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How are Texas businesses going to react to the forthcoming criminalization of abortion?

It’s too soon to say. Certainly too soon for most of them to say.

In overturning Roe v. Wade, the Supreme Court presented corporate America with a question that may prove uncomfortable for big companies headquartered in states such as Texas, where abortion has effectively been banned.

Several national companies — including Disney, Goldman Sachs, and Meta, the parent company of Facebook — reacted the Dobbs v Jackson ruling handed down Friday by announcing that they would reimburse the cost of employees who need to travel out of state to access abortion care. Companies including Apple, Amazon, Citigroup, J.P. Morgan, SalesForce, Bumble and Levi’s had already announced similar policies, in anticipation of such a ruling or after draconian restrictions on abortion were adopted by states such as Texas, which last year banned virtually all abortions after the six-week mark of pregnancy.

But many Houston companies have not been forthcoming about whether they will modify their benefits to help employees get access to reproductive health services.

“We do not have a comment on this issue,” said Kinder Morgan, contacted by the Houston Chronicle on Monday.

“We decline to contribute at this time,” said EOG Services, an oil and gas company.

“We have no comment on this,” said Hines, the real estate firm.

[…]

Experts say no Texas laws prohibit companies from paying for travel for abortion services. A 2017 state law limits the extent to which conventional insurance companies can cover elective abortion, but makes no mention of travel.

“I don’t see they currently have liability if they pay for travel expenses for a lawful, out-of-state abortion,” said Seth J. Chandler, a professor at the University of Houston Law Center.

Whether companies decide to pay for travel expenses may have something to do with how it will affect their ability to attract talent, Chandler said.

“There is an issue of how you would attract employees, if there is a type of health care they perceive they may need is illegal,” Chandler said. “One vehicle for companies to overcome that reluctance is to say, ‘We’ll pay for your travel.’”

It’s not clear to me that they wouldn’t face civil litigation under the vigilante provisions of SB8, but even if they don’t, the Handmaid’s Tale caucus of the legislature will be working to change that.

Several companies have already announced they would cover expenses for an employee who has to travel for an abortion, including Walt Disney Co., Meta and JPMorgan Chase.

Those companies could be punished under the “accomplice liability” section of Texas, which applies to all residents and, according to Cain, also businesses.

“So, it also not just goes after the doctors, but it’s going to be going after those giving rides, supporting it, procuring the means, assisting, anybody that is an accomplice to the procurement of an abortion is also then committing a crime,” the Republican said.

That of course is chief woman hater Briscoe Cain, who says in the story that prosecuting “abortion crimes” is one of his top priorities. Let’s get real, it’s his main driving force. If Briscoe Cain gets his way, a whole lot of people are going to go to jail. That’s the reality we’re in right now.

There are a couple of ways that businesses can respond. They can cower and submit to the likes of Cain, and throw a bunch of their employees under the bus in the process. They can get the hell out of Texas or not come here in the first place; I suspect some will do that, though it’s hard to say how many. Allowing some employees to not live here would be another variant of this. I hope we get some real data and not just anecdotes about that.

And of course, they can fight. They can support candidates who support abortion rights, and other things that SCOTUS and the radicals that are currently in power are threatening, like same sex marriage and LGBTQ rights. That would be a huge change on their part, because keeping their heads down and not offending the powers that be is always the easier road to take. But it has the potential to have by far the biggest effect. It’s a choice they have, that’s all I’m saying. Providing expenses for employees who have to travel out of state to get reproductive health care is a reasonable choice as a short-term stopgap. But there’s only so long that can work. They can’t avoid the choice forever.

Beto will work to repeal Texas’ abortion ban

He can’t succeed, not at this time and not in the near future, but aim big and make it clear what the stakes are.

In the days after the Supreme Court overturned Roe v. Wade, Democrats at rallies and protests in Texas said the November election is key for protecting reproductive rights.

In an interview after a Sunday rally in Austin, Democratic gubernatorial candidate Beto O’Rourke told The Texas Tribune he would work to repeal Texas’ abortion ban and expand access to reproductive health care if he is elected. Rochelle Garza, the Democratic nominee for attorney general, said she would partner with other lawyers to stop enforcement of the state’s abortion laws.

But these promises may be hard to keep if Democrats on the statewide ballot in November win. They would have to work with a Legislature that is likely to remain dominated by Republicans. Still, working with the GOP, O’Rourke said, is part of a functioning democracy.

“Just imagine the shockwaves this will send if for the first time in 32 years, Texas elects a Democrat as governor, a governor who won on the right of every woman to make her own decision about her own body, her own future, and her own health care,” O’Rourke said. “You know the Legislature will not only take notice, they will be forced to act in more of our common interest, instead of this extreme, fringe set of policies they have been pursuing over the last decade.”

He also said he’s hopeful the outrage among voters over the end of constitutional protections for abortion will translate to a more balanced Legislature come November and “change the dynamics in the Capitol.”

As I’ve said before, nobody knows right now what the effect of SCOTUS overturning Roe will be in Texas. Early polling suggests that Democrats are fired up about this, but it’s too early to know if that will persist, and it’s too early to feel confident that other news will not displace it in the forefront. Historic polling has shown there to be about a 2-1 majority opposed to making abortion harder to get in Texas, but that was composed of roughly equal parts “make abortion easier to get” and “keep current laws as they are”. Which, as you may recall, was pretty strict even before SB8 passed.

I believe Beto has done a good job of engaging Democratic voters, who from where I sit look to be reasonably enthusiastic about voting in Texas. I think he’ll get some tailwind from the overturning of Roe. I don’t know how that compares to the already-existing enthusiasm on the Republican side, or whether this decision will add any juice to it or not have much effect. We’re going to need a lot of polling data to begin to get a picture, and of course the campaigns themselves have a lot to say about this as well. I tend to be optimistic (a hard thing to be these days), and I think Beto has run a good campaign so far. I’m just reluctant to speculate beyond that at this time.

Temporary restraining order granted to abortion clinics in trigger lawsuit

Some abortions are temporarily legal in Texas again.

Abortions up to about six weeks in pregnancy can resume at some clinics in Texas for now after a Harris County District Court judge granted a temporary restraining order that blocks an abortion ban that was in place before Roe v. Wade.

In the ruling issued Tuesday, Judge Christine Weems ruled that the pre-Roe abortion ban “is repealed and may not be enforced consistent with the due process guaranteed by the Texas constitution.”

“It is a relief that this Texas state court acted so quickly to block this deeply harmful abortion ban,” Marc Hearron, senior counsel at the Center for Reproductive Rights, said in a press release. “This decision will allow abortion services to resume at many clinics across the state, connecting Texans to the essential health care they need. Every hour that abortion is accessible in Texas is a victory.

Whole Woman’s Health, which operates abortion clinics in McAllen, McKinney, Fort Worth and Austin, said it would resume providing abortions as a result of this ruling.

“We immediately began calling the patients on our waiting lists and bringing our staff and providers back into the clinics,” said Amy Hagstrom Miller, the organization’s president and CEO.

Abortions can resume only at the clinics named in the lawsuit. Besides the Whole Woman’s Health clinics, the others that will resume operations are Alamo Women’s Reproductive Services in San Antonio, Brookside Women’s Medical Center and Austin Women’s Health Center in Austin, Houston Women’s Clinic and Houston Women’s Reproductive Services in Houston, and Southwestern Women’s Surgery Center in Dallas.

A hearing has been set for July 12 to decide on a more permanent restraining order.

[…]

On a press call Tuesday, Hearron declined to speculate on what the temporary restraining order on the pre-Roe ban might mean for other clinics and abortion funds in the state.

“I don’t know that I have an answer to that question,” he said. “I think that’s a legal question that the other clients would want to look at.”

While some abortion access has been restored in Texas, current state law still allows abortions only up to around six weeks of pregnancy, a point at which many people don’t even know they are pregnant.

“So there still will be a large number of Texans who are still going to need to try to find access and appointments outside of the state,” Hearron said.

See here for the background. This will of course be appealed, so as I said before it will ultimately come down to what the Supreme Court says, if they choose to weigh in at all – they may decide to slow roll it, given that the whole thing will be moot in at most about two months. Not deciding when they don’t have to is a specialty of theirs.

As for the question of other providers, the Chron has a bit of input.

It’s unclear whether the injunction applies to clinics that are not party to the suit, such as Planned Parenthood.

The CEOs of Texas Planned Parenthood affiliates said in a joint statement Tuesday that their clinics had no immediate plans to resume offering abortions, but added: “This is a rapidly evolving situation and legal teams are still reviewing this order and its potential implications.”

The case could also offer a lifeline to Texas abortion funds, which provide transportation and other assistance to people seeking abortions, after they shuttered Friday, citing concerns of criminal liability.

Seems like it’s worthwhile to me to at least get the clarity and some assurance that you won’t be arrested for something that may have happened five minutes after Ken Paxton decided it was illegal. I Am Not A Lawyer, your mileage may vary, etc etc etc. I still think they should at least give serious thought to filing their own claims. We’ll see.

Lawsuit filed over Texas trigger law implementation

One last fight before the curtain comes down.

Texas abortion providers are making a last-ditch effort to temporarily resume procedures by challenging a pre-Roe v. Wade abortion ban that has not been enforced for nearly a half-century, but that some abortion opponents argue could be enforced after the U.S. Supreme Court’s decision to overturn the constitutional right to an abortion.

The providers filed a lawsuit on Monday, and a Harris County judge will hear arguments on Tuesday for implementing a temporary restraining order to block enforcement of the old ban, which criminalized both performing abortions and assisting anyone who performs abortions in Texas.

Texas Attorney General Ken Paxton, some Republican lawmakers and anti-abortion activists have argued that old state statutes banning abortion may have instantly gone back into effect following the Supreme Court’s announcement that it would overturn Roe v. Wade.

Texas abortion clinics stopped all procedures, and abortion funds ceased operating in the state after the Supreme Court ruled Friday to overturn Roe v. Wade, the landmark case that affirmed abortions as a constitutional right for nearly five decades. Some doctors had to halt procedures moments before they were set to perform them because of concerns that old state abortion laws that had been blocked by Roe could now once again be criminally enforced.

“We will fight to maintain access for as long as we can,” Nancy Northup, president of the Center for Reproductive Rights — one of the plaintiffs challenging pre-Roe restrictions — said in a statement. “Every day, every hour that abortion remains legal in Texas is a chance for more people to get the care they need. The clinics we represent want to help as many patients as they can, down to the last minute.”

Last year, Texas passed a “trigger law” to ban abortions if the Supreme Court repealed Roe v. Wade. The law will go into effect 30 days after the court issues a judgment repealing Roe.

Though the court issued its opinion signaling its intention to overturn Roe on Friday, it’s unclear when the formal judgment will come. Paxton said the judgment could take a month. He said his office will announce the effective date for the trigger law as soon as possible.

However, laws predating Roe v. Wade in Texas that ban abortion are still on the books — leading some to argue they’re valid again and that there’s no need to wait for the trigger law to seek criminal penalties for performing abortions in the state. Paxton noted this on Friday, saying “some prosecutors may choose to immediately pursue criminal prosecutions.”

But a 2004 case in the Fifth Circuit Court of Appeals found that by passing abortion laws — such as regulations on the availability of abortions for minors and the practices of abortion clinics — the Texas Legislature repealed its old bans and replaced them with regulations that implied those statutes were no longer in effect. And because the Supreme Court has yet to issue its formal judgment, it’s unclear whether the pre-Roe statutes can be enforced until that happens.

[…]

The pre-Roe laws include more detailed provisions than Texas’ trigger ban, including the potential to charge anyone who “furnishes the means” for someone to obtain an abortion. The threat of criminal charges has been enough to chill both abortion procedures as well as funding for Texans to travel and obtain abortions outside the state.

“It’s going to be very difficult for anyone to take on the threat of criminal prosecution in order to test these theories because the harm inflicted by the criminal justice system is immediate,” said Elizabeth Myers, an attorney who represents abortion funds.

Some abortion providers have already said they will resume procedures if a court gives them the protection to do so before Texas’ trigger ban takes effect.

“If these laws are blocked, I plan to provide abortions for as long as I legally can,” Dr. Alan Braid, abortion provider and owner of Alamo Women’s Reproductive Services, a plaintiff in the lawsuit, said in a statement Monday. “I started my medical career before Roe v. Wade and never imagined our country would go back to criminalizing doctors and preventing us from helping women.”

A copy of the complaint is here, and a brief thread from the ACLU of Texas, representing the plaintiffs, is here. I’d find this all fascinating as an academic exercise if it weren’t so fucking depressing. The complaint is long and I didn’t read it, but the bottom line question is simple enough. That said, similar efforts in Louisiana and Utah have succeeded, at least for now, so that offers a bit of hope. I just wonder if SCOTx will let a TRO stand if they are asked to weigh in. The Chron has more.

DAs are not going to be able to avoid enforcing anti-abortion laws

I appreciate the sentiment, but that’s not how it works.

Even before the U.S. Supreme Court overturned Roe v. Wade on Friday, local prosecutors in several of the largest Texas counties vowed not to file criminal charges in abortion-related cases, seemingly offering hope for those seeking a way around the state’s impending abortion ban.

But those counties are unlikely to serve as abortion safe havens in post-Roe Texas, legal experts and abortion rights advocates say, largely because clinics still face the threat of legal retribution even in counties with sympathetic district attorneys. And the penalty for those who continue offering the procedure is steep — up to life in prison and at least $100,000 in fines under Texas’ so-called trigger law, which will soon outlaw nearly all abortions, starting at fertilization.

While Attorney General Ken Paxton cannot unilaterally prosecute criminal cases unless authorized by a local prosecutor, he is free to do so for civil matters anywhere in Texas. That means district attorneys may shield clinics and physicians from the trigger law’s criminal penalty of a first- or second-degree felony, but Paxton could still target them for six-figure civil fines, said Sandra Guerra Thompson, a law professor at the University of Houston.

She also noted that abortion providers could be found criminally liable if an incumbent district attorney reconsiders or is replaced by a successor who wants to pursue abortion-related charges.

The trigger law, which takes effect 30 days after a Supreme Court judgment overturning Roe v. Wade, makes no exceptions for pregnancies resulting from rape or incest, nor for severe fetal abnormalities. It carries narrow exemptions for abortion patients placed at risk of death or “substantial impairment of a major bodily function.”

Still, some prosecutors could begin pursuing criminal charges immediately based on Texas statutes that pre-dated Roe but were never repealed by the Legislature, Paxton said Friday. Those laws prohibit all abortions except “for the purpose of saving the life of the mother.”

In any case, it’s unlikely that abortion providers will take the risk. They are already bound by the state’s six-week abortion ban, which allows people anywhere in the country to sue providers or those who help someone access the procedure in Texas after fetal cardiac activity is detected. Successful litigants win damages of at least $10,000 under the law.

We’ve discussed this before. There are things that cities and individuals can do to hinder law enforcement or prosecutorial efforts to enforce anti-abortion laws, but one way or another they are going to be enforced, very likely via increasingly intrusive and draconian means. If somehow local DAs refuse to pursue cases, the Lege will change the law to go around them, either to the Attorney General or to neighboring counties – Briscoe Cain is already planning to file bills to that effect. We can’t succeed at this level. The only way to fight it is to have power at the state level, and that’s going to mean winning statewide races and/or winning enough seats in the Lege to take a majority in the House. Even that is at best a defensive position – we are not taking over the Senate, not even in the most wildly optimistic scenario I can imagine – but it’s the best we can do, and it would definitely reduce the harm that is otherwise coming.

One more thing:

Harris County District Attorney Kim Ogg also slammed the Supreme Court decision, arguing that the “criminalization of reproductive health will cause great harm to women in America.” While she added that “prosecutors and police have no role in matters between doctors and patients,” she stopped short of a blanket vow to not prosecute alleged violations of state abortion laws.

“As in every case, we will evaluate the facts and make decisions on a case-by-case basis,” said Ogg, a Democrat.

I’m including this because as far as I can tell it’s the first time Ogg has spoken publicly about the coming anti-abortion enforcement wave. I seriously doubt that Kim Ogg will want to pursue any cases that are filed with her office, but I also doubt that she’ll just ignore them. Maybe she’ll take a broad “prosecutorial discretion” stance, but again, if she does and if nothing changes with the November elections, that discretion will be taken away from her. There just isn’t much she or anyone in her position can do about this. We need to be clear about that.

Biden signs modest gun control bill

It’s now the law. We’ll see for how long.

President Joe Biden on Saturday signed into law a bipartisan measure to address gun violence, less than 24 hours after the bill was approved by the U.S. House and a month and a day after the deadly shooting at Robb Elementary School in Uvalde.

“Today, we say more than enough. We say more than enough,” Biden said at the White House. “At a time when it seems impossible to get anything done in Washington, we are doing something consequential.”

The measure was negotiated by U.S. Sen. John Cornyn, R-Texas, in the aftermath of the Uvalde shooting that left 19 students and two teachers dead. That shooting had come less than two weeks after a massacre in a Buffalo supermarket that left 10 people dead.

In a statement announcing the signing, the White House thanked Cornyn and a small bipartisan group of other senators involved in its drafting.

The law is widely viewed as a series of modest changes to current gun regulations, falling far short of proposals pushed by House Democrats and Biden to raise the age to purchase a gun, ban assault weapons and expand universal background checks. The most noteworthy provision of the law would close what is known as “the boyfriend loophole.”

Current federal statutes prohibit firearm purchases for those convicted of committing domestic violence against spouses or partners who live together or share a child. To close the loophole, the new law will leave to the courts the contours of expanding how to define and include dating partners who commit such abuse.

Conservatives previously raised concerns that an expansive definition of a partner could threaten constitutional rights. The law will also permit offenders to regain their gun rights if there are no further offenses over five years.

See here for the background. Please note that first sentence in the last paragraph above, because I’ve been speculating about legal challenges to this new law ever since it became apparent that it was about to become law. I was called out in the comments of that earlier post for my assertion that “SCOTUS essentially declared all state gun control measures to be illegal”. I will admit that was a bit of hyperbole, but it’s absolutely the case that state gun control measures of all kinds around the country are now going to be challenged in federal court. Where do you think this Supreme Court will draw a line and say okay, no, that’s a reasonable and constitutional restriction and may stand? It’s not at all clear to me that they believe there is one. I’ll be happy to be proven wrong – and even happier if we finally get around to reforming this completely radicalized and out of control SCOTUS – but I wouldn’t bet any of my own money on it. In the meantime, let’s see when – and yeah, I mean “when” and not “if” – the first suit is filed against this law.

PS – I know I make a lot of podcast recommendations as supplemental material for my posts, so here’s another for you: This week’s Amicus podcast talks for about 30 minutes about the Bruen decision, with the actual legal expert doing the talking sounding a lot more sanguine about certain types of state gun laws surviving future review; he also specifically thinks this federal law will survive. I’m the opposite of an expert, but I am deeply cynical and have zero faith in the consistency or fidelity of this court. You make the call which of us will be more accurate about the future.

Roe v Wade

You don’t need me to tell you what happened yesterday, or what is likely to come. Abortion is still technically legal for another 29 days in Texas, when the trigger law kicks in, but many clinics have already stopped providing abortions because they don’t want to get tangled up in another legal fight that they fear they’ll lose. Local district attorneys will have to handle things from there, though as I said before, if there’s even a hint that local prosecutors and/or police departments are dragging their heels, the enforcement power will be shifted to the state (or to the rabid prosecutors in other counties) so fast it will make you dizzy.

That’s only as long as the Republicans have the power to do that, of course. Governor Beto O’Rourke would be able to veto bills that tried to make that happen, while Attorney General Rochelle Garza would not act as the backup prosecutor if it came to that. We at least have the power to make those things happen. You’re mad now, as you should be. This is where to channel that. It’s our best hope.

Cornyn-Murphy gun bill gets final passage

What great timing, huh?

Exactly one month after a gunman shot and killed 19 children and two teachers in a Uvalde elementary school, the most significant new gun laws in decades were headed to President Joe Biden’s desk on Friday after the U.S. House cleared a bipartisan package of reforms requiring greater scrutiny of young buyers, closing the so-called boyfriend loophole and more.

The gun laws, authored by a group of senators including John Cornyn of Texas, easily passed the Democratic-controlled House on a 234-193 vote, just hours after 15 Senate Republicans joined every Democrat in approving the bill in the Senate late Thursday night. Biden is expected to sign the bill into law.

“When I met with families from Uvalde, they asked me how it was possible for the man who murdered their loved ones to get a dangerous weapon so easily,” U.S. Rep. Joaquin Castro said in a statement. “Today, Congress has voted to pass historic gun safety reforms that will save lives and keep deadly weapons out of the hands of people who present a clear danger to their communities. We need to make more progress on gun safety, but today’s vote is an important step forward.”

It is the first tightening of federal gun laws since 1994. It bolsters background checks on buyers under 21 years old and restricts access to firearms for dating partners convicted of domestic abuse. The bill creates stiffer penalties for gun trafficking and “straw” purchasing, in which someone buys a firearm for someone prohibited from owning one.

The legislation also provides funding for mental health programs, school security and for states to enact red flag laws or other intervention methods meant to stop shootings before they happen.

Just 14 Republicans voted for the bill in the House, where GOP leaders had urged members to oppose the legislation. Only one Texan was among them: U.S. Rep. Tony Gonzales of San Antonio, whose district includes Uvalde. The rest opposed the legislation.

See here for the background. It would be nice to feel good about this, even as watered down as this bill is, but with SCOTUS on a rampage, it’s hard to feel good about anything. The fact that this got initial passage in the Senate on the same day that SCOTUS essentially declared all state gun control measures to be illegal was the kind of irony none of us needed. I’m sure it’s just a matter of time before a federal lawsuit is filed to invalidate even this modest effort, and who would take a bet on those plaintiffs losing? But here we are anyway. If we can ever find our way to fixing the courts, we can improve on this and do a lot more besides. One step at a time. The Trib has more.

Two redistricting lawsuit updates

Legislators involved in the most recent redistricting effort can be made to sit for depositions.

The Supreme Court refused Tuesday to block the deposition of Texas lawmakers in redistricting suits.

Mum as to whether there were any dissents, the order from the justices keeps in place a lower court ruling that will force Republican lawmakers to appear for depositions in suits claiming that Texas’ redistricting plans are discriminatory. Per their custom, the justices also did not offer any explanation for their ruling.

The United States subpoenaed three Texas lawmakers at the beginning of the month to testify in a challenge to the state’s 2021 congressional and state House redistricting plans. The Department of Justice and voting rights groups claim the new maps violate Section 2 of the Voting Rights Act by intentionally discriminating against minority voters in West Texas and the Dallas-Fort Worth area.

Representatives Ryan Guillen, Brooks Landgraf and John Lujan tried to limit their testimony to matters in the public record, but a federal judge denied their motion and their attempt to block the testimony altogether. Likewise the Fifth Circuit refused to enter a stay pending appeal that would block their testimony.

In their application to the high court, Texas lawmakers claim they have the privilege and immunity to avoid testifying in the suits.

“The legislators’ depositions will probe the very innerworkings of the legislative process, examining the legislators’ thoughts, impressions, and motivations for their legislative acts,” wrote Taylor A.R. Meehan, an attorney with Consovoy McCarthy representing the lawmakers.

He also warned that lawmakers would have to answer questions in full the “proverbial ‘cat is out of the bag.’ And the twin safeguards of legislative immunity and privilege — older than the country itself — are no safeguards at all.”

The Justice Department said the depositions were routine.

“Courts, including this Court, often rely on such testimony both in assessing the motive and justification for districting choices and in considering the ‘totality of circumstances’ relevant to minority voters’ electoral opportunities, as the VRA directs,” Solicitor General Elizabeth Prelogar wrote in the government’s opposition brief.

The government notes that Lujan has a particularly weak claim to legislative privilege since he was not in the Legislature when the redistricting plans were passed.

“Representative John Lujan, does not have even an arguable claim of legislative privilege with respect to the challenged districting plans because he was not in the legislature when the plans were passed — a critical fact that applicants do not mention,” Prelogar wrote.

This is from the LULAC lawsuit, which is now consolidated with most of the other federal lawsuits. The order is from a couple of weeks ago, as the depositions were set to begin the week of May 24. SCOTUS just never took up the defendants’ motion, so they did not get an order to protect them from being deposed. This is not going to change the overall trajectory of the litigation, but it ought to lead to some interesting facts for the eventual hearings. Lujan as noted was not a legislator when the maps were passed in the special session, so who knows what he thinks he has to keep quiet about, while Guillen was still a Democrat when this was all happening. Should make for some fun questions, if nothing else.

The other federal lawsuit, which was not combined with the LULAC et al complaint, is the one filed by the Justice Department. That one survived a motion to dismiss:

A federal judge has ruled that U.S. Attorney General Merrick Garland can proceed with voting and civil rights claims against Texas over a state law passed last year to address purported voter fraud.

State officials had asked U.S. District Court Judge Xavier Rodriguez to dismiss the case, arguing that federal officials did not have standing to sue them. They argued that local election officials — not state ones — were charged with implementing the new law.

The George W. Bush appointee disagreed in an order Tuesday, finding the U.S. attorney general has “broad constitutional power to protect the right to vote” and is “congressionally authorized” to go after voting rights violations.

The federal government had a “significant stake” in protecting “the general welfare of its citizenry,” Rodriguez wrote. He found the U.S. government had plausibly alleged that Texas law would “disenfranchise eligible Texas citizens who seek to exercise their vote,” including those with disabilities, limited knowledge of English and “members of the military deployed away from home.”

[…]

In November, the U.S. attorney general’s office intervened, expressing an interest the [LULAC et al consolidated] case and urging Rodriguez not to dismiss the claims. Voting lawsuits brought by private groups were necessary, the filing argued, due to the “limited federal resources available for Voting Rights Act enforcement” and because states with histories of voter restrictions no longer had to seek federal preclearance for voting changes following the 2013 U.S. Supreme Court decision in Shelby County v. Holder.

Later that month, the AG’s office also filed suit against the Lone Star State. In a strongly worded complaint, federal officials argued that Texas already had some of the “strictest [voting] limitations in the nation” and that SB1 would “impermissibly” restrict and disenfranchise voters.

Texas’s “history of official voting-related discrimination against its disfavored citizens is longstanding and well-documented,” the complaint said. “Federal intervention has been necessary to eliminate numerous devices intentionally used to restrict minority voting in Texas.”

This lengthy and complex legal battle, involving a variety of parties, led up to Tuesday’s order. Over the months, Texas officials have tried numerous avenues to dismiss the case.

Among other things, state officials zeroed in on the state’s new voter ID and mail-in ballot requirements. Because the state allows voters to “cure” their ballots, they argued, the law did not deny the right to vote.

Rodriguez rejected this argument and others, writing that a voter’s opportunity to cure their ballot “does not necessarily mean” that SB 1 did not violate the Civil Rights Act. The law does not allow state officials to “initially deny the right to vote…as long as they institute cure processes,” he wrote. Instead, it bars these actions altogether.

He also found that, while local elections officials may be in charge of implementing the law, SB 1 was in fact “traceable” to state officials, and therefore they could be sued. Since the law has so far been in effect for the state’s primary elections, the U.S. government had also alleged an injury, he found.

Rather than issuing an injunction preventing enforcement of parts of SB 1, Rodriguez’s order instead simply allows the U.S. government to continue with its lawsuit. It remains to be seen how the case will play out, including whether controversial aspects of SB 1 will remain in effect for the 2022 midterm elections later this year.

There’s a long road ahead for this litigation, and at the end awaits a US Supreme Court that is extremely hostile to voting rights. But you have to start somewhere, and who knows, maybe the landscape will change by that time.

More on how abortion bans will be enforced

It’s all about the data.

The Supreme Court is shortly expected to issue its decision on a challenge to Roe v. Wade that will—if a leaked draft version of the opinion holds—end federal protection for abortion access across the US. If that happens, it will have far-reaching consequences for millions of people. One of those is that it could significantly increase the risk that anti-abortion activists will use surveillance and data collection to track and identify people seeking abortions, sending authorities information that could lead to criminal proceedings.

Opponents of abortion have been using methods like license plate tracking for decades. In front of many clinics around the US, it remains a daily reality.

[…]

“The biggest fear, I think, is that there are going to be states that not only ban abortion in short order, but start criminalizing pregnant people who are seeking abortion services even out of state,” says Nathan Wessler, the deputy project director of the Speech, Privacy, and Technology Project at the ACLU.

Some states that protect abortion services might be able to limit what out-of-state law enforcement can do directly, he notes, but that “doesn’t mean that there won’t be anti-abortion vigilantes recording information [outside of clinics] and then sending it to aggressive prosecutors in abortion-banned states.”

There is evidence that anti-abortion activists are already keeping close track of legal abortion activity. In 2014, for example, a recording surfaced of a training session for Texas anti-abortion activists, led by Karen Garnett of the Catholic Pro-Life Committee of North Texas. In it, Garnett explained how license plate tracking is used to keep tabs on both a clinic’s clients and its doctors.

“You track license plates … coming into any abortion facility. We have a very sophisticated spreadsheet. This way you can track whether or not a client comes back,” she said in the video.

We’ve discussed this before, and I said at the time that any real enforcement effort is going to involve a lot of invasive searches. License plate tracking is an old technique – as the story notes, it goes back to at least the 90s – but there are much more modern strategies as well.

A location data firm is selling information related to visits to clinics that provide abortions including Planned Parenthood facilities, showing where groups of people visiting the locations came from, how long they stayed there, and where they then went afterwards, according to sets of the data purchased by Motherboard.

[…]

How data collecting intersects with abortion rights, or the lack thereof, is likely to gather more attention in the wake of the draft. The country may also see an increase in vigilante activity or forms of surveillance and harassment against those seeking or providing abortions. With this aggregated location data available to anyone on the open market, customers could include anti-abortion vigilantes as well. Anti-abortion groups are already fairly adept at using novel technology for their goals. In 2016, an advertising CEO who worked with anti-abortion and Christian groups sent targeted advertisements to women sitting in Planned Parenthood clinics in an attempt to change their decision around getting an abortion. The sale of the location data raises questions around why companies are selling data based on abortion clinics specifically, and whether they should introduce more safeguards around the purchase of that information, if be selling it at all.

“It’s bonkers dangerous to have abortion clinics and then let someone buy the census tracks where people are coming from to visit that abortion clinic,” Zach Edwards, a cybersecurity researcher who closely tracks the data selling marketplace, told Motherboard in an online chat after reviewing the data. “This is how you dox someone traveling across state lines for abortions—how you dox clinics providing this service.”

Read the rest and do a little googling yourself. It’s very possible to identify people who have visited abortion clinics from “anonymized” location data and census tracks, especially people who live in less populated places. Geofencing, which has been used in the past for targeted anti-abortion advertising, may be used by law enforcement agencies that are all in on the forced birth agenda. It’s scary stuff. And when you see it happen, don’t say you couldn’t have known.

There’s only so much that Austin (or any other Texas city) can do to protect abortion rights

I appreciate this, I really do, but it’s important to remember that it can only ever be a band-aid, and very likely a temporary one.

The city of Austin is attempting to shield its residents from prosecution under a Texas law that would criminalize almost all abortions if Roe v. Wade is overturned — the first push by a major city in a red state to try to circumvent state abortion policy.

Councilmember Chito Vela is proposing a resolution that would direct the city’s police department to make criminal enforcement, arrest and investigation of abortions its lowest priority and restrict city funds and city staff from being used to investigate, catalogue or report suspected abortions.

“This is not an academic conversation. This is a very real conversation where people’s lives could be destroyed by these criminal prosecutions,” said Vela, who shared the details of the resolution first with POLITICO. “In Texas, you’re an adult at 17. We are looking at the prospect of a 17-year-old girl who has an unplanned pregnancy and is seeking an abortion [being] subjected to first-degree felony charges — up to 99 years in jail — and that’s just absolutely unacceptable.”

[…]

The new resolution doesn’t explicitly decriminalize abortion but rather directs police to make it their lowest enforcement priority in an effort to skirt conflict with state law, Vela said. But it highlights the tension between red state and the blue cities, where a new front in the battle over abortion rights is opening as the Supreme Court prepares to issue a decision on Roe in the coming weeks.

A city of Austin spokesperson said in a statement that “the city is prepared to take the steps necessary to implement this resolution upon passage by City Council.” The council passed a similar measure in 2020 that effectively decriminalized marijuana by ending arrests and fines for low-level possession, which the police department has followed.

Vela said he is having “ongoing conversations” with Austin Police Chief Joseph Chacon about the proposal and hopes the department will comply with the directive. A department spokesperson did not respond to a request for comment.

“The police do not want to be in the middle of this controversy. The police right now in Austin are struggling with staffing,” Vela said. “I don’t think the police want to dedicate resources to these types of, what I would call, ‘political crimes.’”

A spokesperson for state Attorney General Ken Paxton did not respond to a request for comment. Paxton, a Republican, has been at the vanguard of restricting abortion access in Texas, which has been in the spotlight since the state’s six-week abortion ban, enforced through a private right of action, took effect in September 2021.

Austin’s proposal, which aims to protect both patients and providers, comes as an extension of the city’s efforts to preserve abortion access despite the state’s restrictions. The city has, for instance, provided logistical support for abortion access, including transportation, lodging and child care, since 2019 — a model St. Louis is now looking to replicate.

More cities in Texas could be next. Julie Oliver, executive director of Ground Game Texas, a group that pushes for progressive, local ballot measures, said they are looking at pushing similar measures in San Antonio, Houston and Dallas. If that isn’t successful, the group plans to turn to the local ballot initiative process.

“Home rule charter cities have a tremendous amount of leeway and self-governance, and part of that is deciding which laws you’re going to prioritize,” Oliver said. “And so, because you have a finite number of resources in a finite budget, cities are constantly deciding which laws they’re going to enforce and which ones they are not.”

I support the idea and I love the creativity, as we have discussed what progressive cities can do to protect abortion rights. That includes proactive measures to thwart prosecution, which is very much in a city’s purview. The problem with this approach is simply that as long as the state is run by Republicans, they will pass laws to prevent cities from taking these measures and will punish them for even trying. I’m sure I don’t have to recite to you the long list of attacks on local control lately, but we have already seen reporting to say that the Briscoe Cain uterus-invasion caucus will file bills in 2023 to allow other counties to pursue prosecution of anyone who violates the new forced-birth laws if the local DA refuses. It’s not at all far-fetched to imagine state troopers being given the authority to investigate these claims, which I’d bet will come with a bunch of money to hire more staff specifically for that purpose. I’m sure there will be more private vigilante bounties included as well, to help fund the effort. If recent history is any indicator, they will go much farther than anything Austin tries to do, to send a clear message that they will not tolerate any dissent. Do we really want to test that hypothesis?

Please note that I am not saying that any action on our part is pointless and we should just give up. Not at all! I am just saying – again, and again, and again – that we need to win some statewide elections. The Republicans can only do this as long as they are in control, and they will only be incentivized to do this as long as they perceive there’s no price to pay for it. The antidote for that is obvious. I’m not saying it’s easy, and I’m certainly not saying that this will be an opportune year to do it. I’m just saying that as clever and well-intentioned as these ideas sound, they’re sand castles against the tide. The problem is bigger than anything a city can do. We have to solve it at that level if we want to get anywhere. Reform Austin, KVUE, and Daily Kos have more.

SCOTUS puts Texas’ stupid social media censorship law back on hold

Good.

The U.S. Supreme Court on Tuesday blocked a Texas law that prohibits large social media companies, such as Facebook or Twitter, from banning or removing users’ posts based on political viewpoints.

The justices, in a 5-4 vote, granted NetChoice and the Computer & Communications Industry Association’s request to reinstate a block imposed by a federal district judge as the lawsuit makes its way through the courts. The justices who voted to reverse the lower court’s ruling didn’t give a reason for their decision — a standard practice when the court is ruling on emergency applications.

Matt Schruers, president of the Computer & Communications Industry Association, one of the two groups that sued to block the law on claims that it violates companies’ First Amendment rights, celebrated the court’s decision.

“No online platform, website, or newspaper should be directed by government officials to carry certain speech,” he said in a statement. “This has been a key tenet of our democracy for more than 200 years and the Supreme Court has upheld that.”

[…]

The two industry trade groups that represent companies such as Google and Twitter sued to block the law last fall. In December, a federal district court judge ruled in favor of the groups and prevented the law from going into effect, reasoning that the First Amendment protects a company’s right to moderate content and calling parts of the law “prohibitively vague.”

As a result, Paxton appealed the district judge’s decision to the 5th Circuit Court of Appeals, which reinstated the law.

Three conservative justices, Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch, said in a dissent that they would have let Texas’ law stand for now. Justice Elena Kagan, a liberal, said she would have also let the order stand but didn’t provide a reason.

Alito wrote in the dissent that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies.” Still, he wrote, the case is “of great importance” and the Supreme Court would have to review the arguments at some point.

“Social media platforms have transformed the way people communicate with each other and obtain news,” he wrote. “At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.”

See here for the previous update and here for a copy of the order. With the Florida law being knocked down by the 11th Court of Appeals, there’s a circuit split, which means that Alito is correct and SCOTUS is going to have to deal with this sooner or later. At least it will be on hold until then. The Chron has more.

State Bar finally files that professional misconduct lawsuit against Paxton

We’ve been eagerly awaiting this.

Best mugshot ever

A disciplinary committee for the State Bar of Texas on Wednesday filed a professional misconduct lawsuit against Attorney General Ken Paxton for his attempt to overturn the results of the 2020 presidential elections in four battleground states won by President Joe Biden.

The filing in Collin County by the Commission for Lawyer Discipline, a standing committee of the state bar, is an extraordinary move by the body that regulates law licenses in the state against the sitting attorney general. It stems from complaints against Paxton for a lawsuit that the U.S. Supreme Court threw out, saying Texas lacked standing to sue and that Paxton’s political opponents called “frivolous.”

It seeks a sanction against Paxton, which will be determined by a judge, that could range from a private reprimand to disbarment.

In its filing, the commission said Paxton had misrepresented that he had uncovered substantial evidence that “raises serious doubts as to the integrity of the election process in the defendant states.”

“As a result of Respondent’s actions, Defendant States were required to expend time, money, and resources to respond to the misrepresentations and false statements contained in these pleadings and injunction requests even though they had previously certified their presidential electors based on the election results prior to the filing of Respondent’s pleadings,” the lawsuit read.

The lawsuit also says Paxton made “dishonest” representations that an “outcome determinative” number of votes were tied to unregistered voters, votes were switched by a glitch with voting machines, state actors had unconstitutionally revised their election statutes and “illegal votes” had been cast to affect the outcome of the election.

The lawsuit says Paxton’s allegations “were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the Court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.”

The complaint asks for a finding of professional misconduct against Paxton, as well as attorney’s fees and “an appropriate sanction.”

[…]

The lawsuit against Paxton stems from multiple complaints filed by Kevin Moran, president of the Galveston Island Democrats; David Wellington Chew, former chief justice of the Eighth District Court of Appeals; attorney Neil Kay Cohen; attorney Brynne VanHettinga; and Gershon “Gary” Ratner, the co-founder of Lawyers Defending American Democracy.

See here, here, and here for some background; this post contains some technical details from the original complaint. As far as I can tell, this encompasses all of the 2020 election-related complaints against Paxton; there’s a separate complaint having to do with his threats against the Court of Criminal Appeals for not letting him prosecute “voter fraud” cases at his discretion, whose disposition is not known to me at this time. There’s also the complaint against Brent Webster, which will be litigated in Williamson County, and more recently a complaint against Ted Cruz that will presumably take some time to work its way through the system. That first 2020 election complaint against Paxton was filed last June, so it took nearly a year to get to this point. I have no idea if that’s a “normal” time span for this – I suspect nothing about this is “normal” anyway.

One more thing: I presume this was filed in Collin County because that’s where Paxton passed the bar, or some other technical reason like that. The Chron adds a bit of detail about that.

Under the state bar’s rules, disciplinary suits are filed in the county in which the attorney primarily practices. If there’s more than one, the bar files in the county where the attorney lives — Paxton indicated Collin County. Similarly, the suit against Webster was filed in his hometown of Williamson County. That determination is up to the subject of the suit, according to the rules.

Also per the bar’s rules, these suits are heard by an appointed judge from another district.

In Paxton’s case, it will be Judge Casey Blair of Kaufman County, a Republican elected in 2014. Webster’s case will be heard by Judge John Youngblood of Milam County, also a Republican who was first appointed by Gov. Rick Perry in 2011 and first elected in 2012.

Good to know. I can’t wait to see what happens next.

Florida’s stupid social media censorship law knocked down by appeals court

With an opinion from a Trump judge, no less.

A Florida law intended to punish social media platforms such as Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis of discriminating against conservative thought.

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Republican-led Florida Legislature to tell the social media companies how to conduct their work under the Constitution’s free speech guarantee.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects.”

The ruling upholds a similar decision by a Florida federal district judge on the law, which was signed by DeSantis in 2021. It was part of an overall conservative effort to portray social media companies as generally liberal in outlook and hostile to ideas outside of that viewpoint, especially from the political right.

[…]

As enacted, the law would give Florida’s attorney general authority to sue companies under the state’s Deceptive and Unfair Trade Practices Act. It would also allow individual Floridians to sue social media companies for up to $100,000 if they feel they’ve been treated unfairly.

The bill targeted social media platforms that have more than 100 million monthly users, which include online giants as Twitter and Facebook. But lawmakers carved out an exception for the Walt Disney Co. and their apps by including that theme park owners wouldn’t be subject to the law.

The law would require large social media companies to publish standards on how it decides to “censor, deplatform, and shadow ban.”

But the appeals court rejected nearly all of the law’s mandates, save for a few lesser provisions in the law.

“Social media platforms exercise editorial judgment that is inherently expressive. When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity,” Newsom wrote for the court.

You can see a copy of the ruling here, and contrast it to the wordless garbage the Fifth Circuit spewed out to allow Texas’ law to stand. This means that SCOTUS will have to get involved to resolve the dispute. It’s going to get ugly in here. Reuters, CNET, and Techdirt, which shows the parts of the lower court’s ruling that were upheld and the parts that were vacated, have more.

Republicans threaten businesses over abortion access

If you didn’t see stuff like this coming, you haven’t been paying attention.

With Texas poised to automatically ban abortion if the U.S. Supreme Court overturns Roe v. Wade, some Republicans are already setting their sights on the next target to fight the procedure: businesses that say they’ll help employees get abortions outside the state.

Fourteen Republican members of the state House of Representatives have pledged to introduce bills in the coming legislative session that would bar corporations from doing business in Texas if they pay for abortions in states where the procedure is legal.

This would explicitly prevent firms from offering employees access to abortion-related care through health insurance benefits. It would also expose executives to criminal prosecution under pre-Roe anti-abortion laws the Legislature never repealed, the legislators say.

Their proposal highlights how the end of abortion would lead to a new phase in — not the end of — the fight in Texas over the procedure. The lawmakers pushing for the business rules have signaled that they plan to act aggressively in the next legislative session. But it remains to be seen if they’ll be able to get a majority on their side.

The members, led by Briscoe Cain, R-Deer Park, laid out their plans in a letter to Lyft CEO Logan Green that became public on Wednesday.

Green drew the lawmakers’ attention on April 29, when he said on Twitter that the ride-share company would help pregnant residents of Oklahoma and Texas seek abortion care in other states. Green also pledged to cover the legal costs of any Lyft driver sued under Senate Bill 8, the Texas law that empowers private citizens to file lawsuits against anyone who assists in the procurement of an abortion.

“The state of Texas will take swift and decisive action if you do not immediately rescind your recently announced policy to pay for the travel expenses of women who abort their unborn children,” the letter states.

The letter also lays out other legislative priorities, including allowing Texas shareholders of publicly traded companies to sue executives for paying for abortion care, as well as empowering district attorneys to prosecute abortion-related crimes outside of their home counties.

Six of the 14 signers, including Cain, are members of the far-right Texas Freedom Caucus. How much political support these proposals have in the Republican caucus is unclear. House Speaker Dade Phelan, R-Beaumont, declined to comment. Lt. Gov. Dan Patrick and Gov. Greg Abbott did not respond.

Since the legislative session is more than seven months away, Cain said in an email that “a quickly drafted and sent letter can hardly be said to reflect the pulse of my Republican colleagues.” He was confident, however, that his ideas would find some support in the Senate.

“Knowing that chamber and its leadership, I’m willing to bet legislation targeting this issue will be promptly filed in January,” Cain said.

But doing so would likely mean targeting companies that the state has wooed as potential job creators. Tesla, for instance, announced this month that it would pay for employees’ travel costs when they leave the state to get an abortion. Abbott celebrated the electric car company’s move to Austin last year and this year urged its CEO, Elon Musk, to move Twitter’s headquarters to Texas, too, if he completes his purchase of the social media firm.

Joke all you want about how Republicans used to be the party of big business, because that hasn’t really been true for awhile. They’re the party of “give us your donations and keep your mouth shut about anything we don’t like regardless of what your employees and customers and stockholders say and maybe we’ll leave you alone and toss you a tax cut” now. You may say that it’s unthinkable that Republicans might actually chase large employers out of the state, but a lot of unthinkable things have been happening lately. Remember how the business community helped defeat the “bathroom bill” in 2017, and issued sternly-worded statements about voting rights and further anti-trans bills last year? How’s that been going?

We are living in Briscoe Cain’s Texas now. If he doesn’t get what he wants now – and mark my words, he wants to arrest people who have anything at all to do with abortion – he’ll get it next time, as long as his Republican Party is in charge. The business community needs to recognize that they are right in the crosshairs along with the rest of us. Daily Kos has more.

The coming fight over medical abortion

Sure is a good thing SCOTUS will leave this up to the states, isn’t it?

Republican-led states are moving swiftly to restrict access to medication abortion.

The efforts so far have focused on regulations around the pills, such as banning them from being shipped or prescribed. But can states ban the actual abortion pill itself, even though the Food and Drug Administration has approved it? That question could be the next frontier in the abortion wars.

The short answer comes down to this: The issue isn’t settled law and will likely be litigated in the courts. Some argue states may be hard-pressed to ban the federally approved medication, though antiabortion advocates disagree.

[…]

Some states have introduced bills focused on banning abortion pills, but they haven’t gotten a lot of traction, per Elizabeth Nash, an interim associate director at Guttmacher Institute, a research group that supports abortion rights. (A recent exception is Oklahoma, whose Republican governor is poised to sign legislation banning abortions – including medication abortions – from the moment of “fertilization.”)

Rather, states are banning the practice of medicine around the pills. For instance: At least 19 states ban the use of telehealth for medication abortion, and some states have additional restrictions, like prohibiting pills from being mailed.

Yet, if Roe v. Wade is overturned, some states may try to ban the actual medication. And states already have gestational limits and other abortion bans on the books that could kick in quickly if Roe is overturned — and those likely encompass limitations on the pills, experts said.

Can states ban a medication the FDA has signed off on?

There’s no clear precedent here.

Some states may argue they can ban medication abortion because states have the authority to regulate the practice of medicine. The FDA, on the other hand, is the acknowledged authority on medical products, such as the abortion pill. But the line between medical practice and medical products is not always clear.

And if a state squared off against the federal government over an FDA-approved drug … “We don’t know how the court would rule. It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel in the FDA’s Office of the Chief Counsel.

See here for some background. Reminder #1: The state of Texas has made it a felony to provide abortion medication after seven weeks, after having already banned anyone but doctors from dispensing such medication, and only via an in-person office visit – no telemedicine. You can be sure that Texas will take this to the next level in the next legislative session if it is in position to do so.

Reminder #2: The same medicine that is used for abortion is also used to treat miscarriages. Needless to say, women who are suffering through a miscarriage will face – and as that story notes, are already facing – barriers to medical care that could threaten their health, their future ability to get pregnant and carry a child to term, and even their lives. That’s our future, and if you think I’m being alarmist, go back and read all those soothing articles about how this Supreme Court was never ever going to overturn Roe v Wade because it would cause too much upheaval.

State Bar complaint filed against Ted Cruz

Good.

Not Ted Cruz

A group of lawyers want the State Bar of Texas to investigate Republican U.S. Sen. Ted Cruz for his “leading” role in attempting to overturn the 2020 presidential election results.

Lawyers with the 65 Project, an organization aiming to hold attorneys accountable for trying to keep former President Donald Trump in power despite his reelection loss, filed an ethics complaint with the association Wednesday. It cites Cruz’s role in a lawsuit seeking to void absentee ballots, numerous claims he made about voter fraud, plus an attempt to stop four states from using 2020 election results to appoint electors — all of which failed.

“Mr. Cruz knew that the allegations he was echoing had already been reviewed and rejected by courts. And he knew that claims of voter fraud or the election being stolen were false,” the complaint says.

[…]

Cruz represented Pennsylvania Republicans in their efforts to cast out nearly all 2020 absentee ballots in their state, which the Pennsylvania Supreme Court rejected. Cruz accused the state court of being “a partisan, Democratic court that has issued multiple decisions that were just on their face contrary to law.”

The complaint wants to see Cruz disciplined. It does not say how, though it mentions a New York appellate court’s suspension of Rudy Giuliani’s law license. Guiliani was one of Trump’s lawyers who also repeated false voter fraud claims.

Cruz also agreed to represent Trump in a Texas lawsuit aiming to bar Pennsylvania, Georgia, Michigan and Wisconsin from using its election results. The complaint argues Cruz pushed forward with a frivolous claim, which the U.S. Supreme Court quickly denied.

Here’s the 65 Project webpage; the “65” refers to the “65 lawsuits based on lies to overturn the election and give Trump a second term” that were filed by “an army of Big Lie lawyers. You can see the complaint filed against Cruz here, and the tracker they have of other complaints here. There were several filed on March 7 of this year; the one filed against Cruz was the first since then. None have been resolved yet so it’s too soon to say how effective this group will be. The one thing I can say is that this group was not involved in any of the State Bar complaints against Ken Paxton. Here’s a Vanity Fair story dated March 8 with some background on the group and its members.

Will this work? The State Bar complaints against Paxton over his dangerous and frivolous lawsuit against four Biden-won states is proceeding, though the formal lawsuit that represents the next step has not yet been filed as far as I can tell. I’d say there’s a reasonable argument that Paxton was more directly involved in the seditious and unethical behavior than Cruz was, which may make the State Bar less receptive to the filers’ case, but he wasn’t just a bystander either. Given how long it’s taken the Paxton case to get to a resolution point I’d say don’t hold your breath waiting on something to happen with this one. If it does move forward, great. Hope for the best. But do please put your energy into beating Ted Cruz in his next election, and if he steps away from the Senate to run for President do what you can to elect a Democrat to replace him. That will ultimately have a much bigger effect.

One more thing: This NYT story is headlined “Group Seeks Disbarment of Ted Cruz Over Efforts to Overturn 2020 Election”. While the complaint lays out multiple alleged violations of the Texas Disciplinary Rules of Professional Conduct (TDPRC), it does not suggest a remedy. Instead, it merely asks that the State Bar investigate and “apply the standards set for lawyers within the TDRPC, and impose sanctions against Mr. Cruz for violating those requirements”. Certainly, based on the complaints against Paxton for similar behavior, having Cruz’s law license suspended would be on the table if the State Bar were to rule against him, but I presume there would be other options as well. We’ll see if and when it ever gets that far. TPM has more.

UPDATE: Texas Lawyer provides a bit more detail.

In Cruz’s case, the 65 Project alleges he agreed to act as a lawyer in litigation before the U.S. Supreme Court in two bogus cases, Kelly v. Pennsylvania and Texas v. Pennsylvania. Acting in tandem with Trump’s legal team, Cruz had a significant role in an “anti-democratic plot, intentionally amplifying false claims about the 2020 election on multiple occasions,” the complaint states.

The Texas v. Pennsylvania lawsuit, filed by Paxton and Assistant Attorney General Brent E. Webster, has to date resulted in a State Bar lawsuit against Webster in Williamson County’s 368th District Court. Also, Paxton acknowledged on May 6 that the bar would be filing suit against him.

The Commission for Lawyer Discipline’s petition in the Webster case is instructive in that it lays a roadmap for how the bar might proceed against Paxton and Cruz.

The Texas v. Pennsylvania suit, which also challenged the vote count in Georgia, Michigan and Wisconsin, alleged without evidence several forms of vote rigging.

“Respondent’s representations were dishonest. His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law,” the commission’s petition states.

The filing against Webster refers to the bar rule against lawyers engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

See here for more on the Webster case. We’ll see if indeed the State Bar follows this roadmap.

Texas asks SCOTUS to not block its stupid social media law

As you’d expect.

The Supreme Court should allow a sweeping Texas law to remain in effect that restricts the ability of Facebook, Twitter and YouTube to moderate their platforms, according to the state’s attorney general.

In a filing to the Court on Wednesday, Texas argued that its law, HB 20, which prohibits large social media firms from blocking, banning or demoting posts or accounts, does not violate the First Amendment.

It contrasts with claims by opponents, including the tech industry, that the legislation infringes on the constitutional rights of tech platforms to make editorial decisions and to be free from government-compelled speech.

[…]

A group of states led by Florida has also submitted a Court filing defending Texas’s law. The friend-of-the-court brief, which was authored by a dozen states including Alabama, Arizona, Kentucky and South Carolina, among others, reflects how the legal battle over HB 20 has nationwide ramifications.

Justice Samuel Alito is currently considering whether to grant an emergency stay of a lower court decision that had allowed the law to take effect last week. The law is being challenged by advocacy groups representing the tech industry.

[…]

The case has already drawn “friend of the court” briefs from interested third parties including groups such as the Anti-Defamation League and the Texas State Conference of the NAACP, who urged the court to block the law, arguing it will “transform social media platforms into online repositories of vile, graphic, harmful, hateful, and fraudulent content, of no utility to the individuals who currently engage in those communities.”

Also seeking to file a third-party brief was former Rep. Chris Cox, co-author of the tech platform liability shield known as Section 230 of the Communications Decency Act, a federal law that explicitly permits websites to moderate content and which has become a lightning rod in the wider battle over digital speech.

Social media operators have repeatedly cited Section 230 to successfully nip many suits in the bud concerning user-generated content. But HB 20 conflicts with Section 230 by saying platforms can be sued in Texas for moderating their online communities, raising questions about the future of the federal law that’s been described as “the 26 words that created the internet.”

See here and here for some background. Alito will either issue a decision on his own or refer the matter to the full court. Insert shrug emoji here.

SCOTUS asked to again block that stupid social media censorship law

Please save us from the lawless Fifth Circuit. Having to make such an ask of this SCOTUS sure is a jaw-grinding experience.

Lobbying groups representing Facebook, Twitter, Google and other tech companies filed an emergency request with the U.S. Supreme Court on Friday, seeking to block a Texas law that prohibits large social media platforms from banning users based on their political views.

The Texas law went into effect on Wednesday when the 5th U.S. Circuit Court of Appeals granted the state’s request for a stay of a district judge’s injunction blocking the law.

The law forbids social media companies with more than 50 million active users per month from banning members based on their political views and requires them to publicly disclose how they moderate content.

[…]

Internet lobbying groups NetChoice and the Computer & Communications Industry Association filed a lawsuit against the measure, and U.S. District Judge Robert Pitman in Austin, Texas, issued a preliminary injunction in December.

Pitman had found that the law would harm social media companies’ free speech rights under the First Amendment of the U.S. Constitution.

The tech groups, in their emergency request, asked the Supreme Court to “allow the District Court’s careful reasoning to remain in effect while an orderly appellate process plays out.”

See here for the previous update, and here for a more detailed analysis of why the Fifth Circuit’s no-words ruling was so bad. You know how much faith I have in this court to ever do the right thing, but maybe this was a bridge too far. Maybe. Ars Technica and The Verge have more.

How will the evisceration of abortion rights affect the election in Texas?

I don’t know. You don’t know. Nobody knows.

Less than two hours after Politico reported Monday evening that the U.S. Supreme Court appeared ready to overturn Roe v. Wade, Beto O’Rourke leaped into action.

“It’s never been more urgent to elect a governor who will always protect a woman’s right to abortion,” the Democratic gubernatorial candidate tweeted.

The next morning, he hosted an Instagram Live with Cecile Richards, the former president of Planned Parenthood and the newest member of his campaign. By noon, he emailed supporters asking for a donation to help him fight for reproductive rights. He quickly scheduled abortion rights events in Austin and Houston through the end of the week.

O’Rourke, who is polling 11 points down from Gov. Greg Abbott, is seizing on a moment that Democrats have long feared was coming — the end of a constitutional protection for the right to have an abortion. But many Democrats said they’re hopeful that the looming threat of such a stunning political sea change could provide the strongest opportunity yet to energize their voters heading into an election year in which Republicans have been expected to dominate in Texas and beyond.

“Everyone’s got to pull their oar in the same direction, and we’ve got to do it with a common purpose,” said Wendy Davis, a former Democratic state senator who rose to prominence in 2013 for a 13-hour filibuster of a bill to restrict abortion access in Texas. “I know I intend to really lean into that message as we go into November — that we have a real opportunity to break through and elect Democrats at the statewide level from Beto O’Rourke down in a way that we haven’t before.”

The poll cited is one by the Texas Politics Project; It was from mid-April, so well before the draft opinion leaked. It was also the first poll result we’ve seen since mid-March, and looking at the Reform Austin poll tracker, it’s on the high end of results for Abbott. I suppose it made sense to cite the most recent polling data, but a little more context might have helped.

Beyond that, who knows? Maybe there will be a polling effect – the first national poll since the opinion leaked didn’t show much of an effect, but it’s very early days. It’s also important to remember that the words and actions, or lack of actions, by the various political actors will have their own effect, either to amplify or dampen people’s initial reactions. We also don’t know how long any of this may last, or if the official release of the opinion, whether toned down a bit or not, will stir everything up again or just get an echo of the current reaction since it will be in a sense old news. There’s a 100% chance that numerous red states will use the Dobbs ruling as a springboard for all kinds of crazy things, and who knows how that will go. Right now, there are big crowds attending protest rallies and Beto events that are doubling as protest rallies; Beto’s been drawing good crowds for months now, but the protest part of it is new. How long will that last? What will Greg Abbott and his team of dark artists do with the millions he’s been hoarding in response? What might come along to take attention away from what is happening now? Like I said, I don’t know. Neither do you, and neither does anyone else. We’ll all learn about it in real time.

More State Bar disciplinary stuff

A new twist, as a new player enters the picture.

Best mugshot ever

The Texas State Bar has filed a suit in Williamson County district court against First Assistant Attorney General Brent Webster for his involvement in the state’s lawsuit seeking to overturn the results of the 2020 election, alleging Webster committed professional misconduct by making false and misleading statements in the petition.

A similar disciplinary suit is expected against Paxton, who reiterated Friday his contention that the group is targeting him because it disagrees with his politics. As of Friday afternoon, no suit had been filed.

Texas’ 2020 suit before the U.S. Supreme Court was almost immediately tossed, and Trump’s own Justice Department found no evidence of fraud that could have changed the election’s outcome. The bar is treating the case as a frivolous lawsuit as it seeks sanctions including possible disbarment for the two public officials.

“I stand by this lawsuit completely,” Paxton said on Twitter. “I am certain that the bar will not only lose, but be fully exposed for what they are: a liberal activist group masquerading as a neutral professional association.”

Then-Solicitor General Kyle Hawkins, the state’s chief litigator who resigned about a month after the election challenge was tossed, was notably absent from the filing, though Hawkins never explained why, raising questions about whether he supported the legal challenge. Solicitor generals are typically involved in all major appellate litigation.

[…]

The bar complaints against Paxton and Webster alleged that their petition to overturn the 2020 election was frivolous and unethical, and that it includes statements that they knew to be false. In Webster’s case, it is clear that the bar agrees.

“Respondent’s representations were dishonest,” the suit states. “His allegations were not supported by any charge, indictment, judicial finding, and/or credible or admissible evidence, and failed to disclose to the court that some of his representations and allegations had already been adjudicated and/or dismissed in a court of law.”

The suit also alleges that Webster “misrepresented” that Texas had “uncovered substantial evidence,” raising doubts about the integrity of the election and had standing to sue before the U.S. Supreme Court. The four battleground states that Texas sued — Georgia, Pennsylvania, Michigan, and Wisconsin — were then forced to have to spend time, money and other resources responding to these claims, it said.

The suit does not specify what type of punishment the bar recommends for Webster.

The suit against Webster was sparked by a March 2021 complaint by Brynne VanHettinga, an former member of the bar who described herself as a “citizen concerned about fascism and illegal overthrow of democracy.” VanHettinga could not be immediately reached Friday.

See here and here for some background. Looking at that Trib story that I based yesterday’s post on, I see it also includes a couple of paragraphs about the action against Brent Webster, who replaced Jeff Mateer after he was purged as a whistleblower against Paxton, and who co-authored the self-exoneration report from that saga. I was not aware of any State Bar complaints against Webster in this matter – the two against Paxton were filed after the VanHettinga complaint against Webster. A Google News search on VanHettinga’s name only yielded the Chron and Trib stories. You can see what a challenge it is to keep up with all this.

As for the Paxton piece of it, this is more of the story I blogged about yesterday. The main thing to learn, which the Trib story also noted, is that there hasn’t yet been a lawsuit filed against Paxton. It sounded like that would be filed in Travis County when it happens, but maybe this means it will happen in Williamson instead. Since it seems that the judge will be selected from the broader judicial administrative region, it’s not clear that where the trial itself is matters.

Paxton whines about the disciplinary process he selected

My head hurts.

Best mugshot ever

Texas Attorney General Ken Paxton, the state’s top lawyer, said Friday the state bar was suing him for professional misconduct related to his lawsuit challenging the 2020 presidential election.

“I have recently learned that the Texas State Bar — which has been waging a months-long witch-hunt against me — now plans to sue me and my top deputy for filing Texas v. Penn: the historic challenge to the unconstitutional 2020 presidential election joined by nearly half of all the states and over a hundred members of Congress,” Paxton said in a statement released on social media. “I stand by this lawsuit completely.”

A few hours after saying he was being sued by the bar, Paxton’s office announced an investigation into the Texas Bar Foundation for “facilitating mass influx of illegal aliens” by donating money to groups that “encourage, participate in, and fund illegal immigration at the Texas-Mexico border.” The foundation is made up of attorneys and raises money to provide legal education and services. It is separate from the State Bar of Texas, which is an administrative arm of the Texas Supreme Court.

Representatives for the Texas Bar Foundation could not immediately be reached for comment. Trey Apffel, executive director of the State Bar of Texas, said the bar and the foundation are privately funded and don’t receive taxpayer funds.

“The foundation is separately funded through charitable donations and governed by its own board of trustees,” Apffel said. “While we are unsure what donations are at issue here, we are confident that the foundation’s activities are in line with its mission of enhancing the rule of law and the system of justice in Texas.”

Paxton, an embattled Republican seeking a third term, said state bar investigators who now appear to be moving on a lawsuit against him are biased and said the decision to sue him, which comes a week before early voting in his GOP runoff for attorney general, was politically motivated. He is facing Land Commissioner George P. Bush in the May 24 election.

“Texas Bar: I’ll see you and the leftists that control you in court,” he said. “I’ll never let you bully me, my staff or the Texans I represent into backing down or going soft on defending the Rule of Law — something for which you have little knowledge.”

In fact, the investigation into Paxton has been pending for months. Last July, a group of 16 lawyers that included four former state bar presidents filed an ethics complaint against Paxton arguing that he demonstrated a pattern of professional misconduct, including his decision to file a federal lawsuit seeking to overturn the 2020 presidential elections in battleground states where former President Donald Trump, a Paxton ally, had lost. The attorneys said the lawsuit was “frivolous” and had been filed without evidence. The U.S. Supreme Court dismissed it, saying Texas had no standing to sue.

In March, the investigation moved ahead and Paxton was given 20 days to decide whether he wanted a trial by jury or an administrative hearing to resolve the complaint.

On Friday, a spokesperson for the state bar said the group had not been notified of a decision. Jim Harrington, a civil rights attorney and one of the lawyers who filed the ethics complaint, said he also had not been notified of a trial but that Paxton would have received notification.

“I was as surprised as you were to see that tweet this morning,” Harrington said.

See here for some background. You may note that happened in early March, almost two months ago, which is considerably more than 20 days. I don’t know if time moves more slowly in this context or if there just wasn’t any mechanism to enforce the decision Paxton had to make. Whatever the case, he made it and now he’s fundraising off of it. At least that much is par for the course, at least for him. While this case will be heard in Travis County, the judge who oversees it will be selected from the Texas Judicial Branch’s administrative region, which is a fairly large area. I don’t know how any of that works, either – this whole thing is kind of a black box. But it’s moving along, which is more than we can say for some other messes involving Ken Paxton.

UPDATE: Via email, a statement from the Texas Bar Foundation:

“The Foundation is extremely disappointed to learn that AG Paxton has decided to use taxpayer dollars on a fruitless exercise. Had AG Paxton taken the time to come and speak with us rather than issue a press release, I am confident that he would have found no wrongdoing on the part of the Foundation. Nevertheless, the Foundation is happy to cooperate and provide the AG’s office with documents and information relevant to the investigation.

Thousands of Texans have had their lives changed because of grants received from the Texas Bar Foundation. General Paxton is misinformed. The Foundation does not receive funding from taxpayer dollars. To the contrary, our grants are made possible by the generosity of Texas lawyers. We receive voluntary contributions from the Fellows of the Foundation, and those contributions enable the Foundation to award millions of dollars in grants. We will proudly continue to award grants to much-needed charities throughout Texas going forward.”

There’s a story in today’s Chron that has more information than this Trib story. I’ll do a separate post on that.

Abbott sees another opportunity to hurt children

He is definitely making this a habit.

Gov. Greg Abbott wants to “resurrect” a court challenge over a 1975 Texas law withholding state funds from school districts for kids who were not “legally admitted” into the United States. That law was struck down by the Supreme Court in 1982.

He made the remarks in an interview Wednesday on the Joe Pags radio show.

“The challenges put on our public systems is extraordinary,” Abbott said before referencing Plyler v. Doe, the ruling that overturned the Texas law. “I think that we will resurrect that case and challenge this issue again because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many years ago.”

In that case, the court ruled that “education has a fundamental role in maintaining the fabric of our society,” and withholding it from the children of immigrants in the country without paperwork “does not comport with fundamental conceptions of justice.” People living without documentation in the country remain people “in any ordinary sense of the term” and are thus entitled to the same basic rights as anyone else in the country.

We’re going to see a lot more of this, because people like Abbott have realized that SCOTUS is now a cheat code for achieving whatever policy ends they want, without having to legislate them. You could say that the policy he seeks to achieve here is the reversal of one that had been done via the court and not the legislative process. The difference is that the litigants in the Plyler case had to win on the merits and could have lost. They didn’t get to count on having a majority on the court that was ideologically on their side and willing to use their power towards that end.

If you can’t see what a public policy disaster it would be, not to mention a moral catastrophe, to prevent children from getting an education, I’m really not sure what to tell you. As Stace says, it’s yet another reason to vote Abbott and the rest of his crew out of office in November. TPM, Daily Kos, the Texas Signal, and Amanda Marcotte have more.

Southlake keeps on Southlaking

On brand.

Seven months after teachers at the Carroll Independent School District in Southlake, Texas, went public with their concerns about an administrator’s advice to balance books on the Holocaust with titles that show “opposing” perspectives, district employees this week discovered that a new clause had been added to their annual employment contracts, listed under the heading: “Non-Disparagement.”

“You agree to not disparage, criticize, or defame the District, and its employees or officials, to the media,” it read.

Four Carroll teachers, speaking on the condition that they not be named because they feared retaliation, said they were disturbed by the new contract language.

“Only a district that is knowingly doing something wrong would choose to silence its entire staff,” one of them wrote in a text message to a reporter on Thursday.

“I hadn’t yet decided if I was going to leave, but it seems the district decided for me!” another wrote.

Officials for both the National Education Association and the Texas State Teachers Association, unions that represent teachers nationally and across Texas, condemned the contract language as an attempt to silence teachers.

“This is the first time we have heard of a school district putting that language into a teacher contract,” said Clay Robison, a spokesman for the Texas State Teachers Association. “It is a rejection of a teacher’s fundamental First Amendment rights. A teacher also is a taxpayer, who is entitled to criticize a public school district.”

Michael Leroy, a labor law expert at the University of Illinois Urbana-Champaign, said that prohibiting public school employees from criticizing their district “is absolutely indefensible under the Constitution,” adding that the new clause in Carroll’s teacher contracts is “clearly unconstitutional. I mean, that’s not even a close call.”

Nondisparagement clauses are more common in the employment contracts of private companies, which are not subject to the First Amendment, Leroy said.

[…]

Leroy, the University of Illinois law professor, said the nondisparagement clause appears to violate a half-century-old U.S. Supreme Court precedent that established the right of government employees to speak on matters of public importance, even if it means criticizing their employer.

In that 1968 case, Pickering v. Board of Education, the court found that a school district in Illinois violated a teacher’s First Amendment rights when it fired him for writing a letter to a local newspaper criticizing the school board for prioritizing funding for athletics over teacher salaries.

“If a teacher, and for that matter if a public employee, is speaking on a matter of public concern, it is protected speech,” Leroy said, noting that the only time he’s seen government employees asked to sign a nondisparagement clause has been in settlement agreements after public employees have been fired, not as a condition of their employment.

Two other labor law experts agreed that a blanket ban on teachers criticizing a public school district is probably unconstitutional.

A Carroll teacher, texting a reporter from her lunch break, summarized her reaction to the new contract language this way: “It seems like if we say anything to anyone then we’re screwed. What happened to freedom of speech?”

See here for the previous example. Maybe they need Elon Musk to buy Carroll ISD, if he has any cash left over after Twitter.

The polling data on abortion in Texas

From the Trib:

At a time when Texas is poised to outlaw the vast majority of abortions if the nation’s highest court overturns constitutional protections for the procedure, a recent University of Texas at Austin poll shows most Texan voters think access to abortion should be allowed in some form.

Texas would make performing most abortions a felony if the U.S. Supreme Court overturns Roe v. Wade — a future that looks considerably more likely after a nonbinding draft opinion was leaked from the high court Monday. Constitutional protections for abortion could be struck down as soon as this summer.

The university conducted the poll in April before the court’s document was leaked. The survey found that 78% of respondents believe abortion should be allowed in some form while only 15% said it should be never permitted.

If Roe is overturned, Texas would allow doctors to perform abortions only to save the life of a pregnant person or if that person risked “substantial impairment of major bodily function.”

Around 39% of poll respondents said Texans should always be able to obtain abortions as a matter of personal choice, and 11% of respondents thought abortions should be available for other reasons in addition to pregnancy resulting from rape.

The poll shows that 28% of respondents believe abortions should be available only in cases of rape or incest or when a person’s life is endangered by their pregnancy. And 7% said they didn’t know.

Respondents fell mostly along party lines. Of the Republicans surveyed, 42% said abortions should be allowed only in cases of rape, incest or when a person’s life is in danger. The majority of Democrat respondents — 67% — said Texans should be allowed to seek an abortion as a personal choice.

But there were outliers. Among Republicans, 15% said Texans should always be allowed to seek an abortion and 12% said the law should allow Texans to seek abortions for reasons outside of just rape. On the flip side, 5% of Democrats said abortion should be completely outlawed and 13% said it should be allowed only in cases of rape or incest.

From the Chron:

The Texas Politics Project at the University of Texas at Austin has been tracking abortion trends for years. The researchers’ most recent poll, released in February, found that 53 percent of Texans oppose a complete ban on abortion if the Supreme Court overturns Roe v. Wade. (Thirty-four percent supported such a policy, and 13 percent didn’t know or had no opinion.)

“When we look at polling of Texas voters, what we find is an issue that people are, broadly, pretty split on,” said Joshua Blank, the research director of the Texas Politics Project. “But ultimately, you find most Texans supportive of at least some access. It’s much more nuanced to the electorate than, certainly, is being portrayed by elected officials looking to take victory laps.”

In February, 43 percent of Texans said they believed abortion laws here should be less strict, while 23 percent said they should stay the same. An additional 23 percent said they should be stricter, and 12 percent had no opinion. Texas banned abortions after roughly six weeks of pregnancy last September.

An overwhelming majority of Texans — 81 percent — believe abortion should be legal when a woman’s health is seriously endangered. About 73 percent support exceptions for rape or incest, and 58 percent say abortions should be legal if “there is a strong chance of a serious defect in the baby,” according to an October poll by the Texas Politics Project.

Texas’ six-week abortion ban provides no exceptions for rape, incest or severe fetal abnormality.

Ten years of aggregated polling data from Gallup estimates that 70 percent of Texans believe abortion should be legal at least in some circumstances. About 18 percent believe it should be legal under all circumstances, while 10 percent said it should be legal in most and 42 percent said it should be legal in only a few. An additional 26 percent said the procedure should be outlawed entirely.

That’s in line with most other GOP-led states, according to Gallup.

“Although technically a competitive or ‘purple’ state in terms of how it voted in the past two presidential elections, Texas is more closely aligned with ‘red’ — that is, strongly Republican — states when it comes to its residents’ views on abortion,” Gallup analysts wrote in October.

Another October survey, by researchers at the University of Houston and Texas Southern University, found that nearly 7 in 10 Texans believed the state’s six-week abortion ban was overly restrictive. Still, a majority of residents — 55 percent — supported the law, according to the poll.

At least since 2014, roughly equal portions of Texans have identified as “pro-choice” or “pro-life.” The Texas Politics Project is scheduled to release another poll Wednesday showing roughly similar trend lines, Blank said.

In February, 42 percent of voters said they were pro-choice; 38 percent said they were pro-life. Thirteen percent said they were neither, and 7 percent didn’t know.

“When we talk about abortion attitudes in the public, we’re talking about a set of opinions that, for the most part, are fixed and reinforcing,” Blank said. “Most people know what they think about abortion because they’ve been exposed to these arguments for much of their adult lives.”

But, he noted, most of those “opinions and attitudes” have been developed in a post-Roe world. That makes it difficult to predict how voters will feel or react if the high court does allow states to completely prohibit the procedure.

We’ve seen and talked about a lot of this data before. It’s important to remember three things: How the questions are worded really matters, people don’t always know exactly what the state of current abortion law is in Texas (in particular, lots of people don’t know everything about SB8), and people’s opinions on abortion may not affect how they vote or motivate them to vote.

The big question is whether this impending sea change will have a significant effect on voter behavior this year. One could argue that SB8 effectively banned abortion in Texas already and it didn’t seem to have much effect, but the confusing mechanisms of SB8 may have dampened any effect. The evisceration of Roe is a dominant national news story and will be again when the opinion in that Mississippi case is actually handed down, and there seems to be a big psychological effect in overturning Roe, as some national polls have shown that people had simply not believed that would ever happen. You could argue that the 2014 gubernatorial race was about abortion, at least to some extent, but the dynamics of that race and that year are just very different.

I don’t think we have any idea yet how this will play out, and we may not have even a vaguely decent guess at it for a few more months. We are truly in new territory, and we need to be very careful about what assumptions we make and what past events we extrapolate from. There’s clearly some energy on the Democratic side about this, but it’s May and we don’t know how long that might last. We just don’t know. But we can work to make what we want happen. Maybe now more people will be in on that. It’s our best hope.

I’m just going to say this one thing about the pending evisceration of abortion rights

Chris Tomlinson gets at the issue but doesn’t take it all the way.

The Supreme Court’s apparent decision to allow state lawmakers to make women’s health care choices puts chief executives in a tough spot, forcing them to choose between their employees’ rights and right-wing backlash.

Disney’s recent experience defending LGBT rights against Florida Gov. Ron DeSantis’s demagoguery will sadly encourage cowardice.

Millions of Texans are waiting to hear how their employee health insurance will handle abortion coverage when the procedure becomes a first-degree felony punishable by life in prison.

Texas Republicans have made banning abortion their marquee issue for decades. In addition to prohibiting government health insurance from paying for abortions, the Legislature also banned state-regulated plans from covering them.

Employers of 60 percent of Americans with company-sponsored health insurance, though, use self-funded plans. These are exempt from state regulations, according to the Kaiser Family Foundation, a health care research organization. Only 14 percent of self-funded plans exclude some or all abortions.

Polling shows 59 percent of Americans think abortion should be legal under all or most circumstances, according to Pew Research.

After Gov. Greg Abbott allowed Texans to privately prosecute other Texans who seek an abortion after six weeks of pregnancy, many companies stepped up. Amazon, Citigroup, Salesforce, Apple, Bumble, Levi’s, GoDaddy, Match, and Hewlett Packard Enterprise, have all promised to help employees get abortions outside Texas.

“We are pro-woman. We will support a woman’s right to make health care decisions for herself, even if that means traveling out of state. It’s an investment that’s not just right, but good business too,” Curtis Sparrer, a principal at Houston-based PR firm Bospar told me in an email.

The company will pay for travel and other expenditures should a Bospar staff member need reproductive health care banned in any state where they live, Sparrer added.

“We want other companies and PR agencies to join the fight, especially since many are composed of women and are led by women. The rights of women are not just on the line,” he added. “As someone who credits his same-sex marriage to the legacy of Roe, I am imploring my colleagues and friends to end their silence and speak truth to power.”

Taking a stand on anything, though, is becoming more perilous for corporations and executives who would rather generate profits than controversy. Employees, especially younger workers, expect their company’s leadership to reflect their values.

“More than half of consumers will buy or advocate for brands based on their beliefs, while six in 10 employees will choose employers based on shared beliefs and values,” according to Edelman, a global PR firm. “A stunning 81 percent of respondents want CEOs to be front and center discussing public policy.”

The first thing to realize is that the forthcoming overturn of Roe and Casey is the beginning, not the end. Next up will be a nationwide ban on abortion, for which Senate Republicans are already writing a bill. Now that they will no longer have to pretend that this has anything to do with women’s health, rape and incest exceptions will go away, and it won’t be just doctors who are targeted for arrest and prison. I guarantee you, lowlife creeps like Briscoe Cain cannot wait to throw women in jail for anything that looks like an abortion. Lizelle Herrera was not an aberraion.

If you think I’m being alarmist, go find a copy of that draft opinion and read it for yourself. Note carefully the section in which Sam Alito claims that this opinion is only about abortion and not all of those other things that people like him despise and want to get rid of, like the previous SCOTUS decisions on same-sex marriage and contraception and “sodomy”. I will remind you that most if not all of the justices who have signed onto Alito’s opinion also swore under oath during their Senate confirmation hearings that they considered Roe to be “settled law” and that they respected precedent. There’s no reason at all to believe anything that a known liar says.

So get mad, get organized, and get everyone you know who has the same concerns as you to vote. Businesses are going to have to do more as well, if they actually do care about their employees. But it’s on us, to vote and to put pressure on the people we’ve voted for to act. The clock has struck midnight. What are we going to do about it?

Providers’ federal lawsuit against SB8 is officially buried

From last week.

The 5th U.S. Circuit Court of Appeals on Tuesday ended a legal challenge to Texas’ nearly total ban on abortion brought by providers across the state, closing out a contentious court battle that reached the U.S. Supreme Court.

The appeals court dismissed the remaining challenge in the suit after the Texas Supreme Court in March said state licensing officials are not responsible for enforcing the abortion ban and therefore cannot be sued.

A three-judge panel of the 5th Circuit in January asked the state’s high court to resolve this central question to the case, an unusual move made at the request of attorneys for the state that was expected to significantly delay or end the challenge.

[…]

In December, a divided U.S. Supreme Court dismissed all but one challenge in the lawsuit brought by abortion providers. Justices allowed a narrower case, targeting state licensing officials, to proceed in Texas courtrooms.

But Tuesday’s action by the 5th Circuit officially dismisses the case.

It was all over but for the shouting when the State Supreme Court ruled that state medical licensing officials do not have authority to enforce SB8, but the real villain as always was the Fifth Circuit, which engineered the result it wanted. Like I said, the fix was in from the beginning.

As the story notes, there are two more active lawsuits to watch, one by abortion funds against several anti-abortion organizations and individuals, and one by Wendy Davis. I feel like the former is more promising than the latter, but who knows. A state judge had previously ruled that SB8 was unconstitutional but for reasons still unclear declined to issue an injunction against it; I suppose that could change at some point. Until then, here we are.

UPDATE: Yes, I’m aware of the leaked draft opinion that eviscerates Roe v Wade. I maintain that the Fifth Circuit is the prime villain of this story, given how they completely disregarded normal procedures, but SCOTUS’ villainy cannot be overstated either.

A roundup of border and lawsuit stories

Too much news, not enough time…

New federal lawsuit seeks to halt Texas’ border trespassing arrests, give more than $5 million to illegally detained migrants.

In a new challenge to Gov. Greg Abbott’s controversial border security crackdown, a lawsuit filed Wednesday is asking a federal court to shut down Texas’ system of arresting migrants en masse along the Texas-Mexico border, and make the state pay more than $5 million to men who were illegally imprisoned under the system.

The lawsuit comes nearly a year after Abbott first ordered Texas police to arrest men suspected of illegally crossing the border on misdemeanor trespassing charges. The practice skirts constitutional restrictions that bar states from enforcing federal immigration law, and the lawsuit claims it discriminatorily targets mostly Black and Latino migrant men, usurps federal authority and is carried out in a way that violates the detainees’ rights.

“Under the guise of state criminal trespass law but with the explicit, stated goal of punishing migrants based on their immigration status, Texas officials are targeting migrants,” the filing stated. “Hundreds of those arrested have waited in jail for weeks or months without a lawyer, or without charges, or without bond, or without a legitimate detention hold or without a court date.”

Abbott’s trespassing initiative has drawn numerous state and local court challenges since it began in July, but this appears to be the first time attorneys are opposing it in federal court and seeking compensation for migrants swept into the governor’s “catch-and-jail” system. State and federal Democratic lawmakers and civil rights groups have also called on the U.S. Department of Justice to intervene in the Republican governor’s operation, but the federal administration has not acted.

The lawsuit was filed in federal district court in Austin by three private attorneys on behalf of 15 individual migrants and is asking for a class certification to include everyone arrested under Abbott’s trespassing initiative. The migrants are suing Abbott, the directors of the Texas Department of Public Safety and the Texas Department of Criminal Justice, as well as Kinney County, a rural border county which accounts for the large majority of trespassing arrests, and its sheriff.

The complaint asks the court to find that the operation violates federal law and order the state to stop the arrests. It also argues each migrant illegally detained so far should be given $18,000 for each day they were imprisoned beyond what is allowed by state law. The attorneys said it is a typical amount awarded by courts in cases of over-detention. They estimated the total cost would be around $5,400,000.

Previously, state district judges have found that hundreds of men were detained illegally after trespassing arrests, locked in prison for more than a month without any charges filed against them in violation of state law. Lawyers have argued the practice is still occurring. Wednesday’s filing also alleges men have been held for days or weeks after they post bond, their charge is dropped or their sentence is complete.

This is one possible way to get this heinous activity stopped. I don’t know if it’s the most likely way to succeed, but it is the most direct.

Texas Attorney General Ken Paxton sues Biden administration over asylum plan.

Texas Attorney General Ken Paxton filed his 11th immigration-related lawsuit against the Biden administration Thursday, asking a judge to block a plan to let asylum officers, rather than immigration judges, decide whether to grant some migrants’ asylum claims at the U.S.-Mexico border.

The new plan, scheduled to take effect May 31, “upends the entire adjudicatory system to the benefit of aliens,” the lawsuit says.

Earlier this year, the Biden administration finalized its plan to overhaul the process for migrants seeking asylum. The plan is supposed to reduce the average wait time for asylum-seekers to receive a decision in their case from five years to six months. As of March, immigration judges had nearly 1.7 million pending cases — the largest backlog in the country’s history, according to the Transactional Records Access Clearinghouse at Syracuse University.

Under the new process, asylum-seekers could be released into the country pending the outcome of their cases instead of being held in custody. If a migrant apprehended at the border claims they could be persecuted or tortured if they return to their home country, the asylum officer would decide if they have a credible claim. If the officer declines an asylum claim, migrants could appeal to an immigration judge.

“The current system for handling asylum claims at our borders has long needed repair,” Alejandro Mayorkas, the Department of Homeland Security secretary, said in a statement in March when the plan was finalized. “Through this rule, we are building a more functional and sensible asylum system to ensure that individuals who are eligible will receive protection more swiftly, while those who are not eligible will be rapidly removed.”

The lawsuit, filed in U.S. District Court in Amarillo overseen by Judge Matthew J. Kacsmaryk, also argues that the new plan violates the Constitution’s appointments clause because asylum officers are members of the general civil services and are not appointed like judges are.

[…]

Texas has filed nearly two dozen lawsuits in Texas-based federal courts, most of them led by Paxton, against the Biden administration over everything from federal mask mandates to the administration’s decision to halt the long-disputed Keystone XL pipeline. Trump-appointed judges have heard 16 of the cases and ruled in favor of Texas in seven. The other nine are pending as of March 15.

The state’s favorite targets have been Biden’s immigration policies, which have sparked seven of the 20 lawsuits in Texas courts. Paxton’s office has also sued the administration in Washington, D.C., federal courts and joined lawsuits led by attorneys general from other states.

Another day, another Trump judge. I’m sure I don’t have to tell you what is likely to come next. There’s plenty that the Biden administration could and should have done differently with immigration policy, but nearly everything he has tried to do has run into this kind of legal obstacle. It would be nice if Congress were to act, but that’s just not in the cards.

Judge orders Biden administration to send Central American migrants to Mexico rather than their home countries.

A federal judge in Louisiana on Wednesday temporarily blocked the Biden administration from increasing the number of deportations of some Central Americans back to their home countries and ordered the administration to instead send them to Mexico under an emergency health order used to expel migrants from the country, including asylum-seekers.

The judge also set a May 13 hearing to decide whether to block the administration from canceling the health order, known as Title 42. The judge indicated in the order that he plans to block the Biden administration from lifting Title 42 altogether.

During a phone call with reporters on Tuesday, a Biden administration immigration official was asked about the Louisiana judge’s impending order and said the administration plans to comply with it but remarked, “We really disagree with the basic premise.”

The Biden administration had announced that it will stop expelling migrants under Title 42 starting May 23 and instead go back to detaining and deporting migrants who don’t qualify to enter and remain in the U.S.

On April 3, Arizona, Missouri and 19 other states filed a lawsuit in the Western District of Louisiana, asking District Judge Robert R. Summerhays, an appointee of former President Donald Trump, to stop the Biden administration from ending Title 42.

Then on April 20, Fox News reported that the Biden administration had stopped using Title 42 for some migrants from certain Central American countries and instead was deporting them to their home countries. The next day, Arizona’s lawyers asked Summerhays to block the Biden administration from deporting those migrants and instead expel them to Mexico.

“A major media outlet reported that ‘Border Patrol is not using the Title 42 public health order to remove many migrants from the Northern Triangle countries of Guatemala, Honduras and El Salvador,’” Arizona’s request to the judge says, quoting the Fox News article.

Immigration officials had stopped expelling some single adult migrants from those countries under Title 42 and instead processed them under Title 8, a law that allows agents to deport migrants to their home countries without a court hearing. Deportations to those countries had historically accounted for 5% of cases. After the move to process migrants under Title 8, those cases increased to 14%, and the judge has ordered the government to aim for a return to that lower historic rate.

“We’re in a strange world right now where Greg Abbott is giving free bus rides to migrants and [Arizona Attorney General] Mark Brnovich has forced [the Department of Homeland Security] to deport fewer people,” said Aaron Reichlin-Melnick, an analyst with the American Immigration Council, a Washington, D.C., group that advocates for immigrants, referring to the Texas governor’s program that transports asylum-seeking migrants to the country’s capital.

See here for the background. I don’t even know what to say about this one. I do know that Texas filed its own lawsuit over Title 42. At least that makes sense to me.

U.S. Supreme Court hears arguments on whether Biden can toss Trump’s “remain in Mexico” policy.

The U.S. Supreme Court heard arguments Tuesday morning on whether the Biden administration can scrap a Trump-era policy that forces asylum-seekers to wait in Mexico as their cases make their way through U.S. immigration courts.

During two hours of arguments, the lawyers largely focused on a central question: Does the executive branch have the sole authority to set U.S. immigration policies?

The case reached the Supreme Court after a federal district judge in Texas last year ruled that the Biden administration violated immigration law by not detaining every immigrant attempting to enter the country. U.S. District Judge Matthew J. Kacsmaryk ordered the Biden administration to restart the Migrant Protections Protocols, also called “remain in Mexico,” which the Trump administration first implemented in January 2019 and Department of Homeland Security Secretary Alejandro Mayorkas canceled in June 2021.

That decision led Texas and Missouri to sue the Biden administration in April 2021, arguing that canceling MPP violated administrative law and that without the program, human trafficking would increase and force the states to expend resources on migrants — such as providing driver’s licenses, educating migrant children and providing hospital care.

The Biden administration argued it has the discretion to end the program and that it was not an effective way to deal with migrants seeking asylum.

[…]

The court’s liberal justices brought up the issue that the lower court’s decision has forced the White House to enter into a deal with Mexico — which has to agree to receive migrants sent over the border through MPP — when presidents historically have had broad authority on foreign policy issues.

“It puts the United States essentially at the mercy of Mexico,” Justice Elena Kagan said. “Mexico has all the leverage in the world to say, ‘Well, you want to do that, you want to comply with the court’s order? Here are 20 things that you need to do for us.’ Or maybe Mexico says, ‘No, we’d like to see you squirm and not be able to comply with the court’s order.’”

Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School, said the justices will have to wrestle with the fact that at any point Mexico could change its mind on whether it wants to continue to accept migrants expelled from the U.S. through the program.

“How can a court require the secretary for the Department of Homeland Security to dump busloads of people into Mexico if Mexico doesn’t comply?” she said.

Note that this is the same judge as in the second story. Do we let federal district court judges dictate foreign policy, which is what this is, or is that something Presidents are still allowed to do? I guess we’ll find out.

Gov. Greg Abbott asks for private donations to bus migrants to D.C. after criticism for using taxpayer money.

On Sunday, Gov. Greg Abbott appeared on Fox News touting a program he’s been pushing for weeks — sending migrants who enter into Texas to Washington, D.C., by charter bus.

But this time, Abbott asked Texans to personally contribute their own money to pay for the trips.

The decision to crowdfund the free bus trips for migrants is a new development from when he initially announced on April 6 that it would be paid for by Texas taxpayers. At the time, Abbott proudly presented the trips as a tough-on-immigration act of defiance against the Biden administration.

But the shift to ask private donors to pay for the charter buses comes as his plan has been increasingly praised as an act of generosity by Democrats, immigration rights groups and even the migrants who rode the buses, while those further to Abbott’s right politically have panned it as a misuse of taxpayer dollars that incentivizes migrants to cross into Texas.

“Congratulations to Governor Abbott,” Texas Rep. Gene Wu said Tuesday in a tweet. “Word will be passed from community to community that if you can just get to Texas, the Governor there will pay for your transportation anywhere in the USA.”

[…]

Mark Jones, a political science professor at Rice University, said the governor may be trying to escape blowback.

“I think it’s a quiet way of protecting himself from criticism that he’s using taxpayer dollars to provide free transport for undocumented immigrants,” Jones said. “Many conservatives pounced on him as all hat and no cattle, in that he was talking tough but in the end all his busing was going to do was provide a free trip for undocumented migrants to the East Coast that they otherwise would have had to pay for or that liberal nonprofits would have had to pay for.”

Abbott’s office has said at least 10 buses have arrived in the nation’s capital, but his office has not provided costs for the trips or the total number of migrants who have been transported.

During the 30-some-hour coach bus ride, passengers were provided with meals, the migrants said. Many of the buses’ passengers said they had saved up thousands of dollars just to arrive at the border and had little money left by the time they arrived in Texas.

“We are very thankful for all the help that has been given to us,” Ordalis Heras, a 26-year-old Venezuelan asylum-seeker, said earlier this month to the Tribune, hours after arriving in Washington on Abbott’s first bus from Del Rio. Heras, like many other passengers, had intended to travel north of Texas anyway.

“Frankly, we did not have the money to get here otherwise, so we are very thankful for the help,” she said.

A picture is worth a thousand words.

And finally:

With the approval of Republican state leaders, Gov. Greg Abbott on Friday pulled nearly half a billion dollars from various state agency budgets to fund the swelling cost of deploying thousands of National Guard troops to the southern border.

The $495 million transfer comes weeks after Texas military leaders warned they would soon run out of money to fund the 10,000-member deployment under Abbott’s border initiative, known as Operation Lone Star. More than 6,000 National Guard soldiers are stationed along the border to help state troopers apprehend and jail migrants suspected of trespassing on private property.

State lawmakers last year allotted more than $400 million for the Texas Military Department to participate in the operation over the current two-year budget period, part of a $1.8 billion spending package that is also paying for a surge in Department of Public Safety troopers to the border region.

But in late January, facing funding shortfalls just several months into the fiscal year, Abbott and GOP state leaders shifted about $480 million from three state agencies to fund the National Guard deployment. The additional transfer Friday means it will cost Texas more than $1.3 billion to keep National Guard soldiers stationed along the border through the end of the fiscal year in August, more than triple the amount originally budgeted.

In all, Texas’ border security budget now stands at about $4 billion for the current two-year cycle, roughly five times the amount spent in 2019-2020. State leaders will need to drum up additional funds to keep National Guard soldiers stationed at the border beyond August.

Your tax dollars at work. You can do something about that this November.

Wendy Davis sues over SB8

Interesting.

Wendy Davis

Former Texas State Sen. Wendy Davis, best known for her 13-hour filibuster of a 2013 abortion bill, has filed a federal lawsuit challenging Texas’ recent abortion law. The suit claims the law is “blatantly unconstitutional” and written to “make a mockery of the federal courts.”

The law, which went into effect in September and empowers private citizens to bring civil lawsuits against anyone who “aids or abets” in an abortion after fetal cardiac activity is detected, has led abortion clinics to stop providing the procedure after about six weeks of pregnancy.

Meanwhile, abortion funds — nonprofit advocacy groups that help pay for abortions and related expenses — have seen increased demand from pregnant Texans seeking care outside the state. This financial support has put these funds in the crosshairs of abortion opponents, who have claimed on social media and in legal filings that abortion fund donors, employees and volunteers are susceptible to lawsuits and criminal charges.

Davis, who was the Democratic nominee for Texas governor in 2014 and unsuccessfully ran for Congress in 2020, donates to and works with the Lilith Fund for Reproductive Equity, an Austin-based abortion fund, according to the lawsuit. She claims in the suit that these threats against donors and volunteers “have had a chilling effect” and stop her from associating with “like-minded people to express her views and achieve her advocacy goals.”

“Accordingly, she intends not to make any additional donations to Texas abortion funds until the Court provides clarity on this issue,” the lawsuit said.

She is joined in the suit by the Stigma Relief Fund, an abortion fund associated with abortion provider Whole Woman’s Health, and Marva Sadler and Sean Mehl, who both work for Whole Woman’s Health and serve on the board of the Stigma Relief Fund. Sadler and Mehl say in the suit that they have stopped donating to abortion funds “until the Court clarifies whether and to what extent [they] can face liability for doing so.”

They are suing state Rep. Briscoe Cain, R-Deer Park, and three private citizens who have made efforts to bring lawsuits against abortion funds. Cain recently sent cease-and-desist letters to all the Texas abortion funds, accusing them of criminal conduct.

The lawsuit claims that the law violates the plaintiff’s rights to due process and free speech and asks the court to declare both this law and Texas’ older abortion law unenforceable.

“We are asking the courts today to stop the unconstitutional harassment of abortion funds by confirming S.B.8 cannot be used to silence donors with bogus threats,” Davis said in a statement. “More than that, we are asking the courts to stop the nightmare S.B.8 has created for Texans if they need abortion services.”

[…]

Last month, two abortion funds filed federal lawsuits against the anti-abortion advocacy groups that had threatened to bring lawsuits against them.

Recently, Cain claimed that the abortion funds could also face criminal charges under a Texas abortion statute that was declared unconstitutional by the U.S. Supreme Court in 1973. Cain claimed in his cease-and-desist letter that the law, which was never repealed by lawmakers, was recently reaffirmed when the state passed the new abortion law.

Davis’ lawsuit asks the judge to affirm that the old criminal statute is unenforceable and that the newer law is unconstitutional.

See here and here for more on the abortion funds’ lawsuits against two anti-abortion organizations plus two individuals. Those two individuals, plus a third person in addition to the twerp Briscoe Cain, are also defendants of this lawsuit, which you can download as a PDF here from the Quorum Report. Cain had been sent a letter accusing him of defamation after his claims that abortion funds and their donors were breaking the law; I do not know if there have been any further developments in that story.

The plaintiffs allege violations of the First and Fourteenth amendments, among other things. The claims about the First Amendment were interesting:

Because of Defendants’ threats concerning enforcement of S.B. 8 and the Criminal Abortion Ban against Texas abortion funds and their associates, Plaintiffs Sadler and Mehl intend to cease donating money to Texas abortion funds, including the Stigma Relief Fund, until the Court confirms that these laws are unenforceable because they violate the U.S. Constitution.

[…]

By threatening to chill abortion funds’ relationships with their donors, employees, and volunteers, Section 3 of S.B. 8 violates the freedom of expressive association protected by the First Amendment.

This leans into the SCOTUS holding that political contributions are free speech. I don’t doubt the zealots’ ability to double-speak their way out of this, but it’s a reasonable approach. Or at least I, a non-lawyer, think it is. I haven’t seen any commentary on Twitter, and neither Wendy Davis nor the Stigma Relief Fund have tweeted about this. We’ll see what happens. CNN has more.

Second lawsuit filed over Galveston redistricting

Similar grounds, different plaintiffs.

Commissioner Stephen Holmes

A coalition of civil rights groups in Texas filed a federal lawsuit Thursday against Galveston County, alleging that the county’s redistricting plan intentionally discriminates against a growing minority population in the Gulf Coast community.

The complaint, shared first with CNN, marks the second lawsuit that seeks to overturn maps approved by the Republican majority on the county’s governing body. Last month, the Justice Department filed a federal lawsuit against the county on similar grounds — in a redistricting dispute that has garnered national attention.

The new lawsuit — brought by the Texas Civil Rights Project and the Southern Coalition for Social Justice on behalf of local branches of the NAACP and the Galveston League of United Latin American Citizens Council 151 — alleges that the new map diminishes the voting power of Black and Hispanic voters by splitting up the only majority-minority precinct.

The new map endangers the reelection of Stephen Holmes, the county’s only Black commissioner, who has served on the board for 22 years. Holmes is next on the ballot in 2024.

The lawsuit alleges the Republicans majority pushed through a “racially discriminatory map” that “largely took place behind closed doors.”

Sarah Chen, an attorney with the Texas Civil Rights Project, called the map — and the process used by the Republican majority in the county to approve it — “egregious examples of people in power … exercising that power to dilute the votes of racial minorities.”

[…]

Both this lawsuit and the complaint by the Justice Department underscore the difficult legal terrain that voting rights advocates now face in challenging alleged discriminatory maps. This cycle marks the first round of redistricting since the US Supreme Court in 2013 gutted the so-called preclearance provision of the 1965 Voting Rights Act.

That provision required states with a history of discrimination to first obtain the permission of the federal government or the courts before enacting new laws related to voting.

With those powers gone, the Justice Department’s lawsuit relies largely on another section of the federal voting rights law, Section 2, which puts the burden on the federal government to prove its case.

The lawsuit filed Thursday cites Section 2, but also argues that map violates the constitutional rights of Black and Latino voters to equal protection of the law.

Chen said civil rights groups are looking for “different pathways” in voting rights cases “because victory is never assured.”

See here and here for the background, and here for a copy of the complaint. The Texas Civil Rights Project, which is co-counsel along with the Southern Coalition for Social Justice, has a tweet thread about this as well. I haven’t read through the two of them so I can’t say where they are specifically similar and different, but the coverage suggests they have overlap. It won’t surprise me if these two lawsuits are eventually combined. I remain less than confident that the plaintiffs will get the relief they seek given the hostility the federal courts have shown towards voting rights in recent years, but I will say that I’m old enough to remember a day when a white majority reducing the political power of communities of color for the reasons of “because we can, that’s why” was considered to be in poor taste. I feel like we should try to return to those days, but what do I know? Daily Kos has more.

The dark side of redistricting litigation

The state of Texas is taking a big swing in defense of its gerrymanders, and if they connect it’s going to be devastating.

Beyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.

For decades, redistricting in Texas has tracked a familiar rhythm — new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.

The pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.

Those protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated — in some cases intentionally — against voters of color.

But tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.

First, the Texas attorney general’s office is arguing that private individuals — like the average voters and civil rights groups now suing the state — don’t have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.

Second, the state argues that Section 2 does not apply to redistricting issues at all.

Should either argument prevail — which would almost certainly require it to be embraced by a conservative U.S. Supreme Court that has already struck down other portions of the law — the courthouse door will be slammed shut on many future lawsuits over discriminatory map-drawing and voting practices.

“Fundamentally, this Supreme Court thinks we are past the time in which we need the Voting Rights Act, so of course if you’re a state like Texas, you’re going to bring every argument that’s ever been made to challenge the constitutionality of the rest of it,” said Franita Tolson, a vice dean and law professor at the University of Southern California Gould School of Law.

[…]

The turnover at the Supreme Court has cracked the door for “audacious attacks on Section 2,” that would have “never had a chance” under previous iterations of the court, said Rick Hasen, a law professor at the University of California, Irvine who specializes in voting law. Texas is trying to push the door wide open.

In legal briefs, Texas’ argument that Section 2 does not apply to redistricting relies almost exclusively on a series of comments in opinions by Justice Clarence Thomas, who has plainly endorsed the idea in cases dating back to 1994. Justice Neil Gorsuch, a Trump appointee who joined the court in 2017, echoed the view in one of Thomas’ recent opinions.

In a recent case over Arizona voting laws, Thomas and Gorsuch also joined an opinion indicating they agreed with the argument Texas is offering now that private individuals cannot sue to enforce the Voting Rights Act.

The fallout if the Supreme Court agreed with the state on either argument would be radical, upending long established procedures for litigating claims of discrimination in voting and redistricting, and making it harder to enforce what has endured as the chief federal protection for voters of color in a post-preclearance world.

Covering its bets, the state is also pressing a backup argument — that even if individual voters are allowed to sue under Section 2, organizations that serve voters of color cannot bring claims on their behalf. That could knock out of the box groups like the NAACP and LULAC who may have more resources and membership across the state to prop up the complex challenges.

If affirmed by the court, that prospect would put even more pressure on private individuals to protect themselves from alleged discrimination by the state, said Noor Taj, a lawyer with the Southern Coalition for Social Justice who is representing various civil rights and community groups that serve Texans of color, particularly Asian Texans, in a lawsuit against the maps.

“It’s either taking their rights altogether or increasing the burden,” Taj said. “Both ends of that are problematic and incorrect.”

If the high court ultimately decides redistricting lawsuits simply aren’t allowed under Section 2, the recourse left for Texans of color to challenge political maps would be litigation under the U.S. Constitution’s broader promise of equal protection.

That would require challengers to show lawmakers intentionally discriminated against them — “which is the hardest case to win, particularly before a Supreme Court,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.

The state’s efforts to overturn protections for voters of color is ironic given its long history of violating the same law it is now looking to gut, said Perales, who is suing the state over its latest maps on behalf of a group of individual voters and organizations that represent Latinos.

“Since the beginning of the modern era of decennial redistricting, Texas has been found liable for violating the voting rights of Latinos in every single cycle,” Perales said.

The more “aggressive attacks” on Section 2 have come as it’s getting harder for Republicans to comply with the law while preserving their power, Hasen said.

If you can’t comply with the law but you have the power to change it so that you don’t have to, well, it’s obvious what you’ll do. The state’s arguments have not gained any purchase with the three-judge panel at the district court level, but we know where it goes from there. The Democrats would like to do something at the national level about this, but as long as Joe Manchin and Kyrsten Sinema are deciding votes, they don’t actually have the power. (Beating Ken Paxton this fall would also help, but this argument is going to get before SCOTUS one way or another eventually regardless.) And so we get to watch this play out like a slow-motion train wreck, and we’re all standing close enough to it to be collateral damage. Isn’t that nice?

Guess who’s paying for Ken Paxton’s defense against those state bar complaints?

You are, of course. What did you expect?

Best mugshot ever

Texas taxpayers are on the hook for $45,000 so far in legal defense for Attorney General Ken Paxton as he attempts to ward off multiple complaints to the State Bar over his failed lawsuit seeking to overturn the 2020 presidential election at the U.S. Supreme Court.

Paxton faces at least three professional misconduct complaints that have been filed against him since the December suit, which the high court swiftly dismissed for lack of jurisdiction. The election case involved disputed presidential election ballots in Pennsylvania, Georgia, Michigan and Wisconsin.

Two complaints — one filed in June by a Democratic Party activist, consolidated with a few others, and another in July filed by the nonprofit Lawyers Defending American Democracy and 16 Texas lawyers, including four former presidents of the state Bar — alleged the Supreme Court suit was frivolous and that it included pleadings that Paxton knew to be false.

The Lawyers Defending American Democracy complaint is moving forward and will be heard by either a district court judge or an administrative panel, the complainants say.

“This is about his individual license, which is irrelevant to his position in office, so why shouldn’t he pay for it?” said Jim Harrington, one of the lawyers who filed a complaint against Paxton and a retired founder of the Texas Civil Rights Project, a nonprofit that advocates for voting rights. “He gets to do this game on Jan. 6, this unconstitutional Supreme Court action, and then turn around and have us pay twice for it? It’s outrageous.”

[…]

Attorneys with the Austin-based Gober Group and College Station-based West, Webb, Allbritton & Gentry billed more than 94 hours at various rates for work related to the bar complaints. Chris Gober, a GOP election lawyer known for his work defending the state’s political maps, had the highest rate at $525 an hour.

Some of the work described in the invoices included reviewing documents related to the complaints, discussing strategy and considering options, preparing for meetings with the Texas State Bar and reviewing and revising correspondence with the agency.

However, a response to the June batch of bar complaints against Paxton, which the office posted on its website, was signed by Deputy First Assistant Attorney General Grant Dorfman; none of the outside attorneys’ names appear on the filing. It’s unclear why both in-house and outside counsel appear to have been engaged in Paxton’s defense.

Because there’s free money to give to Paxton’s pals. This has been another edition of “Simple Answers to Simple Questions”.

See here for the most recent update. There is of course a hypocrisy angle in all of this, because of course there is.

Steve Fischer, elected State Bar director for the Western District of Texas and one of the attorneys who filed the 2015 complaint, said taxpayers shouldn’t have to bear the cost of Paxton’s defense.

“People elect an attorney general to do child support, whatever — not for that,” Fischer said. “To turn his office into his defense team, it just doesn’t sit right with me.”

According to a response to some of the latest complaints by the attorney general’s office in July, the State Bar Disciplinary Counsel received 81 grievances against Paxton and three against First Assistant Brent Webster related to the 2020 Supreme Court suit. All were dismissed upon initial review. Some were reinstated after appeals.

[…]

While the attorney general’s office’s role in fighting bar complaints may be a legal gray area, the agency is statutorily required to defend state officials and state agencies in court. Yet Paxton’s office has declined to represent those state agencies on several recent occasions, typically when it conflicts with his political inclinations.

In 2018, for example, his office refused to defend the Texas Ethics Commission as one of his largest political donors sues to dismantle the agency. Then again, in January 2020, the office abandoned the State Commission on Judicial Conduct when it was sued by a Waco judge whom the agency disciplined for refusing to perform same-sex marriages.

Paxton’s main complaint about the State Bar allowing this matter to proceed is that both the filing and the State Bar itself are motivated by partisan politics. Not him, though, of course. Never him.

You may think well, maybe we don’t want the government to pay for this government official’s defense because he’s so odious, but what happens when we elect a Democratic AG? Should Rochelle Garza or Joe Jaworski have to pay for their own defense against the avalanche of frivolous partisan complaints that will surely be filed against them? That would be bad, except that as the story notes the vast majority of the ones against Paxton got dismissed for lack of merit. I doubt it would be any different with a different AG. At least, it better not be. As long as it isn’t, and as long as the next AG has better ethical standards than Ken Paxton – an exceptionally low hurdle to clear – it shouldn’t be an issue.

Of course Ted Cruz supported sedition

None of this is surprising. And I’m certain there will be more, that this is just the tip of the iceberg.

Not Ted Cruz

Sen. Ted Cruz was dining near the Capitol on the evening of Dec. 8, 2020, when he received an urgent call from President Donald Trump. A lawsuit had just been filed at the Supreme Court designed to overturn the election Trump had lost, and the president wanted help from the Texas Republican.

“Would you be willing to argue the case?” Trump asked Cruz, as the senator later recalled it.

“Sure, I’d be happy to” if the court granted a hearing, Cruz said he responded.

The call was just one step in a collaboration that for two months turned the once-bitter political enemies into close allies in the effort to keep Trump in the White House based on the president’s false claims about a stolen election. By Cruz’s own account, he was “leading the charge” to prevent the certification of Joe Biden as president.

An examination by The Washington Post of Cruz’s actions between Election Day and Jan. 6, 2021, shows just how deeply he was involved, working directly with Trump to concoct a plan that came closer than widely realized to keeping him in power. As Cruz went to extraordinary lengths to court Trump’s base and lay the groundwork for his own potential 2024 presidential bid, he also alienated close allies and longtime friends who accused him of abandoning his principles.

Now, Cruz’s efforts are of interest to the House committee investigating the Jan. 6 attack on the U.S. Capitol, in particular whether Cruz was in contact with Trump lawyer John Eastman, a conservative attorney who has been his friend for decades and who wrote key legal memos aimed at denying Biden’s victory.

As Eastman outlined a scenario in which Vice President Mike Pence could deny certifying Biden’s election, Cruz crafted a complementary plan in the Senate. He proposed objecting to the results in six swing states and delaying accepting the Electoral College results on Jan. 6 in favor of a 10-day “audit” — thus potentially enabling GOP state legislatures to overturn the result. Ten other senators backed his proposal, which Cruz continued to advocate on the day rioters attacked the Capitol.

The committee’s interest in Cruz is notable as investigators zero in on how closely Trump’s allies coordinated with members of Congress in the attempt to block or delay certifying Biden’s victory. If Cruz’s plan worked, it could have created enough chaos for Trump to remain in power.

“It was a very dangerous proposal, and, you know, could very easily have put us into territory where we got to the inauguration and there was not a president,” Rep. Liz Cheney (R-Wyo.), a Jan. 6 committee member, said earlier this year on the podcast “Honestly. And I think that Senator Cruz knew exactly what he was doing. I think that Senator Cruz is somebody who knows what the Constitution calls for, knows what his duties and obligations are, and was willing, frankly, to set that aside.”

It’s a long story, from the WaPo and reprinted in the Trib, and it just gets worse from there. I believe that Cruz knew exactly what he was doing and that he had no legal leg to stand on, and also that he didn’t care. Maybe he’d get lucky with the judges, who can say. It was all about winning and power anyway. Of course, it’s a fine line between that kind of blase nihilism and Ginni Thomas’ full-on Qanon ravings. For that, they both richly deserve an in depth investigation from the January 6 committee, and a criminal contempt citation if they refuse.

One more thing:

In the weeks that followed, as Trump allies lost a string of election cases, Cruz began suggesting he could lead a more effective legal strategy. He talked about his success in helping Bush’s legal team and how he had argued a total of nine cases before the Supreme Court, mostly as the Texas solicitor general. Two days later, he announced he had agreed to represent Pennsylvania Republicans in their effort to block certification of that state’s presidential results. The Supreme Court rejected that request, though, a near-fatal blow to efforts to overturn the election in the courts.

But the next day, Trump and Cruz focused on another avenue to put the matter before the Supreme Court: a case filed by Texas Attorney General Ken Paxton, who argued his state had standing to ask the court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.

When Trump called on Dec. 8 as Cruz dined out, the president asked whether he was surprised about the loss of the Pennsylvania case, Cruz later recalled on his podcast, “Verdict with Ted Cruz.” Cruz said he was unhappy but “not shocked” that the federal court did not take a case about state law: “That was a challenging hurdle.”

When Cruz agreed to Trump’s request to argue the Texas case, it shocked some who knew him best. One adviser said he called Cruz to express dismay, telling the senator it went against the principles on which he built his political brand.

“If you’re a conservative federalist, the idea that one state can tell another state how to run their elections is outrageous, but he somehow contorted in his mind that it would be okay for him to argue that case,” said the adviser, who spoke on the condition of anonymity to describe a private conversation.

Rep. Chip Roy (R-Tex.), who had served as Cruz’s chief of staff and was a former first assistant attorney general in Paxton’s office, tweeted that the case “represents a dangerous violation of federalism” that “will almost certainly fail.” He did not respond to a request for comment.

Cruz’s spokeswoman said that he agreed to Trump’s request because “he believed Texas deserved to have effective advocacy” but said that “he told President Trump at the time that he believed the Court was unlikely to take the Texas case.”

Just as a reminder, this ridiculous lawsuit was the basis for two State Bar of Texas complaints against Ken Paxton (and another against Sidney Powell) that in a just world will result in their disbarments. Surely a similar complaint against Cruz might be warranted. The Texas Signal has more.

SCOTUS unanimously rejects Dave Wilson

Poor baby.

Dave Wilson

The U.S. Supreme Court on Thursday ruled against former Houston Community College trustee Dave Wilson, finding that he didn’t have an actionable First Amendment claim after suing his colleagues for verbally censuring him in 2018.

In a 9-0 vote, the justices firmly sided with the community college system, whose board members reprimanded their colleague after he allegedly violated board bylaws for months and incurred thousands of dollars in legal costs for the college. The then-District II trustee — known in Houston at the time for being an anti-gay rights activist — was usually the board’s lone no-vote and frequently bit back at the administration.

Wilson continued to speak critically after his censure, making it difficult to prove that the action chilled his speech, the court ruled. And the board’s decision fell under the trustees’ own First Amendment rights.

“The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy,” Justice Neil Gorsuch wrote in the opinion. “But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

Wilson on Thursday claimed the justices did not adequately respond to what he said was his main argument — that he faced penalties beyond a verbal denouncement. After the censure, trustees decided that Wilson was not eligible for travel-related expense reimbursements and would need board approval when requesting funding for community affairs programs for the 2017-2018 college year. They also determined he could not be elected for a board officer position in 2018, all of which Wilson said violated his rights, according to court documents.

“It was poorly reasoned. The court didn’t take on any of the arguments that we made in our briefs,” he said. “The court made up facts to decide the case that it wanted to see rather than the facts that were presented.”

[…]

Hours after reading the document for the first time, Wilson conceded that he understood why the court didn’t take up the issue of nonverbal punishments. And he said he felt the loss at least affirmed his First Amendment rights in speaking out on the college’s “underhanded dealings.”

See here and here for the background. A link to the opinion plus a brief excerpt can be found here. All I can say is what a loser. Dave Wilson has been a stain on our politics for a long time. I hope he spent a lot of his own money on this ridiculous pursuit.