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SCOTx allows provisional votes to be counted

Good.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

Paxton sues to prevent some provisional votes from being counted

On brand. Always, always on brand.

Best mugshot ever

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

This is all so dumb

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There were still ballots being counted yesterday

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

[…]

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

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

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

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

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

I have no idea.

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

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

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

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

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

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

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

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

[…]

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

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

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

UPDATE: From the Chron:

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

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

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

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

[…]

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

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

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

Omnibus 2022 election results post

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

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

– Some tweets to sum up the national scene:

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

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

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

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

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

– There were of course some technical issues.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE:

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

It always comes down to fluoride

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

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

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

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

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

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

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

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

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

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

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

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

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

Texas Central insists they’re still alive

It’s something, I guess.

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

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

[…]

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

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

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

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

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

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

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

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

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

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

The “abortion sanctuary cities” lawsuit at SCOTx

A big decision this will be.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

Endorsement watch: A smattering

The Chron endorses Stephanie Morales, the Democratic challenger in HD138.

Stephanie Morales

Stephanie Morales began her interview with the editorial board with a story about children who wind up in the care of Child Protective Services, fleeing harsh conditions at home only to find themselves sleeping in somebody’s office because the agency is so strapped for resources. Such are the heartbreaking realities that motivated her to run for the Texas House.

“I knew that there was a need,” she told us. “This is the perfect place for me to run where I can actually make a difference, because we need someone who has been boots-on-the-ground, actually representing kids and parents to truly change the system.”

Morales is a Texas A&M and South Texas College of Law-educated criminal defense lawyer whose cases often involve parents and juveniles in the CPS system. In her meeting with us, she talked at length about the “unintended consequences” of recent legislation meant to improve how the agency works. She displayed an expertise that would benefit the Legislature, and her constituents. She wants to add funding for more trauma-informed courts like the ones in use in Harris County, and to build and fund a halfway-house program for people who age out of the foster care system.

Morales, 33, is running for House District 138, which covers Jersey Village, Spring Branch and other parts of west Harris County. She argues that she’ll be more civically engaged, particularly with supporting children’s needs, than Republican incumbent Lacey Hull. “This district needs someone who will really advocate for them and wrangle resources that we need here,” she said.

She told us that her legislative priorities also would include bolstering protections against flooding, passing whatever “commonsense” gun-safety laws might be possible, improving the credit-recapture system in Texas schools and increasing teacher pay.

Hull was another Republican who didn’t bother to screen with them, and the Chron rightly dings her for her anti-trans activism. This is as noted one of the few competitive State House districts in the area, likely the only one in Harris County that has a chance of flipping. I’ll be very interested to see how it performs in comparison to 2020. You can listen to my interview with Stephanie Morales, who is indeed a strong candidate and would make a fine legislator, here.

Elsewhere, the Chron endorses three Republican Supreme Court incumbents, two Republican CCA incumbents, the Libertarian candidate in CD22, as the Republican incumbent is an insurrection-loving MAGA-head and the Democratic candidate appears to be an apparition, State Rep. Jon Rosenthal, now in a much bluer district, US Rep. Sylvia Garcia, and a bunch of Criminal District Court nominees, slightly more than half of whom are Dem incumbents. They still have a ton of races to get to, and as has been the case in a number of elections they will have to do many of them after voting has begun.

Another depressing story about the existential future of Texas Central

It’s sad, y’all.

People in the path of a proposed but floundering high-speed rail line between Houston and Dallas last week filed a letter that in many ways labels Texas Central Railroad the little engine that will never be.

They think it can’t. They think it can’t. They think it can’t.

“Granted, Texas Central appears to be doing things,” attorney Patrick McShan said in the letter sent to the company on Sept. 29. “But none of the things Texas Central is now doing suggest in any manner whatsoever that it does, in fact, intend to construct the project.”

The planned rail line, once touted as mere months from construction, now is more paperwork than planning. Since its former CEO left in June, the company has said it is securing financing, but shown little other signs of life, beyond a July 8 statement after the Texas Supreme Court affirmed its right to use eminent domain to acquire property.

“Texas Central has made significant strides in the project over the last several years and we are moving forward on a path that we believe will ensure the project’s successful development,” the company said then. “We look forward to being able to say more about this at an appropriate time in the near future.”

The company did not respond to a request for comment on Friday.

Citing various examples, McShan’s letter said it appears Texas Central is operating as a shell of a corporation, paying property taxes it owed in eight of the 11 counties where it owns property, but still owing HOA dues for numerous locations and property taxes in Ellis County.  It reportedly, McShan said, has lost investment from Japan once considered necessary for the project, and has sold some of the properties it acquired during six years of planning and design.

The company never has applied for any construction permits related to construction of the line, though it has certain federal clearances.

“We believe Texas Central has not filed, nor will it ever file, an application for a construction permit for two reasons,” McShan wrote. “One, Texas Central does not want to make these required financial disclosures; and two, it knows that if it did make these disclosures its application would be summarily denied.”

See here and here for the previous depressing examples. I note that the last post on the Texas Central Twitter page was July 8, in response to that last story. If you can’t even issue a pro forma denial to this sort of thing, it is eminently reasonable to wonder what the heck is going on over there, and if anyone is doing anything. I’d love to find some reason for a bit of optimism, but right now that just ain’t there. Please prove me wrong, guys.

SCOTx to rule on the HISD takeover lawsuit

This feels like something from another era.

The Texas Supreme Court on Thursday heard arguments on a yearslong case over whether the Texas Education Agency has the authority to remove all of the Houston school district’s board members and temporarily replace them with a state-appointed board. At the center of the hearing was the impact of a law that updated the education code last year and that TEA lawyers argued cleared the path to implement the agency’s plan.

The state’s highest court took the case nearly two years after the Third District Court of Appeals sided with the Houston Independent School District and upheld a temporary injunction barring TEA Commissioner Mike Morath from taking over the board in response to the continued low performance of HISD’s Phillis Wheatley High School as well as allegations of misconduct by trustees.

The current HISD board will remain in office as long as the injunction stands. If the court were to eventually side with the TEA and overturn the injunction, state education officials could install a new board, which in turn could vote to terminate the HISD lawsuit.

[…]

Appealing the decision during oral arguments Thursday, TEA’s attorney Kyle Highful said that factoring major updates to the Texas Education Code introduced by Senate Bill 1365, which was passed last year, would “greatly simplify” the case.

For instance, appeals court justices previously ruled that Delaney’s time overseeing Kashmere High School did not count toward her time as a district-level conservator, so the state had yet to meet the two-year requirement of having a district-level conservator to trigger state law. Highful said this new law has now removed the distinction between campus-level and district-level conservators.

He also noted that while Wheatley High School has recently earned a passing grade, the school had seen years of consecutive failures beforehand.

“The court should go ahead and take the opportunity to resolve this dispute now both for judicial economy because the case has been moving up and down through the courts for several years,” Highful said, “and because the HISD students are still in need of state intervention.”

In response, HISD’s attorney David Campbell said it would be appropriate to remand the case for a trial court to consider changes to the temporary injunction based on the new law.

But he stressed that the current temporary injunction had been in place for almost three years, adding that HISD was ready to “move expeditiously” and make a case for a permanent injunction in 2020. On the other hand, he said there has been limited ability to update their arguments to take into account the new law.

“We have not tried to delay things in any way. If we could have developed facts under the new law, we would have. We haven’t been given that opportunity, because the case has been on appeal,” Campbell said.

The original talk about taking over HISD began in 2017 and was accelerated by an ethics investigation into the actions of several HISD trustees, nearly all of whom are no longer on the Board. The lawsuit by HISD was filed in 2019 and it argued that the TEA did not follow the law in doing the takeover, as noted in the story. HISD won the injunction in state court after being denied in federal court, and last year the Supreme Court ruled that the appellate court had the power to impose the injunction for while the suit was being litigated. And so here we are.

The TEA is now arguing that because the law in question that the TEA didn’t follow correctly has been changed by the Legislature so that the TEA would meet its requirements now, the takeover can proceed. HISD is basically saying that there’s no longer a need for a takeover since the two schools in question are both meeting state standards, but if we have to consider the new law then the case should go back to the district court and be re-heard with the new facts. The questioning from SCOTx seems to indicate that this might be where they go with this. In addition, as the Chron story notes, there’s another factor to consider:

It’s also important for the justices to consider that it was a mostly different board and superintendent in charge when talks of a take over began, said Duncan Klussman, an assistant clinical professor with the Educational Leadership and Policy Studies department at University of Houston.

“The system has many new board members and completely new leadership is in place,” Klussmann said. “My feeling is that at this stage this is really about whether the commissioner really has the authority to do this.”

Yes, that’s the same Duncan Klussman who’s running for CD38. The argument that the Board is different now was also made by two then-newly elected Trustees, Judith Cruz and Dani Hernandez, who had just defeated the two main players in that ethics incident. Two more of the trustees involved were defeated in 2021; only one of the five named in the complaint is still on the Board. Other trustees are new since 2019 as well. If nothing else, if the TEA does get to step in, they should put the Trustees who weren’t on the Board then on their appointed Board. That would seem to be a reasonable compromise if it comes to that, but we’re getting ahead of ourselves. First the Supreme Court has to decide what to do with this appeal. After that, if it’s relevant, we can argue about what comes next.

There are many variables affecting what might happen with abortion law in Texas

Another way to put this: What can Beto do as Governor with a Republican legislature to make abortion laws less bad in Texas?

Toward the end of a virtual campaign event last month, one of Beto O’Rourke’s supporters asked how he would fulfill a key pledge: overturning the Texas ban on abortion.

The Legislature is virtually certain to remain under Republican control next year, leaving O’Rourke with no clear path to restore abortion access if he were to defeat Gov. Greg Abbott in November. But the Democratic nominee insisted he could bring lawmakers around.

“The shockwaves that it will send through this state to have a proudly, boldly pro-choice Democrat win for the first time in 32 years … will give us the political capital, the leverage we need to make sure that we can restore protections for every single woman in Texas to make her own decisions about her own body,” O’Rourke said.

He would also use “the power of the governor’s veto to stop bad ideas that are coming down the pike already,” he said.

But the proposals that most animate O’Rourke’s base — abortion rights, gun restrictions, expanded voting access — would likely face stiff resistance from Republican lawmakers, many of whom will return to Austin with no desire to rescind laws they passed as recently as last year.

Under those conditions, O’Rourke’s ability to enact core parts of his agenda would require a near-impossible level of legislative savvy, and unsparing use of the governor’s limited tools to influence the lawmaking process, such as vetoing bills and budget line items, veterans of Texas politics say.

[…]

On paper, Texas governors have limited power to shape public policy, with no cabinet and less control over state agencies than most of their counterparts around the country.

In recent years, though, Abbott and his predecessor, Rick Perry, have expanded their sway through sheer longevity — each staying in office long enough to stock boards and commissions with allies. Abbott has also used disaster orders to bypass the Legislature and steer policy on border security, the state’s COVID response, Texas National Guard deployments, and more.

Governors can also influence how laws are interpreted and enforced, through their appointments to state boards and commissions and directives to state agencies via executive order.

But governors cannot fire even their own appointees, let alone those of former governors, meaning O’Rourke would be stuck with thousands of Abbott appointees until their terms expire.

He could appoint their replacements between legislative sessions without immediate oversight, though each appointee would eventually require approval from the Republican-majority Senate once the Legislature is in session.

O’Rourke’s most potent tool to influence the lawmaking process would likely be his power to veto laws and spending he opposes, which governors have historically wielded as a powerful bargaining chip. O’Rourke said he would use that power, if necessary, to nix policies like private school vouchers, which Abbott has supported.

“Being able to stop that is incredibly important,” O’Rourke said. “But it also affords the governor leverage, in a broader sense, to bring people to the table and to make sure that we find that common ground, we get to that consensus, and we make some progress.”

The veto argument is one I was making about Wendy Davis back in 2014, before some of the worst anti-abortion legislation was passed. It’s still salient today, though the context is now very different. At the very least, it would be a hard stop against the vengeance fantasies of sociopaths like Briscoe Cain.

I think we can safely put aside any ideas about Beto reaching across the aisle for bipartisan compromise legislation on almost anything. Not that he wouldn’t sincerely try, and he could lead with things that under other circumstances might have genuine bipartisan appeal, like improving broadband access or drought mitigation. I just don’t believe that Republicans will move an inch even on things they have championed in the past to give him a legislative victory – their primary voters will not stand for it. I’d love to be too cynical about this, but it’s very much a prove-me-wrong situation. There may be some opportunities in the budget, where he will have line item veto power and where a lot of sausage making goes on behind closed doors, but don’t look for anything bigger than that. At least one chamber will need to be Democratic-majority before anything like that could realistically happen.

The use of executive power is an interesting possibility, and one where recent history is of much better use than past history. Abbott and Perry have absolutely pushed the bounds on what a Texas Governor can do, though to be fair they have had a docile and largely submissive legislature and a mostly compliant Supreme Court abetting them, neither of which Beto would have. All of the contradictions and hypocrisies that will result when those institutions suddenly decide that maybe there should be some limits on executive power won’t mean much given how little that kind of thing engages the public. All that said, Beto should look for every opportunity to push the envelope. He has little to lose by doing so.

Now, to complicate my earlier assertions about bipartisan legislation and compromise, we do have one slim possible avenue for such a thing.

Republican state Sen. Robert Nichols of Jacksonville said Friday that he’d support a change to Texas’ abortion laws to allow victims of rape to legally obtain the procedure.

“If I get a chance to vote for an exception to rape, I will vote yes,” the East Texas senator said during a panel of Republican lawmakers at the 2022 Texas Tribune Festival. “I think instead of us telling women what to do, we should show our support for women of this state.”

Nichols is one of the first anti-abortion lawmakers to say he would support loosening the abortion laws when lawmakers meet in January.

[…]

Texas is competing against private companies who are willing to bus their employees out of state for “pregnancy care,” said Nichols. “And what are we doing?”

At the least, Nichols said, the state should provide a minimum of four weeks of paid maternity leave for state employees.

Nichols self-identifies as “pro-life” and has voted in favor of the state’s abortion laws, including the “fetal heartbeat” law that went into effect last September. The law prohibited most abortions after an ultrasound could detect cardiac activity in a embryo, about six weeks into a pregnancy. Nichols’ office did not immediately respond to questions about whether the senator would support any other exceptions to the abortion law, such as for incest.

I would point out that as an actual Senator, Nichols could author such a bill himself and perhaps even try to persuade his fellow Republicans to vote for it, including in the House, rather than wait for such a bill to magically appear before him. Crazy talk, I know, but it’s what I do. The question here, as above, is whether Nichols would still support such a bill even if it would then be sent to Governor O’Rourke for a signature, or whether that would be out of bounds as per the same politics I discussed above. My guess is the latter is more likely, but we’ll see. For what it’s worth, signing a bill that merely allowed for a rape exception to the current ban, without at least clarifying the “life and health of the mother” exception that is causing so much chaos and mayhem in the hospitals now would not be a clear win for Beto in my estimation. I believe it would garner at best grudging support from reproductive rights advocates, even if it was clearly the best we could get under the circumstances, just because it’s so incremental and would give some form of approval to that strict a legal regime. I could be wrong about that, I’m just saying that this stuff is more complicated than it looks and there are way too many variables to support making any kind of prediction. We’ll know a bit more after the election, but for now almost anything could happen. We need to do what we can to put ourselves in the best possible position to affect the outcome.

Ken Paxton keeps trying to kill the SAISD vaccine mandate

On brand, always on brand.

Texas Attorney General Ken Paxton has filed another petition seeking to reverse a Bexar County judge’s decision that rejected the state’s bid for a temporary injunction to block the San Antonio Independent School District’s staff vaccine mandate.

Even though SAISD’S vaccine mandate remains on pause despite the court’s ruling in its favor, Paxton said he will “continue fighting for medical freedom.”

“Nobody should be bullied, coerced, and certainly not fired because of their COVID-19 vaccination status,” said Paxon in his announcement, adding the decision is not only an affront to individual liberty, but “illegal under Texas law.”

“The governor’s executive order specifically protects workers from the type of mass firings that San Antonio ISD is seeking, and I will continue to fight in court to defend GA-39 and Texans’ medical freedom,” he said.

The petition was filed Sept. 7 with the Texas Supreme Court.

An SAISD spokeswoman said in a statement that the vaccine mandate remains suspended and that no employee was ever disciplined for refusing to get the vaccine.

See here and here for the previous updates. There’s a recitation of the long history of this legal saga in the story if you want that. I remind you that this mandate was never enforced and remains on pause, not that these things matter to Ken Paxton. The appellate court ruling that Greg Abbott doesn’t have the power he claimed to have when he forbade these mandates seems pretty clear to me, but you never know what SCOTx will do. Now we wait to see if they’ll take this up.

Broader injunction issued to halt DFPS investigations of trans kids’ families

Good.

Texas’ child welfare agency is once again blocked from investigating parents who provide gender-affirming care to their transgender children. The injunction applies to any family that belongs to PFLAG, an LGBTQ advocacy group with more than 600 members in Texas.

The injunction also specifically protects a handful of families named in the suit, including the Briggles, outspoken advocates for transgender youth who were among the first to be investigated under this directive.

This is the latest chapter in a monthslong legal battle over whether providing medically indicated gender-affirming health care, under the guidance of a doctor, could result in a finding of child abuse by the state.

In February, following a nonbinding legal opinion from Attorney General Ken Paxton, Gov. Greg Abbott directed the Department of Family and Protective Services to investigate parents who provide gender-affirming care to their transgender children.

The Texas Supreme Court has ruled that Abbott had no grounds to direct DFPS to investigate these families but overturned a statewide injunction on procedural grounds.

The American Civil Liberties Union and Lambda Legal brought another lawsuit after that first injunction was overturned, seeking protections on behalf of all members of PFLAG. Travis County District Judge Amy Clark Meachum granted that injunction Friday, three months after hearing arguments.

See here for the previous update and here for a copy of the ruling. This injunction will benefit a lot more families as noted by the story, but we know that it will be appealed and ultimately the Supreme Court will have the final word, so celebrate responsibly. Assuming it hasn’t been mooted by that point, there will be a trial on the merits in Judge Meachum’s court next June. The ACLU, Lambda Legal, Amber Briggle, and the Chron have more.

SCOTx maintains judicial bypass rules for abortion

Good news.

The Texas Supreme Court has opted to keep in place a legal process that allows minors to seek a judge’s approval to have an abortion without parental consent, though state law now bans the procedure in most circumstances.

Chief Justice Nathan Hecht had asked an advisory committee to the high court to make a recommendation on the matter last month, citing the U.S. Supreme Court ruling in June that overturned federal protections for abortion as the reason for the reconsideration.

The committee unanimously voted to keep in place the process, known as judicial bypass, and add new language spelling out that it will only be available to minors in the extremely limited circumstances allowed by Texas law: when their life or major bodily functions are at risk.

See here and here for the background, and here for the actual rules. I’m glad to see that my initial fear that this would be a disaster was off base. That said, while this is good news it’s not great news, and that’s because the judicial bypass process is even rarer than it was before the Lege passed that vigilante bounty hunter law. As the story notes, in the last month before that law was passed, 20 minors were able to obtain a bypass. In the first month after it passed, that number was two. I guarantee you, the need for this didn’t drop by ninety percent. Just the ability to get the care these girls need. The fact that it didn’t fall all the way to zero counts as a win these days.

Still wondering about the existential future of Texas Central

I really hoped this would be a thing. If it isn’t, it’s a great wasted opportunity.

Ten years ago, a company calling itself Texas Central High-Speed Railway announced plans for a trailblazing bullet train that would whisk passengers between Dallas and Houston in 90 minutes. Company leaders exuded confidence that the trains would be running up to 205 miles per hour by 2020.

The potential for an American high-speed rail line captured the imagination of Texans and national train enthusiasts alike. At one point during an event celebrating the unbuilt high-speed rail line, then-Vice President Joe Biden told a Dallas crowd, “You’re going to lead this country into an entirely new era of transportation.”

But a decade on, there are still no new tracks between Dallas and Houston.

Through multiple business entities who often use some version of the Texas Central moniker, developers of the project spent years raising hundreds of millions of dollars for construction, fighting conservative lawmakers’ attempts to dampen their plans and buying land needed to lay the tracks. Perhaps the biggest battle, though, came from legal challenges to the company’s claims that state law allows it to forcibly purchase property when owners aren’t willing to voluntarily sell.

In June, the Texas Supreme Court settled the matter and handed the company what could be a watershed victory, ruling that Texas Central can use eminent domain for its high-profile project. By the time the court ruled, though, Texas Central’s board had reportedly disbanded and its CEO and president had resigned. The project’s original timeline had already gone off the rails (at one point the construction was slated to begin in 2017). And land acquisition seems to have all but stopped in the last two years, according to land records reviewed by The Texas Tribune.

A spokesperson for the company, who is employed by a consulting firm that handles Texas Central’s media requests, says the project is still in the works.

But the company and Becker have declined to answer specific questions about the leadership exodus, apparent slump in land acquisition, funding prospects and status of permits Texas Central would need to move forward. A federal transportation agency says it hasn’t had contact with the company in two years. The portion of Texas Central’s website that once listed executive leaders is now blank — as is the list of current job openings.

Texas Central’s relative silence on the recent developments has left supporters of the project, who would like to see two of the state’s largest economic engines more easily connected, in limbo. Opponents, who have long railed against the idea of a private company using eminent domain to seize Texans’ land, are cautiously hoping Texas Central won’t rebound.

Even if the company resurges, there remain major obstacles ahead to acquire land and finance an increasingly expensive project described as “shovel ready” as recently as 2020. The stakes of the high-speed rail project extend beyond the company and Texas. The 240 miles of relatively flat land between Dallas and Houston has long been heralded as the ideal location for what Texas Central and its supporters say could be the first leg of a national high-speed rail system that transforms the country.

There are few infrastructure projects in the country that can compare in size to the Texas rail line. A California high-speed rail project between Los Angeles and San Francisco also faces significant political, financial and legal hurdles. But Michael Bennon, the program manager at Stanford University’s ​​Global Infrastructure Policy Research Initiative, hangs a lot of hope on the Texas project given the relatively short distance, estimated frequency of travel and the landscape between the two cities.

“If you can’t do high-speed rail in that corridor, it’s hard to imagine it working anywhere else,” Bennon said.

There’s a lot more, so read the rest. This is not the first possible elegy to what might have been with TCR. I’m of the belief that nothing is truly dead until you see the body, but I’m not feeling very optimistic right now. The damn shame of it all is that this was a great idea, and it should have worked. Lots of factors combined to make it not work – again, if this is indeed the end, which I still hope it isn’t – and I have no idea what could make something else work in its place. Honestly, at this point I’m not sure I’d live to see whatever that might be, given the ponderously long times these things take, whether or not they ultimately go anywhere. All I can say is that I hope the reports of TCR’s death are exaggerated. But I don’t have much faith that they are.

Libertarians will remain on the ballot

Too bad, Republicans.

The Texas Supreme Court on Friday rejected a Republican effort to remove a host of Libertarian candidates from the November ballot, saying the GOP did not bring their challenge soon enough.

In a unanimous opinion, the all-GOP court did not weigh in on the merits of the challenge but said the challenge came too late in the election cycle. The Libertarian Party nominated the candidates in April, the court said, and the GOP waited until earlier this month to challenge their candidacies.

On Aug. 8, a group of Republican candidates asked the Supreme Court to remove 23 Libertarians from the ballot, saying they did not meet eligibility requirements. The Republicans included Lt. Gov. Dan Patrick and others in congressional and state legislative races.

State law requires Libertarian candidates to pay filing fees or gather petition signatures, the amount of each depending on the office sought. The Libertarian Party has been challenging that law in federal court, arguing it is unfair because the fees do not go toward their nomination process like they do for Democrats and Republicans.

Republicans also tried and failed to kick a group of Libertarian candidates off the ballot in 2020. In that case, the state Supreme Court said the GOP waited until after the deadline to challenge candidate eligibility. This time, the Republicans filed their challenge before that deadline but apparently still did not satisfy the court’s preference to deal with election challenges as soon as the alleged issues arise.

In its opinion Friday, the court suggested the “emergency timeframe” argued by the GOP “is entirely the product of avoidable delay in bringing the matter to the courts.”

See here for the background, and here for the Court’s opinion. Basically, SCOTx is saying that the GOP should have filed their challenge in or closer to April, when the Libertarians nominated their no-fee-paying candidates, and that claiming something is an emergency doesn’t make it one. They did not rule on the merits, as noted, so the question of whether this kind of challenge could be successful – so far, we haven’t seen a successful challenge, but in the prior cases that was due to timing and technical matters, so there’s still no precedent – remains unanswered. Maybe in 2024, if the federal lawsuit the Ls have filed doesn’t make it moot. The Chron has more.

SCOTx advised to leave judicial bypass rules in place

This is a pleasant surprise.

An advisory committee to the Texas Supreme Court voted unanimously Friday to keep in place a legal procedure that allows minors to get a judge’s approval to have an abortion without the legally necessary parental consent.

[…]

Texas will ban nearly all abortions on Aug. 25 under a new law that was triggered by the high court’s decision. The law includes no exception for victims of rape or incest, but it does include an exception for pregnancies that risk death or “substantial impairment of a major bodily function.” The exception has spurred debate statewide, especially among doctors and hospital groups concerned that it is too vague and creates legal liability for them.

The subcommittee that reviewed the issue on Friday noted that the situations in which minors will be seeking abortions will be extremely limited, but could plausibly arise.

Legislative mandates subcommittee chair Jim Perdue said at the meeting Friday held in Fort Worth and livestreamed online that the decision was separate from the political debate over abortion. The legal procedure available to minors, known as judicial bypass, has never had to do with whether an abortion is proper or improper, he said, but rather whether a minor should be able to make the decision without parental consent.

Texas law already allows doctors to perform abortions during medical emergencies when there is “insufficient time” to provide parental notice. Perdue, echoing what lawyers who represent the minors in court had argued, said there may still be situations that are critical to the patient’s health but not necessarily urgent emergencies.

“You don’t need to be bleeding out actively to potentially have a situation where a woman under the age of 18 is pregnant and suffering a life-threatening condition,” Perdue said.

Blake Rocap, legal director for Jane’s Due Process, which offers legal representation to minors seeking judicial bypass, said the subcommittee memo “correctly identifies the continuing need for the bypass rules and makes appropriate recommendations to acknowledge the impending change in Texas law without adding new requirements or making substantive changes that would be outside the scope of the rules committee and the judicial branch.”

See here for the background – my apologies for the inconsistency in naming standards. These are just the committee’s recommendations, the Court still has to adopt them, so the possibility that this could go sideways remains. But so far so good. This was the best possible outcome. We should know soon whether it sticks.

GOP seeks to knock Libertarians off the ballot

They tried this in 2020 with no success, but might be better positioned this year.

Texas Republicans have filed a petition to knock 23 Libertarian candidates off the November ballot for not paying their filing fees.

On August 8, 23 Texas Republicans filed a petition of mandamus with the Supreme Court of Texas to remove their Libertarian Party of Texas (LPT) competitors from the November general election ballot.

Some high-profile Republicans on the petition include Lieutenant Gov. Dan Patrick, U.S. Reps. Pat Fallon (R-TX-4) and Troy E. Nehls (R-TX-22), and candidate for U.S. House District 15 Monica de la Cruz. The four face opposition from Libertarians Shanna Steele, John Simmons, Ross Lynn Leone, Jr., and Joseph Leblanc, respectively.

“In addition to filing an application for nomination by convention,” the petition reads, “Texas law requires a candidate for public office to either pay a filing fee or submit a signature petition in lieu of a filing fee.”

“Despite their knowledge of these requirements, candidates seeking public office as members of the Libertarian Party of Texas in the upcoming 2022 General Election deliberately refused to pay their required filing fees and also failed to file their required signature petitions in lieu of payment of their required filing fees.”

Before filing the petition, the Republicans confirmed with the Texas Secretary of State that the Libertarians had not paid their filing fees. The Libertarians had not done so, prompting the Republicans to petition the Supreme Court “to issue an emergency writ of mandamus” to force the Libertarians “to comply with their legal and ministerial obligation.”

Texas Republicans filed a similar suit against the LPT in August 2020 for failing to meet their certification requirements, which the state Supreme Court rejected for missing the deadline. But this year, the petition was filed before August 26, “the deadline of the 74th day before the November 8th election” to file such a complaint.

Also in August 2020, three Democratic campaigns won restraining orders against three Green Party candidates who failed to pay their filing fees and were subsequently removed from the ballot.

In the Republicans’ suit two years ago, the Texas Supreme Court ruled that the code has different rules for parties that choose candidates through conventions, like the Libertarian Party, and those that use primaries, like the Republican and Democratic Parties.

In 2019, House Bill 2504 was filed to require parties that nominate candidates with conventions to pay a filing fee to appear on the ballot. The fee ranges from $300 for a State Board of Education candidate to $3,750 for statewide office.

“Parties holding primary elections are subject to one set of rules, and other parties are subject to other sets of rules,” the court wrote. “These differences may seem to benefit or burden one class of parties or another, depending on the circumstances.”

See here for some background on the Republicans’ attempt in 2020 to knock Libertarians off the ballot. The Dems did succeed in getting a few Green Party candidates off the ballot that year, but others were later reinstated with a little help from Ken Paxton. Never were there stranger bedfellows.

There is also a lawsuit that is as far as I know still active over that bill requiring third parties to pay a primary fee. There was an appellate court ruling in September of 2020, right in the middle of all the candidate-booting efforts, that sort of lifted a restraining order that prevented the Secretary of State from enforcing that law, but the ruling was far more complex than just that. I honestly have no idea if the restraining order is still in place or not, but I suppose the Supreme Court will address that when it rules on the mandamus. I also have no idea if Dems are going to try similar action against Greens this year; if they are, time is running short for them. This is one of those rare times when you can expect a ruling in short order, because the ballots need to be finalized soon. Chuck Lindell has more.

Supreme Court to review parental consent bypass rules

Nothing good is likely to come of this.

The Texas Supreme Court is reconsidering rules that allow Texans under 18 to obtain abortions without parental consent in light of the state’s soon-to-take-effect abortion ban.

Chief Justice Nathan Hecht asked an advisory committee to make a recommendation on the matter in an Aug. 1 letter obtained by Hearst Newspapers, asking the committee to “conclude its work” at a meeting next week on Aug. 19.

A spokeswoman for the high court explained that the justices believe the new law, and a landmark June ruling from the U.S. Supreme Court overturning federal protections on abortion, have “raised questions about whether the parental-notification rules are still consistent with Texas law.”

“The court asked the advisory committee to study the issues raised in the referral letter and make recommendations, which it does almost any time rule changes are contemplated,” said the spokeswoman, Amy Starnes.

Current Texas rules require abortion patients under 18 to notify their parents when they are seeking an abortion and receive their permission. But the rules also allow the teen to seek permission from a judge instead.

The number of minors who have been able to access that legal process ground to a near-halt after Texas imposed its six-week abortion ban in September 2021 — in August, 20 minors were able to get their cases before judges, state data shows. By October, once the ban was in place, that number dwindled to just two.

Still, attorneys who represent the young “Jane Does,” named as such in court filings for confidentiality purposes, say there will still be a need for the process, known as judicial bypass, even once the trigger ban takes effect on Aug. 25.

Though the trigger ban includes no exception for rape or incest, it does include an exception for pregnancies that risk death or “substantial impairment of a major bodily function.” The exception has spurred debate statewide, especially among doctors and hospital groups concerned that it is too vague and creates legal liability for them.

[…]

Blake Rocap, legal director at Jane’s Due Process, a nonprofit that helps represent pregnant minors in Texas, said there will still be a need for the bypass process for children whose physicians determine their pregnancies qualify for that health exception.

“You can see a possibility where a minor patient may have a pregnancy that is causing their health to deteriorate, causing a lot of risk or is dangerous for them in the future,” Rocap said. “Let’s say they’re a really young victim of sexual assault or incest and their body is not able to handle a full-term pregnancy just because they’re not physically big enough … They would need a bypass.”

Rocap added that would be especially important in the case of minors in CPS or foster care who will always need bypass because under Texas law, the state is not allowed to consent to abortion.

Less than 1 percent of abortions, or 31, were performed in 2021 on patients 13 years old or younger, according to data collected by the state health department. A little over 2 percent involved patients under 18, including 226 patients between 14 and 15 years old and 807 between 16 and 17.

I guess I’m not sure what it is that has changed here from the perspective of the judicial bypass process. Abortion is now far more restricted than before for minors, but if a young person qualifies for an abortion under the health exception then I don’t see how the question of whether they need to notify their parents or can be approved by a judge to protect their personal safety is any different. All of this makes my skin crawl and is a reminder why parental notification laws were such a bad idea in the first place – the kind of person who doesn’t want to tell their parents they need an abortion probably has a good reason for that. I have less visceral distrust of the Texas Supreme Court right now than I do of the US Supreme Court, but I don’t have much trust in what they’re doing here. I hope to be proven wrong about that.

SAISD vaccine mandate upheld again

Also still on hold, but the state loses again at the appellate level.

A state appellate court upheld San Antonio Independent School District’s authority Wednesday to mandate its workers get vaccinated against COVID-19, almost a year after the district instituted the requirement for all staff to help stem the spread of the virus.

The 4th Court of Appeals on Wednesday denied Texas Attorney General Ken Paxton’s request to overturn a Bexar County judge’s decision not to grant the state a temporary injunction to block the staff vaccine mandate. Judge Mary Lou Alvarez of the 45th District Court issued that ruling in October, allowing SAISD to continue enforcing the mandate.

The court also ordered that the costs of the appeal be assessed against the state.

Paxton filed a lawsuit against SAISD in September, after first suing the district over the mandate in August because the vaccine had not been approved by the federal Food and Drug Administration. The August lawsuit was dropped after the FDA approved the Pfizer COVID-19 vaccine.

The lawsuit has wound its way through the state court system over the past year. Paxton’s office appealed Alvarez’s ruling to the 4th Court of Appeals and also requested the appellate court temporarily block the mandate while it considered Paxton’s appeal. The attorney general then requested the state Supreme Court step in and halt the mandate, which it did in mid-October.

The Texas Supreme Court’s ruling forced SAISD to stop enforcing the mandate while the 4th Court of Appeals considered the state’s appeal of the temporary injunction that Alvarez denied.

[…]

Paxton’s lawsuit argued that SAISD’s vaccine mandate violated Gov. Greg Abbott’s executive order prohibiting governmental entities from implementing COVID-19 vaccine mandates, which the governor claimed he had the authority to do under the Texas Disaster Act. Attorneys for SAISD challenged that reasoning, contending the Act does not give the governor the power to suspend all state laws.

Wednesday’s ruling by the 4th Court of Appeals determined that the Texas Disaster Act does not give Abbott the authority to suspend parts of the Education Code that allow school districts to issue vaccine mandates.

“The Texas Disaster Act expressly limits the Governor’s commander-in-chief authority to state agencies, state boards, and state commissions having emergency responsibilities,” the ruling states. “The District is not a state agency, a state board, or a state commission. Rather, the Texas Disaster Act defines the District as a ‘local government entity.’”

See here for the previous update. This sounds like a solid ruling, one that SCOTx ought to uphold, though who knows what they’ll actually do. It would also be written on sand to some extent, in that if the Republicans retain full control of government next year they’ll just amend the Texas Disaster Act to make it cover school districts and/or explicitly exclude anything having to do with vaccinations. In the meantime, even though the policy remains on hold during the litigation, it’s surely the case that the mandate got some holdouts vaccinated during the period while it was in effect. That will always be a win, no matter what happens from here.

The Republicans just want to punish everyone for every abortion ever

They want to put you in jail.

More than 70 Republican state lawmakers have signed onto a friend-of-the-court brief siding with Attorney General Ken Paxton in arguing that a nearly century-old law imposing criminal penalties against those who help a patient obtain an abortion is enforceable now that the U.S. Supreme Court overturned Roe v. Wade.

A decision on whether that pre-Roe measure is enforceable is expected in the near future from the Texas Supreme Court, which has temporarily allowed the statute to be enforced civilly but not criminally.

The lawmakers, in a filing penned by state Rep. Briscoe Cain of Deer Park, argue that the Texas Legislature has “repeatedly and emphatically affirmed” the existence and continued enforceability of the old laws in recent legislation.

They note both the state’s anti-abortion trigger law, which will go into effect 30 days after the decision overturning Roe is certified, and its previous six-week abortion ban included language to that effect.

Lawyers for the plaintiffs — seven abortion clinic groups throughout Texas — point to legislative and judicial treatment of the old laws that they say proves they are no longer considered to be in effect, including a 2004 Fifth Circuit opinion that said the old laws were “repealed by implication.” The old statutes were also removed from copies of the state’s criminal and civil codes online.

In court records filed Monday, the Republican lawmakers argue that a state court can now make its own decision in the case, no matter how federal courts have ruled in the past.

They add that the Texas and U.S. Supreme Courts both “disfavor repeals by implication” and defers to it only when statutes can’t be “harmonized.” The lawmakers argue the laws could work in tandem.

See here for the background. This is nearly a legislative majority in itself. Imagine what they’ll do next spring if there are no checks on their power.

They also want to sue everyone in sight.

Texas anti-abortion conservatives are intensifying their efforts to shut down access for residents seeking abortions, with a near-daily drumbeat of threats and court filings aimed at donors, employers and others trying to help those patients.

They are part of a broad campaign by the anti-abortion rights movement, in the days since the U.S. Supreme Court reversed the constitutional right to abortion last month, to dry up avenues of assistance for Texans who have no access to abortion under several state laws and punish providers who have tried to legally continue offering services in a constantly changing legal landscape.

In their crosshairs are not just providers, but also nonprofit funding groups and the donors who support them; people who volunteer time or give money to abortion providers; employers who support pregnant workers in getting abortions; and the abortion clinics and employees themselves.

“Any person who was complicit in these illegal abortions—including [provider] Whole Woman’s Health employees, volunteers, and donors, and anyone who aided or abetted these illegal abortions in any manner, apart from the formerly pregnant woman upon whom the illegal abortion was performed — is equally liable under the Texas Heartbeat Act and equally guilty of murder,” reads a recent court filing by attorney Jonathan Mitchell, the legal architect of many of those efforts, including Senate Bill 8, a Texas law that bans abortions after fetal cardiac activity is detected and allows citizens to sue suspected violators.

[…]

When the trigger law takes effect, the state will have at least three separate laws on the books that collectively make abortion from the moment of conception illegal in Texas, in almost all cases, and hold violators liable either civilly or criminally.

But abortion opponents are ready to ask for more, threatening new laws that would extend Texas abortion laws beyond state lines, widen prosecutors’ powers to pursue abortion cases and further criminalize anyone who tries to help Texans get abortions.

“I think they’re emboldened, and I also think that frankly, the base that they’ve become dependent on is going to demand that they just keep going,” said Dallas attorney Elizabeth Myers, who represents Lilith Fund, an abortion-funding group and advocacy organization that is among those being targeted in civil court filings and by Texas legislators. “They will go until the court says no.”

On the civil side, courts in conservative Denton and Jack counties are likely to start hearing arguments in the coming weeks over whether to let Mitchell interview, under oath, two major funding groups about their involvement in potentially illegal procedures under both the 1925 law and SB 8. A similar request was filed by Mitchell in Howard County last week targeting abortion providers.

If that effort is successful, the information and documents that the abortion providers and supporters may be forced to turn over could help anti-abortion rights attorneys build lawsuits against them.

And although civil depositions can’t be legally used in criminal cases, they are public records and could be easily obtained by local prosecutors seeking an evidentiary road map for their own criminal cases.

See here for the background, and note that they got started several months before the Dobbs ruling. If you think they will continue to exclude the women who get abortions from their campaign of vengeance, you are giving way too much credit to a group of people who think that ten-year-old girls should be forced to carry a rapist’s baby and that hospitals should be held criminally liable for performing live-saving care. I would argue this isn’t their highest priority going forward, it’s their only priority. And sooner or later, they’ll come after all of us. What are we going to do about that?

Who gets to judge Volkswagen?

Fascinating little legal cul-de-sac here.

German car manufacturers Volkswagen and Audi — facing a lawsuit from Texas that could cost the companies millions stemming from the emissions cheating scheme uncovered in 2015 — argue that Gov. Greg Abbott could unfairly tilt the scales in the state’s favor by appointing two temporary justices to help decide the case.

Texas Supreme Court Chief Justice Nathan Hecht on June 24 asked Abbott to temporarily commission two justices to the state’s high court in order to decide a case related to an emissions-cheating lawsuit against Volkswagen and Audi. Volkswagen in 2015 admitted to deceiving regulators by designing software that circumvented U.S. emissions tests.

With tens of thousands of vehicles impacted in Texas, several millions of dollars could be at stake in the Texas case, according to the state’s civil penalties code. The issue before the state’s high court centers on whether Texas has jurisdiction over the foreign parent companies, Germany-based Volkswagen and Audi.

Justices Jimmy Blacklock and Evan Young recused themselves from the case, Hecht wrote in the letter, leaving the court with seven remaining members to rule on the case. The Texas constitution requires at least five justices to agree, one way or the other, in order to issue a supreme court decision, suggesting the remaining justices were split.

But because the state is a party in Attorney General Ken Paxton’s cases against the companies, Volkswagen and Audi’s lawyers have argued that allowing the Texas governor to appoint justices to a case for which the state stands to win a substantial amount of money would give “the impression that the State has had undue influence.”

“Although the Governor and the Attorney General are different officers, they both represent the same entity: the state of Texas,” wrote Jeffrey Wall, an attorney for Volkswagen in a letter to the court that was also sent to Abbott.

Hecht declined to comment on the letter, but a spokesperson for the Supreme Court of Texas said that there have been at least 13 other instances since 1995 in which the governor was asked to appoint temporary justices.

But neither the Supreme Court of Texas nor attorneys for the companies could identify another case in Texas history when the governor has been asked to commission temporary justices to a case for which the state is a party.

Abbott’s office did not respond to a request for comment.

Volkswagen and Audi’s lawyers say appointing the justices at this point would give the appearance of bias to the court.

“Attorney General Paxton brought these actions on behalf of the state in an effort to recover massive penalties from respondents,” wrote Wall. “Simply put the state may not pick two judges who will help to decide whether it wins or loses before this court.”

If the governor doesn’t commission two more justices, the cases could return to the Texas Court of Appeals, where Volkswagen and Audi had successfully argued that Texas did not have jurisdiction over the foreign companies. The court had found that Volkswagen and Audi’s recall-tampering activities were not “purposefully directed” at Texas, but directed at the U.S. as a whole.

See here for my previous blogging on this. The last entry I have is from 2018, in which settlement money from a different lawsuit was being distributed. There will only be money at stake here if SCOTx disagrees with the appeals court, and I can see why VW and Audi might be skeptical about letting Greg Abbott pick the two replacement justices. One suggestion for how to resolve this is for both sides to agree on a couple of names. I’m thinking maybe put all of the current appellate court justices’ names into a hat and randomly draw two of them. This shouldn’t be that hard to solve. But it’s always cool to see something that hasn’t come up before.

Another injunction issued to halt DFPS investigations of trans kids’ families

New case, different families.

A Travis County judge on Friday granted a narrow injunction against the state of Texas that will continue to block investigations of child abuse for two families who allowed their children to receive gender-affirming care.

The suit was brought by three Texas families and national LGBT advocacy group PFLAG in response to the Department of Family and Protective Services resuming the investigations this spring, after the Texas Supreme Court ruled it could in a similar but separate case.

“The DFPS Rule was given the effect of a new law or new agency rule, despite no new legislation, regulation, or even valid agency policy,” said Judge Amy Clark Meachum, a Democrat, in granting the injunction, which will last until the case’s resolution.

Like another Travis County judge who granted a temporary restraining order that blocked the investigations into the plaintiff families, Meachum wrote in her ruling Friday that restarting the inquiries would cause “immediate and irreparable injury” to them.

Unlike the previous injunction, however, Meachum’s order does not apply to all members of the chapter-based group PFLAG.

Meachum said Friday that she will “consider legal and factual consideration” and “rule as soon as possible” on whether to do so. Adam and Amber Briggle, the third plaintiff family, was also not included in Friday’s injunction, as their CPS case was closed after the lawsuit was filed.

[…]

There have been 11 investigations of parents of Texas transgender youth, testified Marta Talbert, a director of the state’s Child Protective Investigations unit who was called as a witness by state lawyers. Talbert said five have been closed and two are close to being closed.

The other four cases are stayed by the court through litigation. Talbert said this was either because the state found the youth were not on any kind of puberty blockers or hormones or, more often, because their doctor was able to provide information about their care to investigators.

Lawyers for the plaintiffs disputed that the investigations were being held up for purely administrative reasons and said there seemed to be “further activity” by the child welfare agency on them, contradicting Talbert’s testimony.

See here for a copy of the judge’s order. As the story notes, the state has already filed an appeal, so this will end up before the Supreme Court again in fairly short order. I’m going to go through a bunch of previous posts to review the history so far, but first let’s look at the Statesman story for some further details.

Meachum’s temporary injunction blocked the child-welfare agency from taking any action against the families other than to close its investigations — if that can be done without further contact with the parents or children.

The controversy began in February when Paxton issued a nonbinding legal opinion that said gender-affirming care was prohibited by state child-abuse laws. National medical experts said Paxton relied on false claims, exaggerations and errors to reach that conclusion, but Abbott followed with a Feb. 22 letter directing the Department of Family and Protective Services to investigate such care as abuse, and the state’s child-welfare agency agreed to do so.

Legal challenges followed.

The first lawsuit was filed by a mother, identified only as Jane Doe, who worked for the Department of Family and Protective Services and came under investigation after asking a supervisor what Abbott’s directive meant for her transgender teen. Meachum responded in March by issuing a statewide injunction barring all abuse investigations based solely on providing gender-affirming care.

Paxton’s bid to overturn the injunction is still before the Austin-based 3rd Court of Appeals, but in the meantime, the Texas Supreme Court substantially limited the scope of the judge’s order, striking down the statewide injunction in May while allowing it to apply only to the Doe family.

When Child Protective Services resumed child abuse investigations, three more families filed suit, this time joined by PFLAG, a leading LGBTQ advocacy organization. Last month, a different Travis County judge responded by issuing a temporary restraining order blocking investigations into the three families and any member of PFLAG.

On Wednesday, during a daylong hearing in Austin on whether to convert the restraining order into a longer-lasting injunction, lawyers for Paxton argued that state law gives the child welfare agency the authority to protect minors from abuse, including the potentially improper use of puberty blockers and hormone therapy.

To recap, the first lawsuit to block investigations resulting from Greg Abbott’s executive order, which in turn followed Ken Paxton’s nonbinding opinion, came on March 1, with a DFPS employee and her family, including her 16-year-old daughter, as plaintiffs; Amy Clark Meachum was the judge in this case as well. They won a restraining order, which was then appealed and upheld by the appellate court. On March 11, Judge Meachum issued a statewide injunction to stop the state from investigating anyone for child abuse based solely on the allegation that they provided gender-affirming medical treatment, and anyone from being prosecuted for child abuse for providing gender-affirming care and lifts the mandatory reporting requirements laid out in the directive. This was upheld by the appellate court after some shenanigans by Ken Paxton. On May 13, the Supreme Court upheld the original injunction for the first family that sued but overturned the statewide injunction, which allowed DFPS to pursue other investigations if it had grounds to do so. At that time, DFPS employees said that “agency leadership has acknowledged that these investigations do not meet the current requirements for child abuse and have said policy would need to be generated to match the governor’s directives”, which I believe is what Judge Meachum is citing in this ruling. DFPS did resume some investigations, which led to another lawsuit filed on behalf of three families, who were granted a restraining order by a different Travis County judge, Jan Soifer. One of the three plaintiff families in that case is the Briggles, whose investigation has since been closed by DFPS, which I believe means they are no longer party to that suit, though I could be wrong about that. And that, I believe, catches us up. Whew!

From here the usual pattern will be followed. The restraining order is being appealed, and if history is any guide it will be upheld by the Third Court and go from there to SCOTx. In the meantime, there will be a hearing for a permanent injunction, which according to Judge Meachum’s order will be on December 5. SCOTx may or may not get around to weighing in on the restraining order before then. Most likely some other suits similar to these current two will be filed, and perhaps DFPS will publish an update to their requirements to make their investigations less susceptible to these lawsuits. I have no idea how long that process may take or what the new requirements might look like. I don’t think there’s any relevant federal activity that could have an effect, but that may change, and I might be wrong about that. Needless to say, the 2022 election will have an effect as well.

One more thing, from the Chron story:

The state called as a witness James Cantor, a clinical psychologist based in Ontario, Canada, who said his reviews of studies have found that the majority of children with gender dysphoria no longer end up having symptoms of the condition after hitting puberty and instead “tend to realize they are gay or lesbian.”

Most of the studies he cited in a blog post making the same argument were published before 1988. Gender identity disorder did not make an appearance in the nation’s manual of mental disorders until 1980.

The plaintiffs’ attorneys objected to Cantor’s testimony, saying the studies referenced were not of transgender youths but rather “tomboys” or “effeminate” youth. They also pointed to a North Carolina district court opinion that found that Cantor lacked personal experience or expertise treating minors with gender dysphoria and therefore gave his testimony “very little weight.”

“It’s a complete misrepresentation of the science, one that frankly is the basis and foundation for all of Paxton’s opinions, Gov. Abbott’s directive and the department’s actions,” said Omar Gonzalez-Pagan, senior attorney with Lamda Legal. “It’s a fundamental misunderstanding about trans kids because they don’t believe trans kids should exist.”

This is your reminder that the state’s entire case is built on bullshit and lies, and should be laughed out of the courtroom. The Los Angeles Blade has more.

Paxton escapes open records lawsuit

Sheesh.

Best mugshot ever

The Travis County district attorney’s office will not proceed with a lawsuit against Texas Attorney General Ken Paxton for refusing to release his communications around the time of the Jan. 6 attack on the U.S. Capitol.

Despite determining that the attorney general likely violated the state’s open records law, the district attorney’s office said it would not sue because journalists who had requested Paxton’s records declined to testify in court in order to protect their sources.

The district attorney’s office launched its investigation of Paxton’s office after editors at Texas’ largest newspapers filed a complaint earlier this year alleging that the attorney general was breaking the state’s open records law.

In a hand-delivered letter to Paxton on Jan. 14, Jackie Wood, the district attorney’s director of public integrity and complex crimes, stated her office concurred with the allegations in the editors’ complaint and gave Paxton four days to cure the violations or face a lawsuit.

“We were encouraged that the district attorney agreed that Paxton’s office violated the law,” said Maria Reeve, executive editor of the Houston Chronicle. “We hoped that those facts would be sufficient for a lawsuit to proceed — and that our reporters would not need to testify.”

Paxton’s general counsel, Austin Kinghorn, said the allegations were “meritless.”

Wood later asked the journalists if they’d be willing to testify in court about the roadblocks they encountered trying to obtain records from the attorney general’s office. The newspapers declined to do so over concerns that reporters could be forced to testify about their unnamed sources or newsgathering methods. If they refused to answer, they’d risk being found in contempt of court.

“Therefore, it is the decision of this office not to proceed to seek declaratory and injunctive relief in order to bring Attorney General Ken Paxton and the Office of the Attorney General into compliance with the public information requirements of the Texas Government Code,” Public Integrity Unit Team Leader Rob Drummond wrote in a July 1 letter to Reeve.

See here, here, and here for the background. On the one hand, I understand that the papers didn’t want to put any of their employees in legal jeopardy. On the other hand, I feel like they had some duty to pursue this to a conclusion, since they filed the complaint in the first place. Was there no way for a private citizen, someone who wouldn’t have sources to risk, to testify in their place? I don’t understand the legal subtleties of this. I’m just frustrated by the outcome.

SCOTx re-enables statewide abortion ban

Ugh.

The Texas Supreme Court has blocked a lower court order that had allowed clinics in the state to continue performing abortions even after the U.S. Supreme Court overturned it’s landmark 1973 ruling that confirmed a constitutional right to abortion.

It was not immediately clear whether the clinics in Texas that resumed performing abortions just days ago would halt services again following the ruling late Friday night. A hearing is scheduled for later this month.

The whiplash of Texas clinics turning away patients, rescheduling them, and now potentially canceling appointments again — all in the span of a week — illustrates the confusion and scrambling that has taken place across the country since Roe v. Wade was overturned.

An order by a Houston judge on Tuesday had reassured some clinics they could temporarily resume abortions up to six weeks into pregnancy. Texas Attorney General Ken Paxton quickly asked the state’s highest court, which is stocked with nine Republican justices, to temporarily put that order on hold.

“These laws are confusing, unnecessary, and cruel,” said Marc Hearron, attorney for the Center for Reproductive Rights, after the order was issued Friday night.

Clinics in Texas — a state of nearly 30 million people — stopped performing abortions after the U.S. Supreme Court last week overturned Roe v. Wade. Texas had left an abortion ban on the books for the past 50 years while Roe was in place.

Attorneys for Texas clinics provided a copy of Friday’s order, which was not immediately available on the court’s website.

See here and here for the background; Steve Vladeck provides a bit more context. You can see a summary of the order (order 22-0527) here. The relevant bits:

The parties are directed to submit briefing by 5 p.m. July 7, 2022 regarding whether the 269th District Court of Harris County, Texas, has jurisdiction to enjoin the enforcement of a criminal statute. See State v. Morales, 869 S.W.3d 941 (Tex. 1994). Real parties in interest are requested to respond to relators’ petition for writ of mandamus by 5 p.m. July 11, 2022. This order does not preclude further proceedings in the court of appeals and district court, including proceedings to address the jurisdictional issue described in paragraph 2 above. The Court is confident that those courts will proceed expeditiously.

[Note: The petition for writ of mandamus remains pending before this Court.]

The 269th Civil Court in Harris County, which issued the temporary restraining order that SCOTx has now lifted, has a hearing scheduled for July 12 to determine whether an injunction can be granted. We may get that on the 12th or 13th, and then subsequent rulings from SCOTx shortly thereafter. I assume the writ of mandamus was filed by the Attorney General to supersede all this and just declare that there’s nothing stopping them from enforcing that 1925 law that criminalized abortion. Don’t you just love it when this kind of order drops on the Friday evening of a holiday weekend? Axios, the WaPo, the NYT, and the DMN have more; as of Saturday morning when I drafted this the Trib had not yet published anything and the Chron was carrying this same AP story. Like I said, Friday night, holiday weekend.

UPDATE: Here’s the Trib story.

Supreme Court confirms that Texas Central is a railroad

Hope it’s not too little, too late.

The Texas Supreme Court on Friday gave the go-ahead to beleaguered plan to build a bullet train connecting Houston and Dallas, ruling that companies behind the project have the power to acquire private property through eminent domain. .

In a 5-3 ruling issued Friday, the high court said that Texas Central Railroad and Texas Logistics could indeed be considered as an “interurban electric railway companies” under state law, even though they have yet to build a railroad, and may never do so.

The decision culminates a years-long legal battle, launched by landowners along the bullet train’s route shortly after project was proposed. One of them, Leon County rancher James Fredrick Miles, filed suit in 2016, after Texas Central sought to survey the roughly 600 acres he owns along its “preferred” route—land which would be bisected if the bullet train is built.

The case turned on what it means to be a “railroad company” or “interurban electric railway company,” which have eminent domain authority under the state Transportation Code.

On HoustonChronicle.com: Critics say the idea of a Houston-Dallas bullet train could be over

Miles, along with other property owners argued that Texas Central didn’t qualify because it wasn’t operating a railroad and may never do so. Texas Central has yet to build any tracks or train stations, or acquire the Japanese Shinkansen railcars called for in the project proposal.

The project’s proponents, however, argued that this line of reasoning yielded a chicken-and-egg problem that would make it impossible to ever build a rail line.

A trial court sided with Miles. A court of appeals in 2020 overturned that ruling, leading Miles to petition the Texas Supreme Court for review. Friday’s ruling affirms the appellate court’s ruling.

See here for the previous update, and here for the majority opinion; there were two concurrences and two dissents, and you can find all of those documents here. As the story notes, this ruling comes at a time of turmoil for Texas Central. It’s not clear if this will finally enable them to move forward with construction, or if the only beneficiary will be whatever tries to resurrect the idea of a privately-run high speed railroad following their downfall. But in the end, they were indeed a railroad. That has to mean something.

Where are we with the Paxton whistleblower lawsuit?

We are in the familiar position of waiting for the drawn-out appeals process to conclude. Pull up a chair and make yourself comfortable.

Best mugshot ever

The appeals process has grown a bit longer in state Attorney General Ken Paxton’s effort to dismiss a whistleblower lawsuit by four top agency officials who claim they were improperly fired in 2020 after accusing him of accepting bribes and other misconduct.

Paxton turned to the Texas Supreme Court 7½ months ago after two lower courts rejected his bids to toss out the lawsuit.

Last month, the Supreme Court told Paxton and the whistleblowers to provide justices with a deeper dive into the legal issues involved, kicking off a second round of legal briefing that was recently extended when the court granted Paxton’s request for an extra month to file his expanded brief.

Paxton’s brief is now due July 27, and although the court told Paxton that additional extensions aren’t likely to be granted, the move means the final brief isn’t due until Aug. 31 at the earliest.

That moves the case into election season as Paxton seeks a third four-year term against a Democrat, Rochelle Garza, who has made questioning Paxton’s ethics a campaign centerpiece. Three opponents tried the same tactic against Paxton in this year’s GOP primaries without success.

The timing also puts the case close to the two-year anniversary of when eight top officials of the attorney general’s office met with FBI agents and other investigators to relate their suspicions that Paxton had misused the powers of his office to help a friend and political donor, Austin real estate investor Nate Paul.

See here and here for the most recent updates. Paxton’s argument is that as an elected rather than appointed official, he doesn’t count as a “public official” under the Texas Whistleblower Act, so the employees who fired him have no grounds to sue. He has other arguments, but that’s the main thing that will be of interest to the Supreme Court. I’m sure you can surmise what I think, but if you want to dig deeper you can click the Texas Whistleblower Act tag link and review other posts in this genre.

Just as a reminder, we are also waiting for the FBI to take some kind of action in their investigation of the Ken Paxton-Nate Paul dealings, the State Bar complaint against Paxton for his attempt to overthrow the 2020 election should have a hearing sometime later this summer, and of course there’s the granddaddy of them all, the original state charges that Paxton engaged in securities fraud, which are now eight years old. He’s sure been a busy boy, hasn’t he?

Is Texas Central in trouble?

This story sure questions its stability.

The departure of Texas Central Railway’s CEO has critics of the proposed bullet train between Houston and Dallas optimistic the controversial project has reached its last stop, far short of ever starting construction.

“Texas high-speed rail is collapsing before our eyes,” Rep. Kevin Brady, R-The Woodlands, a longtime skeptic of the plan, said in a social media post. “Today, with no leadership, no funding, no permits and no Washington bail-out from taxpayers, this project is dead.”

Carlos Aguilar, who stepped in as CEO in December 2016 as Texas Central said it was closing in on construction approvals, announced Saturday that he was leaving the company.

“While I could not align our current stakeholders on a common vision for a path forward, I wish the project the greatest success and remain convinced of the importance of this venture for the safety and prosperity of ALL Texans,” Aguilar wrote in a post on the career development site LinkedIn.

Texas Central did not respond to a request for comment.

Aguilar’s departure follows a moribund few months for the company, which dramatically slashed its staff early in the COVID pandemic, while saying it still planned to break ground soon on the 240-mile line between the two metro areas. The Federal Railroad Administration in September 2020 approved plans for the line, mostly along a utility corridor through 11 Texas counties, with a stop near College Station.

While a major step forward, the announcement was among the last significant moves for the proposed train line that was to use Japanese Shinkansen railcars assembled in the United States to whisk travelers between Houston and Dallas in 90 minutes.

For nearly two years, Texas Central announced various reiterations of previous agreements, shed more staff and fought critics who sought to strip it of its condemnation rights.

The issue of whether the company can acquire property via eminent domain remains unresolved, with a ruling pending from the Texas Supreme Court.

CEOs come and go – this one’s departure doesn’t necessarily mean anything. The lack of news is more troubling – TCR had hoped to start construction in 2020, and while we can all understand why that didn’t happen (seriously, look at the date on that post), the fact that they haven’t announced a new target date to start isn’t encouraging. I continue to believe that this project makes a lot of sense, but if nothing else the original contention that a privately-owned and funded railroad could get lines built and trains running in a faster and more efficient manner than a government-run entity has been sorely tested. I hate to think that all of this work could be thrown away and we’d be back at square one, but that outcome is in play. I sure hope to see something contrary to that soon.

Harris County GOP drops its lawsuit over election night vote dropoffs

It wasn’t getting anywhere, anyway.

The Harris County GOP on Friday dropped its lawsuit, filed on the day of last month’s primary runoff election, challenging the county’s plan for counting ballots.

Local Republican party officials argued the county’s ballot transport protocol violated state election law. The lawsuit, filed just hours before polls closed on Election Day, could have caused serious delays in counting ballots on May 24 had the Texas Supreme Court agreed with the Harris County GOP that the plan was unlawful. Instead, the court did not issue an opinion and election night ballot counting proceeded uneventfully at NRG Arena.

[…]

The Harris County Elections Administrator’s office debuted the plan in the May 7 election — deputizing law enforcement officials and full-time county staffers to deliver ballots from the polling location to the county’s central counting station.

Traditionally, the responsibility of transporting the ballots to the counting station on election night has fallen to election judges, the final task at the end of their 15-hour day. An election judge is the person in charge of running a voting location. In a primary election, each polling location has one judge from each party overseeing their own party’s voting process.

The Harris County GOP pushed back on the county’s plan, arguing only election judges are allowed to transport ballots and instructing Republican election judges to drive ballots themselves. The Election Administrator’s office notified Republican election judges they could “opt in” to the county’s plan if they wished, and at least 31 of them did so.

At a May 11 hearing with the state House Elections Committee, Harris County Elections Administrator Isabel Longoria argued the county’s ballot delivery plan utilizing law enforcement officers and deputized staffers is in compliance with Texas law.

Keith Ingram, the secretary of state’s director of elections, told lawmakers in the hearing he disagreed with that interpretation and believed Harris County’s plan violated the law.

See here for the background. As noted recently, the Supreme Court never responded to the initial writ, so I assume this was just a matter of the local GOP deciding it wasn’t worth the effort to continue. With a new election administrator about to come on board, we can revisit the matter and see if there’s a consensus to be had. From what I’ve gathered from talking to people, the multiple-dropoff-locations idea, which had been Diane Trautman’s original plan, is probably the best way to go. But we’ll see what happens.

Would you believe there’s still Renew Houston litigation out there?

This hit my mailbox on Friday.

Today, the Supreme Court of Texas ruled in the City’s favor in Perez v. Turner, a challenge to Houston’s drainage fee, which provides the City with $125 million per year to pay for drainage infrastructure projects.

The Court found that plaintiff’s challenges failed because of Houston’s authority as a home – rule city to enact a drainage program.

“The City remains committed to protecting its citizens and their homes from flooding. The City’s continued ability to charge a drainage fee will allow it to do so in a fiscally responsible way and undertake essential drainage projects now and in the future,” said Mayor Sylvester Turner.

What the heck? Off to the Supreme Court website I scurry, and I find this.

Plaintiff Elizabeth Perez filed this case in 2015 challenging the City of Houston’s assessment, collection, and expenditure of a “drainage fee.” Perez alleged that the ordinance authorizing the drainage fee was invalid because the ordinance was premised on a faulty amendment to the city charter. She sought a variety of relief for herself and a class of similarly situated taxpayers, including a declaration of the drainage fee ordinance’s invalidity, an injunction against the City’s collection of drainage fees, and reimbursement of drainage fees already paid.

The nature of this case changed dramatically in November 2018, while the case was on appeal. The City passed a new charter amendment curing many of the defects Perez alleged in the drainage fee ordinance. Although the parties’ briefing is less than clear about the effect on this case of the 2018 charter amendment, Perez conceded at oral argument that the passage of the new charter amendment significantly truncated her original claims. As we construe what remains of this case after the November 2018 amendment, Perez has two ongoing claims—one for reimbursement of the drainage fees she paid prior to 2018, and one for a narrow prospective injunction against the future expenditure of fees collected prior to 2018. As explained below, we affirm the lower courts’ dismissal of these claims, but we remand the case to the district court to allow Perez to replead in light of intervening events.

What follows was a longish and very technical opinion that my non-layer brain could not quite wade through. I remember the re-vote on Renew Houston in 2018, which became a likelihood after SCOTx ruled in 2015 that the original 2010 ballot language “obscured the nature and cost of the drainage fee”. The case was sent back to the district court, which then voided the referendum. The re-vote was subsequently held to address those issues. One of the original plaintiffs filed another lawsuit after that 2015 ruling to get back the money she had paid in drainage fees and to compel the city to refund anything they had previously spent from ReBuild; this ruling was an outgrowth of that later litigation, which I either didn’t notice at the time or didn’t follow. I think the bottom line at this point is that it’s very unlikely that any new challenges to Renew/ReBuild Houston will succeed, but the plaintiff is welcome to try her luck again in the district court, and maybe in another five years or so we’ll get a final ruling on that.

SCOTx answers the Fifth Circuit’s questions

Some late-breaking SB1 lawsuit news.

The Texas Supreme Court issued a ruling Friday on the term “solicit” as it pertains to the state’s new election code.

[…]

Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters.

State justices rejected that request.

“The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read.

In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request.

The defendant, Texas Attorney General Ken Paxton’s team, said it defined “solicit” as beyond encouragement, but more so “importuning or strongly urging.” Paxton said that stating “please fill out this application to vote by mail” would constitute solicitation.

While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.”

But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation.

“The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

See here and here for the background, and here for the opinion. As noted in the previous update, by this time both sides had agreed that Volunteer Deputy Registrars (VDRs) were not public officials and (I presume) not covered by SB1, and that the Attorney General did not have enforcement power for SB1 (not clear to me if District Attorneys might, however). I expect this means that the Fifth Circuit will rule that plaintiff Cathy Morgan, who is a VDR, has no standing to sue.

On the three-part question that SCOTx did have to answer, my reading is that under SB1 it would be illegal for a county elections administrator to pre-emptively send a vote by mail application to everyone who is eligible to vote by mail, as Chris Hollins did in 2020. Such applications can only be sent to people who ask for them. Providing general information about the vote by mail process, including how to apply, would not be barred. I still think the whole thing is a ridiculous over-reaction to what Hollins did in 2020, and that we should be making it easier to vote by mail in general, but all things considered, compared to where we were before SB1, this isn’t a major setback.

It should be noted that there’s still a lot of room for future disputes here, which likely will remain the case even after a final ruling in this lawsuit. From the opinion, on the matter of the definition of the word “solicit”:

The Fifth Circuit next asks whether “solicits” is “limited to demanding submission of an application for mail-in ballots (whether or not the applicant qualifies).” 2022 WL 832239, at *6. Plaintiffs suggest that the ordinary meaning of “solicit” includes speech that lacks the insistence normally associated with a demand. According to Plaintiffs, the term’s ordinary meaning includes speech that is far less forceful. Indeed, under their view, solicitation includes all the following: “requesting, urging, encouraging, seeking, imploring, or inducing.”

Paxton argues that the Legislature could not have intended to sweep so broadly. He argues, for example, that “solicits” cannot include mere encouragement of an action because the Legislature has used both “solicits” and “encourages” in many statutes, indicating that they have different meanings. See, e.g., TEX. EDUC. CODE § 37.152(a) (“A person commits an offense if the person . . . solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing . . . .”); TEX. PENAL CODE § 7.02(a)(2) (holding a person criminally responsible for another’s offense if the person “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”); cf. TEX. ELEC. CODE § 13.031(a) (stating that the purpose of appointing VDRs is “[t]o encourage voter registration”). Paxton urges us to define “solicits” to exclude mere encouragement and to require “importuning or strongly urging.” But Paxton also concedes that stating “please fill out this application to vote by mail” would constitute solicitation.

Whether a particular statement constitutes solicitation for purposes of Section 276.016(a)(1) will, of course, be informed by the precise words spoken and by surrounding context. We therefore do not endeavor to articulate today a comprehensive definition of “solicits” as the term is used in Section 276.016(a)(1). Nor do we express an opinion as to whether any of the general categories of statements Plaintiffs say they wish to make constitutes solicitation. We will leave for another case, with a more developed record, the task of defining the term’s outer reach. For today, we believe it is sufficient to hold that, for purposes of Section 276.016(a)(1), “solicits” is not limited to demands that a person submit an application to vote by mail. As Paxton acknowledges, “solicits” includes statements that fall short of a demand, such as “please fill out this application to vote by mail.”

So Isabel Longoria is arguing that SB1 is super-restrictive on this point, while Ken Paxton is saying, nah, not really. The Court is saying they don’t want to get involved just yet, better to see what happens in the real world rather than rule on hypotheticals, and work with a more complete set of facts. If the parties’ arguments seem backwards to you, the Court addressed that in a footnote:

In a criminal prosecution (or civil-enforcement action), one ordinarily might expect the government to take a broad view of the statute’s application and the defendant to take a narrow view. But to establish (or defeat) a plaintiff’s standing in a pre-enforcement challenge, the plaintiff has an incentive to argue that the statute does apply to her, while the government has an incentive to argue it does not. The unusual dynamic present here contributes to our reluctance to make wide-ranging proclamations on the issues of state law presented.

In other words, at this point in time before the law has really been applied to anyone, the plaintiffs want the Court to believe that the law is vast and (they claim) over-reaching and must be struck down, while the defense wants the Court to think that the law is more modest and thus not a threat to anyone’s Constitutional liberties. Needless to say, when the law is eventually enforced by someone, those arguments will be reversed.

So it’s now back to the Fifth Circuit. I wish there had been more coverage of this – I grant, the opinion dropped on Friday afternoon and some people have lives – but so far all I’ve seen is this story from a site in Greenville (?) and one from a partisan site; I also found paywalled stories at Law.com and Bloomberg Law, but couldn’t read them. Maybe next week one of the regulars will have something, which I hope will include a bit of analysis from someone with actual law knowledge. Until then, this is what I think I know.

Restraining order given in latest lawsuit to stop DFPS investigations

Good.

An Austin judge has temporarily stopped the state from investigating many parents who provide gender-affirming care to their transgender children. The state has ruled out allegations of child abuse against one family under investigation, but at least eight more cases remain open.

Travis County District Judge Jan Soifer issued a temporary restraining order Friday in a lawsuit filed on behalf of three families and members of PFLAG, an LGBTQ advocacy group that claims more than 600 members in Texas.

Brian K. Bond, executive director of PFLAG National, applauded the decision to stop what he called “invasive, unnecessary and unnerving investigations.”

“However, let’s be clear: These investigations into loving and affirming families shouldn’t be happening in the first place,” Bond said in a statement.

[…]

This new lawsuit, filed Wednesday by the American Civil Liberties Union and Lambda Legal, seeks to block investigations into all parents of transgender children who belong to PFLAG.

During Friday’s hearing, Lambda Legal’s Paul Castillo revealed that the state has ruled out allegations of child abuse against Amber and Adam Briggle, who were under investigation for providing gender-affirming care to their 14-year-old son.

The Briggle family, outspoken advocates for transgender rights, once invited Republican Attorney General Ken Paxton over for dinner. Five years later, they ended up at the center of a child abuse investigation that stemmed, in part, from a nonbinding legal opinion that Paxton issued in February.

While their case has been closed, many others remain ongoing. Castillo said one of the families involved in the lawsuit was visited by DFPS investigators Friday morning.

“I do want to highlight for the court that every plaintiff in this case has illustrated the stress and trauma of even the potential of having a child removed, merely based on the suspicion that the family has pursued the medically necessary course of care that is prescribed by their doctor for gender dysphoria,” Castillo said.

See here for the background, and here for an account from Lambda Legal. The investigation into the Briggle family had apparently been dropped before the hearing, but as noted the others were still active. The judge has directed the lawyers to schedule a hearing in the coming days, at which time we’ll see if the order gets extended. While DFPS had restarted investigations following the Supreme Court’s lifting of the statewide injunction, the investigation of the family from that original case is still paused, so most likely these families will get the same relief. It’s just a shame that they have to go to such lengths to get it.

I would encourage you to read this Twitter thread by DMN reporter Lauren McGaughy, who live-tweeted the hearing. It’s obvious from the way the state argued the case and responded to the judge’s questions that they know they’re on extremely shaky ground – they’re minimizing the Abbott/Paxton order at every turn, and just not engaging the questions as much as they can. That’s not a guarantee of success for these or other plaintiffs going forward, and the next Legislature could enshrine these orders as law if the Republicans remain in control, but it’s important to see the lack of faith in their own case. The Chron has more.