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SCOTUS

One thing our state loves spending money on

Defending unconstitutional anti-abortion laws in the courts.

As Texas defends abortion laws in federal court that mandate fetal burials and seek to outlaw certain medical procedures, the state has been ordered to pay pro-abortion attorneys $2.5 million — fortifying women’s reproductive rights groups that have repeatedly sued over restrictions passed by the state Legislature.

The August order from a federal judge in Austin is seemingly the final decision in a high-profile battle over a 2013 Texas abortion law the U.S. Supreme Court eventually struck down as medically unnecessary and thus unconstitutional. The law, which was in effect for three years, required abortion providers to comply with all the regulations for ambulatory surgical centers, forcing many to undergo expensive renovations, and required their physicians to obtain admitting privileges at a nearby hospital.

The judge’s order brings the state’s total cost for defending those now-defunct pieces of the law to an estimated $3.6 million.

“Passing regulations that are blatantly unconstitutional, and then wasting people’s resources to fight them, costs money and precious resources and time. And people are harmed in the process,” said Amy Hagstrom Miller, CEO of Whole Woman’s Health, an abortion provider and lead plaintiff in the case who notes that half of the state’s abortion clinics closed before the Supreme Court’s 2016 ruling. “That is a precious resource of Texans’ dollars being used toward that.”

Because the state lost the case, U.S. District Judge Lee Yeakel ruled it must pay the plaintiffs $2,297,860 attorney’s fees, $170,142 in nontaxable expenses and $95,873 in other costs. The amount represents nearly half of the $4.7 million in costs the plaintiffs say they incurred preparing and trying the case. The Texas attorney general’s office did not contest the judge’s ruling.

The award for the opposing attorneys is more than double the nearly $1.1 million the attorney general’s office reported spending on its own attorney’s salary, overhead, travel expenses and other costs associated with defending the law, according to open records obtained by the Texas Tribune in 2016.

Hardly the first time – that 2016 SCOTUS ruling cost the state even more – and until we get a different government, hardly the last time. The AG’s office declined to comment for the story, but we both know that Ken Paxton would gladly spend down the entire Rainy Day Fund in defense of these laws. It’s not really a cost, as far as they’re concerned. It’s an investment.

On a related note:

[Joe Pojman, executive director of the Texas Alliance for Life which advocates for stiffer abortion regulations,] said anti-abortion advocates need to think long-term if they want to overturn Roe v. Wade, which established legal precedent protecting a woman’s right to an abortion. The long-time activist said he is not confident the makeup of the U.S. Supreme Court is favorable to overturning Roe v. Wade — but it could be in a few years.

“We are telling our people that they need to stay focused on re-electing President Donald Trump because he has a track record of nominating justices who are possibly willing to take an honest look at Roe v. Wade,” said Pojman.

I’ve lost count of the number of times that people who voted for Ralph Nader in 2000 and people who voted for Jill Stein in 2016 have ridiculed the notion of judicial appointments as an electoral issue. Joe Pojman would like to thank them for their dedication to their principles.

Voting centers everywhere

In Dallas:

Starting in November, problems like Mr. Voter’s, at least in Dallas County, will be a thing of the past. Tuesday afternoon, the Texas Secretary of State’s Office officially gave the county permission to participate in the countywide voting program the state allows its most populous counties to opt into. That means that whenever you vote, whether it’s early or on Election Day, you can vote at whatever polling place you choose, as long as you’re both registered to vote in Dallas County and physically in Dallas County.

County commissioners voted to ask the state to get in on the program this spring, after county staff said participation would streamline the voting process, potentially increase voter turnout and decrease the number of voters who cast provisional ballots.

“It is time to come into the 21st century and have an election system that actually works,” Commissioner Elba Garcia said in March. “The main point about vote centers is that we have people, over 3,000 people, that wanted to vote during the last election and they were not able to do it. Voting centers bring that to the table. It’s time to make sure that anyone who wants to vote is able to go and vote in the right place without any problems.”

[…]

In order to participate in countywide voting this November, Dallas County had to upgrade its voter check-in system, something you may have noticed if you’re one of the literally hundreds of people who voted in May or June’s municipal elections. Those looking to cast ballots now check in on a cloud-connected tablet that has service from two carriers, in case one is on the fritz.

November’s state constitutional amendment election is essentially a dry run. If everything comes off without a hitch, and Dallas County sends a successful report to the state, the county will be able to offer countywide polling places during all elections moving forward.

In San Antonio:

The Secretary of State approved Bexar County’s adoption of the vote center model Friday for the upcoming November election, Bexar County Elections Administrator Jacque Callanen told county commissioners Tuesday.

The November election will serve as the “soft rollout” for the vote center model, Callanen said. Vote centers allow voters to cast ballots at any location in Bexar County on Election Day. The county previously used the precinct model, under which voters were required to cast ballots at their specific precincts on election day.

“When we do publication [of voting locations], we’ll have Vote Center 1, VC 2, VC 3, and addresses listed,” Callanen said. “No longer are we precinct-driven.”

Callanen said she expected people to get used to the new model after a complete election cycle. The Elections Department plans to start its advertising push after Oct. 1 to allow people enough time to hear about and understand the new voting model.

“I think that will take a little assistance to get the word out,” she said.

This year’s Nov. 5 Election Day will feature 10 constitutional amendments on the ballot, and turnout is expected to be low. However, county election officials view the election as an important dress rehearsal for the November 2020 presidential election.

Both will join Harris County, which had its dry run in May and will get a fuller test this November, with the city of Houston elections and the Metro referendum. It’s a good thing that voting centers are spreading, because traditional polling places have been going away in the state in recent years.

A new report out from the Leadership Conference Education Fund found that Texas is leading the nation in polling place closures, another practice that voting rights advocates fear can lead to disenfranchisement.

The report, titled “Democracy Diverted: Polling Place Closures and the Right to Vote,” looked at 757 of the 861 counties and county-level equivalents across the nation that were previously covered by Section 5, and found that 750 polling places in Texas have been shuttered since Shelby. That constitutes almost half of all polling places in the U.S. closed since 2013. Fourteen Texas counties closed at least 50 percent of their polling places after Shelby, and 590 have been shuttered since the 2014 midterm election.

Maricopa County in Arizona had the most polling place closures, but that was followed by six counties in Texas: Dallas lost 74 places; Travis lost 67; Harris shuttered 52; Brazoria closed 37; and Nueces closed 37.

“The large number of polling location closures is attributable to the size of Texas and the fact that we’re no longer under preclearance,” said Beth Stevens, director of the Voting Rights Program at the Texas Civil Rights Project. Now, “there’s no one [the state needs] to ask for permission to make changes.”

[…]

This comes into focus when looking at the demographics of some of the counties that saw the most closures. Brazoria County, which lost 59 percent of its polling locations since Shelby, is 30 percent Latino and 13 percent African American. The number of polling places in Nueces County, home to Corpus Christi and 63 percent Latinx, dropped by nearly a third. In Jefferson County, where Beaumont is located, about 34 percent of its 250,000 residents are African American and 20 percent are Latino; polling places there dropped from 57 in 2012 to 39 in 2018.

The report attributes some of these closures to jurisdictions adopting the county-wide polling program and opening voting mega-centers. By allowing people to cast a ballot on Election Day at any location, instead of bounding them to their precinct, the program is supposed to make voting easier (more locations to choose from, shorter lines).

The Texas Civil Rights Project is supportive of the program, said Stevens—so long as it’s enacted responsibly. She pointed to counties like Harris and Bexar as good examples: they’ve moved to county-wide polling while maintaining every single polling location that they would otherwise be required to have.

But, the report notes, some counties with large drops in polling locations—like Somervell (minus 80 percent), Loving (minus 75 percent), and Stonewall (minus 75 percent)—didn’t transition to vote centers. The report adds, “voters in counties that still hold precinct-style elections have 250 fewer voting locations than they did in 2012.”

The report is here and I’ve just glanced at some of it, so I can’t give you too much extra context. Some of what’s reported in the Observer is a bit alarmist, however. Loving County had 110 total registered voters in 2016, and its demographics are almost entirely Anglo. I’d bet that its “75% reduction” is going from four sites to one. Stonewall County had 998 RVs total in 2016. Every voter counts, but not every county’s actions are equal in scope. The statistics for Brazoria, Jefferson, and Nueces counties sounds more ominous, but all of them use voting centers as well. Travis County, of course, is one of the pioneers of voting centers; one of the people in charge of implementing the Harris County program came from the Travis County Clerk’s office having done the same thing there. What all this means is we need more information about how well or not these are working and what the effect are on voters of color. Which, as is noted in the report summary, is a hard thing to assess without Section 5 of the Voting Rights Act. This is definitely something to watch, I just can’t say right now what the level of concern needs to be. The Chron, whose story gets more into the details about voting centers, has more.

Life after the Voting Rights Act

A good long read from the Trib about where we are with redistricting and what may lie ahead.

Since Congress passed the Voting Rights Act in 1965, Texas has been barred by law from discriminating against voters of color. Yet in every decade since then, federal judges have ruled at least once that the state violated federal protections for voters in redistricting.

Now, as Texas Republicans are facing the possibility of losing their political dominance, the state is gearing up for a new cycle of mapmaking. The House Redistricting Committee [held] the first of more than a dozen hearings Tuesday in advance of what’s expected to be a contentious legislative session in 2021, when new political boundaries will need to be drawn to account for the state’s booming population.

But because of voting rights advocates’ repeated court losses over the past decade, state lawmakers facing an incredibly pivotal and politically fraught moment will instead have much more freedom to set those lines — and the power that comes with them — without any federal government oversight. And once they’re enacted, the voters of color and civil rights groups that have fought the maps in the past may not have the same tools with which to challenge the discrimination that may tarnish them.

“It’s just extremely disappointing as far as they went to sort of kick us down and kick minority voting rights down,” [civil rights attorney Jose] Garza said after the Supreme Court ruling came down.

That was the ruling that upheld the Texas Congressional and legislative maps; the subsequent SCOTUS ruling that batted away partisan redistricting claims was just another ton of dirt on the coffin. It’s very likely that Republicans will pursue maximal advantage through redistricting in 2021, including drawing districts based on Citizen Voting Age Population instead of just population – this is what the Census fight and the Hofeller project were about. The only possible kink in that plan would be a Democratic-majority House, which might force some compromises. Anyway, read the story and brush up on your history, because we’re all going to be living it again soon.

No bail in

No surprise, I’m afraid.

Texas won’t have to seek federal approval when state lawmakers draw new election maps in two years, a three-judge panel in San Antonio decided Wednesday. The judges, however, cautioned Texas that its next process will “undoubtedly” be subject to judicial scrutiny.

“Texas would be well advised to conduct its redistricting process openly,” U.S. District Judge Xavier Rodriguez wrote in the 27-page opinion.

The decision is a blow to civil rights groups that had asked for Texas to again face federal oversight, known as preclearance, following a years-long legal battle over Texas political maps drawn after the 2010 census, which federal courts have found intentionally discriminated against minority voters.

The plaintiffs have yet to decide what they will do next, said Jose Garza, lead counsel for the Mexican American Legislative Caucus. Garza noted the decision’s “strong language.”

“If you read the opinion in its entirety, the state doesn’t come up smelling very well,” he said.

See here, here, and here for the background, and here for a copy of the ruling. This doesn’t foreclose future litigation against the sure-to-be rigged maps the 2021 Lege will come up with – and if not them thanks to Democratic control of the House, the Legislative Redistricting Board – but it’s one less tool in the bag. The simple fact remains that Dems are going to have to win some elections while fighting uphill, and then once they have sufficient control of state government taking whatever steps are necessary to fix this. And if some time during the next decade we wake up in a world where Dems do have control of both chambers and the Governor’s office, redrawing all the maps a la 2003 would be a high priority in the subsequent session. Rick Hasen, the DMN, the Trib, and ThinkProgress have more.

How anti-choicers have won even as they’ve lost

The number of clinics that provide abortion care in Texas will never be what it was before HB2 was passed, despite the SCOTUS ruling that struck it down.

Right there with them

It’s been three years since the U.S. Supreme Court struck down parts of Texas’ controversial abortion law – and yet, most of the clinics forced to close after it first passed haven’t reopened.

The law, known as House Bill 2, was seen as one of the most restrictive crackdowns on abortion clinics in the country. It required clinics to operate like surgical centers and that doctors performing abortions have admitting privileges at a nearby hospital.

Like many other clinics across the state, the Planned Parenthood in San Angelo found the new requirements almost impossible to comply with. Shortly after the law passed, the clinic closed its doors.

“I really do miss it,” said Susanne Fernandez, who managed the clinic for more than two decades. “[We] were helping women be seen for their needs.”

The former clinic looks a lot like it used to, Fernandez said on a visit to the building earlier this month. The only difference is it’s been painted gray.

“Even the blocks in front of the building that have inscriptions on them, they are all still there,” she said. “They are just covered up.”

The clinic was the last abortion provider in that part of West Texas, a mostly rural, expansive part of the state, hundreds of miles away from any major city.

Fernandez said she knew many of the women the clinic served – who were largely low-income – would be greatly affected by its closure.

“The last day was sad; it was somber,” she said. “We did a lot of cleaning up. We all knew that was it.”

Fernandez said she still runs into women who used to come to the clinic.

“There is that thing in the back of your mind – where did these women go?” she said. “Where do they go now? I don’t believe a lot of them found any other health care afterward.”

I guarantee you, the legislators who voted for HB2 have never given that a single thought, and neither have the “pro-life” zealots who enable them. The unsung villain in all this is, as is so often the case, the Fifth Circuit, which not only overruled the district court that had sided with the plaintiffs, they also removed the temporary restraining order, thus allowing HB2 to be enforced while the case was being litigated. The upshot of that was that Texas got to put a lot of clinics out of business with what in the end was an unconstitutional law. See what I mean about winning even as they lose? There will never be a just remedy for this wrong.

The next Census threat

From TPM:

Commerce Secretary Wilbur Ross has directed the Census Bureau to prepare to offer states the data they’d need to do a redistricting overhaul that would boost “Republicans and Non-Hispanic Whites,” in the words of a deceased GOP consultant.

That the administration is taking that step is not surprising, given that President Trump said that it would last week while announcing that the 2020 census would not have a citizenship question.

But the government formally put that intention in writing in a regulatory notice that was published over the weekend.

The document was an update to a previous notice about the the government’s plans for the 2020 census that confirmed that the survey would not include a citizenship question due to the Supreme Court decision blocking it.

“Accordingly, the Secretary has directed the Census Bureau to proceed with the 2020 Census without a citizenship question on the questionnaire, and rather to produce Citizenship Voting Age Population (CVAP) information prior to April 1, 2021 that states may use in redistricting” the new version of the notice said.

[…]

The Supreme Court said in a 2016 unanimous opinion in the case, Evenwel v. Abbott, that use of total population was permissible. But the opinion didn’t address the question of whether CVAP could also be used.  Justice Clarence Thomas said in a concurrence that states should have the choice to use such a metric, while Justice Samuel Alito issued a concurrence of his own calling for another legal case to resolve this “important and sensitive”question.

It appears the groundwork is being laid for such a test case to be sent to the Supreme Court, which has shifted to the right — with the additions of Justices Neil Gorsuch and Brett Kavanaugh — since the Evenwel decision.

See here, here, and here for more on the Evenwel case. At the time, most of the experts expressed doubt that future attempts to draw districts based on CVAP rather than population would succeed in the courts. That was about a million years ago in political news cycle terms, and I don’t know how confident anyone would be of such a prediction now. For sure, if it’s going to happen anywhere, it’s going to happen here, but it will be that much harder to do with a Democratic majority in the State House. You know what to do about that. Ari Berman has more.

Does the partisan redistricting ruling change anything in Texas?

Maybe, but if so it will be indirect.

Robert Henneke, general counsel for the Texas Public Policy Foundation, a conservative think tank, said the ruling was a clear sign that the high court wanted to discourage federal judges from micromanaging the redistricting process.

“I think it de-escalates the use of litigation as a way of seeking results that aren’t supported on election day,” Henneke said.

Chad Dunn, a lawyer who sued on behalf of the Democratic Party in Texas to block redistricting maps drawn earlier this decade, said he did not believe Thursday’s ruling would have a dramatic impact in the state.

Courts have cracked down on Texas-drawn maps every decade since the 1960s for violating the Voting Rights Act’s restrictions on diluting minority voting strength and gerrymandering along racial grounds, and those restrictions remain in place, Dunn said.

“I don’t think, really, anything changes,” he said. “Partisan gerrymandering (complaints) would have been another tool for voters to use in the courthouse.”

Renea Hicks, another lawyer who challenged the current set of Texas maps, wasn’t so sure.

Republicans who drew the most recent maps claimed they were using voters’ political affiliations to draw districts that helped one party succeed or benefited an incumbent, but Hicks said the reason could be used to mask a racial purpose, particularly because Latino and African American voters tend to favor Democrats.

“They can use partisanship to locate minorities, then draw lines,” he said. “Now they have even more to hide behind.”

I think Hicks has it right. Let’s not forget the previous ruling that found essentially no fault with the Texas legislative and Congressional maps despite the lower court rulings that they were racially discriminatory. SCOTUS accepted the fig leaf that the slightly tweaked 2013 maps, which were still 98% based on the discriminatory 2011 maps, absolved the state of all its sins. I don’t think the Republicans will have much to fear in 2021 if they have full control of the process. Heck, even if they have to defer to the Legislative Redistricting Board for the non-Congressional maps, I don’t think they’ll hold back. And remember, even if they do draw maps that somehow wind up being tossed, they’ll get multiple elections out of the bad maps before any consequences are enforced. The incentives point one hundred percent in the direction of maximal partisan advantage. The real questions are 1) How much more maximally can they draw districts now versus 2011, and 2) How much do the state’s changing demographics hold them back? There’s only one way to find out.

Some Census shenanigans short-circuited

The head, it spins.

In a scalding order that called the Justice Department’s motion to change lawyers “patently deficient,” a federal judge in Manhattan on Tuesday blocked the move by the Justice Department to withdraw several of its attorneys from the census citizenship question case in New York.

With the exception of two DOJ lawyers who are withdrawing from the case because they have left their position at the Justice Department altogether, U.S. District Judge Jesse Furman is not letting the other attorneys withdraw because the department failed to provide “satisfactory reasons” for their exit from the case.

“Defendants provide no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” Furman said. Furman said that the government’s vague claim in its withdrawal motion that it did not expect the withdrawal to cause disruption to the proceedings was “not good enough, particularly given the circumstances of this case.”

[…]

“As this Court observed many months ago, this case has been litigated on the premise — based ‘in no small part’ on Defendants’ own ‘insist[ence]’ — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” Furman said in his order Tuesday. “If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.”

The Department of Justice has not offered many details as to why it was shaking up its legal team, prompting speculation that the career attorneys were not comfortable with the direction the administration was going in trying to get the question re-added.

In comments to the press on Monday Attorney General Bill Barr said that he could “understand if they’re interested in not participating in this phase.” But he also said he did not know the details as to why they were exiting the case.

On Tuesday, Furman raked the Justice Department over the coals for its failures to meet the procedural requirements for replacing its attorneys.

See here for some background, though note that that post is primarily about the Maryland case, while this is about the New York case. I could not tell if there was a similar effort by the attorneys in that case to withdraw. This all happened in a hurry, from the initial announcement to the pushback by the plaintiffs, to the judge’s order. What happens next is anyone’s guess, for both cases. Remember, the whole reason why SCOTUS took this case when it did was because the Trump administration insisted they needed to have everything resolved by the end of June to have enough time to actually do the Census. So much for that. How big a chump does Donald Trump think John Roberts is? We’re about to find out. A copy of the judge’s order is here, and Daily Kos and Politico have more.

UPDATE: The Maryland judge has also rejected a request for the Justice Department attorneys to withdraw, though he will allow the request to be re-submitted.

Another cure for partisan redistricting

From the Brennan Center, written before SCOTUS lit a match to judicial remedies for partisan redistricting, and even more relevant now.

Congressional redistricting is broken. In most states, districts are drawn by partisan lawmakers, and the manipulation of district boundaries for partisan or other discriminatory purposes is rife, with communities of color being amongst the hardest hit. While courts can provide a remedy, litigation is often slow and costly. This allows discriminatory maps to sometimes remain in place for years while court cases and the inevitable appeals run their course. But H.R. 1, the broad and historic democracy reform bill passed by the House in March, offers some smart, comprehensive ideas that would make the redistricting process fairer and more transparent.

This would of course require three things: Democratic control of the Presidency and both chambers of Congress, discarding the filibuster so Mitch McConnell can’t block it, and then hoping that SCOTUS doesn’t decide that, well, actually, Congress can’t do any of the things that HR1 enables. In that case, a little court-packing, or at least the sufficient threat of it, may do the trick. The first is within our power, the latter two may be as well. First things first, though.

Yeah, we spoke too soon about the Census citizenship question

It’s maximum chaos time.

The Justice Department affirmed Friday that it still is pursuing a path for adding a citizenship question to the 2020 Census, according to a filing in federal court in Maryland.

The filing followed statements earlier in the day from President Trump in which he said he is “thinking of” issuing an executive order to add the controversial question.

Government lawyers said in their filing Friday that the Justice and Commerce Departments had been “instructed to examine whether there is a path forward” for the question and that if one was found they would file a motion in the U.S. Supreme Court to try to get the question on the survey to be sent to every U.S. household.

Attorneys for the government and challengers to the addition of the question faced a 2 p.m. deadline set by U.S. District Judge George J. Hazel to lay out their plans.

Hazel said earlier this week that if the government stuck with a plan to try to add the question, he would move ahead on a case before him probing whether the government has discriminatory intent in wanting to ask about citizenship.

The Justice Department lawyers argued in Friday’s filing that there was no need to start producing information in that case since for now courts have barred the government from adding the question. But the government also agreed to follow a schedule to move ahead if that was laid out.

The government has begun printing the census forms without the question, and that process will continue, administration officials said.

[…]

Census officials and lawyers at the Justice and Commerce departments scrapped holiday plans and spent Independence Day seeking new legal rationales for a citizenship question that critics say could lead to a steep undercount of immigrants, which could limit federal funding to some communities and skew congressional redistricting to favor Republicans.

“It’s kind of shocking that they still don’t know what they’re doing,” Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund said. MALDEF is representing some of the plaintiffs in the case in Maryland. “We’re in this posture because they don’t know what the real plan is.”

See here for the background. This all began with some Trump tweets, because that’s the hellscape we now inhabit. Literally no one knows what will happen next – the judge even remarked that the Justice Department lead attorney “didn’t speak for his client” – so try some cleansing breaths and do a little binge-watching, to stay calm. TPM, Daily Kos, Think Progress, Mother Jones, and Slate have more.

UPDATE: And then there’s this.

The American Civil Liberties Union and partners today asked a federal court in New York to block the Trump administration from taking any action that would delay the printing of 2020 census forms or change the forms to include the citizenship question.

They have an oral argument date of July 23. Note that this is in the New York court. The hearing yesterday was in the Maryland court. Multiple lawsuits, remember? So there are multiple fronts on which to fight.

UPDATE: And discovery will begin in the Maryland case.

No Census citizenship question

Hallelujah.

The Trump administration is dropping plans to add a citizenship question to the 2020 Census, the Justice Department confirmed Tuesday just days after the Supreme Court described the rationale for the question as “contrived.”

The decision to back away from the controversial question was a victory for civil rights advocates concerned that the query would lead to an inaccurate count of immigrant communities that could skew political representation and federal funding.

“In light of the Supreme Court’s ruling, the government had no choice but to proceed with printing the 2020 census forms without a citizenship question. Everyone in America counts in the census, and today’s decision means we all will,” attorney Dale Ho of the American Civil Liberties Union said in a statement.

The fate of the question has been the subject of legal and political wrangling since March 2018, when Commerce Secretary Wilbur Ross announced he planned to add it to the decennial survey, sparking a half-dozen lawsuits from states, cities, civil rights groups and others.

Just last week, President Trump responded to the Supreme Court’s ruling by saying he would seek to delay the census to give administration officials time to come up with a better explanation for why it should include a citizenship question.

Instead, government lawyers notified those challenging the question of the decision to proceed without it.

See here and here for the background. It sure is nice to see lying not get rewarded for once, isn’t it? Despite this early cave, it was a closer call than you might think, because if the government had been able to get any slightly-less-bullshit pretext back before SCOTUS in time, you know John Roberts would have waved it on through. Now we can at least get this done in something approaching a normal manner, and add “pass a law outlawing citizenship questions on the Census” to the ever-longer to do list for the next Democratic government. Note that this should not affect the examination of the newly uncovered Hofeller evidence, but it does close this chapter of the story. Big sigh of relief. Think Progress, TPM, Mother Jones, Slate, and Daily Kos have more.

Next up for the Census lawsuit

Before the Trump administration can take a second shot at SCOTUS with the Census citizenship question, the federal court in Maryland will be revisiting their case with some new data.

[The SCOTUS] decision came two days after a federal appeals court ruled that Maryland-based federal Judge George Hazel — who is considering another legal challenge that was not before the high court — could consider new evidence that recently emerged in the litigation related to the federal government’s motivation for adding the question.

That challenge in Maryland was filed on behalf of more than two dozen plaintiffs, including the Texas House’s Mexican American Legislative Caucus, the Texas Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino residents. They argued that including the question would lead to a disproportionate undercount of immigrants and people of color.

Hazel had already agreed with those plaintiffs’ allegations that the inclusion of the citizenship question violated the U.S. Constitution’s enumeration clause and a federal law that governs federal agencies and their decision-making process.

But they failed to convince Hazel that the question unconstitutionally violated equal-protection guarantees and that Trump administration officials had conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting noncitizens for the apportionment of political districts.

(Those issues were not before the Supreme Court in the case it ruled on this week.)

On Monday, Hazel said he would reconsider the plaintiffs’ arguments after evidence emerged suggesting the question may have been tacked on to advance Republican gerrymandering and undermine Hispanics’ political clout.

[…]

“The citizenship question is blocked for now but the Supreme Court’s decision leaves open the possibility for it to come back. That’s why our lawsuit is so important,” said Juanita Valdez-Cox, the executive director of La Unión del Pueblo Entero. “In fact, the court in Maryland is weighing new evidence that shows that the real intention is to injure communities of color for partisan gain.”

Lawyers with the Mexican American Legal Defense and Educational Fund, which is representing some of the Texas plaintiffs, said Thursday they would immediately pursue their claims before Hazel. They had already asked him to enter an injunction while the court was still considering the case so they could prevent the administration from adding the citizenship question to the 2020 census forms it had planned to print this summer.

This of course is all in reference to the Hofeller evidence, which came out after the original ruling in that case. This is the case with the closest relationship to Texas – the Hofeller data was based on Texas’ state legislative districts – so it would be extra sweet if it helps keep the citizenship question off the Census regardless. I’ll be keeping a close eye on it.

Census citizenship question stopped for now

“For now” being the key point.

The Supreme Court on Thursday put on hold the Trump administration’s plan to add a citizenship question to the 2020 census form sent to every household, saying it had provided a “contrived” reason for wanting the information.

Chief Justice John Roberts wrote the splintered opinion. In a section agreed with by the court’s liberals, he said the Commerce Department must provide a clearer explanation.

Agencies must offer “genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” Roberts wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Roberts said a district judge was right to send the issue back to the Commerce Department for a better explanation.

A string of lower-court judges found that Commerce Secretary Wilbur Ross violated federal law and regulations in attempting to include the question on the census. They starkly rebutted his claim that the information was first requested by the Justice Department to enforce the Voting Rights Act, and they noted his consultations with hard-line immigration advocates in the White House beforehand.

What happens next was not immediately clear; the department had said it must know by the summer whether the question can be added.

See here for some background. Trump has already tweeted that they will try again, so it’s mostly a question of timing. Rick Hasen thinks they may be able to get back before SCOTUS in time for the fall term, which would allow for the question to be re-decided in time. Ari Berman, talking to ACLU attorneys who were among the counsel for the plaintiffs, think it’s unlikely. Everyone agrees that SCOTUS ruled that the Commerce Department could add a citizenship question if it had followed the Administrative Procedures Act, so if they can get back to SCOTUS they will almost certainly prevail. The new questions raised by the Hofeller files may be an extra obstacle for the Commerce Department, but not necessarily. Hold onto your butts. Daily Kos and Texas Monthly have more.

You are free to redistrict to your partisan heart’s content

Your Supreme Court, ladies and gentlemen.

In an effort to appear as though it hovers permanently above the partisan fray, the Supreme Court on Thursday delivered perhaps the most staggering win to the Republican Party since Bush v. Gore. In a pair of cases out of North Carolina and Maryland raising the question of whether extreme partisan political gerrymanders can ever violate the Constitution, the five-justice conservative majority finally answered a decades-old question: The federal courts will have no role to play in overseeing whether political lines were drawn for the gain of the majority in violation of the Constitution. As Chief Justice John Roberts put it in his majority opinion:

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws [as a plurality of the court found in the 2004 case Vieth v. Jubelirer]. Judicial review of partisan gerrymandering does not meet those basic requirements.

With this opinion, the chief justice puts on a masterclass in legal analysis by way of hypothetical question. How much of a partisan gerrymander is too much? How can we know? Which tool could we use? Who knows what lurks in the heart of voters? It reads as a protracted still life in learned helplessness. If, as it turns out, a court genuinely doesn’t want to adjudicate a problem, they can always say it’s too hard.

[…]

To be sure, the chief justice knows how this all feels, to the millions of voters whose votes are and will be diluted and discounted by the majorities who draw lines: “Excessive partisanship in districting leads to results that reasonably seem unjust,” he concedes. “But the fact that such gerrymandering is ‘incompatible with democratic principles,’ does not mean that the solution lies with the federal judiciary.” The solution, he would suggest, lies in state courts, constitutional amendments, state redistricting commissions (which he has deemed unconstitutional in the past), Congress, and state legislatures, which is a tiny bit like putting the looters in charge of the looting problem.

He ends with the noble caution that “No one can accuse this Court of having a crabbed view of the reach of its competence.” And, indeed, nobody does. We have in recent terms witnessed the court’s view of its competence to dismantle the administrative state, to curb union power, to overturn prior precedent, to gut the Voting Rights Act, and to use the First Amendment as an all-purpose civil rights stun-gun. But its competence to do sweeping and consequential change stops, today, at the door of the political gerrymander. In the chief justice’s telling, this is neutral minimalism.

In her dissent, Justice Elena Kagan calls out this learned helplessness in her very first line: “[F]or the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.” She adds that the doctrine here clouds the issue that:

The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

Before laying out the specific grotesquerie of the Maryland and North Carolina gerrymanders at issue, Kagan asks her reader to consider: “As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?”

In John Roberts’ America, it is. Mark Joseph Stern, who notes that Roberts likes to call himself “the most aggressive defender of the First Amendment on the court now”, reviews a couple of his recent decisions and concludes that Roberts thinks billionaires deserve more First Amendment protections than regular voters do. And if you really want to go down a nighmarish path, consider this:

After today’s disastrous decision, here are some things that line-drawers could do in the future:

  • Instruct a computer algorithm to generate huge numbers of maps that comply with all nonpartisan criteria and produce as large and durable an advantage as possible for the line-drawing party. Then pick an actual plan from this array of potential gerrymanders. This plan will be close to impregnable if it’s challenged on nonpartisan grounds. But it will still massively benefit the line-drawing party, probably more than any human-drawn map could.
  • Revise districts after each election to optimize their performance in the next election. Any districts slipping away from the line-drawing party could have some copartisans added to them. Any districts becoming overly safe could have some copartisans subtracted. Decennial redistricting, in other words, could become a thing of the past. Redistricting every two years is so much more effective.
  • Design noncontiguous districts in order to avoid the constraints of political geography. A state with many Democrats concentrated in cities (like my Illinois) could join clusters of urban Democrats with slightly smaller clusters of rural Republicans hundreds of miles away. These clusters wouldn’t have to be connected since no federal law, and no other law in many states, mandates contiguity. A state could even adopt entirely nongeographic districts, e.g., by assigning a representative (and sufficiently numerous) sample of the state’s population to each district.

We’ve already established that mid-decade redistricting is a thing that happens. Who’s to say any of this is out of bounds? Not John Roberts, that’s for sure. ThinkProgress, Sam Wang, and the WaPo have more.

How to rig the Census

This is how you would do it.

The Trump administration’s controversial effort to add a citizenship question to the 2020 census was drawn up by the Republican Party’s gerrymandering mastermind, who wrote that it “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites.” This bombshell news, revealed in newly released legal documents, suggests that the Trump administration added the question not to better enforce the Voting Rights Act, as it claimed, but to benefit Republicans politically when it came to drawing new political districts.

A case challenging the citizenship question is currently before the Supreme Court, and the new evidence significantly undercuts the Trump administration’s position in the case.

Tom Hofeller, who passed away last year, was the longtime redistricting expert for the Republican National Committee. He helped Republicans draw heavily gerrymandered maps in nearly every key swing state after the 2010 election. In some of those places, like North Carolina, the new lines were struck down for discriminating against African Americans.

In 2015, Hofeller was hired by the Washington Free Beacon, a conservative news outlet, to study the impact of drawing state legislative districts based on citizenship rather than total population, which has been the standard for decades. Hofeller’s analysis of Texas state legislative districts found that drawing districts based on citizenship—a move he conceded would be a “radical departure from the federal ‘one person, one vote’ rule presently used in the United States”—would reduce representation for Hispanics, who tended to vote Democratic, and increase representation for white Republicans. But Hofeller said that a question about citizenship would need to be added to the census, which forms the basis for redistricting, for states like Texas to pursue this new strategy.

Hofeller then urged President Donald Trump’s transition team to add the question about citizenship to the 2020 census. He urged the team to claim that a citizenship question was needed to enforce the Voting Rights Act, even though Hofeller had already concluded that it would harm the racial minority groups that the act was designed to protect. That argument was then used by the Justice Department in a December 2017 letter requesting that the Commerce Department, which oversees the census, include a citizenship question.

Hofeller’s documents were discovered on hard drives found by his estranged daughter and introduced into evidence in a separate trial challenging gerrymandered North Carolina state legislative districts drawn by Hofeller. On Thursday, lawyers challenging the citizenship question cited them in federal court. They suggest that members of Trump’s team may not have been fully forthcoming in their testimony under oath. Neither Trump transition team member Mark Neuman nor John Gore, the former assistant attorney general for civil rights who wrote the Justice Department letter, mentioned Hofeller’s involvement in the letter when they were deposed under oath as part of a lawsuit by New York and 17 other states challenging the citizenship question.

Yeah. And of course, Texas was a key to all this.

The filing includes a 2015 analysis by Hofeller that had been commissioned to demonstrate the effect that using the population of citizens who are of voting age, as opposed to total population, would have on drawing up legislative districts.

Hofeller detailed how the change would clearly be “advantageous to Republicans and Non-Hispanic Whites” by using the Texas House as his case study. He detailed how the Hispanic population would drop in traditionally Democratic districts, which would then have to grow geographically to meet constitutional population requirements in redistricting.

The loss of Democratic-leaning districts would be most severe in areas with mostly Hispanic populations, such as South Texas, El Paso and the Rio Grande Valley, which would lose 2.6 state House districts, according to Hofeller’s analysis. The change would also cost Dallas County 1.7 districts and another 1.7 districts in Harris County and its suburbs.

If the Supreme Court had required such a change at the time of the study, it would have mandated a “radical redrawing of the state House districts,” Hofeller wrote. He noted that the traditionally Democratic districts in need of more population could pick up pockets of Democratic areas in adjacent Republican-held districts and ultimately shore up the GOP’s control across the state.

But that approach was unrealistic at that point, Hofeller wrote in his study, because the government did not compile the necessary citizenship information. And he admitted it was unlikely that the Supreme Court could be convinced to alter the population standard used to draw legislative districts.

“Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable,” Hofeller said.

This is a reference to the Evenwel lawsuit, which established that states had discretion in how they drew legislative districts, but did not opine on whether drawing them based on citizen population rather than plain old population was legal. And so here we are.

The Census lawsuits have been argued before the Supreme Court, where the five Republican Justices seem inclined to let the Trump administration break the law as they see fit. Rick Hasen thinks this should-be-a-blockbuster revelation will just make the SCOTUS Five that much more likely to go with Team Trump. Hey, remember how Jill Stein supporters – and Ralph Nader supporters before her – poo-poohed concerns about the makeup of the Supreme Court if another Republican President got to pick more Justices? Good times, good times. ThinkProgress and Daily Kos have more.

The Section 3 bail-in hearing

At long last, the final question to answer about Texas and the Voting Rights Act, namely has the state done enough bad stuff to be required to be put under preclearance again?

Back in the federal courthouse where most of an eight year-long case has played out, the fight over forcing Texas back under federal oversight of its mapmaking appeared to hinge on whether the state should be held accountable for political maps that never took effect.

The arguments for a return to the days when Texas needed approval of its political districts diverged significantly during a Thursday court hearing before a panel of three federal judges. The state and the plaintiffs — voters of color, civil rights groups and Democratic lawmakers — each appeared to have a judge on their side. One judge was skeptical of any sort of supervision for state lawmakers, while another judge openly considered why Texas should be allowed to redraw its maps without any sort of guardianship given its recent discrimination against voters of color.

But the high-stakes fight — and ultimately the ruling from the three-judge panel overseeing the case — may very well rest on Chief U.S. District Judge Orlando Garcia, who made few remarks during the hearing but summed up the issue in one question.

“Is it actual injury or threatened harm that controls the issue?” Garcia asked.

[…]

“If the bail in statute means anything…it has to apply to Texas redistricting,” said Allison Riggs, a lawyer with the Southern Coalition for Social Justice who is representing some of the plaintiffs. “Texas redistricting is where the state again and again and again at every level of government has shown a resistance to recognizing the political power of minority voters.”

Thursday’s hearing marked the beginning of the final — and perhaps the most significant — stage of the long-running legal fight over the state’s political maps. The case is poised to serve as the latest test of whether the federal Voting Rights Act can still serve as a safeguard for voters of color. If the panel does not invoke bail in, the 2021 redistricting cycle would mark the first time in nearly half a century that Texas could implement new legislative and congressional districts without first proving they don’t undercut the electoral power of voters of color.

While under federal supervision, Texas proved to be a repeat offender. In their briefs to the court ahead of the hearing, the plaintiffs noted that state lawmakers passed one or more redistricting plans that were declared unconstitutional or in violation of the Voting Rights Act in every decade since 1970.

Given the rulings of intentional discrimination against the state, the plaintiffs are asking the court to put the state back under oversight of its mapmaking for up to 10 years to cover the next round of redistricting when the state will again rejigger its political boundaries to account for population growth.

But Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals appeared hostile to that proposal, repeatedly alluding to a 2018 Supreme Court ruling in which the court signed off on most of Texas’ current political boundaries and pushed aside claims that state lawmakers intentionally discriminated against voters of color when they replaced the 2011 maps in 2013.

“This has already been going on for eight years, and you want 10 more despite the Supreme Court saying it’s over,” Smith said. “I don’t understand.”

The state’s deputy solicitor general, Matthew Frederick, echoed that sentiment. He argued that Texas shouldn’t be placed back under federal oversight based on findings against maps that were never used, especially after the Supreme Court found no intentional discrimination behind the state’s 2013 effort to replace those maps with those offered up by three-judge panel in 2012 as an interim fix to allow elections to move forward that year.

Bail in “cannot be justified when a state adopts and accepts judicial remedies,” Frederick said.

“So your argument is we messed up and intentionally discriminated at first, but the court fixed it and as a result of the court fixing it we’re OK?” asked federal District Judge Xavier Rodriguez.

Frederick responded that those violations weren’t enough to invoke bail in because the state had not engaged in widespread, rampant discrimination. He pointed out that any sort of discrimination found by the court in Texas did not amount to the widespread racism that marked the 1960s, when states kept voters of color from casting votes by continuously replacing barriers —for example , requirements that black voters guess how many bubbles are in a bar of soap — with other impediments, such as literacy tests, as they were deemed unconstitutional.

But Rodriguez continued to question Frederick over whether the state was “engaging in more subtle forms of discrimination” that it then attempted to wash away by replacing discriminatory laws with court fixes and then claiming there was no harm for which it could be held accountable. He pointed to the state’s defense of its strict voter ID law that, like the state maps, was eventually replaced with a court remedy after a judge found it was enacted with discriminatory purpose.

“But for this court’s changes to those 2011 plans, the state would’ve continued to try to continue to implement them,” Rodriguez said. “That’s what the whole [bail in] paradigm is trying to prevent from happening again.”

See here and here for the background. These are the same three judges who had ruled in the earlier redistricting cases, so it is entirely possible that they may once again vote 2-1 in favor of the plaintiffs. I mean, the record speaks quite clearly for itself, and if Texas doesn’t meet the standard for bail-in, it’s hard to know how it could ever be met. Which just means that the Fifth Circuit will need to come up with a reason, which SCOTUS will then endorse, because come on, we’ve seen this movie and we know how it ends. I wish I were less cynical, but how can you not be, given what has happened so far? We’ll see how long it takes for a ruling and we’ll go from there. The DMN and Michael Li have more.

Third Census lawsuit ruling against Trump administration

Once, twice, three times an injunction.

A federal judge in Maryland ruled Friday against the government’s addition of a citizenship question to the 2020 Census, The Washington Post reported Friday.

Judge George J. Hazel found that in deciding last year to add the question, the government violated administrative law, according to The Post. The ruling will probably be appealed to the U.S. Supreme Court, as is expected with two similar cases.

The case has Texas connections. Lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus, and several Texas-based nonprofits that advocate for Latino and Asian residents have appeared before Hazel to make arguments in the case.

The plaintiffs have challenged the inclusion of the citizenship question on several fronts, alleging that it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

The Post reported that in his ruling, Hazel wrote, “The unreasonableness of Defendants’ addition of a citizenship question to the Census is underscored by the lack of any genuine need for the citizenship question, the woefully deficient process that led to it, the mysterious and potentially improper political considerations that motivated the decision and the clear pretext offered to the public.”

See here and here for the previous rulings, and here for more on this case. All three rulings focused on statutory issues, with constitutional issues either not being part of the case (as with the first lawsuit) or not getting the same favorable treatment. That may bode well for the forthcoming appeal to SCOTUS, as the questions are much more narrowly defined. Here’s hoping. Daily Kos has more.

Trump goes all in against health care

Game on.

It’s constitutional – deal with it

The Trump administration wants the federal courts to overturn the Affordable Care Act in its entirety, an escalation of its legal assault against the health care law.

The Justice Department said in a brief filed on Monday that the administration supports a recent district court decision that invalidated all of Obamacare. So it is now the official position of President Trump’s administration that all of the ACA — the private insurance markets that cover 15 million Americans, the Medicaid expansion that covers another 15 million, and the protections for people with preexisting conditions and other regulations — should be nullified.

When combined with Trump’s endorsement of the various Republican legislative plans to repeal and replace Obamacare and other regulatory actions pursued by his subordinates, the Trump administration’s clear, consistent, and unequivocal position is that millions of people should lose their health insurance and that people should not be protected from discrimination based on their medical history.

The Justice Department had previously said that only the ACA’s prohibition on health insurers denying people coverage or charging people higher premiums based on their medical history should fall in the lawsuit being brought by 20 Republican-led states. But their latest brief removed that subtlety, saying that the entire law should go.

Legal experts dismiss the states’ argument as “absurd,” yet they have worried it could find a receptive audience among conservative jurists, given the prior success of anti-Obamacare lawsuits thought to be spurious that still found their way to the Supreme Court.

The argument has already won in the US district court in northern Texas, after all, though that decision is on hold pending appeal.

See here and here for some background. Did we mention this ridiculous lawsuit got its start in Texas? Bad lawsuits seem to be our main export these days. There’s not much we can do about what the Fifth Circuit and SCOTUS will do, but in the meantime, health care is once again a huge issue for the next election. We won once on that, we need to do it again.

Fifth Circuit wants to see how much it can gut abortion rights before it acts

That’s the takeaway you should have from this.

A Texas law banning a common second-trimester abortion procedure will remain blocked after federal judges Wednesday postponed a decision until the Supreme Court takes action on a similar case.

A federal district court in 2017 struck down the ban, which was passed as part of state Senate Bill 8. Attorney General Ken Paxton and other officials then appealed the decision to the Fifth Circuit Court of Appeals.

[…]

But the Supreme Court has yet to decide whether it will take up that case, which was launched by abortion provider June Medical Services. The case challenges a Louisiana law that required doctors who perform abortions to have hospital admitting privileges.

See here for some background. Rewire brings the details.

In November 2017, a federal district court declared the provision of SB 8 that bans D and E abortions unconstitutional and permanently blocked the measure from taking effect. The decision, authored by Judge Lee Yeakel, was a rock-solid win for abortion rights. Yeakel determined that Texas had failed to offer any evidence to support its claims that banning D and E abortions promoted its interest in fetal life without unduly burdening a patient’s right to choose. According to Yeakel’s findings, the evidence failed to show that the other methods advanced by the state for terminating an abortion were available and safe. Therefore, Yeakel ruled, the D and E ban had the effect of banning most second-trimester abortions and was an undue burden on abortion rights.

Naturally, the state of Texas appealed Yeakel’s decision. During oral arguments in November, it was clear the conservative members of the Fifth Circuit were looking for a way to reverse Yeakel’s decision and allow the D and E ban to take effect. But then came the Roberts Court’s order in [June Medical Services v.] Gee in February: a reprimand, of sorts, to the Fifth Circuit for trying to unilaterally overturn a district’s court factual findings in order to allow a patently unconstitutional abortion restriction to take effect. The judges on the Fifth Circuit are conservative and bold, but they are not stupid. They are not going to risk setting themselves up for another opportunity for the Roberts Court to reel them in, just a month later.

At issue in Gee—the case the Fifth Circuit is waiting on the Roberts Court to resolve—is Act 620, a Louisiana law that would require any physician providing abortion services in Louisiana to have admitting privileges at a hospital within 30 miles of the procedure. Act 620 was specifically modeled after one of the provisions in Texas’ HB 2 that was eventually declared unconstitutional in 2016 in Whole Woman’s Health v. Hellerstedt.

A federal district court blocked Act 620 from taking effect following a six-day trial, issuing detailed findings of fact as to the undue burden Act 620 would place on abortion rights. But the Fifth Circuit disagreed and reversed the district court, ruling the law should take effect.

[…]

When the Supreme Court decided in February to stay the Fifth Circuit’s decision in Gee, it likely did so not because it disagreed with the court on the merits of its decision, but to send a message. The Fifth Circuit had so wildly and intentionally flouted abortion rights jurisprudence in its application of Whole Woman’s Health to uphold Act 620 that Chief Justice John Roberts joined with his liberal colleagues to temporarily block their ruling. Roberts’ voting record makes it clear he is no fan of abortion rights. So it’s reasonable to interpret his decision as a message to appellate courts like the Fifth Circuit that if anyone is going to be rewriting abortion rights jurisprudence, it will be the conservative justices on the Supreme Court under his guidance.

All this could explain Wednesday’s short order in Whole Woman’s Health v. Paxton delaying any decision in that case pending an outcome at the Supreme Court in Gee.Gee is allowed to take effect. Presumably, the Fifth Circuit would rule in short order to allow Texas’ D and E ban to take effect as well.

Should the Roberts Court take Gee, then the outcome of the Whole Woman’s Health v. Paxton remains in limbo until Gee is resolved.

I noted this in passing when I wrote about how whatever else happens, some new bit of anti-abortion legislation will pass this session. It’s just a matter of whether things get worse from there, and if so by how much.

A second win for plaintiffs in Census citizenship question lawsuit

It’s all up to SCOTUS now.

Commerce Secretary Wilbur Ross acted in “bad faith,” broke several laws and violated the constitutional underpinning of representative democracy when he added a citizenship question to the 2020 Census, a federal judge ruled Wednesday.

In finding a breach of the Constitution’s enumeration clause, which requires a census every 10 years to determine each state’s representation in Congress, the 126-page ruling by U.S. District Judge Richard Seeborg in San Francisco went further than a similar decision on Jan. 15 by Judge Jesse Furman in New York.

The Supreme Court has already agreed to review Furman’s narrower decision, with arguments set for April 23, but may now need to expand its inquiry to constitutional dimensions.

[…]

Unable to find any expert in the Census Bureau who approved of his plan to add the citizenship question, Seeborg wrote, Ross engaged in a “cynical search to find some reason, any reason” to justify the decision.

He was fully aware that the question would produce a census undercount, particularly among Latinos, the judge said.

That would have probably reduced the representation in Congress — and thus in the electoral college that decides the presidency — of states with significant immigrant populations, notably California.

Because census data is used to apportion distribution of federal funds, an undercount would also have cheated these same jurisdictions, the judge said.

Seeborg, like Furman, found after a trial that Ross misrepresented both to the public and Congress his reasons for adding the citizenship question last March. Ross claimed he was acting at the request of the Justice Department in the interest of enforcing the Voting Rights Act.

In reality, the “evidence establishes” that the voting rights explanation was just “a pretext” and that Ross “acted in bad faith” when he claimed otherwise.

See here for the background. A copy of the ruling is embedded in this Mother Jones story. I don’t have much to add to this other than it’s a big honking deal and would have a negative effect on Texas just as it would on states like New York and California that filed the lawsuits against it. You wouldn’t know that from the words and actions of our state leaders, though. USA Today and NPR have more.

What can you legally wear when you go to vote?

That’s the subject of a lawsuit involving voters from Houston and Dallas.

A Houston woman who was forced to turn a firefighters T-shirt inside out at the polls and a Dallas-area man who tried to vote in his Trump MAGA cap are suing a long list of public officials in federal court here for violating their free speech rights.

The lawsuit comes in the wake of a U.S. Supreme Court ruling in June invalidating a Minnesota law that banned voters from displaying “issue oriented” apparel at the polls. The case filed in Houston federal court Thursday on behalf of two Texas voters was brought by the Pacific Legal Foundation, a California-based nonprofit advocacy group that won the free speech victory in the Minnesota case.

The conservative foundation wants a Houston judge to overturn the Texas law that restricts what people can wear when they vote. Texas is one of several states that still have clothing restrictions on the books. The concern is not just that voters won’t feel free to express themselves, but also that enforcement by poll workers will be “arbitrary and erratic.”

Douglas Ray, an special assistant overseeing election issues at the Harris County Attorney’s Office. said the county will defend itself but Texas Attorney General Ken Paxton — who was also sued — will likely take the lead. County officials last dealt with this issue in 2010, when voters showed up at the polls with Obama-related gear, Ray said. President Barack Obama was not on the ballot, but several measures that reflected his policies were, he said.

“What we tell the election judge is they have the power to adjudicate when they think electioneering is going on and when it’s not,” said Ray. “We tell them to make that determination based on a totality of the circumstances and if it’s consistent with advocacy for somebody or some party that’s on the ballot.”

In the case of the firefighters shirts, Ray acknowledged the county was aware the shirts caused friction at the polls. “We had a lot of trouble with that during the last election because there were people wearing these yellow shirts with red lettering that said ‘Vote for Prop B’ but they were almost identical to a shirt that just said ‘Houston Fire Fighters.’”

He said the shirts had the same colors, logo and lettering but one had “Vote for Prop B” and one didn’t. The county attorney’s office advised election judges that the yellow shirts were problematic if they said something specific about voting.

“But that is just advice,” Ray said. “The election judge in that situation makes the adjudication.”

[…]

The Texas law is more specific than the Minnesota one that the Supreme Court addressed last year, which could help or hurt the case, according to David Coale, a constitutional law expert at Lynn Pinker Cox & Hurst in Dallas. The Minnesota law prohibited voters from wearing political badges, buttons or other political insignia to the polls, while Texas law prohibits inside or within 100 feet of the voting site the wearing of badges, insignia, emblems representing any a candidate, measure or political party appearing on the ballot or to the conduct of the election.

“The Supreme Court said it was a legitimate state interest to have a polling place free of distracting political activity. But by doing so, it still requires the election official to make judgment calls about what ‘relates to’ the election…and also means that the official can get it wrong,” Coale said. “The argument that a ‘MAGA’ hat ‘relates to’ the subject of this election is not a strong one. I think that is why the Pacific Foundation focused on this case as its test case, to get some law made on how far away from the specific subject of an election you can be and still ‘relate to’ it.”

There are always going to be some issues when you are relying on individual election judges to exercise their own judgment in interpreting election law. We see plenty of examples of this every year with the voter ID law and whether or not the name on their ID matches what’s on their voter registration card. Restricting what is allowed at the polling place is much more fraught than that. Wherever a line is drawn for what is acceptable, there will be cases right on that line where reasonable people may disagree. I have a certain amount of sympathy for these plaintiffs, but I don’t know that it adds up to enough weight to warrant throwing out the existing law. I suspect the courts will say that it does, but we’ll see.

Is the Lege going to try to “fix” HD90?

Here’s a legislative to do list item that has been completely off the radar.

Rep. Ramon Romero

Federal courts last year gave Texas lawmakers 45 days from the beginning of this year’s legislative session to start redrawing boundary lines for Fort Worth’s House District 90 because of gerrymandering.

The 45-day mark [was] Thursday.

If a proposal isn’t introduced within the first month and a half of the session — or if it doesn’t appear likely that a new plan will come up during the session that wraps up May 27 — then the three-judge panel in a U.S. District Court in San Antonio will undertake the “unwelcome obligation” of fixing the district.

So far, no bill to redraw the district represented by Democrat Ramon Romero has been filed.

“The Supreme Court has ruled that we must have a narrow tailored correction to District 90,” Romero said. “The most narrow tailored line is that those precincts split by amendments in 2013 must be brought back to the way they were before.

“Will the district be fixed by the Legislature or will the Legislature pass on filing a bill … to let the courts do it?”

He said the next step is to see what fixes are proposed by the Texas Attorney General’s Office.

See here and here for the background. This was brought to my attention by regular commenter blank, who also noted it at Daily Kos. This story was published on Tuesday, and as far as I can tell, no bills relevant to this issue have been filed. That doesn’t mean that the courts will absolutely jump in with their own fix – the AG will propose something, the deadline for all bill filing hasn’t passed yet, and I’m sure the court won’t consider taking action until after the session if nothing passes and someone files a motion. Whatever the case, this is out there. What makes it more complicated, as blank noted in his Kos comment, is that if such a bill gets filed and heard in committee, it could be amended in all kinds of ways as it works through the system. You could in effect redistrict the entire Lege using this bill as a vehicle if you have the votes for it. Or you may just decide nothing is worth the bother and leave it to the court to clean up. I have no idea which way this will go, but we’ll keep an eye on it.

Paxton asks for summary judgement to end DACA

Not much coverage of this, and I’m not sure what that means.

Best mugshot ever

Texas Attorney General Ken Paxton on Monday asked a federal judge to strike down Obama-era deportation protections for immigrants whose parents brought them to the United States illegally as children.

In a motion filed in Brownsville federal court, Paxton asked U.S. District Judge Andrew Hanen to follow through on his ruling in August, when Hanen determined that the Obama administration did not have the authority to implement the Deferred Action for Childhood Arrivals program.

At the time, however, Hanen declined to issue an injunction blocking enforcement of DACA.

In Monday’s motion for summary judgment joined by seven other states, Paxton asked the judge to end the program and block the federal government from issuing or renewing any more DACA permits to young immigrants.

Congress, not the president, has the authority to determine federal immigration law, he said.

“Whatever its policy merits, DACA is clearly unlawful, as this court has already held,” Paxton’s motion said. “Underlying the program is a limitless notion of executive power which, if left unchecked, could allow future presidents to dismantle other duly enacted laws. The court must not allow that to occur.”

[…]

If Hanen agrees to issue an order ending DACA, he would be in conflict with federal judges in California and New York who have blocked the Trump administration’s effort to end the program in 2017. DACA remains in force while appeals in both cases proceed.

See here and here for the background. The Statesman was the only news outlet with a story on this, which may mean there’s little chance it will go anywhere or it may mean we’re all so distracted by the eleventy jillion other news stories out there that no one is paying much attention to Paxton’s latest stunt. SCOTUS just declined to take up the Trump administration’s appeal of lower court rulings keeping DACA in place, which you’d think might give pause to even a Paxton-friendly judge. I’m never quite that optimistic. Anyway, I’m noting this for the record so when something happens I’ll be able to refer to this at that time.

(And a day later, he’s petitioning to have abortion and transgender health protections “wiped permanently” from Obamacare. I think he feels emboldened after having survived re-election. But don’t worry, I’m sure he’d use those new powers he wants responsibly.)

Of course some anti-abortion bill will pass this session

Passing bills restricting abortion is one of the reasons the modern Republican Party exists, so of course some bill (or bills) which do that in some fashion will be passed in this legislative session. It’s as safe a bet as there is.

Right there with them

Texas lawmakers have filed more than a dozen bills that would further restrict abortion rights, including an outright ban on abortion and legislation that would forbid Texas cities from contracting with Planned Parenthood – possibly the next step in pulling government funding from the women’s health group that’s also an abortion provider.

While top state officials say they’re largely swearing off divisive social issues this legislative session in favor of focusing on school funding and property tax relief, advocates on both sides of the abortion debate are getting ready for the next round.

Texas is one of the leading states in the nation for curtailing access to abortion. Both the governor and lieutenant governor have reiterated their support for protecting the unborn in the past week. Newly appointed House Speaker Dennis Bonnen has a sterling record of supporting anti-abortion legislation.

[…]

Political analysts expect the Republican-dominated Legislature to keep pressing.

“Abortion is still a meaty gold standard for conservative Republicans,” said Brandon Rottinghaus, a political science professor at the University of Houston. “It is not going away. It is too central to the organizing and the politics of the Republican Party … they can’t avoid it because it will be seen as complete abdication of Republican Party principles.”

In the Texas House, any abortion bills would likely go through Dade Phelan, a Beaumont Republican and the new chairman of the State Affairs Committee. He has a stellar anti-abortion voting record, according to Texas Right to Life. The majority Republican committee is made up of 12 men and 1 woman. More than half of the members have at least a 90 percent voting recording with the anti-abortion group.

But while he says he’s not trying to dictate the actions of the committee, Phelan doubts that an outright ban of abortion would be passed into law.

“I don’t see us passing legislation that’s unconstitutional at this point in time. Passing something that will not stand up to a constitutional challenge, I don’t think that’s in the best interest of the Texas House,” Phelan said.

Speaker Bonnen’s record on reproductive choice isn’t relevant here. I will remind you that the omnibus anti-abortion bill that was eventually overturned by SCOTUS in the Whole Women’s Health decision was passed while Joe Straus was Speaker. Straus’ appeal in the first place was that he allowed the will of the House to take precedence, unlike Tom Craddick and his iron-fist, top-down approach. Bonnen will follow that path, which means that other than a bathroom bill that seems unlikely to stalk the halls this session, he’s gonna let the Lege do what the Lege does. And what the Lege does is pass anti-abortion bills. I don’t know when the last session was that didn’t include at least one anti-abortion bill.

Of greater and more immediate concern is whether the Whole Women’s Health decision, which affirmed Roe v. Wade and the undue burden standard, will continue to have any meaning. The Louisiana legislature last year passed a bill very much like Texas’ overturned HB2, and the Fifth Circuit, being the garbage collection of lousy judges that it is, allowed it to stand on the grounds that it was not quite as bad as HB2. An appeal to SCOTUS to put enforcement of the Louisiana law on hold while the case goes through the courts is pending, and if SCOTUS allows it to be enforce in the interim, it will be a clear message that it’s open season on choice. Ian Millhiser and Mark Joseph Stern have the gory details. Keep an eye on this, because the fanatics in and around the Lege sure will.

MALDEF Census lawsuit in court

Census lawsuit #2.

In a federal courtroom in Maryland on Tuesday, lawyers representing the Mexican American Legislative Caucus, the Senate Hispanic Caucus and several Texas-based nonprofits that advocate for Latino and Asian residents will set out to convince U.S. District Judge George Hazel that the federal government’s decision to ask about citizenship status as part of the upcoming census is improper, because it will lead to a disproportionate undercount of immigrants and people of color.

The Texas legal battle has run mostly parallel to several other court fights across the country — and might not be decided before the New York case makes it to the U.S. Supreme Court — but it’s the only census case that could ultimately determine whether Trump administration officials conspired to deprive people of color of equal protection and representation.

[…]

What we’re referring to as the “Texas case” is actually two consolidated cases filed in Maryland — one of which was filed on behalf of more than a dozen plaintiffs, including Texas’ legislative Latino caucuses; legislative caucuses out of Maryland, Arizona and California; and several community organizations. La Unión del Pueblo Entero, a nonprofit organization based in the Rio Grande Valley, is the lead plaintiff.

Those plaintiffs are challenging the inclusion of the citizenship question on several fronts, alleging it violates the U.S. Constitution’s Equal Protection Clause, the Enumeration Clause and a federal law that governs federal agencies and their decision-making processes.

More broadly, they argue the citizenship question will lead to a disproportionate undercount of Hispanic and immigrant households, affecting areas of the country like Texas that are more likely to be home to members of those communities, and that officials’ decision to add the question was unconstitutional because it was based on intentional racial discrimination. They go further than other opponents in also alleging that Trump administration officials conspired to add the question to the 2020 questionnaire based on animus against Hispanics and immigrants, particularly when it comes to counting immigrants for the apportionment of political districts.

The federal government, which has been unsuccessful in its repeated requests to dismiss the case, has argued the question is necessary for “more effective enforcement” of the federal Voting Rights Act and was added at the Justice Department’s request. But evidence that emerged through litigation indicated U.S. Commerce Secretary Wilbur Ross asked the Justice Department to make that request after he was in touch with advisers to President Donald Trump.

[…]

In the New York case, U.S. District Judge Jesse Furman scolded the Trump administration for “egregious” violations of the Administrative Procedure Act, the federal law the Texas plaintiffs are also citing, and described Ross’ decision to add the question as “arbitrary and capricious.” Furman, however, ruled there wasn’t enough evidence to prove that Ross had intentionally acted to discriminate against immigrants and people of color.

The Texas case is moving forward despite the New York ruling because it involves allegations that the courts haven’t addressed. The New York lawsuit — filed on behalf of a coalition of more than 30 states, cities and counties, including El Paso, Hidalgo and Cameron — didn’t include some of the legal claims opponents in Texas are leaning on.

See here and here for background on this lawsuit. The New York case was ruled entirely on statutory grounds, with the Constitutional claims put aside in part because there had been no deposition of Commerce Secretary Wilbur Ross. A ruling for the plaintiffs on the Constitutional claims would be a stronger and more expansive ruling, but given the SCOTUS that we have, it seems like a ruling we are less likely to get. You never know till you try, though.

And speaking of that New York case:

The Trump administration asked the Supreme Court on Tuesday to bypass its normal procedures and decide quickly whether a question on citizenship can be placed on the 2020 Census.

[…]

Normally, the Justice Department would appeal the decision to the U.S. Court of Appeals for the 2nd Circuit. But Solicitor General Noel J. Francisco said that would not leave enough time for a final ruling from the Supreme Court.

“The government must finalize the census questionnaire by the end of June 2019 to enable it to be printed on time,” he told the court. “It is exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by that deadline.”

Citing a Supreme Court rule, Francisco said the “case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

As this story notes, SCOTUS had a hearing to address the question of whether Secretary Ross could be deposed – they declined to allow it while the trial was happening – but since the New York court went ahead and made a ruling anyway, they have since canceled that hearing. I don’t know if they will take up the request for an expedited appeal, but it won’t surprise me if they do. (Rick Hasen, an actual expert in these matters, thinks they will.) That ruling was designed to stick to things this SCOTUS likes to uphold and away from things it likes to bat down, so who knows what they’ll do. NPR has more.

Trump administration opposes Section 3 oversight

I mean, duh.

In the latest about-face on voting rights under President Donald Trump, the U.S. Department of Justice no longer supports efforts to force Texas back under federal oversight of its electoral map drawing.

In legal filings this week, the Justice Department indicated it would side against the voters of color, civil rights groups and Democratic lawmakers who want a three-judge federal panel in San Antonio to require Texas to seek pre-approval of its legislative and congressional maps, given previous maps that the federal judges ruled discriminatory.

“The United States no longer believes that [federal supervision] is warranted in this case,” federal attorneys said in their filing to the court.

[…]

Under the Obama administration, the Justice Department sided with those challenging the state’s maps as discriminatory. But last year, Deputy U.S. Solicitor General Edwin Kneedler joined state attorneys in convincing the U.S. Supreme Court that Texas’ current congressional and state House maps, which were adopted in 2013, were legally sound.

In approving the state’s current maps, the high court in June wiped out a ruling by the San Antonio panel that found the maps were tainted with discrimination that was meant to thwart the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. But seemingly left untouched were previous findings of intentional discrimination at the hands of the state lawmakers who first redrew the state’s maps in 2011.

The state’s opponents are now pointing to some of those 2011 violations in asking the San Antonio panel to consider returning Texas to federal guardianship of its maps.

“In a jurisdiction like Texas, which has consistently engaged in intentional discrimination since its inception, and which year after year attempts to sharpen and hone its ability to violate the law in more covert and artful ways, the Constitution’s promise of equal protection under the laws requires the imposition” of federal supervision, the opponents said in a November filing.

See here for the background. The only reason the Trumpies hasn’t opposed this before now is because there hadn’t been a filing by the plaintiffs before. They’re consistent when it comes to opposing voting rights, that’s for sure. As you know, I don’t have any faith in SCOTUS to do the right thing, but you can’t get what you want if you don’t ask for it.

Plaintiffs win in Census citizenship question lawsuit

Very good news.

A federal judge on Tuesday blocked the Trump administration’s plan to add a citizenship question to the 2020 census, with an opinion that found the move by Commerce Secretary Wilbur Ross violated the Administrative Procedure Act.

Furman’s decision, if not overturned by a higher court, is a monumental victory for voting rights activists and immigrant advocates, who feared the question would spook immigrant participation in the census. An undercount of those populations would shift political representation and governmental resources away from those communities, in favor of less diverse, less urban parts of the country. Furthermore, there were strong hints that the citizenship data procured would then be used to exclude non-citizenships from redistricting — a long-sought goal of conservatives that would boost Republicans’ electoral advantages.

In his 277-page opinion, U.S. District Judge Jesse Furman in Manhattan said that Ross “failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices — a veritable smorgasbord of classic, clear-cut APA violations.”

[…]

The case was a consolidation of two lawsuits — one brought by the ACLU and the other by a multi-state coalition — and is among some half dozen cases across the country challenging the decision, which was announced last March. Furman’s case was he first to go trial and he is the first judge to reach a decision on the merits.

It is also an issue already headed to the Supreme Court, so it is unlikely that Furman’s word will be the last one. After the Trump administration fought tooth and nail Furman’s order that Ross be deposed for the case, the Supreme Court blocked the deposition and scheduled a hearing on whether Ross’ motive for adding the question should play a role in the case for February.

Furman said that his decision Tuesday was based solely on the so-called administrative record — the official record that administration put forward justifying its process of coming to a decision on the question.

By basing his ruling only on the administrative record, Furman segregated his findings from the contentious issue at the heart of dispute the Supreme Court will hear next month.

“Looking beyond the Administrative Record merely confirms the Court’s conclusions and illustrates how egregious the APA violations were,” he said.

While ruling with the challengers on the Administrative Procedures Act claim, the judge did not find a constitutional due process violation, as the challengers alleged.

“In particular, although the Court finds that Secretary Ross’s decision was pretextual, it is unable to find, on the record before it, that the decision was a pretext for impermissible discrimination,” he said. “To be fair to Plaintiffs, it is impossible to know if they could have carried their burden to prove such discriminatory intent had they been allowed to depose Secretary Ross, as the Court had authorized last September.”

His opinion took a not-so-veiled swipe at Justice Neil Gorsuch, who wrote, when the dispute over deposing Ross was at the Supreme Court at an earlier stage, that there was nothing wrong with a new cabinet secretary “cutting through red tape.”

“[A]lthough some may deride its requirements as ‘red tape,’ the APA exists to
protect core constitutional and democratic values,” Furman wrote. “It ensures that agencies exercise only the authority that Congress has given them, that they exercise that authority reasonably, and that they follow applicable procedures — in short, it ensures that agencies remain accountable to the public they serve.”

See here for the previous update. Though you wouldn’t know it from the slavish devotion our state leaders pay to Donald Trump, this ruling is very good for Texas. There will of course be an appeal and as noted this will surely make its way to SCOTUS, but for now this is a big win. ThinkProgress, Slate, and Mother Jones all have good analyses of the opinion, so go check ’em out.

Omnibus lawsuit against Texas abortion laws begins

Gotta say, I’m less optimistic about this now than I was when it was filed.

State attorneys and lawyers representing reproductive rights groups argued in federal court Monday over whether a sweeping lawsuit challenging more than 60 Texas abortion regulations should move forward.

U.S. District Judge Lee Yeakel told state attorneys that their 73-page argument confused him. He also expressed confusion about what reproductive rights groups were arguing over.

“This needs to be something not that the court understands but the public understands,” Yeakel said. “I find this case difficult to understand with the status of the record.”

[…]

Stephanie Toti, senior counsel at the Lawyering Project and lead attorney for the reproductive rights groups in the case, said during the hearing that “once upon a time, Texas started off with a reasonable regime to regulate the system of abortion.”

“The system has become so burdensome that it’s increasingly difficult for patients and providers to navigate,” Toti said.

Reproductive rights groups also argue that the state’s “A Woman’s Right to Know” booklet for patients is medically inaccurate. The suit targets a University of Texas System policy barring students from getting credit for internships and field placements at institutions that provide access to abortions.

Amy Hagstrom Miller, president and CEO of Whole Woman’s Health Alliance, said in a news release that the organization is “proud to lead another legal challenge in Texas.”

See here for the background. As the story notes, this lawsuit was filed in June, with the main argument being that the Whole Women’s Health SCOTUS ruling of 2016 made a bunch of previously-passed laws illegal as well. It seemed like a great idea at the time, right up until Anthony Kennedy decided to hang up his robe. Be that as it may, the hope here is to get at least a partial injunction from the district court, and see where we go from there. For that, we’ll have to wait on Judge Yeakel. The Chron has more.

Anti-Obamacare ruling appealed

The big non-Mueller story to follow for 2019.

Best mugshot ever

The Democratic coalition of states battling Texas over the fate of the Affordable Care Act has formally begun the process of challenging a Dec. 14 decision ruling the law unconstitutional in its entirety.

California Attorney General Xavier Becerra, who’s leading the charge, filed a notice of appeal Thursday morning before the U.S. 5th Circuit Court of Appeals. The blue states will ask the federal appeals court to overturn last month’s ruling from U.S. District Judge Reed O’Connor, who declared that President Barack Obama’s signature health care law is unconstitutional after Congress in December 2017 gutted one of its major provisions, the individual mandate.

The notice of appeal marks the next stage of what is expected to be a long-running litigation process that could reach the U.S. Supreme Court. A Texas-led coalition of 20 states kicked the process off nearly a year ago by suing the federal government to kill the law; after the Justice Department sided partially with Texas, the California-led coalition of states stepped in to defend Obamacare in court.

“The wheels start turning as of now,” Becerra said on a press call Thursday morning.

See here and here for the background. Every legal scholar with a shred of integrity has denounced this ruling as ridiculous, but we all know that what matters is what five members of SCOTUS think is legal. One story I read about this noted that the coalition of states defending Obamacare picked up an ally after the 2018 election, the new Attorney General of Colorado. One can only wonder what might be happening today if we could have added a new Attorney General of Texas to this. Alas, we’ll have to file that under What Might Have Been.

Ridiculous anti-Obamacare ruling remains on hold

It is what it is.

Best mugshot ever

The federal judge in Texas who ruled the Affordable Care Act unconstitutional said today that the law can stand while his judgment is under appeal.

In his order issuing a stay and final partial judgment in the controversial case, U.S. District Court Judge Reed O’Connor reiterated that he believes the entire ACA cannot stand without its individual mandate penalty, which Congress zeroed out last year. O’Connor argued that appellate judges will agree with his judgment, but said it should not take effect while the case is being appealed. “[M]any everyday Americans would otherwise face great uncertainty,” he wrote.

The judge’s order means that Obamacare will likely remain the law of the land for at least another year. Depending on how the appeals proceed, it also tees up the possibility of a Supreme Court ruling on the case in 2020, during the presidential campaign.

[…]

In his new filing, O’Connor expanded his reasoning for siding with the conservative states seeking to strike down Obamacare, arguing that they have standing to bring the case. This point has been disputed, because the conservative states have struggled to show how the ACA has harmed them.

O’Connor also stressed that “courts must refrain from resolving policy disputes” created by Congress. His conclusions were widely panned, including by conservative legal scholars who maintain that O’Connor continues to misread the law and is engaging in the same judicial activism that he decries.

“I’ve been very critical of Judge O’Connor’s severability analysis, but the standing analysis in these opinions may be even worse — and that’s saying something,” tweeted Jonathan Adler, a Case Western Reserve University law professor who was a legal architect of another major ACA challenge. “I will be gobsmacked if O’Connor’s opinion survives review in the Fifth Circuit.”

O’Connor also noted that four other counts remain unresolved — signaling that even if the appeals court overturns his ruling, conservative states could find further paths to weaken the ACA. The remaining issues include challenges under the Administrative Procedures Act and the Fifth and 10th amendments.

See here for the background. Basically everyone has panned this ruling as legally unsound – I’m being kind here – and most people believe that the ruling will be reversed. I have less faith in the Fifth Circuit than that, but we’ll see. In the meantime, we can’t get a Congress and a President who are committed to providing health care for all soon enough.

The ACA decision

Utterly ridiculous, and likely to be short-lived.

Best mugshot ever

A federal judge in Texas threw a dagger on Friday into the Affordable Care Act, ruling that the entire health-care law is unconstitutional because of a recent change in federal tax law.

The opinion by U.S. District Judge Reed O’Connor overturns all of the sprawling law nationwide.

The ruling came on the eve of the deadline for Americans to sign up for coverage in the federal insurance exchange created under the law.

Since the suit was filed in January, many health-law specialists have viewed its logic as weak but nevertheless have regarded the case as the greatest looming legal threat to the 2010 law, which has been a GOP whipping post ever since and assailed repeatedly in the courts.

The Supreme Court upheld the law as constitutional in 2012 and 2015, though the first of those opinions struck down the ACA’s provision that was to expand Medicaid nationwide, letting each state choose instead. No matter how O’Connor ruled, legal experts have been forecasting that the Texas case would be appealed and could well place the law again before the high court, giving its conservative newest member, Justice Brett Kavenaugh, a first opportunity to take part.

Not mentioned in this story, as it came out very quickly after the ruling was released late Friday afternoon (*), is that the judge also denied the plaintiffs’ request for an injunction. This means that the ruling, which is so absurd that even conservative legal experts who oppose the ACA were appalled by it. What happens next is a bit unclear – there will of course be an appeal, and this will almost certainly go to SCOTUS – but for now this is mostly a big legal turd in the punch bowl. Enjoy that health insurance while you can, sure would be a pity if something happened to it. The Trib, Nicholas Bagley, and Daily Kos, among many others, have more.

Moving forward on Section 3

There’s still redistricting litigation action happening.

Late Friday afternoon, the coalition of voting rights groups that have fought the state for fairer legislative districts since the last round of redistricting in 2010 filed a pair of new briefs with the U.S. District Court for the Western District of Texas in Austin. They seek to have the state forced back into federal preclearance under the Voting Rights Act.

States subject to the VRA’s preclearance provision must seek and receive federal approval for any changes they make to any law that applies to voting. Texas has been free from the requirement since 2013, when the Supreme Court cleared the list of states subject to preclearance, but could be placed back on the naughty list if federal courts determine that the state is intentionally discriminatory in its voting laws.

The groups argue that returning Texas to preclearance status for at least the next five years is the only thing that will stop state legislators from drawing unconstitutional district boundaries during the state’s next round of redistricting following the 2020 elections.

“[T]his vital, but time-limited remedy — this Court’s imposition of a preclearance requirement and retention of jurisdiction — is the most statutorily appropriate and equitable action that can ensure the State’s next redistricting plans do not discriminate against minority voters, particularly in light of this Court’s identification of the recent intentional discrimination employed by the State in redistricting and the persistent pattern of discriminatory governmental action in Texas directed at minority voters for generations,” the plaintiffs write.

[..]

“The Supreme Court held that the discriminatory intent of the 2011 legislature was erroneously imputed to the 2013 legislature, it left the findings of intentional discrimination as to the 2011 plans untouched, ‘express[ing] no view on the correctness of this holding,’” the plaintiffs, including the League of United Latin American Citizens and the Texas State Conference of NAACP Branches, write. “This Court’s findings of intentional discrimination in the 2011 Congressional and State House plans remain in place, and these findings — coupled with Texas’s persistent history of continued intentional discrimination — amply justify Plaintiffs’ request for relief under Section 3(c) [of the Voting Rights Act].”

See here and here for the background. The joint plaintiffs and Quesada plaintiffs’ petition for relief under Section 3 of the Voting Rights Act is here, the Task Force plaintiffs’ request is here, and every legal document associated with the case is here; scroll all the way to the bottom to see the most recent stuff. I haven’t seen any other news about these filings, so I guess this subject isn’t as sexy as it once was. Understandable, given the SCOTUS vandalism to the Voting Right Act, not to mention the likelihood of success, but this is still important. The state has till January 15 to respond. I’ll keep an eye on it.

Voter ID lawsuit officially ends

That’s all there is, at least until the next atrocity.

Still the only voter ID anyone should need

A federal judge formally dismissed the lawsuit challenging the Texas voter ID law Monday, the final step in a yearslong fight that will allow the state to enforce a weakened version of the 2011 statute.

At the urging of Texas Attorney General Ken Paxton, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi issued a two-sentence order dismissing the case in light of April’s decision by the 5th U.S. Circuit Court of Appeals that upheld the law.

Lawyers for the minority voters, Democratic politicians and civil rights groups that challenged the law had argued that Paxton’s request for a dismissal was an unnecessary step because there was nothing left to decide — except for assessing legal fees and costs — after the 5th Circuit Court’s decision.

See here for the background. Like I said, we’re going to need a political solution to this problem. Maybe with a different Supreme Court we could keep pushing this via litigation, but I expect we all understand that’s not the world we currently inhabit. First we have to create that world, and that gets us back to my initial point. There is still an effort to put Texas back under preclearance, but even if that happens (spoiler alert: it almost certainly won’t) it won’t change what has already occurred. It can only affect what may be yet to come. The road forward starts with winning some elections. This November would be an excellent time for that.

The hearing for the lawsuit to kill Obamacare

Here we go again.

It’s constitutional – deal with it

At the hearing Wednesday, Texas aimed to convince U.S. District Judge Reed O’Connor to block the law across the country as it continues to fight a months- or years-long legal case that could land before the U.S. Supreme Court.

Citing rising health care premiums, Texas says such an injunction is necessary to preserve state sovereignty and to relieve the burden on residents forced to purchase expensive insurance coverage. California counters that temporarily blocking or ending the law would cause more harm to the millions of people insured under it, particularly the 133 million people the state says enjoy the law’s protections for pre-existing conditions. The U.S. Department of Justice, which has taken up many of Texas’ positions in the case, nonetheless sided with California, arguing that an immediate injunction would throw the health care system into chaos.

[…]

Inside the courtroom, where protesters’ shouts were inaudible, Darren McCarty, an assistant attorney general for Texas, argued that “the policies, the merits of the ACA are not on trial here” — just the legality. In that legal argument, McCarty leaned heavily on a 2012 U.S. Supreme Court decision on Obamacare, which upheld the law by construing the “individual mandate,” a penalty for not purchasing insurance, as a tax that Congress has the power to levy. Texas argues that after Congress lowered that fee to $0 in a slate of December 2017 tax cuts, the fee is no longer a tax and thus no longer constitutional. With it must go the rest of the law, the state claims.

“There is no more tax to provide constitutional cover to the individual mandate,” McCarty said. “Once the individual mandate falls, the entire ACA falls.”

California countered that a tax can be a tax even if it doesn’t collect revenue at all times. And, attorneys for the state claim, even if the individual mandate is unconstitutional, the court should let lie “hundreds of perfectly lawful sections,” argued Nimrod Elias, deputy attorney general for California.

The case will likely turn on that question of “severability”— whether one slice of a law, if ruled unconstitutional, must necessarily doom the rest. O’Connor, who nodded along carefully throughout the hearing, lobbed most of his questions at the California attorneys, and many of them focused on whether the various pieces of Obamacare can be unentangled.

Elias said that in the vast majority of cases, the Supreme Court acts with “a scalpel, not a sledgehammer,” leaving in place most of a law even if one provision must be struck. The Texas coalition pointed to a more recent case in which the high court struck an entire law based on a narrow challenge.

O’Connor — a George W. Bush-appointee who has ruled against Obamacare several times, albeit on narrower grounds — also honed in on the question of legislative intent. Texas argued that the individual mandate was a critical piece of the law’s original version. But California argued that in 2017, in gutting the individual mandate without touching the rest of the law, lawmakers made it clear they wanted the law to persist without that provision.

“Would the legislature prefer what is left in statute to no statute at all?” Elias questioned. “We know what Congress intended based on what Congress actually did.”

See here and here for some background. Justin Nelson was at the hearing as well, pressing his attack on Paxton for his ideological assault on so many people’s health care. That really deserves more coverage, but the fact that most everyone outside of Paxton’s bubble thinks his legal argument is ridiculous is probably helping to keep the story on a lower priority. (Well, that and the unending Wurlitzer shitshow that is the Trump administration.) I mean, I may not be a fancypants lawyer, but it sure seems to me that eight years of Republicans vowing to repeal Obamacare plus the entire summer of 2017 trying to repeal Obamacare plus the abject failure to repeal Obamacare would suggest that the Republicans did not intend to repeal Obamacare with the bill that they finally did pass. If they could have they would have, but they couldn’t so they didn’t. I don’t know what else there is to say, but we’re going to have to wait till after the November elections – wouldn’t be prudent to do that before people voted, you know – to find out what this hand-picked judge thinks. Ken Janda, the Dallas Observer, and ThinkProgress have more.