘Whatever we say, the authoritative decision is going to come not too much later than we would rule anyway. Maybe we should just wait,'” Bruhl said.
  • Lawyers for each side in the Texas case have said they hope the 5th Circuit rules before the U.S. Supreme Court. Bruhl said it’s possible the parties in the case will ask the court to issue a ruling even though the Supreme Court has taken up the issue again.

I also wonder what the backlash from the bad guys will look like. If all goes well, this ruling could do a lot of good for a lot of people in Texas, but as we have seen, marriage is only a piece of the puzzle. There’s a lot more to be done, and it’s not clear yet who will be more energized by a nationwide defenestration of anti-gay marriage laws. But that’s a thought for another day. For now, let’s celebrate coming this far. SCOTUSBlog and Hair Balls have more.

Sixth Circuit stands up for inequality

It was bound to happen eventually.

RedEquality

Remember the big no-decision decision the Supreme Court issued on same-sex marriage just a month ago? The justices were asked — in five separate cases no less — to weigh in on whether same-sex couples have a constitutional right to marriage. The Supreme Court demurred on the question, which was a significant move in and of itself.

By declining to review any of the cases before it, the justices effectively blessed lower-court rulings that had struck down state gay marriage bans in five states. Circuit courts had been unanimous on the subject. So what more was there to say? Barack Obama even told Jeffrey Toobin recently that he thought this was the best Supreme Court decision of his tenure: a silent statement on the importance of letting cultural change spread across the country, one state at a time.

Well, so much for the power of silence. The U.S. Court of Appeals for the 6th Circuit just reversed rulings striking down gay-marriage bans in Michigan, Ohio, Kentucky and Tennessee. This means that four circuit courts have now struck down gay marriage bans, while one has upheld them. We no longer have unanimity. The Supreme Court, eventually, will have to step in.

The 6th Circuit decision is here. A lot of people had been waiting to see what the Fifth Circuit would do, if they would be the court that provided the circuit split that forced SCOTUS to act, but they took too long. They will still get a chance to have their say, of course, and perhaps now that they wouldn’t have to be the trailblazer for upholding this particular injustice they’ll feel more free to let their colors show. One hopes that in the end neither this ruling nor the one the Fifth Circuit is expected to make will matter. Daily Kos and Freedom to Marry have more.

Court strikes down Texas voter ID law

Boom.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Less than two weeks before the start of early voting, a federal judge ruled the state’s photo voter ID law unconstitutional late Thursday and ordered state officials to drop the new requirements.

“The Court holds that SB 14 creates an unconstitutional burden on the right to vote, has an impermissible discriminatory effect against Hispanics and African-Americans, and was imposed with an unconstitutional discriminatory purpose,” U.S. District Judge Nelva Gonzales Ramos of Corpus Christi wrote in a 147-page opinion. “The Court further holds that SB 14 constitutes an unconstitutional poll tax.”

A spokeswoman for Attorney General Greg Abbott said the state would immediately file an appeal to the U.S. Fifth Circuit Court of Appeals.

“The State of Texas will immediately appeal and will urge the Fifth Circuit to resolve this matter quickly to avoid voter confusion in the upcoming election,” Lauren Bean said in an emailed statement. “The U.S. Supreme Court has already ruled that voter ID laws are constitutional so we are confident the Texas law will be upheld on appeal.”

[…]

The judge heard three weeks of evidence in September and issued her opinion on the same day that the U.S. Supreme Court stopped immediate implementation of a similar law in Wisconsin.

It was not immediately clear what will happen to this year’s general election. The judge said she would schedule a conference with the lawyers to discuss it, and a successful appeal by Abbott, who is also the Republican nominee for governor, could put the law back into effect for this election while the courts sort out a full appeal.

Here’s more on the Wisconsin voter ID ruling. There are two things to emphasize here. One is that in addition to striking down the law, Judge Ramos found intentional discrimination on the part of the state in passing the law. That potentially allows for Texas to be bailed back in to preclearance under Section 3 of the Voting Rights Act, which is something the Justice Department specifically sought. The other is that there’s a good chance that Judge Ramos’ ruling could be stayed, allowing voter ID to be implemented for this election while the appeals go forward. Rick Hasen explains.

In Ohio, the court changed the law close to the election, but more importantly, it imposed an order reestablishing 5 weeks of early voting when the state was still willing to give four. There was no significant burden on plaintiffs and so the lower courts were wrong to order this emergency relief. In North Carolina, North Carolina’s law, which I’ve dubbed the strict set of voting restrictions we’ve seen enacted as a package since the passage of the 1965 Voting Rights Act, should be found unconstitutional. But even so, under the Purcell v. Gonzalez principle, it was wrong for the 4th Circuit to make this change in the rules so close to the election (particularly where plaintiffs waited a while to seek a preliminary injunction [this has been corrected]).

That same Purcell principle applies even more strongly to Wisconsin. That is, even if the Supreme Court ultimately would say that Wisconsin’s law is constitutional and does not violate the Voting Rights Act, this is a very strong case under Purcell. (As I explained, the key question is whether Wisconsin has a strong enough state interest in its sovereignty over elections to implement a voter id law very quickly before the election, when there has been no preparation and when the undisputed evidence shows that, by the state’s own account, up to 10 percent of the state’s voters could be disenfranchised (a position the 7th Circuit en banc dissenters called shocking).

Finally, what happens now with Texas, with the huge win for challengers to Texas’s voter id law which Justin wrote about earlier? It is 4 am where I am and I may have missed it, but in all of the court’s findings—the Texas law violates the Equal Protection clause, is a poll tax, violates the Voting Rights Act, and engaged in enough intentional discrimination to be put back under preclearance–there is no discussion of whether the actual order will apply to this election and the injunction will stop its use in this election.

This order too creates a huge Purcell problem, as I’ve blogged, changing the rules so close to the election. If the district court orders an immediate stop to Texas’s id law, I expect the 5th Circuit (if not the Supreme Court) to reverse that on Purcell grounds.

He’s the expert, but I would argue that the default for the vast majority of voters has been not needing to show ID, and that it would be less disruptive to enjoin the law pending appeals. The Texas Election Law Blog, going by an earlier Justin Levitt post, thinks Judge Ramos’ decision was written to address the Purcell issue. I hope they’re right, but as always with matters involving the Fifth Circuit, I have no faith in their jurisprudence. A press release from the Brennan Center is here, the Chron story is here, and BOR, Burka, Newsdesk, and PDiddie have more.

Lots of same sex marriage appeals about to happen

Busy times in the federal appeals courts.

RedEquality

Federal appeals courts soon will hear arguments in gay marriage fights from nine states, part of a slew of cases putting pressure on the U.S. Supreme Court to issue a final verdict.

If the appeals judges continue the unbroken eight-month streak of rulings in favor of gay marriage, that could make it easier for the nation’s highest court to come down on the side of supporters.

If even one ruling goes against them in the four courts taking up the issue in the coming weeks, it would create a divide that the Supreme Court also could find difficult to resist settling.

“We’re going to be racking up more courts of appeals decisions, and every one we get puts more pressure on the Supreme Court to weigh in,” said Douglas NeJaime, a law professor at the University of California-Irvine. “It’s very likely the Supreme Court ultimately settles this question. Given how quickly things have moved, it’s hard for the court to avoid this in the short term.”

[…]

Arguments similar to those [that were] heard Wednesday will take place Aug. 26 in the 7th Circuit in Chicago, for bans in Wisconsin and Indiana, and for Sept. 8 in the 9th Circuit in San Francisco, for bans in Idaho and Nevada. The 5th Circuit in New Orleans is expected to soon set a date to hear arguments on Texas’ ban.

The flurry of arguments means an upcoming spate of rulings, possibly all issued this autumn, that could profoundly alter the nation’s marriage laws.

If the four federal circuit appeals courts rule in favor of gay marriage, then nine states with pending appeals stand to have their bans stricken down altogether or ordered to recognize out-of-state gay marriages: Ohio, Michigan, Tennessee, Kentucky, Texas, Indiana, Wisconsin, Idaho and Nevada, though the decisions likely would be put on hold for a Supreme Court ruling.

Five additional states under those four circuit courts have gay marriage lawsuits awaiting decisions by federal judges: Alaska, Arizona, Louisiana, Mississippi and Montana.

Observers say the 6th or 5th circuits could deliver the first victory for gay marriage opponents.

We know about the Sixth Circuit, in which arguments were heard this week. We still don’t know when the Fifth Circuit will hear arguments there, but we do know that 63 Texas legislators have signed a brief in the appeal in which they declare that same sex marriage is icky and they totally have Greg Abbott’s back. Hey, remember when something like that would have been bipartisan? This one was an all-R effort, with the TDP and these troglodytes’ two LGBT colleagues firing back. I’m so glad those days are over, even if there are still a few laggards on the issue. In any event, the national picture will almost certainly be a lot clearer, or a lot more complicated, in the next few months.

Marriage equality’s legal winning streak may be on the line this week

And it’s not even the Fifth Circuit Court of Appeals that might bring a halt, however temporary, to the march of progress.

RedEquality

Marriage equality has had a very good run in the federal courts ever since the Supreme Court declared the anti-gay Defense of Marriage Act unconstitutional in 2013. Every single federal court to consider the question has sided with marriage equality, although two federal appellate judges have dissented from this consensus view in the United States Courts of Appeals for the Fourth and the Tenth Circuits.

Nevertheless, equality is likely to face more skeptical judges as more of these cases advance to the court of appeals level. As ThinkProgress warned last June, “appointments to federal circuit courts have historically been much more politically charged than appointments to the lower-ranking district courts, so litigants are far more likely to encounter a judge who was selected for their loyalty to a particular ideology.” We also predicted that the Sixth Circuit, with a strong Republican majority and a history of partisan acrimony, was especially likely to treat a marriage equality case with skepticism.

Next Wednesday, a three-judge panel of the Sixth Circuit will convene in Cincinnati to hear several marriage equality cases arising out of Michigan, Ohio, Kentucky and Tennessee — and the GOP-dominated panel that will hear these cases is unlikely to bring joy into the hearts of equality’s supporters.

If the Sixth Circuit really wants to accept a bunch of ridiculous and widely discredited arguments on behalf of discrimination, there’s not much anyone can do to stop them. History will remember them unkindly, but I suppose we’ll all be dead by then, so YOLO and all that. As the story notes, there’s a chance it might not go down this way, so let’s not get ahead of ourselves. In the end, even a bad decision just means that the Supreme Court will have to take it up sooner rather than later.

Inmates and Medicaid

Other states are doing what Texas has declined to do.

go_to_jail

Being arrested in Chicago for, say, drug possession or assault gets you sent to the Cook County Jail to be fingerprinted, photographed and X-rayed. You’ll also get help applying for health insurance.

At least six states and counties from Maryland to Oregon’s Multnomah are getting inmates coverage under Obamacare and its expansion of Medicaid, the federal and state health-care program for the poor. The fledgling movement would shift to the federal government some of the more than $6.5 billion in annual state costs for treating prisoners. Proponents say it also will make recidivism rarer, because inmates released with coverage are more likely to get treatment for mental illness, substance abuse and other conditions that can lead them to crime.

“When someone gets discharged from the jail and they don’t have insurance and they don’t have a plan, we can pretty much set our watch to when we’re going see them again,” said Ben Breit, a spokesman for the Cook County Sheriff’s Office.

The still-small programs could reach a vast population: At the end of 2012, almost 7 million people in the U.S. were on parole, probation, in prison or locked up in jail, according to the federal Bureau of Justice Statistics. About 13 million people are booked into county jails each year, according to the Washington-based National Association of Counties.

[…]

Medicaid expansion also enables more prisoners to have coverage when they are released. States that don’t expand it can help inmates get subsidized coverage in the insurance exchanges created under the law when they’re released.

Counties in about half the states are responsible for some level of indigent care at hospitals, so getting inmates enrolled can reduce costs, said Paul Beddoe, deputy legislative director for the National Association of Counties.

Cook County has been operating a pilot project to enroll prisoners in Medicaid since April under a federal waiver, while states including Connecticut, Illinois and Maryland and counties such as Multnomah, which includes Portland, have helped hundreds of prisoners apply for coverage under the Affordable Care Act since it took effect Jan. 1. California, Ohio, San Francisco and other jurisdictions are starting programs or considering them.

About 90 percent of inmates are uninsured, and many have never had treatment for their illness, Osher said. They have disproportionate rates of communicable and chronic diseases and behavioral disorders, he said. About 488,000 people in U.S. prisons and jails suffer from a mental illness, according to the National Alliance on Mental Illness in Arlington, Virginia.

[…]

The Ohio Department of Rehabilitation and Correction, which plans to start enrolling inmates during the next two months, expects that it will save $18 million a year on hospitalization alone, said Stu Hudson, managing director of health care and fiscal operations.

Ex-prisoners who have insurance will be more likely to get treatment that would help them avoid committing crimes that got them locked up in the first place, Hudson said.

“They’re provided good continuum of care from incarceration through their release into the community and onward,” Hudson said by phone.

We’ve discussed this before. Putting aside the considerable cost savings to the state, the potential impact on the many people that regularly intersect with the criminal justice system who have treatable mental illnesses could be huge. We could save a bunch more money just from the reduced rate of recidivism. There’s really no downside to this. Unfortunately, without a change in state leadership, there’s also no chance of it happening. I don’t really care about the day to day vicissitudes of the Governor’s race. This sort of thing is the prize I keep my eyes on.

Hearing for the Texas federal same sex marriage lawsuit is tomorrow

All eyes will be on San Antonio on Wednesday.

RedEquality

Like most new parents, Nicole Dimetman and Cleopatra De Leon plan their days around their small child. Theirs is an ordinary family life, they say, but it is by no means easy.

Although married in 2009 in Massachusetts, where same-sex marriage is legal, they live in Texas, a state that doesn’t recognize their union. When De Leon delivered their child in 2012, Dimetman’s name wasn’t allowed on the birth certificate.

“There was that time period that I was the only parent,” De Leon said, a situation that never affects married heterosexual couples. “If something happened to me during his birth, he would have been considered an orphan.”

In October, the women, along with another couple, filed a federal lawsuit in San Antonio challenging the state’s ban on same-sex marriage. On Wednesday, they will go before U.S. District Judge Orlando Garcia, who will consider a preliminary injunction, a court order that would bar Texas from enforcing the ban while the suit continues to be litigated.

As the nation’s second-most populous state, “any decision that affects the marriage equality in Texas has national implications,” said San Antonio-based attorney Neel Lane, who represents the couples.

Indeed, the implications of the Texas cases could transform the national debate over gay marriage.

[…]

To prevail on the injunction request, the couples have to show they are likely to win when the full suit is litigated, and that they “are being harmed right now,” according to attorney Lane.

“Our belief is the arc of equal protection cases … points directly to recognizing that people have the right to marry regardless of gender,” Lane said. “Gays and lesbians are not afforded access to marriage and all the benefits from it. That is a denial of equal protection of the law. It is unequal when some people are not permitted to do what most others are permitted to do. And there’s no basis for denying them that right.”

See here and here for the background on the Texas case. As you can see from the latter link, I was rather pessimistic about this at the time that the hearing date was set. Then along came the rulings in Utah and Oklahoma and Ohio, and the decision by Virginia AG Marc Herring to not defend that state’s law, and just like that things look a whole lot different. There’s still a ton of decisions to be made, by the district court in Virginia and the appeals court for Utah and Oklahoma. Ohio, the site of a narrower decision concerning death benefits, is now on the clock with its own lawsuit (via Scalzi). And I’d still bet money on the Fifth Circuit Court of Appeals doing something hideous when they get the opportunity to weigh in. But it’s clear that the ground has shifted, and that the plaintiffs have by far the stronger argument. I don’t know what’s going to happen in court tomorrow, but it’s mind-boggling to think that we’re at this point barely eight years after that horrible, discriminatory amendment was passed. I truly hope we can start the countdown till its final day. Lone Star Q has more.

UPDATE: And late yesterday, the Democratic Attorney General of Nevada, with the agreement of the Republican Governor of Nevada, has announced the state will not defend its ban on same sex marriage against litigation there. Another nail in the coffin.

On voter confidence

There was one more interesting aspect to that poll of Harris County from last week, and it had to do with how confident voters were that the vote they cast would be counted. This KUHF story goes into that result.

A new KUHF/KHOU poll shows that black voters aren’t as confident as other voters that their vote will be counted accurately.

[…]

Rice University Political Science Professor Bob Stein, who conducted the poll, says confusion and possible anger over voter ID could be fueling the lower level of assurance.

“African-Americans here are actually considerably less confident that their vote will be counted accurately than other African-Americans throughout the country, with the exception of states who’ve had this controversy over photo IDs.”

Stein says the difference between the KUHF/KHOU poll and national polls is the level of confidence African-American voters expressed. While nationally 40-45 percent of black voters are very confident that their vote will be counted accurately. Stein says the numbers are different for those voters polled in Harris County.

“Among African-Americans only about 36% are very confident, compared to 50% white and 44% Hispanic.”

Here are the relevant tables from the topline data:

Dr. Stein asked me for my feedback on this, and I replied as follows:

Interesting stuff. From a Dem perspective, I would add two things that likely add to the perception of one’s vote not being counted:

1. In my experience, Dems have a much higher level of distrust of electronic voting machines. Some of that is lingering paranoia and conspiracy-mongering from Ohio 2004, and some of it is the very legitimate concern that these machines aren’t terribly secure and could well be compromised without anyone knowing it. The fact that every cycle there seems to be a story about some well-connected Republican having an ownership stake in a company that produces these machines, as is the case this year with Tagg Romney, adds to this level of distrust.

2. Every time something happens that causes a problem with voting, or that results in misinformation about voting, it seems to affect people of color in a vastly disproportionate amount. See the recent debacle with the “dead voter” purge here, and the recent story in Arizona about the wrong date for Election Day being provided in Spanish-language materials. Add in the various official and unofficial efforts to suppress minority voting – voter ID, the King Street Patriots’ “poll watchers”, efforts to curb early voting in Ohio, etc etc etc – and it’s easy to see why some folks feel like their vote is discounted.

Almost as if on cue, we had this story in Friday’s Chron:

State election officials repeatedly and mistakenly matched active longtime Texas voters to deceased strangers across the country – some of whom perished more than a decade ago – in an error-ridden effort to purge dead voters just weeks before the presidential election, according to a Houston Chronicle review of records.

Voters in legislative districts across Texas with heavy concentrations of Hispanics or African-Americans were more often targeted in that flawed purge effort, according the Chronicle’s analysis of more than 68,000 voters identified as possibly dead.

It’s unclear why so many more matches were generated in some minority legislative districts. One factor may be the popularity of certain surnames in Hispanic and historically black neighborhoods.

That’s as may be, and as noted before there were Anglo voters and known Republicans affected by this as well. But still, there are only so many times that this sort of thing can happen before people stop believing it to be a coincidence or an innocent mistake. Texans for Public Justice argued last week that this was anything but an innocent mistake, as they accused Andrade of deliberately trying to suppress the vote. You can read the report and come to your own conclusions, but again I’m not surprised by the poll numbers. I’m sure there are other reasons I didn’t come up with. Maybe this is an anomaly, maybe it’s a small sample size problem, but it’s worth keeping an eye on, because people who don’t think their vote counts are less likely to vote. What do you think about this?

Election results elsewhere

Results of interest from elsewhere in Texas and the country…

– Three of the ten Constitutional amendments were defeated, with Prop 4 losing by nearly 20 points. It drew strong opposition from anti-toll road activists, and I daresay that was the reason for the lopsided loss. The other two, Props 7 and 8, were pretty innocuous, and I have no real idea for why they went down.

– There was one special legislative election, to replace Fred Brown in HD14. Republicans Bob Yancey and John Raney will advance to the runoff for that seat.

– In New Braunfels, the can ban was upheld, and it wasn’t close.

The container ban ordinance, which goes into effect Jan. 1, was approved by 58 percent of the vote.

Ban supporters hailed the win as vindication of their claim that residents want the river protected from rowdy tourists and their litter.

“This was a landslide that can be disputed by no one,” said Kathleen Krueger, spokeswoman for Support The Ban. “New Braunfels has spoken loud and clear that we want to protect our rivers for the next generation.”

The lead spokesman for the opposition said the real issue was government transparency and vowed to continue the fight.

“I’m not disappointed,” said Mark McGonigal. “I have an opinion and so do other people. I knew one side would prevail. But the legality of this has yet to be determined.”

A lawsuit challenging the ordinance as illegal under state law, filed by a group of local business owners, is pending in state district court.

Nearly 9000 votes were cast in that referendum.

– Elsewhere in the country, there were a number of good results for progressives. Voters in Maine restored same day registration, while voters in Ohio repealed a law that would have curtailed collective bargaining rights. Each was a defeat for the state’s elected-in-the-2010-landslide Republican Governor. Mississippi voters rejected a radical “personhood amendment” that could have had far-reaching negative effects on reproductive choice. And finally, Arizona State Senator Russell Pearce, the author of the anti-immigrant SB1070 and a notorious racist, was recalled by voters there. Small steps, but in the right direction.